Can My Partner's Children Contest His Will?

Q: My companion and I have lived together for 12 years. We purchased a house together. He has made me the beneficiary of his retirement account and an insurance policy. His will states that I am the executor of his estate and leaves everything to me.

He has three grown children, two of whom have can't seem to get their lives in order. I've decided to stop being involved with their situations, since it gets quite frustrating.  My companion doesn't want to listen to it either, but he won't tell them that, for fear they'd stop seeing him.

Since we're not legally married, do I have a leg to stand on as far as our possessions? For example, last year he bought me a new car as a birthday present, but the title and registration are in his name.  If his children contest the will, do they get half of all our possessions? -- MD, New York

 

A: Take it easy. It’s harder than you think to get a will overturned.

Yes, your partner's kids can contest his will, since they'd be his heirs if it didn't exist. (For what they'd have to prove to get it invalidated, click here. )

For the sake of argument, let's say they convince a court to throw out the will.

They could then inherit 100% of the assets that are solely in his name.  But anything that you and your partner owned jointly with right of survivorship -- like your house, for example -- would be totally protected.

Jointly owned assets automatically go to the surviving joint owner whether or not there’s a will.  That’s also true for any account that has a named beneficiary: IRAs, 401(k) plans, life insurance policies and annuities all automatically go to the named beneficiary.

The car in your partner's name is a different matter.

"If there's a fight over the car, you may lose," says Stephen J. Silverberg, an estate lawyer in East Meadow New York. Under New York law, a surviving child can transfer a car worth $14,000 or less into his or her own name with nothing more than the title and a copy of the death certificate.

What about other gifts?

As a general rule, whether or not an item was a gift is largely matter of donor's intention – and the burden of proving that intention is on the person who claims it was a gift. "If I gave you a $1,000 check, was it a gift or a loan? Unless you can prove otherwise, the law assumes it's a loan," Silverberg says. "Did I write ‘gift' in the lower left corner of the check? Did I write you a note, 'Here's a thousand bucks I want to give you'?"

But even in the absence of documentary proof, your longstanding relationship would give some weight to your claim to household furnishings and other possessions: "If two people live together for 12 years, that implies some intent even if they aren’t married," says Silverberg.

His advice: You and your partner should document your intentions by writing a letter, addressed to his kids and all your other relatives, stating that you love each other and have chosen your belongings together, and that everything belongs jointly to both of you. Sign the letter, and keep it with your wills, with instructions that it be opened after your deaths.