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

Berkeley, CA |

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

Attorney Answers 6


  1. 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

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  2. 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 estate planning attorney Robert P. Bergman, with offices in San Jose, California. Mr. Bergman is a Certified Specialist in Estate Planning, Trust and Probate Law (State Bar of California Board of Legal Specialization), and has been practicing since 1980. This answer does not create an attorney-client relationship, and is only intended to provide general legal advice within the limits of the question asked. If you wish to create an attorney-client relationship for specific legal advice, it will be necessary to enter into an engagement for legal services. More general legal information about wills, living trusts, and estate planning can be found at Mr. Bergman's main website at www.lawbob.com, or his information website at www.lawbob.net. Mr. Bergman also offers free living trust seminars and wealth preservation seminars at his offices in San Jose. For those unable to attend a live seminar, an online living trust seminar may be viewed or downloaded at www.freelivingtrustseminar.com.


  3. 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 general information about the question posted. I am licensed to practice in the state of California. The information provided on this site should not be used as a substitute for conferring with or hiring a competent legal advice from a licensed attorney that practices in the subject area in your state.


  4. 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. 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 relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.


  6. 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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