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Can a Husband Give His Estate to Someone Other Than His Spouse?

I believe in keeping myself updated with current developments in estate planning and probate law. Because of this, I subscribed to a number of different resources on the internet that provide thoughtful articles and reports on these topics. One of those that I enjoy reading is called “The Moneyist“ which is a regularly written blog created by Quentin Fottrell, a Personal Finance Editor sponsored by MarketWatch. Mr. Fottrell writes not only about financial issues but also a good deal about estate planning, and probate issues that arise that have an impact on finances.

In a recent posting Mr. Fottrell received an email from a woman in a second marriage who said that she felt betrayed because her husband was splitting his estate between her and his only daughter. Her question to Mr. Fottrell was whether her husband could split his estate in this way. She also asked him whether she should leave her husband because of this betrayal.

Reading this article reminded me of a question I am often asked by clients who are in a second marriage. These clients often ask whether they are required to leave their entire estate to their new spouse, or whether they can leave all or a portion of their estate to someone other than their spouse.

This is a good question and one that deserves a bit of discussion based on applicable Idaho law. I’m always glad when clients ask good questions like this because it gives us an opportunity to help our clients understand what their options are when it comes to their own estate plan. At the Racine law office our team of premier Idaho estate planning and probate attorneys have helped clients answer these and many other questions for more than 70 years. We are confident that we can answer your questions and help you too!

To answer the question listed above, which is can a spouse in a second marriage leave their estate to who they want to or are they required to leave it all to their spouse, we will first talk about Idaho’s community property laws. We will then talk about an individual’s ability to distribute their separate property.

Community Property Anytime we are dealing with an estate when a person is married, we have to start with whether Idaho’s community property laws apply. Under applicable Idaho law, there is a presumption that a married couple has a community property interest in all property that is owned during the marriage. In other words, there is a presumption that both spouses each own an undivided one-half interest in all the property that is owned during the marriage.

This presumption applies to all kinds of property including real estate, vehicles, bank accounts, and all other types and kinds of personal and real property. This community property presumption comes up anytime there is either a divorce, or a spouse has listed property in their estate plan, and they have passed away. The reason for this is obvious. In both of these situations, we are trying to determine who will get the property.

If there truly is only a community property interest in items that are listed by a spouse in his or her written last will and testament then the community property laws will apply. In this circumstance, if a spouse wrote a will and either didn’t provide in his will for the surviving spouse, or attempted to transfer community property to someone other than the spouse, then the surviving spouse gets to be treated as an “omitted spouse” under applicable Idaho law.

This is important because a specific Idaho statute allows an omitted spouse to receive the same share of the estate they would have received if the decedent had left no will. When a person has no will they die intestate and the intestacy statutes apply. Under the intestacy statutes, a spouse is entitled to receive all community property from the deceased spouse.

There are other applicable statutes that deal with certain types and kinds of community property as well. All of these protect the spouse when it comes to community property. Because of this, it would be difficult for a spouse to use a written will to divest the surviving spouse of a community property interest in the property of the decedent.

Separate Property

However, things are a little different when it comes to separate property. The community property presumption can be rebutted by providing evidence that property is owned separately by one of the spouses. To illustrate, suppose for a moment that there is a second marriage. The husband brought into the marriage a home he had purchased before he was married to his second spouse. The deed and title to this home is in his name only. When he marries his new spouse, this home will likely remain separate property.

If the husband chooses to have a written will stating that the home will go to his children upon his death, all the children have to do to receive this gift from their father through his last will and testament is to provide proof that the second spouse never had any type of a community property ownership interest in the home. Again, the deed or title to the home will show this. Additionally, other evidence can be provided by the children to show that this is separate property.

When property is truly separate, the decedent’s will actually does control who that property will go to upon the death of the decedent even when it doesn’t go to the surviving spouse. In other words, separate property can be given as a gift through a will by a person without any community property interest attaching to it.

However, if there is no written will, and there is separate property then again, the laws of intestacy apply. Under these statutes, the surviving spouse is entitled to receive 50% of all separate property. The remaining 50% of the separate property typically goes to the children of the decedent.

As you can see, in Idaho, there are many circumstances that could exist that determine whether or not the surviving spouse is entitled to receive the estate from their deceased spouse or not. We have helped many clients who have been concerned about what will happen to their property or their spouse’s property when they died. If you have these questions, we are confident that we can help you too!

Enlist an Idaho Estate Planning Attorney to Help You

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation. You can also email us directly at or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.

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