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How to cut current wife from Will

Discussion in 'Estate Planning, Creating Wills & Trusts' started by ryan83382, Sep 1, 2020.

  1. ryan83382

    ryan83382 Law Topic Starter New Member

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    Jurisdiction:
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    Before someone yells "get an estate planner". I live in a small town, only two estate planner's near me, one doesn't pick up, other's secretary has been saying the lawyer will call me back for two weeks now but hasn't.

    Wife and I aren't in good terms, neither plans to divorce, no kids together. I have 3 kids (now all adults) from my first marriage and I want them to inherit everything.

    (1) In my state (MS) a current wife is entitled to a "child's share". How do I avoid this? Can I give 2 kids the inheritance and void giving anything to the 3rd kid and make my wife's child's worth equal to the 3rd kid (i.e. nothing)? Can I give all my inheritance to my first wife (she won't use it and will end up giving it to our 3 kids), this way my kids get nothing and my wife's childs worth nothing?

    (2) House has both of our names on it, but she never paid a cent of the mortgage. How would I prevent her from getting the house?

    (3) 401(k) has her name on it and I can't remove her name without her signature (of course she wouldn't sign this). But I am retired, can I just clean out my 401k?

    (4) I made my kids beneficiaries to my bank accounts, does this mean it'll automatically go to the kids and won't be part of the pot (i.e. wife says kids got x amount from my bank, so she wants her child's worth like the entire house)
     
  2. Zigner

    Zigner Well-Known Member

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    It doesn't appear that you will be able to successfully cut her out of your will, unless her separate property is greater than 1/2 of your estate.

    Do a web search for Mississippi spouse share of estate and research it.

    Also, you don't have to use an estate planner that is in your "small town". Any estate planner in the state can help.
     
  3. army judge

    army judge Super Moderator

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    Many general practice attorneys can draft a will.

    There are also many sites all over the internet that will allow YOU to draft your will for under $200.

    If you're a veteran, your state bar association will draft one gratis.

    The Mississippi Bar :: Wills for Heroes

    However, Mississippi law does not permit a person to disinherit the OTHER spouse in a last will and testament, unless the spouse owns a “separate estate” of at least as much as (s)he would inherit if the OTHER spouse died without a will.

    If you wish to disinherit your spouse, only a divorce will accomplish your goal.

    If you choose NOT to divorce your spouse, NOTHING prohibits you from doing what squirrels are noted for doing. Of course, NOTHING prevents your spouse from the same thing.

    A divorce would prevent what some might term "looting".
     
  4. Tax Counsel

    Tax Counsel Well-Known Member

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    There's nothing you can put in the will to avoid it . That's the point of the law, to avoid one spouse leaving too little of his/her estate to the other.

    No, that won't work. What Mississippi law says is that the spouse is entitled to what she would get if she renounces the will is what she would get if the estate was distributed under the state intestate succession law. Under that law, if at the time you died your spouse and all 3 of your children were living then what would happen is that your wife and kids would split the estate evenly (e.g. each gets 25% of the estate). So if she renounces your will, she would get 25% of the estate, and you cannot do anything in your will to prevent that. If she takes 25% by renunciation then the other gifts in the will may have to be adjusted accordingly, i.e. the gifts to others are going to get reduced.

    You can't prevent her from getting the half of the house that already belongs to her by virtue of the joint title. If the property is currently held as joint tenants with a right of survivorship or as tenants by the entirety then when you die she ends up owning all of it. You very likely can change the title to tenants in common, though, such that your half goes to your estate instead. But then she may still get a share of it by renouncing your will, as discussed above.

    Ask your 401(k) administrator about that since the terms of the plan determine what you are able to do. But if you pull it all out at once you'll take a tax hit. And if you take out the money, what will you do with it? If you move it to a bank account in your name or some other asset only you own then she at least wouldn't get all of it, but if those assets go to your estate she still can get a share of it by renouncing your will.

    You'll need to ask an estate planning attorney how those gifts, which will pass outside the estate, would affect how the intestate share your would get by renouncing the will. I don't see anything that jumps out at me that suggests it would get counted, but I don't practice in that state.

