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If my dying spouse is hiding assets & changed her will to divert marital assets to the kids, will a divorce protect me?

Buda, TX |

My spouse is in the end stages of a terminal illness and has rewritten her will to give our adult children her share of the marital assets and control of the family business -- of which I'm the co-owner -- in order to prevent me from selling the house upon her death. Additionally, valuable personal items and cash have been removed from the house by our children. Would a divorce protect my financial interests better than a probate fight?

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Attorney answers 4


Your question states in the call of the question that she has dont this to "her share of the marital assets" if it is her share, then she can do what she wants with it.

Attorney Williams practices FAMILY LAW throughout the State of California and may be reached at (831) 233-3558 and offers free consultations. The response provided in this forum is not intended to create an attorney-client relationship. The information offered in this response is for general informational purposes only and should not be relied upon without further consultation with a legal professional after all relevant facts are disclosed and considered. DANIEL S. WILLIAMS, ESQ. LAW OFFICES OF DANIEL S. WILLIAMS 500 LIGHTHOUSE AVENUE, STE. A MONTEREY, CA 93940 (831) 233-3558 -- OFFICE (831) 233-3560 -- FAX



The issue is whether it's in the husband's best interest to try to divide the marital estate now through divorce rather than being burdened with a contentious probate. Probably a question for someone better versed in asset protection and probate.


Divorce may be a good idea. However I'm not sure that she is competant now. These end of life cases are very difficult. In thinking this thru she can't stop you from selling your share of the house even if she leaves her share to a third party as you can always move to partition the property. If you need help please feel free to contact is.


If you believe your wife does not have testamentary capacity to execute a will or is being unduly influenced by your children, or anyone else, once she passes away you could consider a will contest. Generally will contests are expensive and an up-hill battle, not to mention will probably destroy familial relationships. You might want to think about it as a future option but it a difficult case to prove. Divorce is a safer bet in that you are likely to at least protect your separate property, one-half community and potentially assert fraud on the items the children have received so far (seems like she may have made gifts of community property to the children without your consent).

As far as division of property, your wife can leave her separate property and her portion of the community property to your children. There is no “forced heirship” in Texas, so she can leave her property to someone other than her spouse. Upon her death you can ask the court to partition your portion of the community property from hers. If the house is community and she leaves her half to the children (or even if it was her separate property and she left it to the children), you could assert the homestead exemption and elect to live in the house as long as you wish. More information is needed on the business (what form of business entity, what funds were used to start the company, etc.) to determine how it should be characterized and thus what rights she has in the business.

I am not a divorce attorney, but it might be better for you essentially partition your portion of community property sooner than later via divorce rather than waiting until she passes away. At least with a divorce now, you could ensure any additional gifts she makes to the children are from her property, not community. Also, through divorce you may have the ability to recover some of the funds and property she has given to the children as fraud on the community (if she gave unilateral gifts of community property). This would be something you would need to discuss in-depth with a divorce attorney.

This answer contains general information. None of the information contained in this communication is intended as legal advice. You should neither act nor refrain from acting based on information obtained from the exchange of messages on this website. None of the information contained in this answer is privileged or confidential. You should retain an attorney to provide legal advice regarding this issue. Newill Law Firm provides estate planning and probate services. Call (210) 383-0546 for a FREE initial consultation.


If you did file for divorce you could request the court to enter a Temporary Restraining Order. This would have the effect of maintaining a status quo for 10 -14 days. You could use it to show that during the divorce you should be in control of the community assets. This would assure that the assets would not be wasted. The probate matters would be best explained by a probate attorney. Additionally if you feel that in your spouses present mental state that she needs a guardian then you need to speak to an attorney who regularly practices in that area of law.

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