Can you do a prenup for a future inheritance?

[Deleted]

I'm glad I didn't commingle premarital assets.  My ex could have totally wiped us out last year.  It was bad enough as it was.

[Deleted]

Pre nup doesn't have to be all or nothing shoob. I can be structured like Athena suggested... Most are.

[giramomma]

Dec 29, 2014 9:53:17 GMT -5 Lizard Queen said:

I would imagine that she'd be as protected as if there wasn't an inheritance in the picture.  Alimony, child support, or whatever the judge deems applicable.

I may be weird, but I feel like the inheritance still sort of belongs to the person who passed on, and their wishes should be considered whenever deciding what to do with an inheritance.  I feel like it's a complete separate thing from a marriage--just a bonus that can be helpful to the inheritor.  But to quote the president, "they didn't build that".  Whatever the couple builds together, that is what they split.

I wouldn't assume that.

[Bonny]

Dec 29, 2014 9:45:20 GMT -5 justme said:

Dec 29, 2014 8:34:37 GMT -5 thyme4change said:

My understanding is that property can remain sole and separate property as long as joint assets are not used to maintain and uphold the property.  

Seems best to have someone sign a document that says they understand they do not have a stake in the property, but you might have to have a separate bank account that is funded by your income or some other personal money that pays the taxes and the electricity bill, etc.  I guess if you decided to live there you could charge your spouse rent.  Or maybe you could charge him for nights you spend there on vacation - but I would get that in writing.  You would hate to lose half the property because he buys a lightbulb for the bathroom or whatever. 

Ack! I didn't even think about the spouse spending time there and funds that could give him a claim. It's not winterized so we can't live there. Or about using both our funds for it. Ugh.

All the more reason to buy a condo now to eventually use rental money as funds for the cottage.

Or finally winning the lotto. That'd help.

thyme4change, I don't think the spouse can make a claim to ownership just by spending time at the property. It would be some merit to a claim if the spouse's labor was being used to maintain or improve the property.

I agree with mwcpa that setting up a Trust with its own bank account is the tool to use. I'd also want the spouse to sign a quitclaim so it was clear to everyone.

Property is difficult to keep separate unless it has its own source of income since each spouse's wages are considered part of the marital estate. 

ETA: My DH wanted to know if I would sign a pre-nup because of his future inheritance. I said yes. He never had me sign one. He just wanted assurance that I wasn't marrying him for his money. When he did inherit his money he transferred everything into joint accounts/ownership. I'm not sure I would have done the same.

However had he kept his money separate I never would have agreed to quit my job and move to AZ and then Germany for his career.

And like giramomma the difference in monetary assets has caused issues in our marriage.

[justme]

Unless something bad happens to my parents I don't think there will be funds for a trust. Especially thanks to the property being in Canada.

Maybe just have him sign a quit claim every year? Lol

[Bonny]

Dec 29, 2014 11:58:43 GMT -5 @anne81 said:

DH asked me to sign a pre-nup. I agreed, we met with a lawyer, and then he decided we didn't need one.  Over the years he's moved what he can into joint property.  I told him I would not be a SAHM without something in my name.

I think it's a useful conversation for your son and his fiance to have whether or not they choose to get one.  It makes you contemplate what's fair, how you envision your family looking, what your future financial plans are, etc.

I like this so much I'm quoting it!

[Bonny]

Dec 29, 2014 13:35:04 GMT -5 @anne81 said:

I like this so much I'm quoting it!

Aw, thanks.  To be honest it was a tearful series of conversations.  We both had to admit our fears (you just want me for my money, you'll leave if you have it, you'll cheat on me with a younger chick and leave me broke after being a SAHM, you'll use money to control me, how will our respective contributions be valued, what messages did we get from our parents about money, etc) and confront the level of risk we were willing to take.  It's a pretty sobering conversation to have while planning your wedding but so worth it.

I wish we had the same discussion. We're now having it almost 26 years later!

[thyme4change]

justme & Bonny

I think I phrased myself wrong.  No, I don't think spending time there creates a claim, but if you need some of his income to maintain the house, you would have to structure the exchange of money as a non-marital transaction.  If you were to both live in the house, but you couldn't afford the taxes, maintenance, improvements and utilities on your own, you could charge him rent. That would keep the property "yours" but still have his money to provide a home for you.  Same with a vacation property.  If the roof caves in, and you need ten thousand dollars to fix it, if you don't have it in your account of sole and separate property, maybe your marital account can do a loan to you, and then you would have to pay you back.  But, you would want it in writing, otherwise he says "I bought the roof, therefore it is our joint property."

