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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 33710
Experience:  15 yrs estate law, real estate. Wills/Trusts/Probate
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If a person had a will that divided her assets, basically 2

Customer Question

If a person had a will that divided her assets, basically 2 annuities, evenly between her 2 children, would her current husband have the right to override the person's wishes and take the money for himself? He's stating that in AZ, the surviving spouse has rights to the money despite the presence of a will stating otherwise.
Submitted: 1 year ago.
Category: Estate Law
Expert:  Barrister replied 1 year ago.

Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.

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Is the person's estate named as the beneficiary of the annuities? The reason I ask is that normally an annuity has a specifically named beneficiary to receive it when the owner passes..

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Was the annuity purchased prior to any marriage?

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Was it purchased using marital money?

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thanks

Barrister

Customer: replied 1 year ago.
My mom is trying to set up annuities with my brother and I as the beneficiaries. She is also drawing up a will with the same intentions. She is with a tax accountant with my step father, and both the accountant and my stepfather are telling her she can put us kids as beneficiaries on the annuities, but her husband will have to "sign off" and approve a will that disallows him from inheriting the money. I was under the assumption that a will trumped the "marriage" rights, but maybe I'm wrong? If you could point me to a statute that addresses this I'd be appreciative.
Customer: replied 1 year ago.
The annuity is being purchased with inheritance from my now deceased grandmother
Expert:  Barrister replied 1 year ago.

It sounds like mom is getting kind of correct advice. Anything purchased during the marriage is a marital asset with a few exceptions that are very important. So father would normally own half the annuity and would have to disclaim any interest in writing so that mother would be able to name whoever she wanted as a beneficiary. But if she does so, the annuities are paid directly to the beneficiary, like an insurance policy and aren't part of the person's estate.

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So the annuities wouldn't go through probate and be subject to any will as it only deals with assets the deceased had in their name when they passed. The only way a will would control an annuity would be if the estate was named as the beneficiary.

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With that said, I mentioned exceptions and this is a big one for her.. If she is using an inheritance that she received that was never mixed with marital money, then that money is her separate property and anything that she bought with it would still remain her separate property. So if she took separate inherited money and bought an annuity, that is still a separate asset as they retain the same characteristics and don't become marital unless she added husband to the ownership of it.

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So husband has no legal claim to any of the inheritance money as long as wife kept it separate from the marital money.

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But it is actually the other way around...in AZ a marriage generally trumps a will regarding community property, but not regarding separate property. This is because a spouse has the right to claim half of any community property that was acquired during the marriage regardless of what a will says. So wife can do with her half whatever she wants to in her will, but the husband has the right to 50% of it. With regard to separate property, she can leave it to anyone she wants to in her will as husband has no legal claim to any of it. (Arizona Statutes - Title 25 - Chapters: 318

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So here if she is purchasing the annuity with separate money from an inheritance, the annuity is her separate property and she can name whoever she wants to as the beneficiary without husband's consent or signing off.

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So with all that said, the short answer is no, husband has no rights to override wife's will if she purchased the annuities with her separate money from the inheritance.

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thanks

Barrister

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