He says it's because he doesn't like to talk about death, but husband won't add me to will. We have been married 3.5 years. Every time I ask him about it, he says he will do it soon.
Legally, I would like to know what happens if he dies.
He has a son (age 9, lives with us 1/2 time) and we have a son (age 17 mos). He has revocable living trust. I believe he's named me as executor - not beneficiary. I signed a prenup (a few days before our marriage) that says his previous assets are not mine, including the house we live in. Does that mean I can't stay here if he dies? Will I be on the street, managing my step-son's estate from the YMCA?! And what about our son? Does he have a right to anything?
I know you will say he needs to create a new will. That's obvious. What if he does not?
You cannot force your husband to add you to his Will or designate you as a beneficiary in his living trust. If you signed a prenuptial the terms of that agreement would have to be consulted before anyone could advise you regarding what would happen regarding your husband’s estate if he pre-deceased you. The terms of his revocable trust would also have to be consulted, as well as his present Will.
The following Probate Code sections govern when there is an omitted spouse:
21610. Except as provided in Section 21611, if a decedent fails to provide in a testamentary instrument for the decedent's surviving spouse who married the decedent after the execution of all of the decedent's testamentary instruments, the omitted spouse shall receive a share in the decedent's estate, consisting of the following property in said estate:
(a) The one-half of the community property that belongs to the decedent under Section 100.
(b) The one-half of the quasi-community property that belongs to the decedent under Section 101.
(c) A share of the separate property of the decedent equal in value to that which the spouse would have received if the decedent had died without having executed a testamentary instrument, but in no event is the share to be more than one-half the value of the separate property in the estate.
21611. The spouse shall not receive a share of the estate under Section 21610 if any of the following is established:
(a) The decedent's failure to provide for the spouse in the decedent's testamentary instruments was intentional and that intention appears from the testamentary instruments.
(b) The decedent provided for the spouse by transfer outside of the estate passing by the decedent's testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is shown by statements of the decedent or from the amount of the transfer or by other evidence.
(c) The spouse made a valid agreement waiving the right to share in the decedent's estate.
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Yikes, these are questions that should have been raised BEFOE you were married and certainly before you signed a prenuptial agreement. And heaven help you if you signed the prenup without consulting with counsel. You rights are controlled by the prenup and you need to have it reviewed by an estates attorney to see where you stand. Listen, if you are not being taken care of under that agreement you have some really big problems legal and non-legal. Get with an expert estates attorney immediately.
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Estate Planning Attorney
If your husband does not want to plan for you and your son, then you need to. I suggest you look into purchasing some life insurance on his life (you would own the policy so you are sure that the premiums are paid and that he cannot change beneficiaries). If you do decide to buy insurance, make sure you get either a 15 - 20 year "level premium term policy" or a universal life policy or a whole life policy (which is probably prohibitively expensive). A good insurance agent should be able to help you decide which type of policy would be best. Your husband will need to get a medical exam and he will have to sign documents giving you permission to own the policy.
You should also make sure you have your own will (and/or trust) in place to provide a guardian for your son if both you and your husband were to die and also to make sure that your estate passes to your son.
My office is in Palo Alto. If you'd like my assistance, please contact me.
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General Practice Lawyer
Because there is a pre-nup and a revocable living trust, both of those documents need to be examined before your question can be answered. Generally, an omitted spouse is entitled to half of the community property, except for when there is some waiver or other agreement, like a prenup. You should consult with an attorney who can review the existing documents.
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It sounds like your husband has done a good job of making sure that things are set up so YOU do not get anything. That can certainly be changed, but you are not in a position to make those changes. Attorney Brewer gave you a good suggestion regarding the life insurance, provided your husband is willing to cooperate. That may give you a good foot in the door to discuss these matters with your husband. If he is concerned about you, this is something he should take care of.
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