Marriage has always been governed by state law, and it is only in very recent history that select states began revising their definitions of marriage to acknowledge the rights of all couples to be married. While Massachusetts made same-sex marriage legal in 2003 via the decision in Goodridge, it was not until the landmark 2015 decision in Obergefell v. Hodges that the U.S. Supreme Court ruled that same-sex couples have a fundamental right to marriage, making same-sex marriage legal in all 50 states. Finally, same-sex couples could avail themselves of the many legal benefits of marriage that opposite-sex spouses enjoy. However, same-sex spouses often face unique and complex legal issues in the event of divorce or death, and their legal rights are unfortunately still not always secure. Some of these challenges can be avoided or minimized with careful and strategic planning.
Common in any divorce are determinations regarding the division of assets and potential spousal support. A major factor is the length of the marriage, which may be less straightforward for same-sex spouses. If a relationship between a cohabitating same-sex couple spanned 20 years prior to the legalization of same-sex marriage, yet their marriage of only … Keep reading
People typically have several goals in mind when they are looking to create or tweak an estate plan, and important to some may be the desire for privacy. Estate planning professionals are versed in the various estate planning vehicles that can effectively avoid scrutiny of one’s wealth and the nature of one’s estate plan, during life and after death. For example, while a simple will may require probate at death, with the filing of the will and disclosure of estate assets, trusts are private documents which avoid probate of trust assets at death. There are often work-arounds to disclosing the trust document itself in financial or real estate matters.
When it comes to privacy, individuals often do not want their children to learn the magnitude of their assets or the specifics of the child’s anticipated inheritance. In that case, they certainly would prefer to shield such information from their child’s would-be ex-spouse. However, despite the careful crafting of an estate plan to maintain one’s privacy, a person may be shocked to learn that they are expected to disclose details of their estate if their adult child gets divorced in Massachusetts.
Under Massachusetts law, a divorcing spouse has a right … Keep reading
When it comes to your estate plan, the law seeks to protect and carry out your intentions with respect to the disposition of your property upon your death. But Massachusetts law may dictate a different outcome if you leave your spouse out of your will. In Massachusetts, like many other states, the elective share statute aims to prevent one from disinheriting a spouse.
The elective share statute permits a surviving spouse to set aside their deceased spouse’s will and instead claim a statutorily-defined portion of the deceased spouse’s probate estate. Depending on the existence of descendants of either or both spouses, parents of the decedent, and/or other close family members of the decedent, the surviving spouse may claim an amount ranging from one-third of the probate estate to $25,000 plus one-half of the remaining estate. A portion of that share may be received as a life estate in the subject property.
Unfortunately, in many circumstances, the elective share statute misses its mark in achieving a fair and equitable outcome for the surviving spouse. For example, the current statutory scheme fails to take into account the length of the marriage, thereby treating a recent marriage exactly the same as 40-year … Keep reading
Last month I reviewed how to approach the extremely important decision of choosing a guardian for your minor children. Let’s now look at some vehicles for ensuring financial stability for your children in the event of your passing, which is particularly important if you are divorced. The options outlined below may already be familiar to you; hopefully, this information can help get you started on deciding which may be a good fit for your circumstances. Keep in mind any special considerations, such as setting aside money specifically for education or medical expenses, your child’s age and ability to manage money, or any special needs for which you need to account. Weigh these in conjunction with the ease and expense of setting up and administering each option.
Establish a Trust. A trust is undoubtedly the best vehicle for managing and protecting your children’s assets. A trust can be structured in numerous ways to accommodate your specific intentions. The trustee you name can provide asset management and decision-making in accordance with the parameters you specify. Distributions of trust assets to your child can be limited to specific purposes like education and health expenses, or you can give the trustee broad … Keep reading
Planning for the wellbeing of your children may be at the forefront of your mind in the midst of the current COVID-19 pandemic. The decision you have been putting off may feel more urgent than ever. Namely, who would care for your minor children if you and a co-parent (if any) become unavailable? Now is a critical time to carefully consider your intentions and solidify them in writing with an estate planning attorney. But where should you start and what factors should you consider?
Consider naming separate individuals.
Legally, stand-ins for parents fall into two separate roles. A guardian of a minor is responsible for making any legal and medical decisions on behalf of the minor, and generally is the person who cares for and raises a child. A conservator is responsible for managing assets and financial affairs on behalf of a minor (or otherwise incapacitated person) Both are nominated in your Will (and a temporary guardian may be nominated in an Emergency Guardianship Proxy), and you may considering naming separate individuals for each of these roles.
It may prove easier to narrow down individuals who would be well-suited for each role separately based on their respective strengths and … Keep reading
We all love our in-laws, right? (wink, wink) Shielding your hard-earned assets from a child’s spouse in the event of divorce is a critical component of your estate plan. Perhaps you love your son-in-law, but would prefer to pass assets down within your own bloodline. Or, perhaps having been divorced yourself, you realize the possibility of your own child’s divorce, and you worry that your son’s inheritance could end up in the hands of his ex-spouse and their new family down the road. Whatever underlies your concerns, there are ways to prepare an estate plan around these contingencies.
But before meeting with your estate planning attorney, a first step might be having a conversation with your child about a prenuptial agreement. Admittedly, it can be difficult to discuss financial matters with your children, and even more uncomfortable to broach the subject of their potential divorce. Recognize that your child may feel offended and hurt if they sense that you disapprove of their partner or question their judgment (in personal or financial affairs). Keep in mind that you can’t force a prenup on your child, as doing so could invalidate it.
Whether or not a prenuptial agreement is on the … Keep reading
If you find yourself lucky in love after a divorce, you have myriad considerations when deciding whether to remarry. If you have children from your prior marriage that you would like to provide for, I recommend that updating your estate plan be top of mind. A carefully crafted estate plan can function to provide for both your children and new spouse in a way that meets your goals.
Trusts are perhaps the most common estate planning tool used to protect assets and benefit different people. For married couples in particular, a qualified terminable interest property (“QTIP”) trust allows a spouse to enjoy access to assets held in trust during his or her lifetime while limiting the spouse’s ability to control the disposition of those assets after his or her death. This is an effective tool for providing your spouse access to assets for the duration of his or her life while preserving the remainder for your children after his or her death. You may also utilize a QTIP trust in conjunction with other trusts or estate planning vehicles to divide your assets.
Additional advantages to QTIP trusts include qualification for the unlimited marital deduction from state and federal estate … Keep reading
It’s advisable to review and update your estate plan with any change in personal circumstances, financial circumstances, changes in the law, or just the passage of an extended time. But if you’re in the midst of a divorce, or contemplating one, this may be the furthest thing from your mind. Here are a few key reasons why you should make updating your estate plan a top priority:
Divorce can take a while. Divorce proceedings often take many months, and you wouldn’t want your soon-to-be-ex-spouse benefitting from or having any rights with respect to your estate if you were to die in the meantime. While beneficiary designations for certain assets cannot be changed once a divorce proceeding is filed, you may be able to update documents like a Will, Trust, Durable Power of Attorney, and Health Care Proxy at any time, whether or not your divorce is finalized.
Your estate plan may no longer reflect your wishes. In Massachusetts, a final divorce automatically revokes any beneficial provisions for and fiduciary appointment of your former spouse (or his/her family members) in documents like your Will and Trust, but leaves the rest of these documents in-tact. The “back-up” individuals named in your … Keep reading