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Advice: Protecting my Partner though my will

My children might challenge my will
Dear Yetta,

My children from a previous (heterosexual) marriage have never accepted my current partner. I made the mistake of telling them that when I die, I want everything to go to my partner first, and since then they’ve been hinting that they might try to challenge my will. How can I make a will that will protect my partner and keep her from having to suffer needless challenges after I’m gone? Would all this be fixed if we just bit the bullet and got married?

Sincerely,

Lost in Yonkers


Dear Lost,

Certainly being married would extend a blanket of protection to you. However, a good way to make sure that your wishes are carried out when you die, whether you’re married or not, is to have a carefully written will.

In New York and many other jurisdictions, you can’t just write out your will and sign it; you have to have witnesses who will attest that they observed you executing it. Your best bet is to hire an experienced attorney who can take care of all this for you. All too often, surviving partners try to probate wills that their deceased partners had downloaded from the Internet and executed, only to find out the wills will not be probated.

You can cover a lot of things in a will. For instance, you could give your partner full use and enjoyment of your property during her life; and on her death, have it pass to your children. You could also create a trust that “owns” your house during your life, and on your death, all of your wealth and other earthly goods are “poured” into it. Your partner could enjoy the income from the trust and live in your house and, when she dies, the trust can pay out to your kids.

There are tax issues to consider with all of this, of course, but whatever option you choose, you may also want to consider including a “no contest clause” in your will. This clause basically means that anyone who challenges the will forfeits anything he or she might inherit. For you, this would mean that if your kids brought a challenge to your will, they could be giving up any right to whatever’s left when your partner passes away.

Wills are hard to challenge as long as they are properly prepared and executed, and the court will aim to respect your wishes.

—Yetta


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Email questions to to kurland@kurlandassociates.com or call 212-253-6911.


*This column is not a consultation with an attorney and should in no way be construed as such or as a substitute for such consultation. Anyone with legal issues or concerns should seek the advice of her own attorney.
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