Will a life-estate satisfy the testator’s duty towards his spouse?

Will a life-estate satisfy the testator’s duty towards his spouse?

  • Generally not.  During their lives, spouses are usually entitled to 50% of the family assets.  In most cases the surviving spouse will be entitled to at least half as a direct bequest.

In Erlichman v. Erlichman Estate the couple enjoyed a 53 years marriage.  They started with nothing, and built a $2 million estate together.  All of the assets were held in the husband’s name alone.  Shortly before his death the husband changed his will.  He gave half of his estate to his son, and put the other half in trust.  His widow was to get the income from the trust, and after she died the money would go to her son’s children.

The Court of Appeal said that the trust did not satisfy the husband’s legal obligations to his wife.  Had they divorced each spouse would have been entitled to half of the assets.  On death the surviving spouse was entitled to at least that much.  Had the estate been smaller, the surviving spouse could be entitled to more than half. 

By giving the widow half of the estate outright, she would be independent.  She would be able to spend her money as she chose, without her trustee’s permission.  She would be able to bequeath it on her death as she saw fit, not as her husband saw fit. 

What is an appropriate bequest depends on the size of the estate.  We can help you determine what is appropriate.  Contact us.

Read the case:  Erlichman v. Erlichman Estate