When Life’s Challenges Require A Legal Response
Planning the future following a major life change can be physically and emotionally difficult. Much can be required of a person at a time when they might not be ready or able to make clear decisions.
At CC LawGroup, A Professional Corporation, we provide sensitive and sensible legal assistance to clients in the East Bay and Tri Valley areas during times of need. We offer services in family law, probate and trust administration, and estate planning areas and can assist you with a wide variety of legal concerns.
Flexible Counsel For You And Your Family’s Unique Needs
At CC LawGroup, we can assist you with difficult matters concerning:
Our firm assists couples seeking or going through a divorce and unmarried parents in resolving issues pertaining to child custody and support, property division, spousal support and payment of related attorney fees. We also draft prenuptial and post-nuptial agreements.
Probate and trust administration
Our firm has vast experience in handling the probate of a decedent’s will as well as administration of a trust including but not limited to changing of trustees, or distribution of trust assets upon the demise of the Settlor (Trustor). As a full-service practice, we can take on all aspects of your case, or just parts of it if you wish. We will sit down with you and determine the best path forward to offer you experienced service that’s within your budget.
Estate planning and administration
Our firm helps clients plan for the future through the drafting of wills and trusts, powers of attorney, and health care directives. We also represent families involved in the estate administration process.
Most people group “estate plans” under the same umbrella as “retirement plans,” as something only older adults need to worry about. However, this could not be further from the truth. Retirement plans are more effective if you begin them while you’re young, and every legal adult can benefit from an estate plan.
However, there are some people for whom an estate plan is particularly important. If you’re not sure whether you need one, keep reading. We’ll discuss these plans, what happens if you don’t have one in place, and how to tell if you need to prioritize planning.
What Is an Estate Plan?
An estate plan is a collection of documents that cover your legal, financial, and medical wishes if you are incapacitated or deceased. The most basic component is a last will and testament, which provides specific instructions on how you want your assets to be distributed after you pass and to name a guardian for your children if you have any. However, a plan produced with the help of a skilled attorney normally includes multiple other documents, such as:
- Powers of Attorney: You can name a trusted person who can act on your behalf if you’re incapacitated. You may grant one person full power of attorney or assign financial and health care powers to different people depending on your preferences.
- Advance medical directives: Also known as a living will, your advance directive provides instructions to your next of kin or your power of attorney about what kind of medical care you want if you’re incapacitated or permanently unconscious. You can use it to dictate whether you’re placed on a ventilator, if you want to be resuscitated should your heart stop, and other important medical matters.
- Trusts: Many estate plans include trusts to protect assets from taxes. You can also use them to maintain more control over how your assets are used even after you’re no longer around.
These items allow you to make the legal, medical, and financial decisions that matter most while you still can.
What Happens If You Don’t Have an Estate Plan?
Of course, many people die without a will or other documents in place. This is known as dying “intestate,” or without a testament. When this happens, the decedent’s estate is managed according to California’s intestate laws.
The local probate court will first assign an administrator to the estate. The administrator is usually the decedent’s next of kin, such as a surviving spouse, parent, adult child, or sibling. This representative is then responsible for:
- Identifying and notifying any surviving heirs of the deceased
- Notifying the Social Security Administration and the IRS of their passing
- Cancelling credit cards and other accounts
- Taking an inventory of the estate
- Having the assets appraised
Once this is done, the representative uses the estate’s assets to pay any remaining debts and taxes. Then, they will work with probate to determine the best way to distribute the remainder according to state inheritance laws. There are detailed rules for who can inherit in intestate situations based on the surviving heirs. The order of precedence is as follows:
- Spouses and registered domestic partners (regardless of legal separations)
- Aunts and uncles
- Nieces and nephews,
- Great-aunts and uncles
- The family of spouses who predeceased the decedent
- Legally unrecognized romantic partners, friends, step-children, step-parents, charitable organizations, and other groups not listed above do not have the right to inherit
In context, this leads to complex outcomes. For example, here’s what inheritance looks like if there is a surviving spouse:
- If there are no other surviving heirs, the spouse receives all assets.
- If there is one child or grandchild, the spouse receives all community property and half of the separate assets. The child or grandchild gets the other half of the decedent’s separate property.
- If there are multiple children or grandchildren, the spouse receives one-third of the separate property, and the rest is divided equally among the children.
- If there are no children but surviving parents (or no parents but siblings), the spouse receives half the separate assets, and the parents (or surviving siblings) receive equal shares of the rest.
However, deciding which assets go to whom quickly becomes difficult. In many cases, intestate cases with multiple potential heirs lead to probate challenges as the heirs dispute how the representative should distribute the assets. This can drain the estate of funds and significantly strain family relationships.
Do You Need to Start Estate Planning?
The whole point of estate planning is to avoid the stress and legal hazards of intestacy and ensure your last wishes are followed. That’s why every legal adult would benefit from having one. For example, if you have any assets you want to make sure go to a specific person, you need a will at minimum. However, certain groups have more to lose if they do not have a plan. People who benefit most include:
- Parents and step-parents: If you have children or step-children, you need to have a will at least to clarify how you want your separate assets to be divided.
