Can I will my property to my children and not to my wife? 13 Answers as of October 28, 2011

You can, however, your spouse does have the right to elect to take 1/3 of your estate, if she is left out of the will. She would have to file for this in the Probate Court where your will is filed.

You cannot disinherit a spouse through a will. However, you could establish a trust or a lady bird deed to accomplish your objectives. It is obvious you need the advice of an expert in estate planning.

You can will your property or house to your children without giving it to your wife. However, if your wife receives a share of your combined assets that is less than 5% to 33% of the assets depending on the duration of the marriage, she can "elect against the will" and get some of the assets you didn't give her.

yes. However, your spouse will be entitled to claim a share of your estate, based on the duration of your marriage.

There is no easy yes or no answer to this question. It depends upon a number of factors, including, how title is presently held, the value of the assets in your probate estate and the ages of your children at the time of your death. I suggest that you meet with an estate planning attorney to address your wants and options. We charge $100 for a one hour consultation with an attorney who will provide you with important information regarding your specific case and will able to advise you on the options that you should consider in determining your next steps.

If it is your separate property then you can bequeath all of it to your children. Since you received it before marriage, it would be your separate property unless you transmuted it to community property (i.e., put your present wife's name on title). If it is community property, you can bequeath your community property interest directly to your children.

Like most states, Massachusetts has an Elective Share statute which prevents people from completely disinheriting their spouses. The only way to circumvent the statute is to have well-drafted Prenuptial Agreement in place. Since you are already married, the only way to prevent your current wife from obtaining your property after your death is by divorcing her first.

Property acquired prior to your latest marriage is considered separate property unless you use community funds to support it. You can will your share of the community property and 100% of your separate property to your kids. Failure to create a will can result in your current wife receiving a share of your separate property and 100% of the community property when you pass on.

You can, but depending on the size of your estate, your present wife may get most of your estate anyway if she chooses to take her "elected share" under the law in replace of the will. An "elected share" prohibits one spouse from "disinheriting" the other spouse, regardless of what the will says. Consult with an estates attorney with the specifics of your case. There may be other ways prior to your demise that will ensure your wishes are fulfilled.

The answer to your question depends on a couple of things. Are your children minors? Do you have a prenuptial agreement with your current wife? If the children are adults and you have a prenup where your current wife waived her rights to your homestead and any elective share rights, etc., then yes, you should be able to leave the house to your adult children. However, if the children are minors and/or you do not have a prenup with your current wife, you should probably talk to an estate planning attorney about how to proceed.