Call for an initial consultation: 510-402-1579
We Speak Korean – 한국어로 도와드릴수 있습니다

Don't Make A Move
Without Knowing Your Options

Newark Family And Estate Law Blog

Many people feature their spouses predominantly in their estate plans, and if you are among them and your marriage winds up imploding, you may have cause to make some changes. Unless you take particular steps to limit how much power your ex retains over certain affairs while your divorce case is ongoing, you run the risk of your former partner potentially having more control over you than you might like.

According to Forbes, many people navigating their way through divorces choose to make similar updates to their estate plans. Ultimately, the changes you may want to make are going to vary broadly based on how you crafted your estate plan in the first place. However, you may want to devote some attention to updating your estate plan in several key areas.

You may, for starters, want to change your beneficiary designations where possible to possibly reduce how much you leave behind to your ex. You may have certain elements of your estate plan that you are unable to change, but it makes sense to give it a second look and figure out if you might want to leave certain assets you had set aside for your ex to someone else.

You may also want to update or modify your health care proxy and power of attorney once your romantic relationship comes to an end. Failing to update your health care proxy may, depending on circumstances, mean that your ex is going to retain decision-making power in the event that you become incapacitated or require medical attention you are unable to commit to personally. Failing to update your power of attorney, meanwhile, may give your ex continued access to your bank accounts and financial affairs. Find more about estate planning on our webpage.

If you are ill or growing older, you may have many things on your mind about your future. While you certainly want to make plans for your estate and your assets, your health care may be of primary concern. Many in California have definite opinions about the kinds of care they hope to receive if they should become incapacitated. They also have strong views about the care and treatment they want or do not want at the end of their lives.

You may be among those who have decided to include a health care power of attorney in your estate plan. Your agent will speak on your behalf if you become unable to do so. This is a serious duty, and choosing someone as your agent should not be a decision you make hastily.

Who is right for the job?

Your health care directive outlines your wishes for a variety of situations, such as when you want doctors to resuscitate you and how long your medical team should allow you to remain on life support, if that should be necessary. However, a health care directive may not cover every contingency, so you can authorize someone to step in and make those difficult decisions. The most effective power of attorney agents have the following characteristics:

  • Someone who understands the gravity of the role and is willing to take it on
  • Someone you can trust to follow through with your wishes even if he or she disagrees with you
  • Someone who is willing and able to stand up to other family members who may disagree with your wishes or your agent’s actions
  • Someone who has a general understanding of medical procedures, is familiar with your health care issues and knows the questions to ask
  • Someone who can communicate clearly and concisely to doctors and other family members, especially in highly emotional situations
  • Someone who lives close by in case of an emergency

If you have a health care power of attorney, your loved ones may not be standing in the hospital corridors arguing over what they should do for you. A well-chosen agent can act with authority and according to his or her understanding of your wishes. You can see that your choice of agent will not be easy, and you may find it helpful to obtain advice and guidance from your attorney, who has had much experience helping others in your situation.

According to Marriage.com, infidelity is among the most prominent problems in a marriage. It may include having emotional affairs or cheating. Similarly, having a one-night stand, short-term or long term affairs, having a relationship over the internet and physical infidelity may get considered as infidelity. Besides, couples may experience sexual differences. Although physical intimacy is indispensable in a relationship, it may be the root cause of sexual problems in a marriage. A spouse may experience loss of libido. Similarly, a spouse may have a different sexual preference as compared to the partner.

Although disagreements and differences are inevitable in a marriage, some differences are too significant to get ignored, such as beliefs and values. One partner may have a different religion, and the other may believe in a different thing. Emotional chasm may arise as a result of these differences. Also, traumatic situations that are life-changing may add more challenges to the marriage as one couple may not know how to handle the situation.

According to Your Tango, overstepping the boundaries may cause problems. After getting married, one partner may try to change the other, and the other may view it as a personal invasion. Thus, they may get angry, feel hurt or disrespected. Also, they may face a lack of complete communication. When the couple fails to deal with their poor communication skills, more severe problems may arise in the marriage. Therefore, they should learn how to communicate effectively.

The couple’s focus may shift after getting married; thus, the relationship may suffer from the loss of attention, and a partner may feel brunt about the situation. Additionally, the couple may get emotionally disconnected from one another as a result of the unmet needs of one partner. Furthermore, they may fight about money.

When you think of a marriage as a legal contract, which it is, a prenuptial agreement is an entirely reasonable consideration. However, prenups are not very romantic, which may be why there has been a stigma attached to them for so long. 

With the possibility of divorce an inescapable reality, couples are gradually becoming more comfortable talking about and entering into prenuptial agreements, even those who are younger, poorer and/or marrying for the first time. Nevertheless, you may still have misunderstandings about prenups based on outdated information. Business Insider describes some common misconceptions about prenups, along with the facts related to each.

1. The terms of a prenup are inflexible

There is a grain of truth to this one. If you are the less-moneyed spouse, you cannot receive less than what the prenuptial agreement requires. However, assuming your spouse is amenable to it, you could receive more.

