Divorce requires a Review of Estate Planning

March 14, 2023

Even the most amicable divorce requires a review and update of your estate planning, as explained in a recent article from yahoo! finance, “I’m Divorcing. Will That Impact My Estate Planning?” This includes your will, power of attorney and other documents. Not getting this part of divorce right can have long-term repercussions, even after your death.

Last will and testament. If you don’t have a will, you should get this started. Why? If anything unexpected occurs, like dying while your divorce is in process, the people you want to receive your worldly goods will actually receive them, and the people you don’t want to receive your property won’t. If you do have a will and an estate plan and if your will leaves all of your property to your soon-to-be ex-spouse, then you may want to change it. Just a suggestion.

State laws handle assets in a will differently. Therefore, talk with your estate planning attorney and be sure your will is updated to reflect your new status, even before your divorce is finalized.

Trusts. The first change is to remove your someday-to-be ex-spouse as a trustee, if this is how you set up the trust. If you don’t have a trust and have children or others you would want to inherit assets, now might be the time to create a trust.

A Domestic Asset Protection Trust (DAPT) could be used to transfer assets to a trustee on behalf of minor children. The assets would not be considered marital property, so your spouse would not be entitled to them. However, a DAPT is an irrevocable trust, so once it’s created and funded, you would not be able to access these assets.

Review insurance policies. You’ll want to remove your spouse from insurance policies, especially life insurance. If you have young children with your spouse and you are sharing custody, you may want to keep your ex as a beneficiary, especially if that was ordered by the court. If you received your health insurance through your spouse’s plan, you’ll need to look into getting your own coverage after the divorce.

Power of Attorney. If your spouse is listed as your financial power of attorney and your healthcare power of attorney, there are steps you’ll need to take to make this change. First, you have to notify the person in writing to tell them a change is being made. This is especially urgent if you are reducing or eliminating their authority over your financial and legal affairs. You may only change or revoke a power of attorney in writing. Most states have specific language required to do this, and a local estate planning attorney can help do this properly.

You also have to notify all interested parties. This includes anyone who might regularly work with your power of attorney, or who should know this change is being made.

Divide Retirement Accounts. How these assets are divided depends on what kind of accounts they are and when the earnings were received. The court must issue a Qualified Domestic Relations Order (QDRO) before defined contribution plans can be split. The judge must sign this document, which allows plan administrators to enforce it. This applies to 401(k) plans, 403(b) plans and any plans governed under ERISA (Employment Retirement Income Security Act of 1974).

Divorce is stressful enough, and it may feel overwhelming to add estate planning into the mix. However, divorce really requires a complete review of your estate planning. Doing so will prevent many future problems and unwanted surprises. If you would like to learn more about the effects of divorce on your planning, please visit our previous posts.

Reference: yahoo! finance (Feb. 3, 2023) “I’m Divorcing. Will That Impact My Estate Planning?”

Steps Seniors should take before Remarrying

March 6, 2023

Seniors in particular think about remarrying with an understandable degree of concern. Maybe your last relationship ended in a divorce, or there’ve been too many dating disasters. However, according to a recent article from MSN, “Planning to remarry after a divorce? 6 tips to protect your financial future,” there are some steps seniors should take before remarrying to make relationships easier to navigate and protect your financial future.

Not all of them are easy, but all are worthwhile.

No marrying without a prenup. Who wants to think about divorce when they’re head-over-heels in love and planning a wedding? No one. However, think of a prenup as about the start, not the end. It clarifies many issues: full financial clarity, financial expectations and clear details on what would happen in the worst case scenario. Getting all this out in the open before you say “I do” makes it much easier for the new couple to go forward.

Trust…but verify. Estate planning ensures that assets pass as you want. A revocable living trust set up during your lifetime can be used to ensure your assets pass to your offspring. Unlike a will, the provisions of a revocable trust are effective not just when you die but in the event of incapacity. A living trust can provide for the trust creator and their children during any period of incapacity prior to death. At death, the trust ensures that beneficiaries receive assets without going through probate.

