“ What If She Goes First?”

Disclaimer:  Statements within this article may not be totally accurate due to changing real estate laws and misinterpretation of current laws due to incorrect translation or misunderstanding.  This article should NOT to be construed as legal advice.  Always get accurate legal advice from a reputable licensed Thai lawyer.  The only purpose of this article is to cause you to think about something you may not have considered; what happens if your Thai wife passes away before you do. 

            Let’s admit it.  A lot of us expats are married to women young enough to be our daugh….er…a….from another generation.  That sounds worse than the reality.  A fellow may be 75 years old while his wife may only be 50.  Advancing age has a way of evening things up.  In fact, when considering the age spread, what would have meant jail time when the guy was 40 became legal when he turned 43 (i.e.: he 43, she 18), Ms. Holier than Thou’s negative attitude to the ‘scandalous union’ notwithstanding.

            All that Western cultural ideology aside, there is something very important and relevant about this age spread that married expats often overlook.  Because we men are often significantly older than our wives, we assume we will pass on from our earthly existence long before our lovely wives will. 

Unfortunately, this is not always the case.  Recently, in the village where I live, a 38 year old wife of an elderly foreigner passed away.  Never expecting this, he was emotionally devastated.  I am not aware of the legal aspects he is now going through, but it did make me think about what would happen if my Thai wife passed away before I did.  The fact is; even if your wife is in great health, she still faces tremendous risks out on the roadways of Thailand.  Every time we step outside our homes and enter into the traffic we are in jeopardy of saying good-bye for the last time.  Because of this possibility, we simply must be legally prepared for the unexpected, not only for ourselves, but for our wives.  The more assets we have, the more important preparation is.

For instance, take what happened to Tom.  Tom was 26 years older than his wife Joy.  He was in poor health and knew he would pass away before her.  Because of this, he had everything put in her name so when he died it would be easy for her to carry on with her life.  He also assumed it would save her court costs and the time delay of having to prove what was rightfully hers.

Unfortunately, Joy became ill and passed away two years into the marriage.  All of a sudden Tom was living in a furnished home and driving a car that now belonged to his in-laws.  Did they allow him to stay in the home and keep the car out of the goodness of their hearts?  Guess!  This is not to imply that all Asian in-laws will kick you to the curb if given the chance.  I have seen plenty of these self-serving scenarios played out in my home country as well.  The bottom line is; no matter where they live, everyone is trying to survive in this complicated and often difficult world.  It is not surprising that there are those who will take advantage of a situation like this, especially if they have few possessions and assume you have plenty.

It is always better to prepare for the unexpected.  Like buying insurance, we hope to never have to use it but appreciate it when unexpected tragedy happens.  Therefore, it is worth giving serious consideration to how you title ownership of your place of residence, your car, and anything else of great value.

When purchasing property, at least as of this writing, it is illegal for a foreigner to buy real property in fee simple in Thailand.  This has caused many foreigners to set up holding companies and title their property to the holding company.  However, many of these holding companies were not created to the letter and spirit of the law.  In addition, how the holding company is titled can still create problems when it comes to who owns the property if a principal in the company dies.  If you choose this method, it is best to hire a reputable real estate lawyer and first get schooled on the practicality and legality of this method.  You need to know what happens to the holding company and real estate if you die and, just as importantly, what happens if your Thai wife dies.  Transfer of ownership may not be automatic either way.

“Oh, I’ll just make it simple and title the property in my wife’s name,” you say.  First, you will have to sign a legal document stating the money to purchase the property didn’t come from you.  Since it probably did, you do not want to lie on this legal form.  Secondly, do you really want to put the property in your wife’s name outright?  Anything could happen at any time which would put you out in the street.  You would have no legal recourse or claim to the property.  Ouch!

An often recommended method that you should consider is registering a 30 year mortgage filed with the title at the land office.  You might possibly do this without the help of a lawyer, but keep in mind that any legal document you sign in Thailand is binding whether you can read Thai or not.  I suggest you have a real estate lawyer help you through the process.  The cost is inconsequential considering the amount of money involved and the risk you are taking by going it alone.

When using this 30 year mortgage method, you are in essence ‘loaning’ the money to purchase the property to your wife.  Your name will be listed, in Thai, on the Chanut as the lender.  This gives you rights to the property for the 30 years of the ‘loan’ even if your wife passes away.  This mortgage can be renewed for another 30 years if you happen to outlive the first 30 year term.  There is a ‘one time’ tax when the mortgage is registered. 

Of great importance; Even though you, as a foreigner, cannot purchase real property, you can inherit it in your name if your wife passes away before you do as long as you have a registered legal marriage.  The traditional Thai Buddhist wedding ceremony is not sufficient and does not make you legally wed.

You and your wife will also want to have a will written in both Thai and English and registered both in Thailand and in your home country.  Your will should not only spell out what happens to the real estate, personal property and vehicles in case you die, but also what happens in case your wife dies. 

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