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My husband and I are both in our second marriage. We don't have a lot of property, just a house that we own together and our "stuff" around the house. He has a will that leaves his "worldly" belongings to his daughter that I don't like and don't get along with. If he dies before I do, how do I know this woman isn't going to come around and try to take my TV or stuff that I bought or stuff that I bought with my husband? Thanks.

 
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Second Marriage

Submitted Thu, 07/01/2010 - 11:38.

Second marriages very often present this type of estate planning situation. Your husband wants to make sure that he leaves something to his daughter to remember him by, but at the same time wants to makes sure that you are provided for. There is no easy answer.

I have no doubt that your relationship with your step-daughter is only going to get worse after your husband has died, so it is important to address your concerns now while everyone is living and competent. Typically the personal property has little economic worth, but is very high in sentimental value. So it is not unusual for there to be some tension even under the best of circumstances. Your estate planning documents sound perhaps a little overly-simplistic for this situation. Your husband could be a little more specific about what he would like to pass to his daughter and what he would like to pass to you. He could also leave a written set of instructions to the executor as to what his wishes are.

I should note that you might want to review your documents, goals and objectives as well. You mention that you own the house “together”. If by that you mean that you hold the property either as “Joint” owners or as “Tenants by the Entirety”, then the survivor of you and your husband will own the house outright on the death of the first spouse. That means that the survivor’s Will controls what happens to the house. Therefore, if your husband survives you his Will controls what happens to the property. My guess is that the step-daughter would take it all. That may not be what you want to see happen.

The bottom line is that when dealing with these tricky planning situations, it is always best to work with an experienced estate planning attorney. And remember – estate planning is a two step dance: get the documents right, and then make sure that the manner in which you hold your assets is coordinated with the documents. Hope that helps.

Attorney Peter Bernardin

 

Update

For this and other questions dealing with probate in Massachusetts, readers should be aware that Massachusetts has adopted the Uniform Probate Code.

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