2. A prenup is valid as long as you sign it before the wedding

Possibly, but not necessarily. If you and your intended spouse sign a prenuptial agreement at the last minute, it could raise the question of whether one of you coerced the other into it. A prenuptial agreement signed under duress may be invalid.

3. A prenup leads to divorce

This is like saying taking out an insurance policy leads to car accidents or house fires. Having an insurance policy does not cause bad things to happen; it only protects you if they do. The same is true of a prenuptial agreement. As a matter of fact, most mental health providers agree that prenups do not impact marriages in any predictable way. In fact, some researchers believe that having a prenup can actually help you avoid divorce. 

If you get married without a prenuptial agreement and you and your spouse decide later that you want the protection it provides, it is possible to create a postnuptial agreement. However, this can make the process much more complicated. 

Estate planning is not only for the rich but everyone who has a loved one. People need to plan what will happen to their assets after they are gone. It might not be a fun experience, but it helps avoid disputes.

In a survey done by Caring, 57% of Americans have no estate plan documents in place. It means many people still disregard the importance of end-of-life planning. Here are valid reasons why one should have estate planning in place.

Protect the beneficiaries

Gone are the days when estate planning was for those with high net worth. Nowadays, both the rich and the middle-class families have to plan what happens once the breadwinner is no more. They must decide who inherits what assets rather than leaving the judge to settle disputes after their death.

Protect families

Many families are no longer in good terms due to estate battles. Wars between families or siblings are frequent as they cannot decide who takes care of the assets. These disputes may even end up in court and split up blood ties. An estate plan is an excellent way to stop them.

Reduce taxes

According to the Internal Revenue Service, people pay estate taxes for assets they have not transferred to beneficiaries. Estate plans hence help people avoid payment of inheritance taxes and federal taxes. Transferring assets to heirs protect them any form of Internal Revenue Service and reducing the tax burden.

A court process to decide who takes what after the property owner’s death is lengthy and costly. It can also put the assets at risk of getting on the hands of irresponsible individuals.

Estate planning may seem like a gender-neutral process, but there are some special considerations that you may have to make if you are a woman that a man may not have to. One of the biggest influencing factors regarding estate planning for women is that women often outlive their male spouses. This means that when a woman dies, she has a much larger estate that will not transfer to her husband. This brings with it some concerns that you will want to address.

The Business Journals suggest that you review your estate after your husband passes away. Make sure that you know about all of your assets and that they are covered in your plan. You should also check into beneficiaries to make sure they are up to date. You will also need to change titles and deeds to ensure they are in your name to solidify ownership.

Should you marry again, you need to make special provisions with your estate. If you do not have a solid estate plan and you pass away before your new spouse, he could get everything from your first husband that you now own. This could create obvious issues for your children from your first marriage. So, you need to make sure you update your estate plan and account for this second marriage.

You may want to make use of trusts. This will allow you to better manage your assets and who gets what when you die. They can provide extra protection that a will does not. They also help to ensure that your wishes are quite clear.

In general, you will need to make more decisions and manage your estate a little more closely once you inherit from your deceased spouse. You now control the family’s future, so it is essential to make sure you have everything in order.

Irrevocable trusts are known for having strict rules. If you decide to include one in your estate plan, you cannot touch the assets in it or make changes to it unless you have an agreement from the person named in the trust. Even then, it is not always easy to do much with an irrevocable trust once you create it. This may leave you wondering if after you die someone could contest it.

It seems logical that if the rules for creating and managing an irrevocable trust are so strict that the rules for contesting it would be as well. This is kind of true. According to Zacks, contesting an irrevocable trust is just like contesting a will. So, there are strict guidelines for the process, but they are not unique to this type of trust.

The court has to be sure that it is doing the right thing be revoking your wishes. Because you are not there to state what you want to happen, the court has to demand clear and convincing evidence that the trust is not valid.

This requires a person to go to court and prove there is something that legally makes this trust invalid. That could be claiming that you were not mentally competent to create it or that there is some problem or error with the trust.

Do note that it is possible for someone to file a challenge to a trust before you die. This would be ideal since you could argue your own case for the validity. However, contesting is only an option after your death.

Alimony or spousal support is a payment from a person to his or her ex-spouse due to a court order. During your divorce, the court may award you spousal support or make you pay it. If you pay support, the court will also determine how long you will pay it. This is the point about alimony that some people have an issue with. There are many who believe that the concept of spousal support is outdated.

When courts first started to issue support orders, it was at a time when families usually had an arrangement where the husband worked outside the home and the wife stayed at home to take care of the children and the household needs. Because of this, after a divorce, women struggled to maintain their lifestyles and handle their daily needs. At that time, women also usually got custody of the children, which meant they not only had to finance their needs but their children’s as well.

Things are different now. Women work, too, so they often have financial freedom outside of the marriage. According to the Los Angeles Times, this is why some people feel that spousal support laws are no longer appropriate. The law in California allows for a judge to make a lifetime support order, which means you could pay alimony until either you or your ex-spouse dies.

This option is only available for marriages that lasted longer than 10 years, but it still has an impact. Those who feel the law requires a change think that judges should have to consider earning capabilities and potential of the spouse receiving support when making decisions on how long that person will receive it.