Consider life insurance. Life insurance, possibly held in an irrevocable life insurance trust (ILIT), which allows proceeds to pass tax-free, can be used to provide funds for a surviving spouse or children from a prior marriage. Make sure to review all insurance policies, including life, property and casualty and umbrella insurance to be sure you have the correct coverage in place, insurance policies are titled correctly and premiums continue to be paid.

Estate planning. While you are planning to remarry is a good time to check on account titles, beneficiary designations and powers of attorney. Couples should review their estate plans to be sure planning reflects current wishes. Married couples have the benefit of the unlimited marital deduction, meaning they can gift during their lifetime or bequeath at death an unlimited amount of assets to their U.S. citizen surviving spouse without any gift or estate tax. For unmarried couples, different estate planning techniques need to be used to pass the maximum amount to partners tax free.

Check beneficiaries. After divorce and before a remarriage, check beneficiaries on 401(k)s, pensions, retirement accounts and life insurance policies, Power of Attorney and Health Care Power of Attorney documents. If you remarry, a prenup agreement or state law may require you to give some portion of your estate to your spouse, so have an estate planning attorney guide you through any changes. Couples should also check beneficiaries of life insurance and retirement plans.

Choose trustees wisely. Consider the advantages of a corporate trustee, who will be neutral and may prevent tensions with a newly blended family. If an outsider is named as an executor, or to act as a trustee, they may be able to minimize conflict. They’ll also have the professional knowledge and expertise with legal, tax and administrative complexities of administering estates and trusts.

These are just some of the major steps seniors should take before remarrying. Sit down and discuss the implications on you planning with your estate planning lawyer. If you would like to learn more about remarriage protection, please visit our previous posts.

Reference: MSN (Feb. 11, 2023) “Planning to remarry after a divorce? 6 tips to protect your financial future”

Estate Planning is a Personal Process

December 27, 2022

It’s a question that some couples should ask. For many, their estate is their estate together, right? Not always. There are benefits to using the same estate planning attorney. However, there may be reasons to use different attorneys, as discussed in the article “Should My Spouse and I Hire the Same Estate Lawyer?” from The Street. When it comes down to it, estate planning is a personal process.

If your estates are relatively simple and your interests are the same, it does make sense to use the same estate planning attorney. If there’s no need for sophisticated tax planning, yours is a first marriage with no children, or you own one piece of property, one attorney can represent both partners.

It’s important to understand joint representation. This means both partners and the attorney agree to share all information learned from one spouse with the other spouse. These terms are often outlined in the engagement letter signed when the attorney is retained.

However, life and marriages are not always so simple. Let’s say that one spouse owns property or a share of property in another state purchased before the marriage and not co-owned with the spouse. This often occurs when property is owned by members of the spouse’s immediate family, like a business property or a vacation home they own jointly with siblings or parents. It may also be property one spouse is likely to inherit with the expectation the property ownership remains solely with bloodline family members.

Note that owning property in another state will likely also require the services of another estate planning attorney who is familiar with the local laws. The out-of-state attorney can advise if there are any special planning considerations needed, such as placing property in a family-controlled entity, like a limited liability company or other family partnership.

Coordinating communication between the out-of-state attorney and the primary in-state attorney will be important, since there may be interrelated planning considerations to be addressed in wills or trusts.

What if you and your spouse have different communication styles? One wants a talkative attorney who wants to dive into long-term planning goals, engaging in discussions about building a legacy, while the other wants documents prepared, signed and executed, minus any big picture conversations.

A simple solution would be for each spouse to identify an attorney at the same firm who matches their personal style.

Another reason for using different estate planning attorneys is if one wants to use a “floating spouse” provision, which can cause some feelings to arise. This is a provision defining a “spouse” as the person you are married to at the time of death. If there’s a divorce and the prior spouse would have had a vested interest in property, the floating spouse provision affords another layer of protection to keep assets to the spouse at the time of death.

