Dear Liz: My mother and her second husband have been married for over 25 years. They are both in their 60s. I am her only child. Mother has created a will in which I am the sole beneficiary. She owns three properties, two of which are here in California and one is abroad. Do I have any reason to be concerned that my mother’s wishes would be challenged by her second husband or my father, who also lives in California, whom she divorced over 33 years ago?
Answer: Anyone can challenge an estate plan. That doesn’t mean they will be successful. A long-divorced spouse, for example, probably wouldn’t have much standing to dispute a will.
A current spouse, however, could overturn the bequests if the properties were purchased during the marriage because California is a community property state.
That means assets acquired during marriage are generally considered jointly owned. Even if the properties were acquired before the marriage, the current spouse could successfully challenge the will if he contributed to a property — by helping to pay the mortgage, for example.
The chances of a successful challenge are greater if your mother is trying to do her own estate planning, rather than seeking expert advice. The fact that she’s created a will, rather than a living trust — which avoids probate and which is typically advisable in California — is concerning. In addition, bequeathing property abroad can be complicated, to say the least.
Your mother would be smart to consult an experienced estate planning attorney who can assess her situation and offer recommendations on the best way to structure her estate plan. You can help her find someone by asking friends and financial professionals for recommendations. If she’s balking at the cost, offer to pay the bill if you can. You’ll probably avoid future hassles and costs, so it should be a sound investment.