Legal Question in Wills and Trusts in California

In general, California community property law only governs what will happen to property acquired during a marriage, and does not affect separate property, i.e., property acquired prior to marriage, but you need to consult with an attorney, who can review all the facts and papers, and can give you specific legal advice. You would appear to be a perfect candidate for a prenuptial agreement, as well.

There are two types of law governing your question; what lawyers normally call a crossover between family law and probate law. Given the facts you have provided, if you marry those assets that you owned prior to marriage will be considered your separate property - unless you commingle the assets after marriage. As an example, if you add to your premarital accounts after marriage from earnings during marriage, your spouse may have a claim against the funds in case of divorce (marital dissolution). However, if you die while married title provides a presumption of your separate ownership of property (Evid. Code Section 662). Your spouse would have to prove that the separate accounts were intended to be community property. Additionally, named beneficiary accounts pass outside of probate except that, as in the discussion, if the surviving spouse can prove that the assets were, in fact, community property they may petition the court to obtain access to the funds.

Your best bet to protect the funds in case of marriage is a prenuptual agreement that states your accounts are your property in case of marital dissolution or death.

For the funds currently in the accounts the designations will prevail. If you continue to use the accounts after marriage and comingle earnings and income received during the marriage with the premarital assets, you will create a mess, unless you intend them to become community property. If you want liquid and semi-liquid assets to retain their separate property character after marriage, you must keep them segregated from earnings, income and assets acquired during the marriage.

In CA, an omitted spouse has certain legal rights that can defeat an existing estate plan, so you are right to be concerned. However, it is possible to create a new estate plan or modify your existing plan to address the fact that you are married and also acknowledge that your pre-existing separate property will be left to the current heirs and that your new wife will only be receiving community property. You need to work with an attorney who can review all of your existing documents and provide more specific advice. Feel free to contact me for a free consultation.

Indeed, as quickly answered by so many, your separate property remains your separate property UNLESS you treat it as community. The existing Trust can be amended to keep separate property separate and note it as such but also include your Wife in the Trust for assets acquired during the marriage. It will also allow her to keep her separate assets her separate assets too. A prenuptial agreement is a smart idea.