Idaho Law Blog
In second marriages, when one or both spouses have children from a previous marriage, it is common for husband or wife to draft their estate planning documents in a way to ensure that their children from the previous marriage will inherit. One way to accomplish this desire is to devise all community property to the new spouse and all separate property to the children from the previous marriage. However, if this is not done properly, the surviving spouse may be able to swoop in under the homestead allowance and take the separate property that was meant to go to the deceased spouse’s children from the previous marriage.
Idaho Code § 15-2-402 states that:
“The homestead allowance is exempt from and has priority over all claims against the estate…The homestead allowance is in addition to any share passing to the surviving spouse…by the will of the decedent unless otherwise provided in the will, or by intestate succession, or by way of elective share. The amount of the homestead allowance shall be fifty thousand dollars ($50,000)…The right to a homestead allowance is determined as follows:
(a) If there is a surviving spouse of the decedent, the surviving spouse shall be entitled to a homestead allowance…”
The Idaho Supreme Court has held that the homestead allowance applies to separate property of the deceased spouse. Simmons v. Ewing, 96 Idaho 380 (Idaho 1974). For example, if Wife’s Last Will and Testament gives all community property to Husband and $60,000 of separate property to her children from a previous marriage, Husband may be able to swoop in and take $50,000 of the separate property intended for Wife’s children from the previous marriage. Again, Idaho Code § 15-2-402 allows Husband to take the homestead allowance in addition to any share passing to Husband in Wife’s Will.
If it is your desire to ensure that your children from a previous marriage inherit your separate property, it is vital that you have language in your Last Will and Testament to prevent the surviving spouse from spoiling your plans. If you have any questions regarding the language required to pass property to your children, please do not hesitate to contact us.
Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Matthew P. Stucki and the Racine Olson team of Estate Planning attorneys in Pocatello, Idaho Falls, or Boise. You can also email Matthew P. Stucki directly at mps@racinelaw.net. We will answer your Idaho, Estate Planning questions and will help you determine how to meet your personal estate planning needs.
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