[Deleted]

Dec 29, 2014 9:53:17 GMT -5 Lizard Queen said:

I may be weird, but I feel like the inheritance still sort of belongs to the person who passed on, and their wishes should be considered whenever deciding what to do with an inheritance.  I feel like it's a complete separate thing from a marriage--just a bonus that can be helpful to the inheritor.  But to quote the president, "they didn't build that".  Whatever the couple builds together, that is what they split.

It depends. I think my late in-laws would have been happy to see me walk off with 40% of the equity in the house bought using a down payment from the estate after his mother died (she was the surviving spouse). Their son (my Ex) squandered a good job and a good education and refused any divorce agreement that would have left him with financial responsibility for our son. I bought another house with my share of the equity plus a $250K mortgage and put DS through a private boarding school and a private university.

I agree, though, that it would have been another matter if we'd divorced early with no kids. I wouldn't have fought for a share of the inheritance under those circumstances.

[jitterbug]

I am the OP and I remarried after the death of my first husband. My current husband is divorced. I came into the marriage with assets, he came into the marriage with debts. So we have a prenup. I wanted to live our financial life as one, but I also needed to know that I'd still have my nest egg if our marriage didn't last. So ours is worded, where in the case of a divorce, I get the dollar amount of the assets I walked into the marriage with, then we evenly divide everything above that....including the growth of MY assets.  That is what I envision my son doing....preserving the principal as his in a divorce, but putting income and/or growth as shared.  I KNOW it will never be a thing where he spends HIS money on luxuries while SHE struggles.

[Lizard Queen]

Dec 29, 2014 15:38:29 GMT -5 @athena53 said:

Dec 29, 2014 9:53:17 GMT -5 Lizard Queen said:

I may be weird, but I feel like the inheritance still sort of belongs to the person who passed on, and their wishes should be considered whenever deciding what to do with an inheritance.  I feel like it's a complete separate thing from a marriage--just a bonus that can be helpful to the inheritor.  But to quote the president, "they didn't build that".  Whatever the couple builds together, that is what they split.

It depends. I think my late in-laws would have been happy to see me walk off with 40% of the equity in the house bought using a down payment from the estate after his mother died (she was the surviving spouse). Their son (my Ex) squandered a good job and a good education and refused any divorce agreement that would have left him with financial responsibility for our son. I bought another house with my share of the equity plus a $250K mortgage and put DS through a private boarding school and a private university.

I agree, though, that it would have been another matter if we'd divorced early with no kids. I wouldn't have fought for a share of the inheritance under those circumstances.

I would think so.  I would think that they would want their grandson taken care of, and would have been disgusted by what their son did.

[Deleted]

Dec 29, 2014 17:50:33 GMT -5 jitterbug said:

So ours is worded, where in the case of a divorce, I get the dollar amount of the assets I walked into the marriage with, then we evenly divide everything above that....including the growth of MY assets.

That's a good middle ground. It may even help if your DS broaches the idea of a pre-nup by saying that you and your husband have one.

[giramomma]

I live in a community property state. It appears that if money is going to be kept separate, in my state that really means it needs to be kept separate.

So, yes, in my state, if my husband made me sign a prenup, he could not/should not use one penny of his assets to further the goals of the household. No co-mingling, means no co-mingling, ever, and only would make for the best case to protect himself. I mean, it wouldn't make sense for him to co-mingle any part of his inheritance and leave it up to a judge to decide whether or not the assets then become marital assets due to the nature of the co-mingling, even with a pre-nup.

One example I found:
"Inheritances are an exception provided they are kept separate and apart from the marital assets. However, if an inheritance earns revenues and those revenues become a part of the marital assets, then all of the inherited asset can be reclassified, although there may be reason to ask for reclassification only of the proceeds provided they were not commingled."

Here's another example I found:
"Separate property can become community property if it is commingled, such as if you pay for repairs for a home that you acquired before the marriage with your joint checking account. If you live in a community-property state, keep the property you had before marriage safe by always using funds that can be traced back to your separate income. Good record-keeping can assist you in proving that certain property is your separate property."

ETA:
And in more legal-ese
Property of spouses may become “mixed” (i.e., a combination of classifications). Because all property of spouses is presumed to be marital property, if marital property is mixed with property having any other classification, the latter property is reclassified as marital property
unless the component that is not marital property can be traced (generally, identified on the basis of its source, method and time of acquisition).

