How to Pass Your Property When You're Married

When you make your will with Nolo’s Online Will, one of the key decisions you make will be how to leave your property. In this part of the interview, you specify who gets what after your death. If you want to leave everything to your spouse, this job will be exceedingly simple. It will take a bit more effort if you have more complex wishes in mind.

Inventorying Your Property: Optional

Before you continue, you may find it helpful to take an inventory of your property. You can make a simple list by hand or on your computer, or you can use our Property Worksheet to help jog your memory. You can type onto it and save it, or print it out and fill it in by hand.

We provide this worksheet as an aide -- to help you think through what property you own. It will not, and should not, be included with your final will document.

Leaving All Your Property to Your Spouse or Domestic Partner

If you choose to leave all the property you own to your spouse or registered domestic partner, you won't need to list each item separately when making your will. After your death, whatever you own will go to your spouse or partner.

This does not include, of course, property that passes outside your will -- for example, property in a living trust or owned in joint tenancy.

This option may suit you best if you have young children and trust your spouse or domestic partner to adequately provide for the children with the property you leave.

If you have children from a prior marriage, or your children are older and you want them to get some of your property directly, or you have specific items and cash that you want to go to particular children or to other people or organizations, one of the other options may be a better choice.

Leaving Most of Your Property to Your Spouse or Domestic Partner, Some to Others

If you want to leave the bulk of the property you own to your spouse or domestic partner, but have specific items that you want other people or organizations to get, choose this option.

Later in the interview, you will need to specifically list only the items you leave to other beneficiaries; everything else will pass to your spouse or partner.

Leaving Your Property Some Other Way

You may divide up your property and leave it to beneficiaries item by item, or leave a group of items to a certain beneficiary. Each gift you make this way is called a specific bequest.

First, you will name a beneficiary (or a group of beneficiaries) to take any property you own at death but have not specifically mentioned in a specific bequest. Then you can name as many specific gifts as you'd like.

This option offers flexibility, but be sure that you understand the rules governing what you own and the rights of your spouse or partner.

If you plan to leave less than half of your property to your spouse or registered domestic partner. The laws of your state may enable him or her to override your will and claim a substantial portion of what you own at your death.

Learn more about Property Ownership Rules for Spouses and Your Spouse’s Right to Inherit from You.

Naming an Organization as Beneficiary

You may want to leave property to a charity or a public or private organi­zation—for example, the American Red Cross, the Greenview Battered Women’s Shelter or the University of Illinois at Champaign-Urbana.

The organization you name need not be set up as a nonprofit, unless you wish your estate to qualify for a charitable estate tax deduction. It can be any organization you consider worthy of your bequest. The only limitation is that the organization must not be set up for some illicit or illegal purpose.

The organization you name will receive your gift with no strings attached. You cannot use your will to describe how the property should be used. If you want to do that—for example, if you want a gift to your alma mater to be used as a scholarship for a student who gets above a 3.5 grade point average—see an experienced estate planning attorney for advice.

When naming an organization, be sure to enter its complete name, which may be different from the truncated version by which it is commonly known. Several different organizations may use similar names—and you want to be sure your bequest goes to the one you have in mind. Someone at the organization will be more than happy to help you get it straight.

Naming a Trust as Beneficiary

You can name a trust as a beneficiary of your will. Some people do this to create a "pour-over" will that puts any property that would go through the will into a trust. Other will-makers may want to name a special needs trust as a beneficiary of their will to avoid the problems that might occur if a beneficiary with special needs receives a gift outright. Read more about Naming a Trust as Beneficiary of Your Will.

Not All Property Passes by Will

Some types of property will pass through your will, but not others. Types of property that commonly pass through a will include real estate such as a house or land, vehicles, bank accounts, and personal items such as household items, family heirlooms, art, jewelry or antiques. However, these types of property will only pass through your will if you have not made other arrangements for them.

Any property for which you have made other arrangements will not pass through your will. For example, these types of property will not pass through your will:

  • property in a trust (living trust, special needs trust)
  • property with a right of survivorship (joint tenancy, tenancy by the entirety, community property with the right of survivorship), and
  • property for which you have already named a beneficiary (TOD deeds or accounts, retirement benefits, life insurance).

To avoid confusion, do not use your will to name beneficiaries for property that will pass outside of your will.