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LEAVING NOTHING TO YOUR SPOUSE

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By Lane V. Erickson, Idaho Estate Planning Attorney

As an estate planning attorney in Idaho for the last 20 years I am always interested in things that are done by celebrities when it comes to their estate planning or, after their deaths what occurs within their estate. The reason for this is that I believe many good lessons can be learned from the things that are either done or not done by these famous people.

Recently, the singer Rick Ocasek, from the 1980s rock group The Cars passed away. He died at the age of 75 from a heart attack brought on by cardiovascular disease. Mr. Ocasek, and his wife Paulina Porizkova, who is a famous model, were separated and were in the process of getting a divorce. Because of this, Mr Ocasek wrote in his Will:

“I have made no provision for my wife Paulina Porizkova as we are in the process of divorcing. Even if I should die before our divorce is final Paulina is not entitled to any elective share because she has abandoned me.”

In other words, Mr. Ocasek wrote his wife out of his Will. The question is, can a person really leave nothing to their spouse in their written Will? More directly, can this be done in the state of Idaho?

This really depends on a couple of different things. First of all, because Idaho is a community property state, there is a legal presumption that all the property that is held in the marriage is community property to which both spouses have a joint ownership. In other words, the presumption is that each spouse already owns 50% of all the property that is in a marriage.

This presumption can be rebutted a number of different ways. First of all, it can be rebutted through a written prenuptial agreement or with a postnuptial agreement that is signed by the spouses and that specifically states what property is separate property for each spouse and what property is the community property of both spouses. A person’s written Last Will and Testament has complete control over all of the property they own separately. This is even true when a person passes away with a spouse.

The community property presumption can it still be rebutted even when there is no written prenuptial or post-nuptial agreement. So long as there is proof that shows that the property that is stated in the Will was the separate property of the spouse who wrote the Will, then the written Will will control the distribution of that property. Suppose that a Shepherd spouse had a wedding ring that was given to them as a gift by their spouse. This is separate property. Additionally, suppose that one of the spouses received an inheritance or a gift from their own parents. This would also be separate property. Additionally, any separate property that was brought into the marriage and that remain separate during the marriage, continues to be separate property.

The key is that there must be evidence that shows that the property is separate and that it never became community property. Once this is established, then the written one of the deceased spouse controls the distribution of that property and the surviving spouse can make no claim to it. In other words, yes, it is possible to write a spouse out of a will when it comes to separate property.

If you have questions about your written will, or whether the property you own is separate or community property, we can help. We have talked and helped with numerous clients you’re dealing with these issues and we are confident that we can help you too.

ENLIST AN IDAHO ESTATE PLANNING ATTORNEY TO HELP YOU

If you have any questions about your estate or how to simplify your plans for your family and loved ones, we can help.  Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Pocatello. You can also email Lane Erickson directly at lane@racineolson.com. We will answer your questions and will help you solve your Pocatello Estate Planning problems. I have helped numerous clients create their own customized estate plans and I’m confident that I can help you too.

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