[Deleted]

Grandpa should put in trust for benefit of his grandson & grandson kids; then no worry. Inheritance is separate property but in divorce if there is uneven assets, they will just give her more of other stuff because they know and see inheritance money exist.

[8 Bit WWBG]

...:::"Had he asked me to sign a pre-nup, I would not have married him. And told him so.":::...

I read this response as "I'm not even going to CONSIDER your feelings.  Its my way, or not at all".  If this is how she treats something so important to me, what ELSE is she going to pull this stance on?  Once you give in, it'll happen again, and again, and again.  I'm not sure *I* want to be married to someone who won't hear me out.

I guess if two people feel equally deal-breakerish about this issue, then either someone caves, or they break up.  I don't see why, in these modern "50% of marriages end in divorce" times that a reasonable agreement can't be reached.  Its not about trying to leave you destitute after 20 years.  Its about making sure you can't skip town with half my money after faking it for 2 years.

I have a friend who is "never work again rich", and is soon to have the "no pre-nup, no marriage" discussion.

...:::"...but as DF found out, a prick judge can simply even things up by giving more of the assets in event of divorce to the party who didn't inherit a bunch...":::...

Is there a higher court, or appeals process where this sort of nonsense can be overturned?  Or are you stuck with whatever the guy in the robe decides?

My feeling is that if the judge thinks she should have more, he is welcome to pay out of his own pocket.

[Angel!]

Dec 29, 2014 8:49:13 GMT -5 Shooby said:

To me, marriage is about pledging your life and everything you own to me, and I to you.  And, if you can't be All In and have one eye on the door, then no thanks. If I am good enough to be the mother of your children, then you are either going to come in committed to sharing all of yourself and your assets or hit the road.

I felt that way once.  I was All In & determined to make it work come hell or high water.  And I did put myself through hell trying to make it work.

Now I feel that people change, shit happens, & you never know.  Frankly I'm going to teach my kids that sometimes it's ok to walk away even if you meant when you pledged to be there forever.  Because I don't want my daughter to go through what I went through thinking that if she tries hard enough things will get better again like they used to be. 

[hoops902]

::thyme4change, I don't think the spouse can make a claim to ownership just by spending time at the property. It would be some merit to a claim if the spouse's labor was being used to maintain or improve the property.::

This is the whole problem with property of any kind though right?  Money you can stick in an account and very easily keep it separate.  If my wife inherited a cabin in the woods...what money does she use to pay property taxes?  Is it realistic that when a simple fix is needed that I'm going to have no part of it even though I know how to do all that kind of stuff?  Seems like it would be VERY difficult to keep a property like that separate (best case scenario seems to be a rental, where all funds in and out could be kept apart, and all fixes could be hired out).  Otherwise, I'd wonder what counted as contributing...mowing, shoveling snow, running a screw into a door jamb, etc?

I don't know the details, but I do know my parents' solution is to put almost everything of value into a trust, including property.

[giramomma]

Dec 30, 2014 8:54:13 GMT -5 8 Bit WWBG said:

...:::"Had he asked me to sign a pre-nup, I would not have married him. And told him so.":::...

I read this response as "I'm not even going to CONSIDER your feelings.  Its my way, or not at all".  If this is how she treats something so important to me, what ELSE is she going to pull this stance on?  Once you give in, it'll happen again, and again, and again.  I'm not sure *I* want to be married to someone who won't hear me out.

Again. I wasn't about to be a SAHM (something that we agreed upon before we got engaged), and not have any financial protection. I know I don't have the YM-approved lifestyle with the STEM degree, but I don't have stupid tatooed on my face, either.

What can I say? There were several things I would not compromise on in a marriage partner. I would never marry a spender. I also wouldn't marry someone that wanted to have dual incomes or would not support my desires to be a SAHM. I would not marry someone that only wanted one child.

To me, signing a prenup that excludes me from financial security doesn't make sense to promote my financial security as a SAHM. I wanted to enter a marriage, knowing that if my spouse was supporting me to not have an income, that my spouse would make sure I was financially protected.

These are things that were important to me and were dealbreakers when I was looking at potential marriage partners. I'm not going to apologize for that. Nor will I ever encourage my children to ignore their dealbreakers for love. I think it's OK to be picky about the person you are going to spend the rest of your life with. I think it's OK not to settle, and to stand up for yourself.

