How are assets divided if I brought more to the marriage at the time?

1 answer | Last updated: Oct 15, 2016
A fellow caregiver asked...

Following my spouse's death, I remarried a wonderful woman. I sold my house and brought $250,000 into the family when we got married. I paid off my wife's $25,000 student loan and we put down $160,000 down on a retirement home. We have the same annual income and we have the same amount in our 401k. We are discussing having a will made up and I was wondering how our assets would be distributed in the event that we both die in an accident. My wife has three grown children from a prior marriage and I have one child.

Expert Answers

You need to see an estate-planning lawyer. There is no one clear answer to your question. Among the issues you need to resolve are: what property is yours, what is your wife's, and what do you own in common? Then each of you must decide how you want to leave your property (including your share of co-owned property). In other words, who do each of you want to name as his or her beneficiaries, and what property does each beneficiary receive? You also need to resolve what happens when one spouse die. Does the other spouse have the right to live in the house until he or she does?

Normally, wills and living trusts contain a "simultaneous death clause." Such a clause provides, in essence, that if both spouses die in a common accident, each spouse's property is treated as if he or she survived the other. How, you might ask, can this logically be? How can I be presumed to have survived my wife, for purposes of my property, but she be presumed to have survived me, for purposes of her property? The answer is that this works to achieve the results each spouse wanted. Or, as Oliver Wendell Holmes stated, "The life of the law has not been logic; it has been experience."