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Irrevocable Trust of a home from parents completed during marriage. Is it considered Marital Property...?

Goshen, NY |

....if the transaction was executed during the marriage? Am I in jeopardy of my spouse 'getting' part of the value of the asset in a divorce decree?

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Attorney answers 3


The answer to your question depends on the purpose of the trust. If this was your parents' home, they still reside there, and the intention of the trust was not to pass title to you but instead, in effect, to avoid the possibility of the asset being taken before qualification for Medicare Nursing Home benefits (as one example), then it's unlikely to be deemed a marital asset. That said, you're best advised to bring in a copy of the trust to an Orange/Westchester Divorce attorney.

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The home was put into an irrevocable trust with my siblings to avoid big inheritance taxes and to ensure it stayed in the family after my parents passed. I'm being told it is 'fair game' because that transfer and the ensuing 5 years all occurred while I was married. The conflicting information I got was that it is not a marital asset (unless it was poorly written & executed) but any change in the value of the home Is a marital asset. I am unclear which is true and if it is just the change in value of the home how that is even accounted for?


Attorney Bliven is correct. The key questions will be the intent of your parents. As he noted, retaining an experienced New York divorce attorney is critical. He or she can review the underlying trust instrument, as well as any other estate planning documents your parents executed at the time of the gift to the trust, and determine how to best shield your interest in the trust from your soon-to-be ex-spouse. Good luck to you.

This information is presented as a public service. It should not be construed to be formal legal advice nor considered to be the formation of a lawyer/client relationship. I am licensed in Connecticut and New York and my answers are based upon the law in those jurisdictions. My answer to any specific question would likely be different if I were to review a client's file and have the opportunity to interview the client. Accordingly, I strongly urge you to retain an attorney in your jurisdiction with respect to any legal matter.


The trust instrument will determine who, if either, of the two of you are entitled to any remainder interest. If there isn't any, then without more, it might not even classify as a marital asset regardless of when it was created/funded. If there is something coming to you as a result of the trust, then the characterization as a gift and to whom may come into play, and depending upon who was the donee, then that might be that person's separate property. Of course, there are these and other permutations, but a review of the instrument with an appropriate attorney is your best course.

If you found this "helpful" or "best answer," please click it with my appreciation. My response is for educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.

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