[Bonny]

Jan 14, 2015 16:24:01 GMT -5 hoops902 said:

::thyme4change, I don't think the spouse can make a claim to ownership just by spending time at the property. It would be some merit to a claim if the spouse's labor was being used to maintain or improve the property.::

This is the whole problem with property of any kind though right?  Money you can stick in an account and very easily keep it separate.  If my wife inherited a cabin in the woods...what money does she use to pay property taxes?  Is it realistic that when a simple fix is needed that I'm going to have no part of it even though I know how to do all that kind of stuff?  Seems like it would be VERY difficult to keep a property like that separate (best case scenario seems to be a rental, where all funds in and out could be kept apart, and all fixes could be hired out).  Otherwise, I'd wonder what counted as contributing...mowing, shoveling snow, running a screw into a door jamb, etc?

I don't know the details, but I do know my parents' solution is to put almost everything of value into a trust, including property.

I think your parents are putting everything into a Trust to avoid probate. If you inherit anything from them it's going to be on you to get your inheritance structured properly if you want to keep it separate from the marital estate.

I agree that real estate is very difficult to keep separate because 1) It's usually a substantial percentage of one's NW 2)On going costs like mortgage payments, real estate taxes and maintenance/capital repairs.

[8 Bit WWBG]

...:::"To me, signing a prenup that excludes me from financial security doesn't make sense to promote my financial security as a SAHM. I wanted to enter a marriage, knowing that if my spouse was supporting me to not have an income, that my spouse would make sure I was financially protected.":::...

giramomma, my original statement was in response to shooby's post.  It seemed to me that she had taken a total "my feelings overrule yours" stance on the matter.  It doesn't matter what the issue is.  Its fine to have dealbreakers and stand firm on them.  It just seems very selfish to refuse to have any discussion on an issue in which there are many degrees, and in which a compromise is possible.  To stand solidly firm on an issue that is obviously important to your partner, and refuse to make an effort to find a compromise, is just plain selfish.

Prenups are such an issue.  They are not absolute, all or nothing.  There are many levels between "leave you penniless after 20 years of raising kids" and "you can divorce me after a week and take half the wealth I brought into the marriage".

[Bonny]

Jan 14, 2015 16:33:20 GMT -5 giramomma said:

Dec 30, 2014 8:54:13 GMT -5 8 Bit WWBG said:

...:::"Had he asked me to sign a pre-nup, I would not have married him. And told him so.":::...

I read this response as "I'm not even going to CONSIDER your feelings.  Its my way, or not at all".  If this is how she treats something so important to me, what ELSE is she going to pull this stance on?  Once you give in, it'll happen again, and again, and again.  I'm not sure *I* want to be married to someone who won't hear me out.

Again. I wasn't about to be a SAHM (something that we agreed upon before we got engaged), and not have any financial protection. I know I don't have the YM-approved lifestyle with the STEM degree, but I don't have stupid tatooed on my face, either.

What can I say? There were several things I would not compromise on in a marriage partner. I would never marry a spender. I also wouldn't marry someone that wanted to have dual incomes or would not support my desires to be a SAHM. I would not marry someone that only wanted one child.

To me, signing a prenup that excludes me from financial security doesn't make sense to promote my financial security as a SAHM. I wanted to enter a marriage, knowing that if my spouse was supporting me to not have an income, that my spouse would make sure I was financially protected.

These are things that were important to me and were dealbreakers when I was looking at potential marriage partners. I'm not going to apologize for that. Nor will I ever encourage my children to ignore their dealbreakers for love. I think it's OK to be picky about the person you are going to spend the rest of your life with. I think it's OK not to settle, and to stand up for yourself.

I think you were very smart to address this up front. One give us a future career and income stream by staying out of the workforce for an extended period of time. I'd want to know how I was protected too.

[dondub]

I had clients I did a handful of purchase and refi loans for. He had inherited a million sometime after the wedding and kept it separate. She became a stat at home mom with their child. Once I did a refi at their home and the kitchen range had a burner out and the broiler element didn't work. He wouldn't, on the advice of friends, use any of that mill to buy a new range/oven. The downward slide of their marriage was evident.

 I did biz with both of them after the divorce. He was sure that he would get 50% of the community property assets and keep all of his own inherited funds. It went to court. I guess what zibizinski referred to as a "prick judge" was on the bench and she kicked arse....well more than 50% of the CP, plus child support and three years maintenance payments. Afterall, she had given up quite a few years of career and earnings to be the SAHM, which is what he wanted for their kid. He grossly miscalculated what CP can mean under different circumstances.

