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Idaho Estate Planning and Property Separation Agreements

By Lane V. Erickson, Idaho Estate Planning Attorney

For over 70 years our team of premier Idaho estate planning attorneys at the Racine Law office have assisted each client in creating and customizing their own estate planning documents that will meet their own particular and unique needs. Because Idaho is a community property state, the estate planning that is done for a married couple must consider the rights of both spouses. The reason for this is that because of Idaho's community property statutes the property that is owned by a married couple is presumed to be owned by them both equally at all times during the marriage. This of course has an impact on the distribution of property that is made when one of the spouses passes away.

Our team of Idaho estate planning lawyers have decades of knowledge and experience in assisting clients in creating customized estate plans and helping families through the probate process as well. We utilize a team approach so that our clients can have their needs met immediately. Our team consists of partners Randy Budge and Lane Erickson and attorney Dave Bagley. We are proud that each of our attorneys has received exceptional peer and client reviews during the last several decades

When we meet with a married couple and begin discussing estate planning with them one of the first questions we go through with them is whether a property separation agreement would be a good part of their estate planning. In order to get started in understanding whether a property separation agreement may be something you need to consider, below are three specific things that will help you understand what this type of agreement is and how it can affect your estate planning.

When do You Need One (Hint: Second Marriages)

The first question is always whether you need a property separation agreement or not. Most people don't understand when this type of agreement would be important to use as a tool in estate planning. As the heading of this paragraph says a property separation agreement is useful when you are in a second or third marriage. The reason for this is that usually you have two establish to adults with their own property and their own families joining together. The biggest concern the most people have is what will happen to the property of one spouse when they pass away. An example here might help.

Suppose you have a wife who is on her second marriage because her first spouse passed away. Her new spouse has his own children, and his own property including a house and bank accounts and other property as well. Now suppose that after a few years of marriage the second husband passes away. Originally, he would have wanted all his property to have gone to his own children. However, depending on how, or whether he has his estate planning set up, all of his property may now passed to his surviving spouse even though they were only married for a few years. Then when she passes away all of his property may go to her children completely bypassing his children.

Most spouses that are in a second or third marriage recognize this as a risk and want to take some steps to protect against it. Essentially, most spouses in this type of a marriage want their property and money to be distributed to their own children. This is where a property separation agreement becomes vital as part of an estate plan.

What Needs to be in the Agreement

Idaho law always starts with the presumption that all property owned by a married couple is community property. Because of this presumption, if nothing happens or is changed when a spouse dies all of their property would presumably go to the surviving spouse, regardless of how long their marriage existed. In order to change the community property presumption a couple must go through and prepare a property separation agreement. (I.C. 32-916.)

The contents of a property separation agreement are controlled by statute. In summary, each party must acknowledge and specify the property that is going to be considered community property and the property that will be considered the separate property of each of the spouses. Additionally, each spouse must disclaim any right or interest in and to the separate property owned by the other spouse. Finally, the agreement should contain a section that indicates that each party has had an opportunity to consult with an attorney of their own choosing, and even though they have consulted with an attorney they still desire to enter into this agreement and waive any rights in and to the separate property of the other spouse.

What You do With the Agreement Once It is Signed

If you have gone through the steps of creating a property separation agreement, you are almost done with the steps that need to be completed in order to make it effective. There is just one more step that needs to be done. Once signed, and properly acknowledged, this agreement should then be recorded in the county recorder's office of any County where any real estate is located that is affected by the property separation agreement. By being recorded, this property separation agreement becomes an effective disclaimer of interest in into any real estate owned by spouse as their sole and separate property. In other words, the last will and testament of the other spouse has no impact or control over any of the separate property of their spouse.

Enlist an Idaho Estate Planning Attorney to Help You

Our team Idaho Estate Planning lawyers can help you with any or your 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 consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at We will answer your questions and help you solve your Idaho Estate Planning problems.

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