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How Can I Make Sure My Child Gets Their Inheritance And Not Their Spouse?

If your child is married and you're concerned that they may become divorced, there are ways to protect the inheritance.

The first thing you should understand is that any property acquired via gift or inheritance is separate property. So, if your child were to receive their inheritance, if they would receive it outright, it would be their separate property. So the spouse would have no claim to that property. The problem that occurs, however, is that most people start to do what's called commingle that money. So, for example, your son or daughter receives, say, $100,000 and then they don't put that $100,000 in a separate account. They put it in the joint account where both spouses have access to it. Now that account has been commingled. So, the spouse could potentially have a claim on that property. So the simplest thing to do is have a conversation with your child and perhaps with an attorney and explain that when they receive property, it will be their separate property. And express the concern that you would like them to keep it aside from the community property.

The second thing you can do is have their property, or their inheritance I should say, be held in trust for the child's life. Most people don't want that because it is kind of expensive to continue on with the trust for someone's life and you want your beneficiaries to have their property outright. So it's going to be subject to all those controls and you will want a different trustee because it wouldn't make sense to name your child as the trustee because your child could then basically violate the trust and do whatever they want. So, your best options are to have a conversation with your child about keeping the property separate or have (a dynasty trust is what they are called) but basically a trust in which the child share is held in trust for his life for his benefit. 


Biddle Law is located in San Mateo and Belmont and services San Mateo County including San Carlos, Burlingame and Foster City.



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| Phone: 650.532.3470
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| Phone: 650.532.3470

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