I have a premarital agreement with my wife. We are setting up a trust together.

Asked over 1 year ago - Berkeley, CA

Can all items go in the trust even though some are community property and some our separate property?

Attorney answers (6)

  1. Robert Paul Bergman

    Contributor Level 13

    14

    Lawyers agree

    Answered . The short answer to your question is "yes." The trust needs to be drafted so that community property and separate property are clearly defined as such within the trust or in attached schedules. A specific reference to the premarital agreement should also be in there.

    Because of various issues surrounding separately owned property in a marriage being held in a joint trust, you should have an experienced estate planning attorney assist you with this.

    Please remember to mark what you believe to be the best answer to your question. This answer is provided by... more
  2. Russell A. Wyatt

    Contributor Level 10

    12

    Lawyers agree

    Answered . The short answer is yes. If both of you control the property, separately or together, they can go in the trust.

    This may be seen as co-mingling and the separate property could be hard to separate from the community property. I would ask a more specific question to an attorney in your area as there are a lot of details you didn't cover. Good luck

    These materials have been prepared by the Law Office of Russ Wyatt for informational purposes only and are not... more
  3. Rosemary Jane Meagher-Leonard

    Contributor Level 15

    12

    Lawyers agree

    Answered . Yes, all of your separate and community property can (and should) be included in your trust. A properly drafted trust will allow your property to maintain its character even while in the trusts. As the other attorneys have advised, the trust should specifically reference the prenuptial agreement.

    You should have your trust drafted by an experienced estate planning attorney.

    Disclaimer: The above answer does not create an attorney/client relationship. My responses are intended to provide... more
  4. Douglas R Holbrook

    Contributor Level 10

    6

    Lawyers agree

    Answered . It is advantageous to preserve the community property character of
    property. Under your premarital agreement, it likely states what your
    estate plans are to look like. Generally, you would probably have two
    trusts - one for your property, one for your spouse's, taking care to
    preserve the community property advantage if it is in any danger (such as
    having moved to a common law state).

    You need a good estate and property lawyer. Good luck.
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  5. John Noah Kitta

    Pro

    Contributor Level 19

    3

    Lawyers agree

    Answered . Your simple, straight-forward answer is yes. An attorney will have to carefully review your Premarital Agreement to make sure there is not any conflicting language as between the said Agreement and your proposed Trust. Also, if it was not drafted by an experienced attorney, it is suggested that you first have an attorney review the Premarital Agreement to ascertain whether it is court worthy. If there is conflicting language as between the proposed Trust and the Premarital Agreement, it may be possible that the Trust will over-ride the provisions of your Premarital Agreement, which may not be in your best interest. You should immediately seek out advise from legal counsel in your area.

    This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client... more
  6. Susan Kathryn Ashabraner

    Contributor Level 13

    3

    Lawyers agree

    Answered . Yes. Your joint trust can be funded with both separate and community property.

    I urge you to hire an estate planning attorney to prepare your trust. Trusts are too complex for do-it-yourselfers.

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