Legal Question in Wills and Trusts in Arizona

Our home in case of death

Our home is only in my husbands name. He owned the home when we were married. We have a prenup. that states the house is mine if he should pass away. Would I have to pay an inheritance tax or a tax of any kind on said property because my name was not on the property? Would I encounter any pitfalls because my name was not on the property? In his will he has left everything to his daughter. Would that mean that she would receive the home first and then gift it to me ? would I then have to pay a gift tax? His will was made out before our Prenup. Would that make a difference? Thank you for your help.....


Asked on 3/04/07, 5:01 pm

2 Answers from Attorneys
Monica Donaldson Stewart Donaldson Stewart, P.C.

Re: Our home in case of death

Thank you for your inquiry.

My initial inclination is that the Will would outweigh the prenup regarding the disposition of the property. If it is his intention for you to receive the house upon his death, then he needs to take certain estate planning steps to insure that these wishes are carried out.

We offer a free initial consultation, so please arrange a time to come to the office to speak with one of our attorneys about the options available to achieve your goals.

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Answered on 3/04/07, 5:10 pm
James Jenkins Jenkins Law Center PLC

Re: Our home in case of death

I will disagree with the previous answer posted in part.

In the event of your husband's death he is going to leave a very troublesome situation if he does not correct his estate plan. Please take this seriously.

You do not state whether the will was signed before the marriage or not. I presume it was before. The prenuptial agreement would provide a contract claim for the house, but you would have to file a claim against the estate for the house, since his will states his daughter gets the house. His daughter will presume that it was his wish for her to get it. If she does get it she will not be obligated to gift it to you. This situation is not good. Fix it now is my advice.

The fix is cheap and easy. Your husband can execute a beneficiary deed, leaving the house to you upon his death. Then, to make no misunderstanding, he can change his will, and leave what he wants to his daughter, but not give her the house unless you are deceased, or whatever he wants. This needs to be done by an estate attorney rather than a general practice attorney.

We offer free, no obligation consultations, or I will send you a complimentary copy of my audio CD, "Your Estate Plan." Either way you can call 480.835.1500 if you need further information on how the beneficiary deed works, how the will could be structured, if you need powers of attorney, etc.

Best regards.

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Answered on 3/06/07, 11:48 am


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