What Is An Estate Planning Lawyer’s Role When Negotiating A Marital Settlement Agreement?

 

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What role does an estate planning lawyer play in negotiations of a marital settlement agreement?  Well, there’s any number of marital settlement agreements.  There are marital settlement agreements that are entered into prior to the marriage, which is a pre-marital agreement.  There are some that are entered into after the marriage for the parties to address each others’ rights and their spouse’s estate.  And then there are the marital settlement agreements that are entered into in conjunction with a divorce proceeding.  The estate planning lawyer will want to review the agreement to verify that the spouse of your client has waived their rights to claim a portion of your client’s estate in the event your client passes away or my client passes away.

 

That would include the waiver of the elective share that a spouse has to take 30 percent of my client’s estate.  Also, as far as homestead is concerned, they waive their right to serve as a personal representative and also the right to any property that is acquired after the marital settlement agreement has been entered into and give full authority and latitude for my spouse to leave whoever they want to their property in their will or trust.  And so that’s what you’re looking for whenever an estate planning lawyer looks at the marital settlement agreement, and I usually have asked a lawyer who does domestic relations to prepare these because they are tested much more stringently or could be set aside much easier or attacked in the event there’s a divorce proceeding.

 

So if it could pass, it will almost always pass the test of not being able to be attacked after death.  So the estate plan lawyer is interested in seeing that the spouse of his client has waived their rights in his client’s estate to allow his client to leave his assets to whomever he would like, or as an alternative to be aware of what obligation he has to provide for his spouse in his will or trust.  If you have any questions, well, give me a call at 727-847-2288.

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How Can Domestic Life Partners Use Estate Planning to Provide for One Another?

 

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How can domestic life partners use estate planning to provide for one another?  Well, it’s imperative if you do wish to provide for your life partner that you do estate planning and that you can provide for your life partner in your will.  You can designate him or her as a beneficiary under your life insurance policies.  You can set up joint accounts naming your life partner as the beneficiary.  One of the problems that you may have is when it comes to 401ks and your profit sharing plans.  Sometimes that’s more difficult.  Florida does not recognize civil unions.  Even if you have a civil union recognized in another state, it won’t be recognized here in Florida.

 

So the key to providing for your life partner after you pass on is to do the planning and do a will and set your accounts up in your joint names.  And sometimes it’s – I’ve seen any number of times – it’s tragic when a life partner has cared for the other one for many, many years and they didn’t make any provision for them.  And then whenever they pass away the life partner gets nothing.  So I urge you to go ahead and have a will prepared and provide for your life partner and do the planning.  If you have any questions, give me a call at (727) 847-2288.  Thank you.

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If a Couple Divorces, What are the Right of the Ex-Spouse in the Former Spouse’s Estate?

 

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If a couple divorces, what are the rights of the ex-spouse in their former spouse’s estate?  The law provides that if you do not change your will and you have left the name of your former spouse in your will that they don’t receive or take anything under your will.  That’s the same as far as a trust is concerned.  However, if you name them on your IRA and have not changed it, or your individual retirement account, thus far the law has not been changed and so they may take under your IRA-designated beneficiary form.

 

So it’s important that you review all your estate documents after you become divorced.  If you didn’t have a will and didn’t name your ex-spouse on any of your IRAs or name them in your will, then of course they would not have any rights under your will to receive anything. And whenever you have children involved, of course, they may have rights as far as the children are concerned as the natural guardian of those as far as child support or to take care of the children’s interests in your estate.  I urge you, though, if you do get divorced, that you do need to change your will and eliminate or provide for someone other than your ex-spouse.  So if you have any questions about that or would like to have a will drawn or review your estate plan, call me at (727) 847-2288.

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Do I Need A Health Care Surrogate For My Adult Son Or Daughter?

 

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Does a parent need a healthcare surrogate for an adult child?  The answer is yes, if that’s who the adult child wishes to make healthcare decisions for them.  A healthcare surrogate is a designation of someone to make healthcare decisions for you in the event that you’re unable to do so.  Usually a healthcare surrogate also has what they call a HIPAA waiver which authorizes a medical provider to release medical information to the person you designate in your healthcare surrogate.

 

So the adult child can name a parent or they can name anyone else they want to name as well as any adult concerned.  So just because you’re the parent does not give you the right to make healthcare decisions for your adult child.  And the HIPAA waiver’s important in the event that you wish to obtain the medical information or how the person is doing medically.  And without it, the healthcare providers are supposed to refuse to give you that information unless there is a designation or a waiver under HIPAA.  So I urge you to have a healthcare surrogate executed and designate who you’d like to make healthcare decisions for you in the event you’re unable to make healthcare decisions and provide them with a HIPAA waiver.

 

Usually these healthcare surrogates go from the parent to the child rather than the child to the parent but there’s certainly no prohibition or automatic right of a parent to get information on an adult child.  So if you’d like to have a healthcare surrogate prepared call me at (727) 847-2288.

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Elder Law Video Index

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