This column first appeared in the San Antonio Express News and other Hearst Newspapers on December 2, 2019.
Dear Mr. Premack: I just got married for the first time in my mid-40’s, and I want to make a Will. I have savings and an IRA. Do I have to get permission from my husband to make a Will? Can I leave what I have to my brothers? – AH
As a newly married person, you should become familiar with Texas’s community property system. Under Texas law, you are sole owner of everything you owned before the marriage, sole owner of anything you and your spouse agree (in writing) to be separately owned, and sole owner of anything you get by inheritance or gift. Everything you earn during marriage is community property, and anything unclear is presumed to be community property.
Consequently, your savings and IRA are your separate property. But wait. One feature of investing is to be paid interest so the funds will grow over time. The interest paid is “earned” during the marriage, so it is community property. If you don’t take action to segregate the new community property, it will be commingled with your separate property. Commingling may give rise to a claim that the savings and IRA are community property – or at least the need to defend their separate property nature – if you get divorced or after you die.
You don’t want to have that type of confusion for yourself or your heirs. The way to avoid the confusion is to have a written agreement with your spouse stating that the growth of your separate property remains your separate property, and so does his. This is called a Post-Nuptial Agreement, and you’ll need a lawyer to assist.
If you allow your IRA to become commingled with community property, then by law your spouse must be named as beneficiary of the IRA for at least the amount of ½ the community property portion. Your spouse can give written consent to name other beneficiaries – like your brothers – but this is an issue you will have to address with the IRA custodian.
Your savings is a different story. Your separate property interest in the savings is yours to do with as you please. But any community property that gets commingled with the savings account must go ½ to your spouse since it belongs to him.
Dying without a Will leaves the situation in the hands of the state. By law, without a Will and with no children, your husband would inherit your savings. He would inherit ½ of your interest in any land, and the other ½ would go to your parents (or, if they aren’t alive, your siblings). Your IRA would pass to its named beneficiary, subject to a claim by your husband for ½ of its community property value.
Hence, you are very wise to be making a Will. But do you need to get permission from your husband to make a Will? Absolutely not. You have the legal right to make a Will while you are competent and capable. You do not need your spouse’s permission to make a Will. Even so, ideally you and your husband should coordinate your Wills. After all, you got married, you love each other, and you presumably want to consider each other’s needs.
You are only allowed to Will assets which you own (which can be best defined if you have a Post-Nuptial Agreement). Your separate property can be devised to your brothers. So can your ½ interest in the community property. Conversely, your husband’s ½ interest in any community property already belongs to him, so you cannot give it to your brothers. Other important items, like the homestead you and your husband may acquire in the future, should be coordinated because when either of you dies the surviving spouse has the legal right to continue to occupy the homestead regardless of who inherits the deceased spouse’s share (unless that right is legally waived or abandoned).
Paul Premack is a San Antonio Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. View past legal columns or submit free questions on those legal issues via www.Premack.com