There are non-divorce related reasons for the floating spouse provision. If an irrevocable trust is created to benefit the spouse, the ability to make changes to the trust can be challenging, time consuming and costly. With a floating spouse provision, the prior spouse is removed as a beneficiary and the new spouse could be easily substituted. In this case, independent counsel is advised, as interests are considered legally adverse.

Estate planning is a personal process and there is no one-size-fits-all solution. If any part of the estate creates adverse interests, joint representation may not work. However, when the estate is relatively simple and the couple’s goals are the same, having a spouse by your side during the planning process could give each of you the incentive to take care of this very important task. If you would like to learn more about estate planning, please visit our previous posts.

Reference: The Street (Nov. 30, 2022) “Should My Spouse and I Hire the Same Estate Lawyer?”

The Estate of The Union Season 3|Episode 10

The Estate of The Union Season 2 Episode 3 is out now!

September 30, 2022

The Estate of The Union Season 2, Episode 3 – Mis-Titled Assets Can Wreck Your Planning is out now!

Almost everyone thinks that once they have a Will or Living trust in place, they are set when the unthinkable happens. Unfortunately, that ain’t always so!

The way in which you take title to assets can affect your estate, taxes and perhaps the disposition of the asset if a couple divorces. In our latest edition of our Podcast, The Estate of the Union, Brad Wiewel explores what MUST happen behind the scenes to make the estate plan happen! It’s not just the documents, it’s aligning your assets with the plan – which is called “Funding.” And if this part gets screwed-up, it’s a train wreck that may happen the minute someone passes away or becomes incapacitated.

We’ve got sixteen other episodes posted and more to come. We hope you will enjoy them enough to share it with others. These are available on Apple, Spotify and other podcast outlets.

In each episode of The Estate of The Union podcast, host and lawyer Brad Wiewel will give valuable insights into the confusing world of estate planning, making an often daunting subject easier to understand. It is Estate Planning Made Simple! The Estate of The Union Season 2, Episode 3 – Mis-Titled Assets Can Wreck Your Planning can be found on Spotify, Apple podcasts, or anywhere you get your podcasts. If you would prefer to watch the video version, please visit our YouTube page. Please click on the link below to listen to the new installment of The Estate of The Union podcast. We hope you enjoy it.

Texas Trust Law focuses its practice exclusively in the area of wills, probate, estate planning, asset protection, and special needs planning. Brad Wiewel is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. We provide estate planning services, asset protection planning, business planning, and retirement exit strategies.

How Divorcing over Fifty effects Estate Planning

May 23, 2022

If you are and older couple considering a divorce, take care to consider how divorcing over fifty effects estate planning. According to the Pew Research Center, the divorce rate has more than doubled for people over 50 since the 1990s. The Pandemic is also adding to the uptick, says AARP’s recent article entitled “Getting Divorced? It’s Time to Update Your Caregiving Plan.”

A divorce can be financially draining. Moreover, later-in-life divorces frequently impact women’s finances more than men’s. That is because in addition to depressed earnings from time spent out of the workforce raising children, women find themselves more financially vulnerable post-divorce and more likely to serve as caregivers again in the future. Even so, for partners of all genders, it is important to consider the longer-term financial outlook, not just the financial situation you’re in when you are actually dissolving the marriage.

You and your spouse will be dividing assets and liabilities and the responsibilities regarding spousal support. How one of you will live if the other gets sick or passes away should also be part of this conversation.

Consider where you’ll need to make changes. One may be removing your spouse from beneficiary designations on all your accounts. (In some states, this is automatic.) Your divorce agreement may also include buying life insurance or maintaining a trust or beneficiary designations for one another.

Create or update your estate plan immediately. You should also ask your estate planning attorney to review your marital agreement. They will have suggestions about how to align your estate plan with your divorce obligations. If you and your ex are co-parenting children, your estate plan should address who their guardians will be, if both biological parents pass away. It is also important to address who will manage any inheritance, if you don’t want your ex-spouse handling assets you may leave to your children.

Create your life care plan, which means naming health care proxies or surrogates (who will take care of your medical affairs, if you’re in need of caregiving), designating a financial power of attorney (who will take care of your finances and legal affairs), and naming a guardian for yourself if you’re incapacitated.

