Legal Question in Wills and Trusts in Massachusetts

Re: Gift and marriage

The best way to do this will depend on the value of the Gift and what she wants to accomplish. I am inclinded to recommend an irrevocable trust with your mother retaining some income rights to the property. However, without a great deal more information I am hesitant to make any kind of recommendation.

Moreover, I think it would be best for your mother to talk to an estate planning attorney and do a complete estate plan if she has not already done so. If I can be of assistance please do not hesitate to contact me.

Re: Gift and marriage

I think you misunderstand MA law. Any property you own in your own name is your own property. If your wife's name is not on it, if it is owned jointly or as tenants in common with third persons, it still does not belong to your wife.

When it comes to a divorce, the allocation of property depends on a number of different factors, none of which depends on who owns it. The court could allocate all or part of your interest in anything you own to your wife, especially if she had anything to do in the marriage that enhanced or allowed you time or money to enhance its value.

She could agree not to claim any interest in this property in the event of a divorce, but unless she receives something in return for this promise, it will probably not be enforceable. In the event of your death, you might be better off dealing with it by will or trust.

Not knowing what the property is worth, and your share is worth or likely to be worth at the time of your death, I have no way to tell you about estate tax issues.

I would recommend using a realty or living trust if you want to make sure your wife has no claim. You really have to discuss this in detail with an experienced attorney and pay for the advice and services.