Q: In a descendant's trust can it be left to a descendant's spouse?
A: You can do that intentionally when designing your estate plan, yes.
Yes. However, it must be done carefully. For instance, if you simply list the current spouse by name, but then the descendant later divorces that person, that person is still an heir because he/she was listed by name. There is case law in Texas where the court awarded money to the named individual, even after being divorced from the descendant and even though the descendant had remarried.
So, your attorney should say something like "this share goes to my son David, but if David is not then living to his wife Sarah on condition that they were married on the date of his death. If they were not married on the date of David's death, then this share goes to ___".
Paul Premack, JD, CELA
The Premack Law Office
Phone in TX: 210-826-1122
Phone in WA: 206-905-1122
Certified as an Elder Law Attorney by the National Elder Law Foundation
as accredited by the Texas Board of Legal Specialization and the ABA.
Licensed to practice law in Texas and Washington State
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