Can a non-contested Living Trust or Will be created for children after 35 years of marriage?

UPDATED: Oct 1, 2022

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Can a non-contested Living Trust or Will be created for children after 35 years of marriage?

Hello, my name is Melissa Smith and I have been married for 35 years. I am wondering if I am able to create a Will or Living Trust for my two daughters who are grown that can not be contested by their Father if something happens to me or if I divorce him? Is it better to distribute some assets to my daughters first?

Asked on March 14, 2018 under Estate Planning, California


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

I think that you should go and speak with a divorce lawyer as well as an estate planner.  You hail from California.  That is a community property state.  Unless these are assets that are solely yours (and that can be a tough one in a community property state) putting them in Trust for another - i.e., not your husband - could be an issue.  A BIG issue.  Becuase if you passed they are all his and in a divorce they are half his.  I think your idea of dsitributing while you are alive may work if he consents to the distribution.  Get help.  Good luck.  

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