Consider the way in which your divorce will impact your children and extended family if you need caregiving. At a minimum, agree between yourselves what level of contact you can manage and, if you share children and loved ones, know that your lives will cross along the way.

While your marriage may not last, the connections will, so make a wise plan. Your estate planning attorney will help advise you on how divorcing over fifty effects your estate planning. If you would like to learn more about estate planning and divorce, please visit our previous posts.

Reference: AARP (Jan. 25, 2022) “Getting Divorced? It’s Time to Update Your Caregiving Plan”

Photo by Alex Green

Safeguard your Inheritance from Divorce

May 9, 2022

Even if divorce is the last thing on your mind, when an inheritance is received, its wise to treat it differently from your joint assets, advises a recent article “Revocable Inheritance Trust: Inexpensive Divorce Protection” from Forbes. After all, most people don’t expect to be divorced. However, the numbers have to be considered—many do divorce, even those who least expect it. There are a few ways to safeguard your inheritance from divorce.

Maintaining separate property is the most important step to take. If you deposit a spouse’s paycheck into the account with your inheritance, even if it was by accident, you’ve now commingled the funds.

You might get lucky and have a forensic accountant who can dissect that amount and make the argument it was a mistake, as long as it only happened once, but the Court might not agree.

Long before the Court gets to consider this point, if your ex-spouse’s attorney is aggressively pursuing this one act of commingling as enough to make the property jointly owned, you could lose half of your inheritance in a divorce.

You might also try to mount a defense of the particular account or asset being separate property, by identifying the means of transfer. Was there a deed for real estate gifted to you from a parent or a wire transfer for securities? This information will need to be carefully identified and safeguarded as soon as the inheritance comes to you, in case of any future upheavals.

To spare yourself any of this grief, there are steps to be taken now to avoid commingling. Document the source of wealth involved as a gift or inheritance, maintain the property in a wholly separate account and consider keeping it in a different financial institution than any other accounts to avoid commingling.

Another way to safeguard your inheritance, such as gifts and inherited property, against a 50% divorce rate is to use a revocable trust. Creating a revocable trust to own this separate property allows you to make changes to it any time but maintains its separate nature, by serving as a wholly separate accounting entity. The trust will own the property, while you as grantor (creator of the trust) and trustee (responsible for managing the trust) maintain control.

For a turbo-charged version of this concept, you could go with a self-settled domestic asset protection trust. This is a more complex trust and may not be necessary. Your estate planning attorney will be able to explain the difference between this trust and a revocable trust.

One clear warning: if you have already created a revocable trust to protect your estate and it is not funded, you may feel like it would be most convenient to use this already-existing trust for your inheritance. That would not be wise. You should have a completely different trust created for the inherited property, and this would also be a wise time to remember to fund the existing trust.

Using a revocable trust this way will also require customized language in your Last Will, as you’ll want standard language in the Last Will to reflect the trust being separate from your other marital property. If you would like to read more about divorce protection, please visit our previous posts.

Reference: Forbes (April 13, 2022) “Revocable Inheritance Trust: Inexpensive Divorce Protection”

Photo by cottonbro

New Installment of The Estate of The Union Podcast

September 2, 2021

In this new installment of The Estate of The Union Podcast, Brad Wiewel is joined by Ann Lumley, JD, the Director of After Life Services and Trust Administration for Texas Trust Law to discuss celebrity estate planning screw ups.

The size and scope of the mistakes made by celebrities may be enormous, but many of the mistakes are common for, well, us common people. Ann and Brad discuss the havoc created by celebrities when they died with no planning or inadequate planning. It’s a fun, fast moving discussion on What-Not-To-Do. Learning lessons from celebrity estate planning mistakes is a good way to prevent yourself from making those same errors. If you don’t have an estate plan, get it started. If you haven’t looked at your estate plan in a while, have it reviewed.

In each episode of The Estate of The Union podcast, host and lawyer Brad Wiewel will give valuable insight into estate planning, making an often daunting subject easier to understand.