- Entrepreneurs: If you want your business to live on, you should have an estate plan that addresses matters like succession.
- Artists: All creators need wills to name who should benefit from their copyrights and how they want their works to be used.
- People without next of kin: If you do not have a will or any qualifying heirs under California intestate law, your assets may be claimed and sold by the government. Your estate plan lets you name a friend or favorite organization instead.
- “Black Sheep”: If you do not get along with your blood relations, you need a comprehensive estate plan to ensure people you trust are in charge of your health, well-being, and assets when you’re no longer able to make decisions.
If you’re wondering whether you need an estate plan, the answer is almost certainly yes. The first step is to get in touch with a skilled California estate planning attorney like the experts at the CC LawGroup. Schedule your consultation today to discover how we can help you draft a plan that fits your needs.
Your marriage will officially end the day your divorce is finalized. However, your romantic relationship ended months, if not years earlier. While pinning down the exact day your marriage broke down isn’t always easy, it’s actually an important part of getting divorced in California.
State law requires you to identify your date of separation to proceed with the divorce process. Not only is it important for determining the length of your marriage, but it can also play an important role in awarding spousal support and dividing assets. Here’s why separation dates matter so much and how to identify yours correctly.
Why Does It Matter When Your Relationship Unofficially Ended?
Like many other complicated aspects of California divorce law, the importance of the date of separation can be traced back to state community property laws. In California, couples automatically receive true joint ownership of all assets each spouse earns or acquires during marriage. This includes income, bonuses, retirement benefits, investment gains, property purchased with marital funds, and debts.
Where California differs from most other states is how this joint property is divided during divorce. Community property laws require couples to split the total value of the marital assets equally unless both spouses consent to a different division. If they cannot come to an agreement, they can go to court and have a judge decide how to split their joint property in half.
The problem is that people continue to earn money and make purchases while going through a divorce. If all of these assets had to be considered during a contentious divorce, the couple might never make it out of court.
To address this issue, California instituted the date of separation. This is the day your relationship ended for the purposes of community property and asset division. State law defines community property as the assets acquired between your wedding day and your date of separation. While you are still legally married after your separation date, the money you earn and the things you purchase with it are automatically considered your separate property and exempt from asset division.
How California Defines the Date of Separation
According to state law, your date of separation is “the day when there’s a complete and final break of your marriage.” But what makes a break “complete” or “final” according to the law? It’s not enough to decide that you’re going to get divorced. You need to be able to support your claim in court.
The law defines the date of separation with two criteria: intention and action.
Your separation date is the day you inform your spouse you intend to end your relationship, or vice versa. You don’t necessarily have to ask for a divorce, either. You can demonstrate your intention with words or do something that makes it obvious you no longer want to be married, such as moving out. What matters is that you or your spouse does or says something indicating a complete break in your relationship.
This break in your relationship must also be final. As such, a day only counts as your separation date if one of you continues to act on your intention to end your marriage. This person does not need to be the same spouse who chose to end the relationship.
For example, if you ask for a divorce but reconcile later, that does not count as the date your relationship ended. In contrast, suppose your spouse moves out but tries to apologize later. Their move-out date will still count as your date of separation as long as you do not take them back. In that case, they demonstrated the initial intention to end your relationship, and your behavior is consistent with wanting to end your marriage.
Identifying Your Separation Date for Divorce
The difficulty of determining the day when the complete and final break occurred in your marriage varies. For some couples, it’s obvious. Potential evidence of a final break include:
- Serving your spouse divorce papers
- Moving out of the house or sleeping separately
- Halting intimate contact
- Opening separate bank accounts
- Updating your will
- Informing your kids that you’re getting a divorce
For example, California courts abide by the precedent set in Marriage of Manfer that even couples hiding their separation from the outside world are still officially separated if they no longer blend their funds, sleep apart, and do not seek counseling.
However, in other circumstances, the date you separated is less clear. Confounding factors include:
- Continuing to wear wedding rings
- Maintaining joint checking accounts
- Attempting to reconcile with each other
- Going on vacation together
- Making major financial acquisitions together
- Continuing conjugal relations
In cases like Marriage of von der Nuell, courts have confirmed that living separately is not enough to constitute a complete and final break if they continue to financially support each other, recognize relationship milestones, attempt to reconcile, or otherwise maintain emotional and financial ties.
If you and your spouse disagree on the date your relationship ended and there is a lack of strong evidence, the court will determine it for you. Its decision will take into account all of the factors listed above and more to determine whether your relationship ended when you filed for divorce or sometime earlier.
Determine Your Date of Separation With CC LawGroup
The day your relationship ended for good can shape the rest of your divorce. The best way to identify this date is to work with an experienced California divorce lawyer from CC LawGroup. Our experienced attorneys can help you understand state law and precedent and pinpoint the day things ended. Schedule your consultation today to learn more about how we can help you.
In the grand scheme of things, the right to same-sex marriage is still shockingly recent. It has only been legal in California since 2008, and it has been federally permitted since 2015. As such, same-gender couples are, on average, younger and less likely to be thinking about issues like estate planning.
