[WSBAPT] Inheritance as separate property

[Mark Vohr]

Margaret –

            I don’t believe an LLC will offer divorce protection.  The membership units, which would also be separate property, will be considered by the court in the fair and equitable division of the estate.  I don’t  think there is any way that the court would be precluded from considering the real estate.

            What it seems like the goal is, would be to avoid a divorcing spouse from claiming actual ownership in the property and potentially being a part owner with a freshly divorced spouse.  While community property agreements and/or post nuptial agreements are outside of my expertise, I would thing those might provide a solution.   It might be that the parties could agree in a community property agreement, that the divorcing spouse would agree not to claim an actual ownership interest, avoiding the problem of post-divorce co-ownership, even though the fact of the ownership by the inheriting spouse may be considered in the division of property.

Regards,

Mark

Ohana Fiduciary Corp.

A Washington Chartered Trust Company
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Margaret Delp
Sent: Wednesday, February 16, 2022 12:20 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Inheritance as separate property

Hello everyone: I am working on a probate in which two siblings will be inheriting the family cabin. Apparently, they are both worried about the contingency in which one of them gets divorced and a divorcing spouse claims a property interest in the house, perhaps requiring liquidation. I have advised that the siblings will each take title as tenants in common and as their separate property. I have also advised that they use separate property funds (also inherited) for all maintenance and upkeep of the house. They are aware that in a divorce all property both separate and community is before the court for a just and equitable disposition, and of the factors a court considers in distributing property.

They have asked about holding the property in an LLC. My question - would that provide any additional “protection” for the divorce scenario? Other approaches to suggest?

Thanks much,
Margaret

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