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Will

I’m a single mother of 5 daughters
living in Boone, Iowa. None on my 5
children are his. I got married in
January 2010. He left me in May 2014.
But we never legally separated or
divorced. He’s a heavy drug user and
criminal. I hear from him occasionally
when he goes to jail. And I seen him 1
time since he left. In 2016 my mom
signed one of her houses over to me and
I’m now a homeowner. On March 8th 2018,
I’m having surgery and I’m always
worried about dying. So, my question is
if I make a will leaving my home and
cars to my oldest daughter she’s 23
and have it notarized will that legally
hold up in court or can my ‘husband’
take everything since legally he’s still
my next of kin?

Asked on February 21, 2018 under Estate Planning, Iowa

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

What you are worried about - and rightly so - is your husband taking an elective share in your estate.  Here is the thing: inherited property is ALWAYS separate property unless you have in some way transmuted it to become marital. The question becomes can you Will that property elswhere to avoid your husband taking the elective share?  I am assuming that the house is in your name only, correct? It appears from the research that I have done that a spouse has a right of election against his or her spouse's estate regardless of the status of the property or what your Will says.  Even a Trust will not help you.  I think that maybe you should consider speaking with someone on a consultation basis about possibly transferring the property to your children now and giving yourself a life estate or just transferring it to them now outright.  I know money is tight but if you lose 1/3 of your estate to this guy it will be much more costly.  Good luck with everything.


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