However, estate planning isn’t a luxury for members of the LGBTQ+ community. It is one of the best ways people outside of traditional heterosexual relationships can protect their loved ones’ rights after they pass. Creating a comprehensive estate plan with a will, powers of attorney, and an Advance Medical Directive is invaluable for ensuring your family of choice is given appropriate legal acknowledgment.
Key Considerations in Estate Planning for Same-Sex Couples
Current state and federal law grant same-sex married couples the same rights as heterosexual spouses. However, laws can and do change. Furthermore, many LGBTQ+ people prefer nontraditional relationships or opt to remain unmarried life partners. As such, people in the community are more likely than most to benefit from estate plans.
A well-written estate plan can reinforce legal protections regardless of whether you are legally married. If you are in a same-sex relationship, your plan should account for issues like:
- Navigating legal complexities and protecting assets: If you are unmarried or federal laws change, you cannot rely on standard marriage inheritance laws to protect your partner. Your plan should explicitly name your partner as your primary beneficiary to give them legal rights to your assets.
- Tax implications and strategies for minimizing tax burdens: You can structure your plan to account for potential tax liabilities and guard your loved ones against unnecessary tax burdens.
- Planning for healthcare decisions and incapacity: Granting your partner power of attorney is crucial to ensure your medical wishes are respected, especially if your family of origin is not accepting.
- Addressing blended families: Same-sex couples are more likely to create blended families, which can lead to unique complications. You can use your plan to protect your children’s inheritance or name your partner’s kids as your beneficiaries.
- Adoption and parental rights: Adopting a child is an excellent way to ensure they are included among your beneficiaries. If you share a family with your partner, you may want to consider adopting your joint children if you are not already their legal parent.
- Protecting against family disputes and challenges to the estate plan: Many LGBTQ+ people have conflicts with their families of origin. If you are concerned that they may try to challenge your plan, you can work with your attorney to ensure that your plan offers minimal opportunities for probate disputes.
While every estate plan should account for these issues, they are especially important for people outside the legal default, as the law may not be structured to give them the necessary support.
Estate Planning Options for Same-Sex Couples in California
You can use many strategies to protect your partner when writing your estate plan. Some of the most effective tools for safeguarding assets and loved ones in California include:
- Wills: You can use your will to name your beneficiaries and define who should and should not receive your assets upon your death. A will is crucial to protect your partner, especially if you’re not married.
- Trusts: You can use trusts to avoid excess tax liability and pass on assets to loved ones beyond your legal spouse with less time spent in expensive probate battles.
- Advance Medical Directives: You may use an Advance Medical Directive, or living will, to explain what you want to happen to you if you are incapacitated and unable to make your own decisions.
- Power of Attorney: The person you grant power of attorney can make legal and medical decisions on your behalf. If you do not assign power of attorney, it will fall upon your next of kin, which will not be your partner if you are unmarried.
Does Same-Sex Marriage Matter for Your Estate Plan?
Yes, your marital status matters when planning your estate. Married couples of all genders become each other’s primary beneficiaries automatically. This provides an extra layer of legal protection that may be worthwhile even if you do not feel the need to get married as a relationship milestone.
One crucial benefit of marriage is California’s community property laws. State legislation defines all property acquired during marriage to be community property, meaning that it is automatically jointly owned. When one spouse passes, the other person already legally owns half the joint assets. No matter what disputes may arise, this ensures your partner will not lose everything.
If you aren’t married, you must rely on joint tenancy laws instead. Joint tenants co-own the property, so it automatically reverts to the surviving owner in full when the other person passes away. Joint tenancy provides more protections against debts, but fewer against taxes, which is often less beneficial for couples with significant assets. However, if you are married, you can benefit from both joint tenancy and community property laws.
Additionally, married couples are automatically granted rights to Social Security and survivorship benefits. You may also receive these benefits if you are in a registered domestic partnership in California. If your relationship is not legally acknowledged in some way, your partner will not receive these benefits.
In short, while marriage is not a requirement, it can simplify many elements of inheritance. Should you choose to remain unmarried, designing a comprehensive estate plan to safeguard your loved ones is particularly important.
Working with an LGBTQ+ Friendly Estate Planning Attorney
Estate planning is a complex matter, regardless of your family structure. If you’re in a same-sex partnership, it can become even more complicated. That’s why working with an experienced, accepting California estate planning attorney is important.At CC LawGroup, we proudly support all families in producing comprehensive and effective estate plans. Our Newark estate planning attorneys will work with you to address your concerns for the future and ensure your loved ones will be protected. Get in touch today to discuss your needs and begin your personalized LGBTQ+ estate plan.
Sensible Solutions, At A Value That’s Hard To Beat
Whether you are going through a divorce, dealing with the aftermath of a broken marriage or planning for a future after your death or incapacity, we have the legal experience and tools to assist you in meeting your personal and financial needs.
We also understand the importance of avoiding costly litigation when it’s unnecessary for your case. We always try to resolve your legal challenges as effectively as possible outside of the courtroom, yet are still prepared to take your case to trial when it’s best for you or your family.