    Ultimately, if you want to avoid her getting anything, you may need to either create a trust and put all your assets in that trust so that no assets go to your estate and/or make gifts of your assets during your lifetime. I strongly suggest you see an estate planning attorney for help because there are pros and cons to each option that you have and you want to find out about all that so you can make a fully informed decision of what to do. If you can't find one in your town, then look outside your town to find a good estate planning attorney.
     
  5. zddoodah

    zddoodah Well-Known Member

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    Before I read your post, I'll ask you, "so what?" There's no law that says you have to use a lawyer in your town. You can call a lawyer in any major city and do basic estate planning via phone and/or Zoom and/or email.

    I'm not sure where you got the idea that a surviving spouse is entitled to a "child's share." Under section 91-5-25 of the Mississippi Code:

    When a husband makes his last will and testament and does not make satisfactory provision therein for his wife, she may, at any time within ninety (90) days after the probate of the will, file in the office where probated a renunciation to the following effect, viz.: "I, A B, the widow of C D, hereby renounce the provision made for me by the will of my deceased husband, and elect to take in lieu thereof my legal share of his estate." Thereupon she shall be entitled to such part of his estate, real and personal, as she would have been entitled to if he had died intestate, except that, even if the husband left no child nor descendant of such, the widow, upon renouncing, shall be entitled to only one-half ( 1/2) of the real and personal estate of her deceased husband. The husband may renounce the will of his deceased wife under the same circumstances, in the same time and manner, and with the same effect upon his right to share in her estate as herein provided for the widow.

    You cannot "avoid this," so the only way to prevent your spouse from inheriting is for her to die first or for you to divorce.

    That doesn't make any sense.

    This made me laugh.

    Bottom line: nothing you do in your will will get you around the provisions of section 91-5-25.

    You don't. It's her house as much as it is yours.

    I have no reason to believe you lack this ability, but obviously, no one here knows anything about the terms of your 401k plan.

    Money in a bank account with a pay-on-death beneficiary passes outside the probate estate.

    Do you recall when you got married and the officiant said something about "for better or for worse"?
     
  6. justblue

    justblue Well-Known Member

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    How long have you been married to your wife?
     
  7. Tax Counsel

    Tax Counsel Well-Known Member

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    You cited section 91-5-25 of the Mississippi Code:

    When a husband makes his last will and testament and does not make satisfactory provision therein for his wife, she may, at any time within ninety (90) days after the probate of the will, file in the office where probated a renunciation to the following effect, viz.: “I, A B, the widow of C D, hereby renounce the provision made for me by the will of my deceased husband, and elect to take in lieu thereof my legal share of his estate.” Thereupon she shall be entitled to such part of his estate, real and personal, as she would have been entitled to if he had died intestate, except that, even if the husband left no child nor descendant of such, the widow, upon renouncing, shall be entitled to only one-half (½) of the real and personal estate of her deceased husband. The husband may renounce the will of his deceased wife under the same circumstances, in the same time and manner, and with the same effect upon his right to share in her estate as herein provided for the widow.

    (Bolding added.) Note the part I put in bold. When a surviving spouse renounces the will of her deceased spouse she is entitled to get an intestate share of the estate except that if the decedent spouse had no children/descendants the surviving spouse is limited to getting half the estate instead of all of it, which is what she would otherwise get under intestacy when the decedent spouse had no descendants. But when there are descendants of the decedent the surviving spouse just takes here intestate share and that one half limitation is not applicable.

    What you didn't do was then turn to the rule for intestate share of a surviving spouse in Mississippi Code section 91-1-7, which says:

    If a husband die intestate and do not leave children or descendants of children, his widow shall be entitled to his entire estate, real and personal, in fee simple, after payment of his debts; but where the deceased husband shall leave a child or children by that or a former marriage, or descendants of such child or children, his widow shall have a child’s part of his estate, in either case in fee simple. If a married woman die owning any real or personal estate not disposed of, it shall descend to her husband and her children or their descendants if she have any surviving her, either by a former husband or by the surviving husband, in equal parts, according to the rules of descent. If she have children and there also be descendants of other children who have died before the mother, the descendants shall inherit the share to which the parent would have been entitled if living, as coheirs with the surviving children. If she have no children or descendants of them, then the husband shall inherit all of her property.
    (Bolding added.) The part I put in bold is the rule for what the surviving spouse gets when the decedent spouse has surviving descendants, which is that the surviving spouse gets "a child's part of the estate."
     

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