This column first appeared in the San Antonio Express-News and in other Hearst Newspapers on August 6, 2019
Dear Mr. Premack: Before my husband and I got married, we both had separate estates worth several million dollars, including some oil and gas royalty interests. My husband died several years ago. His Will was probated, and his estate of several million dollars went to his two children. I don’t have any children of my own, and for many years my Will has directed that when I die my holdings go to his children. Now I’m thinking that they are all doing well enough, and I want my assets to go to several charities – for education, for animal welfare, and for environmental protection. Do I need to worry that his children could contest my choice? How can I set this up so my goals are met without legal interference? – BT
Under Texas law, the assets you own prior to the date of your marriage remain your separate property after you get married. On the other hand, income earned from investments is community property. This can cause a slow commingling of community into the separate assets, raising the possibility of a claim by the other spouse during divorce, or by the other spouse’s heirs after death.
You do not mention whether you and your husband signed a Marital Property Agreement, either a Prenuptial Agreement or a Postnuptial Agreement. If you had, then under Texas law you could have eliminated all community property and eliminated any claim that could be brought by descendants. If you did not, then at the time of his death his children should have raised their claim against any community property component that has commingled with your separate assets.
The fact that your husband left all of his separate assets to his children does not eliminate the possibility of a claim for his share of community assets. Likewise, his separate property may have generated significant community property value which you could have claimed at the time of his death. It sounds like you did not make any such claim, instead allowing all of “his assets” to pass to his children.
At this point, it would be wise to have your attorney contact your husband’s executor. You should seek a written agreement that you waive any claim against your community property share of his estate, if any, and in exchange that his estate and children waive any claim against their father’s community property share of your estate. If agreement cannot be reached, there should be an effort to allocate to you any community property you owned at the time of his death, and to allocate to his estate and heirs any community property which he owned at the time of his death. When that is settled, one way or the other, you can move forward to update your estate planning without concern about legal interference from his children.
The assets which are clearly your separate property – that is, items you owned prior to the marriage and retained as separate assets throughout, and items which you received by gift or devise during the marriage – are under your sole control. You have freedom to re-write your Will and other estate plans in any manner you desire, so long as you have legal testamentary capacity and follow the formalities of the law when expressing your desires.
Leaving your separate property assets to a variety of charities is a worthy goal. Work with your lawyer to be sure your Will properly reflects your wishes and properly revokes your prior Will. Consider informing your husband’s children that you have changed your Will, so that their expectation will be brought in line with your new intentions. Also consider other options, like establishing a Charitable Trust with each charity. Doing so would preserve your income while irrevocably assigning the underlying assets to the charities, would give you a hefty tax deduction to offset your current income taxes, and would severely restrict the possibility of a contest from your stepchildren after you die.
Paul Premack is a San Antonio Certified Elder Law Attorney, handling Elder Law, Estate Planning, Wills, Living Trusts, and Probate. View past legal columns or submit free questions on these legal issues via www.Premack.com.