I recently represented a couple. This was a second marriage for each. They each have children of a previous marriage. They each have property they brought into the marriage. They did not sign an antenuptial agreement. They wanted to set up trusts for the distribution of their estates upon their deaths.
Each client wanted to provide for the other following their death, but also insure that their separate property would eventually be passed down to their children. At the end of our meeting all agreed that a trust for each of them would work best. I set up a separate property trust for the husband and one for the wife.
Oklahoma law allows any disposition desired for separate property. Separate property is normally property received through gift, inheritance, bodily injury settlement or as in this case, it is any property owned before and brought into a second marriage. It is important to keep separate property separate. Do not commingle it with joint property or property owned by spouse. Using a separate trust allows separate property to be identified. A separate trust also allows for separate property to be distributed without a spouse having a claim of inheritance against it.
It is possible to establish any type of distribution of separate property following death. However, when the primary residence is itself separate property, the surviving spouse will normally have a homestead right in the home. That is, the right to live in the home rent free the remainder of his or her life. However, even though this homestead is rent free it is not maintenance free. The surviving spouse claiming a homestead right must pay taxes, insurance and maintenance upon the home. An antenuptial agreement can limit or waive this homestead right. Normally an antenuptial agreement is a good idea. But, even without one, separate trusts, established to own separate property can meet the needs of second marriages.