Spousal Protection & Separate Property Clause
To ensure the properties are protected from divorce but allow a surviving, married spouse to inherit upon a son’s death, you can replace your current draft with the following comprehensive clause:
Protection of Beneficiaries’ Sole and Separate Property “
Protection Against Marital Dissolution: In the event of the legal separation or dissolution of either son’s marriage, the property distributed from this Trust shall not be subject to division as community property, and no spouse or former spouse shall have any claim, right, or interest in such property.
Condition of Spousal Inheritance: Upon the death of either son, any remaining interest in the Trust property allocated to him shall not pass to his surviving spouse, regardless of their marital status at the time of his passing. Instead, such property shall be distributed in equal shares to the Trustors’ then-living grandchildren. The Trustors expressly intend that their daughters-in-law shall not inherit, receive, or claim any portion of the Trust estate under any circumstances.
Important Legal Note: Under California law, once property is distributed outright to a son, it becomes his separate property, but he can technically do whatever he wants with it (including adding his wife to the title or leaving it to her in his own will). If the Trustors want to absolutely guarantee that a divorced daughter-in-law can never touch the property even after the son receives it, they may want to consult an estate planning attorney about holding the sons’ inheritances in a Lifetime Asset Protection Trust rather than distributing the properties to them outright. To ensure the property automatically goes to the grandchildren upon the son’s death, the amendment must state that the sons receive a “Life Estate” or that their shares are held in a “Lifetime Trust.” This allows the son to use the property during his life, but guarantees the grandchildren inherit it immediately when he dies.
Disclaimer: I am not an attorney and cannot give legal advice. I am a registered Legal Document Assistant. The information provided on this website is for general educational and informational purposes only and does not constitute legal advice. If you need legal advice regarding your specific situation, please consult with a qualified estate planning attorney.