It is Estate Planning Made Simple!

The Estate of The Union can be found on Spotify, Apple podcasts, or anywhere you get your podcasts. Please click on the link below to listen to the new installment of The Estate of The Union podcast. We hope you enjoy it.

Blended Family Dynamics create Challenges

July 26, 2021

Law school teaches about estate planning and inheritance, but experience teaches about family dynamics, especially when it comes to blended families with aging parents and step siblings. Blended family dynamics can create challenges and put an estate plan at risk, advises the article “Could Your Aging Parents’ Estate Plan Create A Nightmare For Step-Siblings?” from Forbes. The estate plan has to be designed with realistic family relationships in mind.

Trouble often begins when one parent loses the ability to make decisions. That’s when trusts are reviewed for language addressing what should happen, if one of the trustees becomes incapacitated. This also occurs in powers of attorney, health care directives and wills. If the elderly person has been married more than once and there are step siblings, it’s important to have candid discussions. Putting all of the adult children into the mix because the parents want them to have equal involvement could be a recipe for disaster.

Here’s an example: a father develops dementia at age 86 and can no longer care for himself. His younger wife has become abusive and neglectful, so much so that she has to be removed from the home. The father has two children from a prior marriage and the wife has one from a first marriage. The step siblings have only met a few times, and do not know each other. The father’s trust listed all three children as successors, and the same for the healthcare directive. When the wife is removed from the home, the battle begins.

The same thing can occur with a nuclear family but is more likely to occur with blended families. Here are some steps adult children can take to protect the whole family:

While parents are still competent, ask who they would want to take over, if they became disabled and cannot manage their finances. If it’s multiple children and they don’t get along, address the issue and create the necessary documents with an estate planning attorney.

Plan for the possibility that one or both parents may lose the ability to make decisions about money and health in the future.

If possible, review all the legal documents, so you have a complete understanding of what is going to happen in the case of incapacity or death. What are the directions in the trust, and who are the successor trustees? Who will have to take on these tasks, and how will they be accomplished?

Blended family dynamics can create challenges, but there are solutions. If there are any questions, a family meeting with the estate planning attorney is a great option. Most experienced estate planning attorneys have seen just about every situation you can imagine and many that you can’t. They should be able to give your family guidance, even connecting you with a social worker who has experience in blended families, if the problems seem unresolvable.

If you would like to learn more about estate planning for blended families, please visit our previous posts.

Reference: Forbes (June 28, 2021) “Could Your Aging Parents’ Estate Plan Create A Nightmare For Step-Siblings?”

Consider a QTIP trust for your Blended Family

June 3, 2021

Many people have so-called “blended” families, where one or both spouses have children from a previous marriage. Estate planning can be hard for a spouse in a blended family who wants to provide for a surviving spouse and for children from an ex-spouse. Consider a QTIP trust for your blended family.

Fed Week’s recent article entitled “‘Blended’ Families Raise Special Estate Planning Considerations” suggests that one option may be a qualified terminable interest property or “QTIP” trust.

This kind of irrevocable trust is frequently used by those with children from another marriage.

A QTIP trust allows the grantor of the blended family to provide for a surviving spouse and maintain control of how the trust’s assets are distributed, once the surviving spouse dies.

Income (and sometimes the principal) generated from the trust is given to the surviving spouse to ensure that the spouse is cared for during the rest of his or her life. Therefore, with a QTIP:

At the death of the first spouse, the assets pass to a trust for the survivor. No one else can receive distributions from the trust; then
At the death of the second spouse, any assets left in the QTIP trust are passed to beneficiaries named by the first spouse to die. This is usually the children of the first spouse to die.

With a QTIP trust, estate tax is not imposed when the first spouse’s dies. Rather, estate tax is determined after the second spouse has died. Moreover, the property within the QTIP providing funds to a surviving spouse qualifies for marital deductions. As such, the value of the trust isn’t taxable after the first spouse’s death.

While this arrangement may appear to address the needs of both sides, in many remarriages the surviving spouse is much younger than the one who died.

