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Sunday, June 19, 2011

Do household items belong to the surviving second wife or the step-kids?

This question from a reader addresses something that I think many families and executors have to deal with. My hope is that by reading these posts, you will become more aware of the need for your own wills to be thoughtfully prepared.

Here's the question:

"My husband recently passed away and his youngest son thinks all of his fathers belongings now belong to the estate. He wants to take furnishings and other stuff out of our matrimonial home. Is my stepson entitled to take whatever was his fathers?"

Always start first with the will itself. Many wills have a section that deals specifically with household and specific items (and for those of you reading this post, you can now see from this reader's question what can happen if your will doesn't touch on it). Because the reader is asking this specific question and I of course haven't seen the will, I'll have to assume that it doesn't cover it.

The title to the home can also affect this issue. Was the home jointly owned with a right of survivorship? Generally speaking the items in a home that are jointly used - furniture, linens, dishes, decorative items - are considered jointly owned. This means these items should stay with the surviving wife.

If the title was in the reader's husband's name only, I would check the will for any clause dealing with the home. Ideally, it would deal with the "house and contents" and not just the title to the home. As this is a second marriage, it's quite possible that the house was in one name only. That's not unusual in blended families. As the step-son is lobbying for all items to be in the estate, I'm making a leap of logic to assume that some assets are being left to the surviving wife and the residue of the estate is being left to the step-children.

Items that were personal to your husband such as jewelry and clothing are not considered jointly owned no matter what the title to the house, and would fall into the estate.

To clear up one common misconception, I'd like to point out that the fact that someone gave a gift to the deceased in no way means that the person gets that item back when the deceased dies. I don't know where that idea came from but I've heard it many times. Once you give something away, you have absolutely no right to get it back.

Also take any pre-nuptial agreement into consideration. Though an agreement is unlikely to specifically deal with furniture etc, it might make clarifying statements about items that belonged to the deceased before he was re-married.

The reader doesn't say who the executor is, but it sounds like it might be the step-son, as he is so actively involved in the estate.

My best advice to this reader is to consult an experienced wills and estates lawyer who can look at the will, ask questions and interpret the situation for the reader. I always feel very sorry for the second wife who is left stuck in the middle in these family situations, and I've seen the situation spiral into nasty confrontations. A lawyer can be someone to be on the wife's (or in other cases, the husband's) side.

Be aware that hiring a lawyer in an estate situation can be seen as an act of hostility as there is, sadly, some portion of the population who equates "lawyer" with "hired pit bull". But my feeling is that this reader is going to need some help, much beyond what I could offer in this blog.

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