If my husband dies tomorrow and he has a child from a previous marriage, can the ex wife get some of my property?

Asked over 4 years ago - Houston, TX

I am trying to figure out how to protect myself and my son. My husband has a son (he's 13)from a previous marriage (whom I love), but the ex wife if a terrible person. Can she come after part of my home (which I purchased myself before I ever married him), my 401k plan, and his life insurance policy that I pay for if something happens to him? Someone told me she can and I am shocked that this could be. Please help me figure out how to protect everything I worked for myself that I want to leave to my son.

Attorney answers (3)

  1. Randall S Perrier

    Pro

    Contributor Level 10

    Answered . It appears that you and your husband reside in Texas. Because Texas is a community property state, upon the death of either you or your husband, all property -- irrespective of whose name it is titled -- is presumed to be community property (i.e., one-half your and one-half his). This presumption can only be rebutted by clear and convincing evidence.

    It sounds to me like you could prove with clear and convincing evidence that you purchased the home and had several other assets prior to your marriage. A complicating factor, however, is that, under Texas law, the income you receive on assets that you held as separate property before you were married is considered community property. This being the case, it can be very difficult in the future to figure out what was yours when you came into the marriage and what assets are the result of income received since your marriage or interest compounding upon income received since the marriage.

    Not to worry though, the solution is simply to sit down with an estate planning attorney to develop a plan that allows you allocate your assets among your spouse, child, and step-child as you wish. Because major changes in the Estate and Gift Tax are happening even as we speak, I strongly recommend that you seek out the counsel of a Texas attorney who is a board certified estate planning and probate lawyer.

    Best of luck to you,

    Randall Perrier

  2. Sammy Eugene Lucario Jr.

    Contributor Level 12

    Answered . Short answer - no. Any property that you had prior to marriage is your own separate property and cannot be touched. Life insurance policies are contracts - whoever is the named beneficiary on the policy is the individual that collects. As for your 401 plan, any amount that was there prior to marriage is yours alone. Any amount added during the marriage is community property, meaning your husband (not his ex-wife) is entitled to a share if you were to divorce. No matter what, the step wife will receive NOTHING. If your husband has any assets of his own and dies without a will, a portion of his estate would go to his current spouse (you), and his children. If this happens,hire a good probate attorney to ensure that any assets that would go to the son are put into a trust for his benefit. This will help ensure that the spouse cannot touch these assets.

    Any information obtained at this site is not, nor is it intended to be, legal advice. Please consult an attorney for individual advice regarding your own situation.

  3. Steven J. Fromm

    Contributor Level 20

    Answered . If you are currently married to your husband, I am not sure how his ex-wife has any rights to his estate assets, let alone assets that are in your name alone or are to become yours from your husband's designation of you as beneficary. I just do not see her with any rights under the facts you have presented.
    By the way to protect your assets, immediately sit down with an estate planning lawyer to draft a will and perhaps a trust and to set up your estate plan to protect your assets. If you are that concerned and as a matter of prudence, do this and do it now.

    Hope this helps.
    LEGAL DISCLAIMER
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