Divorcing or not, sibling owns inherited property separately
Q: My mother recently died and left her estate to her seven children. One sibling is about to get divorced. Should she delay the paperwork associated with inheriting her share of the estate until her marital status changes, or is there a time limit associated with when she must apply for her share?
A: The sibling who is about to get divorced is already entitled to the inheritance. She is treated as already owning it, whether or not your mother’s estate has been probated and whether or not her share has been distributed to her.
This should not pose much of a problem for her because the inheritance is her separate property, meaning it belongs entirely to her. Her husband does not own any portion of it.
However, if the inheritance earns income, that income is community property. From the date of your mother’s death until the date of their divorce, half of that income will be owned by her husband. Typically, though, income from investments is small.
But it is possible that in dividing up their community property, more will be allotted to her husband because of her new, possibly significant, inherited wealth. Even though community property is owned half by each spouse, in a divorce, more of it can be awarded to one spouse to the exclusion of the other spouse.
Q: I have a living trust and a pour-over will. All of my investments are either in the trust or they have beneficiaries designated. Since there will be no need to probate my estate after my death, is it possible to get letters testamentary and not go through probate?
A: The only way to get letters testamentary is by going through probate.
But there will only be a need for letters if your estate consists of assets that don’t automatically pass to a beneficiary, or if some other asset happens to be payable to your estate. In fact, that’s the reason why you have a pour-over will, just in case it is needed.
Q: A few weeks ago, you said that if a spouse dies without a will, their home will belong entirely to the surviving spouse unless either spouse had children from a prior marriage, in which case it would belong one half to the surviving spouse and half to the children. But what if there are prior children but the home is owned as “tenancy by the entirety”?
A: Tenancy by the entirety is not a form of ownership used in Texas, but you will occasionally see a home owned as “joint tenants with rights of survivorship,” which is essentially the same arrangement. In that case, the home would pass to the surviving spouse, as the ownership arrangement overrides the fact that there are prior children.
The information in this column is intended to provide a general understanding of the law, not legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.
Ronald Lipman of the Houston law firm Lipman & Associates is board-certified in estate planning and probate law by the Texas Board of Legal Specialization. Email questions to stateyourcase@lipmanpc.com.