In many cases, the surviving spouse may be close to the age of the children of the spouse who died. As a consequence, those children may have to wait a number of years for their inheritance.

To avoid this, a better approach would be to provide for biological children as well as for a surviving spouse at the first death. It might be time to consider a QTIP trust for your blended family. Assets can be divided at that time. If an asset division is impractical, the proceeds of a life insurance policy may help to provide some inheritance for all parties.

If you would like to learn more about estate planning for blended families, please visit our previous posts.

Reference: Fed Week (May 7, 2021) “‘Blended’ Families Raise Special Estate Planning Considerations”

Poor Estate Planning Decisions can be Costly

April 15, 2021

Poor estate planning decisions can be costly. The dispute over Larry King’s estate shines a harsh spotlight on what happens when an elderly person makes major changes late in life to his or her estate plan, especially when the person has become physically weakened and possibly mentally affected, due to aging and illness. A recent article from The National Law Journal, “Larry King Will Contest—Key Takeaways,” examines lessons to be learned from the Larry King will contest.

A handwritten will is most likely to be probated. King’s handwritten will was witnessed by two individuals and may rise to the standards of California’s rules for probate. California was likely King’s residence at the time of his death. However, even if King’s won’t satisfy one section of California estate law referring to probate, it appears to satisfy another addressing requirements for a holographic will.

Holographic will requirements vary from state to state, but it is generally a will that is handwritten by the testator and may or may not need to be witnessed.

The battle over the will is just a starting point. Most of King’s assets were in revocable trusts and will be conveyed through the trusts. He did not seek to revoke or amend the trusts before he died. News reports claim that the probate estate to be conveyed by the will is only $2 million, compared to non-probate assets estimated at $50 million—$144 million, depending upon the source.

Passing assets through trusts has the advantage of keeping the assets out of probate and maintaining privacy for the family. The trust does not become a matter of public record and there is no inventory of assets to be filed with the court.

Any pre- or post-nuptial agreements will have an impact on how King’s assets will be distributed. This is an issue for anyone who marries as often as King did. Apparently, he did not have a prenuptial agreement with his 7^th wife, Shawn Southwick King. They were married for 22 years and separated in 2019. While Larry had filed for divorce, the couple had not reached a financial settlement. California is a community property state, so Southwick will have a legal claim to 50% of the assets the couple acquired during their long marriage, regardless of the will.

It is yet unclear whether there was a post-nuptial agreement. There are reports that the couple separated in 2010 after tabloid reports of a relationship between King and Southwick’s sister, and that there was a post-nuptial agreement declaring all of King’s $144 million assets to be community property. Southwick filed for divorce in 2010, and King sought to have the post-nup nullified. They reconciled for a few years and King was reported to have updated his estate plan in 2015.

The claim of undue influence on the will may not be easy to challenge. Southwick is claiming that Larry King Jr., King’s oldest son, exerted undue influence on his father to change the will. They were not close for most of Larry Jr.’s life, but in the later years of his life, King made a transfer of $250,000 to his son. Southwick wishes to have those transfers set aside on the basis of undue influence. She claims that when King executed his handwritten will, he was highly susceptible to outside influences and had questionable mental capacity.

Poor estate planning decisions can be costly. Expect this will contest to continue for a while, with the possibility that the probate court dispute extends to other litigation between King’s last wife and his oldest son.

If you are interested in learning more about costly mistakes in estate planning, please visit our previous posts.

Reference: The National Law Review (March 15, 2021) “Larry King Will Contest—Key Takeaways”

Category: Divorce

Divorce requires a Review of Estate Planning

Steps Seniors should take before Remarrying

Estate Planning is a Personal Process

The Estate of The Union Season 2 Episode 3 is out now!

How Divorcing over Fifty effects Estate Planning

Safeguard your Inheritance from Divorce

New Installment of The Estate of The Union Podcast

Blended Family Dynamics create Challenges

Consider a QTIP trust for your Blended Family

Poor Estate Planning Decisions can be Costly

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