Ask Francine

My husband and I want to leave all our assets to our kids, but we have grave concerns about the wife of one of them, and we don't want her to get her hands on any of the money. She and our son live in a community-property state, so we're afraid that anything he gets will become marital property. Is it possible to leave money in a trust exclusively to him? --Name Withheld, Western U.S.

The answer to your legal question is easy, but the family issues around it are thornier. According to attorneys in several community-property states, if you leave money to your son in your will, it is his property alone as long as he keeps it in a separate account under his name. But if he puts the cash in a joint account or uses it to buy his wife a diamond necklace, it becomes joint property. To prevent this, you can set up a trust to be funded after your death, appointing a trustee to dole out the money as needed or for specific uses, such as education for your son's children. There are some costs, however, to having a trust professionally administered. So if the bequest is small, a trust may not work.

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Whatever you decide, be clear about your purposes for leaving the money in such a restricted way. Do you want to protect the money by making sure it stays in your bloodline? Or do you want to protect your son because you see financial troubles or a potentially costly divorce in his future? If your son's welfare is your priority, imagine the scenario that your will might provoke. If he already senses your qualms about his wife, a bequest designed to exclude her may inflame any tensions that already exist between them. And he's likely to feel hurt that you don't trust him. This is especially true if you single him out from your other kids. Whatever you decide, you will want to treat all your children equally.

I gather that you do not believe it would be useful to discuss your concerns directly with your son. Keep in mind that unpleasant posthumous surprises can wound your kids just when they're most vulnerable. What you leave behind should feel like a legacy of love, not a nasty postscript--"P.S., I never liked your wife."

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