Estate Planning and Separate Property in New York

In the recent case of Leland House v. Webb, a husband initiated legal action against his deceased wife’s executor to quiet title of a property parcel. In response, the executor claimed that the transfer of the property was a gift rather than a sale. After the trial court ruled in favor of the executor, the husband appealed. 


The appeals court found that an aunt had conveyed the parcel to the wife during the wife’s marriage to the husband.  


How property is characterized is often shaped by the time and method through which the parcel was obtained. Among the types of property ownership, there is a presumption in most states that property owned by spouses during a marriage is marital property. If the property is obtained through a gift or inheritance, however, it is often classified as separate rather than community property. 


Consequently, the court held that without clear and convincing evidence, the property was best classified as a gift. This decision came after the court reviewed the deed conveying the property. While the husband argued that the deed lacked the word “gift” or an indication that the wife maintains the parcel as separate property, the court disagreed. Instead, the court found it persuasive that the only consideration in the document was the love and affection of a family member. As a result, the court found that that deed overcame the presumption of community property and affirmed a judgment in favor of the executor.


What Constitutes Separate Property in New York


Separate property in New York includes several types of property. Not only do these assets include property acquired before marriage, but separate property also includes assets that were received during a marriage that were either inherited by one spouse or gifted to only one spouse. Separate property also includes any assets that were identified as such in a premarital agreement. 


Estate Planning Around Separate Property


If you are married, you likely intend for your spouse to inherit the majority of your property if you pass away before they do. You likely have not considered, however, what each term in your estate plan might mean. While there are various strategies to avoid confusion about whether a property should be passed on as a separate or marital asset, one of the best ways to avoid this dilemma is to fully review and understand the various ways in which your estate plan might be interpreted. If you intend your property to be passed in a certain manner, you should also understand that an experienced estate planning attorney can help you make this intent clear in the necessary documentation.


Speak with a Skilled Estate Planning Lawyer

One challenging aspect of estate planning is that if you pass away without the property estate planning documents in place, your wishes might not end up carried out. To avoid this complication, it is a good idea to speak with an experienced estate planning lawyer. Contact Ettinger Estate Planning today to schedule a free case evaluation.

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