'My will says my home should go to my children': Does my husband have any ownership claim on my house? He spent $85,000 on repairs.

By Quentin Fottrell

'My will, created before my 2021 marriage, states that my home should go to my children'

Dear Quentin,

I live in a community-property state. I divorced my first husband in 2006, and the house was deeded to me. In 2015, my new partner moved into my home. In 2020, he paid for a home improvement around $85,000.

In 2021, we got married. In 2022, I realized my ex-husband was still on my mortgage loan with me so I did an assumption where I assumed the entire mortgage. Currently, the mortgage loan and deed are in my name only (and will remain that way).

My will says my home should go to my children. It created before my 2021 marriage. I'm aware that my husband has a right to stay in the home until his death and then ownership goes to my children.

As long as I pay the mortgage from my separate checking account, does the house remain separate property no matter what home improvements my husband chooses to finance throughout the years?

Wife, Mother & Homeowner

Related: 'I'm weary of repeating myself': How do I deal with rich friends who take $22,000 cruises and book $800 hotel rooms? Prices are crazy enough already.

Dear Homeowner,

You're playing with hammers, nails and fire if you believe that your house will always remain separate property, and you're building an estate plan on clouds of cotton if you believe that your husband automatically has the right to live in your home after you're gone.

The $85,000 your then-boyfriend gave to you was either a gift or a loan. If there was no loan agreement, it's legally and technically a gift. (There are limited occasions where a loan could be based on an oral contract, depending on the state.)

If, on the other hand, your husband had contributed $85,000 to your home while you were married, that would almost certainly have commingled the asset, meaning it would be "transmuted" from separate property to community property.

Given that you would like your husband to live in your home for the rest of his life, assuming you predecease him, you should put that in your will. Don't assume that he will automatically inherit your house after you die. Intestate laws vary by state.

You could set up a revocable trust whereby your husband has the "right to occupy" your home for the remainder of his life and, after he passes away, your children would inherit the property. The trust should specify that he would have to pay for all the maintenance, taxes and fees.

What's more, the trust could have an "early expiration" clause where your husband would forfeit his right to live there if he moved out for a specified period of time, if he decided to remarry and/or he fell behind on property taxes and let the house slide into disrepair.

Dying intestate

And if you did die without a will? Your house would go through probate, a public accounting and distribution of your assets under the laws of your state. Other separate accounts (life insurance and bank accounts) would go to whomever is listed as a beneficiary, assuming there is one.

In California, a community-property state, your spouse would inherit one-third of your separate property and all of your community property, and your children would inherit two-thirds. (If you only had one child, your separate property would be split 50/50.)

However, if you died intestate in Texas your husband would inherit all of your community property and one-third of your separate property, but your spouse would have the right to use your shared primary home and one-third of all remaining real estate for the rest of his life.

It gets even more complicated. To use these two examples again: In Texas, the appreciation on separate property during your marriage is generally considered separate property, but in California, the appreciation on separate property is regarded as marital property.

A trusts and estates attorney will be able to tell you whether all of your wishes are included in your will, as it stands. You want to do right by your husband and, while you don't say whether he contributes to rent or utilities, you may wish to revisit the subject of that $85,000.

Previous columns by Quentin Fottrell:

'Our children don't have the discipline to manage their own money': My wife and I have $4.5 million saved for retirement. How long will this last?

'They left nothing except junk': My brother emptied our father's house. It stands empty years after his passing. What can be done?

'My brother and sister are villains': My siblings took control of my late mother's estate and won't reveal the contents of her trust. What do I do?

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-Quentin Fottrell

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06-02-24 0808ET

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