I want to leave everything to my son, but if I die first, I want my wife to still have the house until she dies.

I am not yet married and she is willing to sign a prenuptial agreement. She is
comfortable with my intentions. I have two houses, one is paid for the other I
still owe on and am renting it out. When I die, I want my wife to keep the house
and keep the rental income until she dies and then I want my son to inherit both
houses. I don’t know if a prenuptial agreement will apply after my death. I
don’t know if that can be written into a will. Can it?

Asked on May 1, 2016 under Estate Planning, Michigan

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

No, a pre-nup does not apply after you die; the only documents that controls what happens to asserts or income post-death are a will or a trust. However, everything you want to happen is something which can be done in a will: for example, you can give your wife a life estate to live in the residential home for the rest of her life, and give you son a "remainder" interest such that the home goes to him when she passes. Similarly, she could be given a life estate in the income property, or that property could be placed in a trust, with the income going to her until she passes, then the trust dissolves and gives the home to your son. Any competent trusts and estates attorney can write up your wishes into a will that will see them done.


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