 My feelings towards them was he was a cheap, dumpy ass doofus that was too selfish and she was a quite attractive, slender babe that was whip smart. She has done OK.

[kittensaver]

I agree with you, giramomma, for the circumstances you describe. There is no way in h*ll I would ever consent to be a SAHM and be cut off (by a pre-nup) from any financial protection in 5 or 10 (or 15 or 25) years if my DH decided to run off with a younger woman. If we are arranging our marriage so that we are choosing for me to be financially dependent on you, you cannot exclude me from financial resources to live down the line (sez me).

However, I see a flip side for older couples with time and established financial resources. For example, if I were to lose my DH (please God, no - knock on dozens of pieces of wood) and go on to marry someone else, I would make sure the family money from my side of the family was protected/secured before I married (aka, a pre-nup). That money was and is being passed down to descendants as explicitly stated by my recent ancestors. When I'm done with it, it will go to pay for college, weddings, first home downpayments, etc for the descendants of the persons who left it behind - I just happen to be the caretaker (Trustee) and one of the beneficiaries. Why should it pass out of my family and potentially into the hands of strangers (the relatives and descendants of a subsequent spouse) just because I was married to him? That is family money intended for my family, not for persons who were total strangers to the ancestor.

However, what I would NOT do is exclude a new spouse from any financial resources earned or obtained post-marriage. Once married, I believe in shared resources. My home, my paycheck and even my retirement savings would be available to the new spouse. In other words, all the money and goods that I earned in my lifetime (as opposed to "family money"). That's what spouses do (or don't bother becoming a spouse). If THIS money gets split between "my" family and "his" family after we are both gone - I'm okay with that.

I think certain types of pre-nups (if you have an affair, or you leave before 10 years of marriage, insert-other-reason here - you get nada) are total bull because they reveal a lack of trust (or fear). If you think someone is going to take you for a ride, don't get married.   

[flamingo]

My DH and I have a pre-nup. No kids, and no plans to have kids. I knew almost from the minute we started dating that if we got married, he would want a pre-nup. He had been married once before, and he had some left over issues from what he lost in the divorce. However, I also grew up with the idea that I was going to college to get a job so that I could support myself with or without a husband. Therefore, his wanting a pre-nup (along with no joint checking) is not an issue. The pre-nup protects me as well-we keep our own retirement accounts, etc. And, since he's semi-retired and I still have quite a few years to work, my retirement should, theoretically continue to grow. Having the pre-nup doesn't make feel like we aren't "all in", just that we are realistic people who don't want to end up fighting how to split things if it comes to that. (Remember, too, we are both attorneys who have worked in the family law arena-we've see how divorce brings out the worst in people!)

All of that to say, it's a conversation couples should have. Partly I was ok with the idea of a pre-nup because my DH and I were very open with each other regarding our finances. If we'd never had a discussion about finances and I thought for one minute he was trying to screw me, my reaction may have been very different.

I will also say, not much about us and our relationship is "conventional" so take all this with a grain of salt. It could just be my skewed view of the world talking here

[Bonny]

Jan 14, 2015 17:31:41 GMT -5 dondub said:

I had clients I did a handful of purchase and refi loans for. He had inherited a million sometime after the wedding and kept it separate. She became a stat at home mom with their child. Once I did a refi at their home and the kitchen range had a burner out and the broiler element didn't work. He wouldn't, on the advice of friends, use any of that mill to buy a new range/oven. The downward slide of their marriage was evident.

 I did biz with both of them after the divorce. He was sure that he would get 50% of the community property assets and keep all of his own inherited funds. It went to court. I guess what zibizinski referred to as a "prick judge" was on the bench and she kicked arse....well more than 50% of the CP, plus child support and three years maintenance payments. Afterall, she had given up quite a few years of career and earnings to be the SAHM, which is what he wanted for their kid. He grossly miscalculated what CP can mean under different circumstances.

 My feelings towards them was he was a cheap, dumpy ass doofus that was too selfish and she was a quite attractive, slender babe that was whip smart. She has done OK.

Did he work? If so I can't understand why he didn't use wages to pay for repairs and replacement appliances for their presumably community property home.

You can also give gifts from your inheritance to your spouse and the inheritance is still separate.

