Estate Law Questions? Ask an Estate Lawyer.
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Were the items that you are concerned about your mother's separate property (in other words did she have them before marriage, inherit them, or receive them as a gift) or were they joint property with your father?
They were acquired throughout her life, but primarily from wedding gifts (silver) and then much less so, things my father bought for her. She was a housewife and he was the income earner. The jewelry and furniture which he early disbursed to us would have almost fully been purchased by him for her during their marriage. She died of illness, not suddenly, and it was very understood that me and my sisters would have these things and not a new wife. She knew he would remarry.
The issue here is one of "character of the property". It is the character that determines what rights you have to it.
Anything acquired before marriage, or during marriage by gift or inheritance was your mother's separate property. That means that at your father's death you can take possession of it since he can't leave a life estate or pass an ownership interest to the new wife since he doesn't have an ownership interest in it.
However, anything they purchased during the marriage that was not a specific gift to her would have been joint/marital/community property and upon your mother's death all she could have passed to you was her share of that property, the remainder would still belong to your father for him to do with as he sees fit.
The wedding gifts are a strange amalgamation because they would have been given to your mother and father either before or just after marriage so they would either be property in which each owned a separate property interest or they would be joint/marital/community property in which each owns an interest.
So what about stuff they got when they were married as gifts? Also, any silver pieces acquired by her during their marriage would have been a gift to her as it was always what she wanted, not him.
Anything that was a gift to her belongs to you children. Anything that was a marital present belongs half to you and half to your father.
Your father's "request" to you in the will isn't binding.
So pieces of silver are dividable, can it be viewed as equally dividable, the stuff they received together or indivisible?
It can be divided. There are a number of ways. First, if there were 8 silver knives, for instance, then 4 could be given to the children for the mother's share.
However, if there is only one tea set, for example, the court can either offset by the parties agreeing something else is equal to that one tea set or the court can order that the tea set be sold to one of the parties and the money divided as appropriate or if no party wants to buy it then the tea set could be sold to an outside buyer.
So am I to understand he could bequeth to his wife his interest in the joint property, but since he has just "requested us", it is not binding and we revert to my mom's will?
No, if he bequeaths his interest to her that is binding as to his share. If he just requests that you allow her to use the items it is not binding.
A bequest is binding, a request is not.
Thanks, best $26 I've ever spent. I've never used this...come from generations of lawyers including my father and I am a law school drop out, how do I find you in the future?
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