Dear Moneyist,
My husband wrote a secret last will and testament when we were in a bad place in our marriage. I do not know what is in this new will, but it’s still current and in his brother’s possession. We are in a much better place in our relationship now. However, I would like to write my own will. My husband is currently the beneficiary on my life-insurance policy. I would now like to change that, and split this 50/50 between him and my daughter.
Some questions: Would I have to change the policy? I do not want him to sell any of the assets in my name as I want to make sure they are secure for my daughter’s future. Can I specify this in my will? I would like to leave my 401(k) and IRA accounts to my daughter and husband, splitting them 50/50. What is the best way of doing this? Should I specify this in my will? Is it legal for me to write my own will without my husband’s knowledge?
The Wife
Dear Wife,
The most efficient way to do this is to change the beneficiary on the policy. Talk to your estate lawyer about a trust for your daughter, should she still be a minor at the time of your death. Make separate wills and keep them with your attorney. Many states allow you to file your will with the probate court; it’s not a job for relatives. However, you need to change the beneficiary on the actual life-insurance policy; such beneficiary designations are excluded from probate automatically. Under federal law, your husband will need to sign a waiver to relinquish his claim to your 401(k).
I urge you both to be 100% open and honest about your plans. If your husband discovers you changed the beneficiaries on your IRA account, it would erode the trust you have built up now that your relationship is going in the right direction. A breach of your trust today could lead to an unraveling of your relationship and bank balance. If you live in a community property state, your marital assets would be divided 50/50. If you live in an equitable distribution state, they are divided in a way that is fair and equitable should you divorce.
The bottom line is that your husband can make a will without your knowledge, as can you. Under the law, a person making a will (or signing a power of attorney) must be of sound mind — also known as “testamentary capacity” — and not under or subject to duress, restraint, fraud or undue influence. But laws do vary by states. For example, in Pennsylvania each spouse can write a separate will, but you can’t can’t create a will that cuts your husband out of all inheritance, according to Karen Ann Ulmer Attorneys at Law, which has offices in that state.
“‘All of these talks — financial, legal and personal — prevents dry rot from setting in. ‘”
“You can elect to receive a third of qualified property under this election,” the law firm says. “Qualifying property includes: any property that would go through probate or be included in a will; property associated with income that the spouse was entitled to during the marriage; part of joint accounts the deceased spouse owned; annuity payments if the spouse that passed away was receiving payments from an annuity purchased during the marriage; and gifts of more than $3,000 made within the year prior to the other spouse’s death.”
State laws aside, the fact that your husband made a new will and you have not discussed it obviously raises red flags about trust and transparency in your marriage. I encourage you to face this issue head on and talk about the reasons he acted unilaterally without discussing it with you. Research shows that financial reasons are one of the main causes for divorce. It’s time to discuss these end-of-life plans together. Having discussions about inheritance is good practice for you both when it comes to estate planning, and your day-to-day financial planning.
These discussions are often difficult, but necessary, and the more time you have these talks the easier they will become. Today, you may have a frank talk about saving for your daughter’s college fees using a tax-advantaged 529 plan, and tomorrow you could have an equally awkward discussion about how you each engage with each other on an emotional level. All of these talks — financial, legal and personal — prevents dry rot from setting in. Full disclosure bodes well for the longevity of your relationship, and your willingness to ensure that you are a team, and have learned from your past mistakes.
Readers write to me with all sorts of dilemmas.
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The Moneyist regrets he cannot reply to questions individually.
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