I think your assessment that he was a stupid cheap ass is spot on!

[hoops902]

::I think your parents are putting everything into a Trust to avoid probate. If you inherit anything from them it's going to be on you to get your inheritance structured properly if you want to keep it separate from the marital estate.::

No, they specifically told me they're doing it to cut my brother's wife out of any inheritance issues.  They're ok with having trust distributions shared by her, but they want to ensure that in the case of a divorce she isn't walking away with a mountain of cash.  Absence of probate is definitely a big plus, it's just not the driving factor.  They just really dislike his wife.

She'll share in the distributions because my brother won't keep it separate.  She won't share in the much larger piece held within the trust, because brother only gets occasional distributions from that trust.  At least that's the way I understood it through the game of phone that went father's lawyer to father to me.  Essentially if there were $10M in the trust, brother might get a payment this year of $20K which he COULD keep separate from marital property, but won't (they'll spend it immediately anyways).  So if they divorced that $20K would be communal, but that she wouldn't have any way of getting to the $10M in the trust. 

Otherwise if they just gave him his own trust that he was trustee of, he'd take all the money out, comingle it, and she'd be entitled to half.  It's a combination of not wanting her to have the money, and not trusting that brother would take the necessary steps to keep her from getting it while things are happy and going well with them.

[Bonny]

Jan 14, 2015 17:56:54 GMT -5 hoops902 said:

::I think your parents are putting everything into a Trust to avoid probate. If you inherit anything from them it's going to be on you to get your inheritance structured properly if you want to keep it separate from the marital estate.::

No, they specifically told me they're doing it to cut my brother's wife out of any inheritance issues.  They're ok with having trust distributions shared by her, but they want to ensure that in the case of a divorce she isn't walking away with a mountain of cash.  Absence of probate is definitely a big plus, it's just not the driving factor.  They just really dislike his wife.

She'll share in the distributions because my brother won't keep it separate.  She won't share in the much larger piece held within the trust, because brother only gets occasional distributions from that trust.  At least that's the way I understood it through the game of phone that went father's lawyer to father to me.  Essentially if there were $10M in the trust, brother might get a payment this year of $20K which he COULD keep separate from marital property, but won't (they'll spend it immediately anyways).  So if they divorced that $20K would be communal, but that she wouldn't have any way of getting to the $10M in the trust. 

Otherwise if they just gave him his own trust that he was trustee of, he'd take all the money out, comingle it, and she'd be entitled to half.  It's a combination of not wanting her to have the money, and not trusting that brother would take the necessary steps to keep her from getting it while things are happy and going well with them.

Wow, that's some serious controlling from the grave! Does your brother and his wife have kids?

Who is the Trustee of the Trust once they both pass?

[dondub]

Yes he worked, Bonny, and made decent bucks. Enough to qualify for purchase loans and refi's in a typical Seattle neighborhood north of downtown. Not the cheapest place to live.

[kittensaver]

Jan 14, 2015 17:56:54 GMT -5 hoops902 said:

::I think your parents are putting everything into a Trust to avoid probate. If you inherit anything from them it's going to be on you to get your inheritance structured properly if you want to keep it separate from the marital estate.::

No, they specifically told me they're doing it to cut my brother's wife out of any inheritance issues.  They're ok with having trust distributions shared by her, but they want to ensure that in the case of a divorce she isn't walking away with a mountain of cash.  Absence of probate is definitely a big plus, it's just not the driving factor.  They just really dislike his wife.

She'll share in the distributions because my brother won't keep it separate.  She won't share in the much larger piece held within the trust, because brother only gets occasional distributions from that trust.  At least that's the way I understood it through the game of phone that went father's lawyer to father to me.  Essentially if there were $10M in the trust, brother might get a payment this year of $20K which he COULD keep separate from marital property, but won't (they'll spend it immediately anyways).  So if they divorced that $20K would be communal, but that she wouldn't have any way of getting to the $10M in the trust. 

Otherwise if they just gave him his own trust that he was trustee of, he'd take all the money out, comingle it, and she'd be entitled to half.  It's a combination of not wanting her to have the money, and not trusting that brother would take the necessary steps to keep her from getting it while things are happy and going well with them.

Sound like trying to control their money from beyond the grave.  Especially futile since the son is going to do what he wants anyway . . .

ETA: Bonny beat me to it!

[zibazinski]

You should see DH's trust. Talk about control. He dislikes very intently his children's spouses. They'll never see a dime.