Orlando Estate & Elder Law

Divorce Penalty for Retirement

“When all is said and done, ending a marriage can be almost as destructive to your retirement savings as the Great Recession was, according to new findings from the Center for Retirement Research at Boston College.”

It is almost impossible to end a marriage and to leave retirement savings intact. Between the cost of legal fees and the division of assets and households with one income instead of two, the cost of divorce is high. As CNBC reports in “This move is almost as bad for your retirement savings as the Great Recession was,” divorce puts people’s retirements at risk and some folks have to work many more years as a result.

 Current statistics show that approximately 40% of all marriages end in divorce. Researchers at Boston College behind the National Retirement Risk Index examined how likely individuals are to maintain their standard of living, once they retire. As of 2016, half of working-age households were reported to be at risk. Divorce pushes up a retirement risk for a person by 7 percentage points, while the 2008 financial crisis added 9 points.

Here are more reasons why divorce deals a tough blow to retirement:

• In addition to legal fees, divorce proceedings pull people away from work and can have an impact on their earnings abilities, especially women.
• Many divorces lead to the sale of the family home, which creates a major financial burden. If your marriage falls apart when the housing market does, the impact will be even worse.
• It’s more expensive to run two households than it is to run one.
• Tax rates change when couples divorce.

Dividing up a 401(k) when only one spouse was working can be tricky. You’ll need a court order known as a QDRO (a domestic relations order) to divide the account. The nonparticipating spouse of a 401(k) can typically receive funds from their ex’s as cash and not have to pay a tax penalty for the early withdrawal.  However, that money should be set aside for retirement. The money is often used to pay off debt or to fund the purchase of a new home. That means there is much less available for retirement.

Once the financial dust has settled, experts recommend reviewing both your retirement plan and estate plan. You’ll want to make changes on documents, including life insurance policies and any assets where your former spouse was listed. There may be court orders concerning retitling accounts. Speak with your estate planning attorney, to make sure your estate plan matches your new marital status.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: CNBC (June 28, 20918) This move is almost as bad for your retirement savings as the Great Recession was”

Hazards of a Gray Divorce Epidemic

The divorce rate for people over 50 years old is higher than it used to be. The reasons might not be what you think they are.

Studies have shown that for the youngest demographics, the divorce rate in the U.S. has declined from what it was a couple of decades ago. However, for older age groups, including those over the age of 50 the divorce rate has increased.

There have been several theories about what is behind the rise in divorce for people over 50, often called "Gray Divorces." One of the most common theories is that these divorces are the result of marriages that have been rocky for years and the couple chose to stay married until their children were out of the home.

On the other hand, research now suggests that is probably not the case as the Institute for Family Studies discussed in "Who is at Risk for a Gray Divorce? It Depends."

The research found that children leaving the home did not seem to be a factor in the increase in gray divorces. Instead, divorce was deemed more likely in couples of lesser means and for couples who were not on their first marriage.

The quality of an individual marriage was also a factor. For example, how well the couple enjoyed their free time together, plays a role in whether they get divorced.

Figuring out why older people are getting divorced at a more frequent rate is important for public policy.

Single elderly people have higher rates of poverty than their married peers. They also have more difficulty finding a support network for needed care.

While this study is not definitive, it gives important clues for policy makers to start addressing the problem of gray divorce.

For more information about life changing events and estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Institute for Family Studies (May 1, 2017) "Who is at Risk for a Gray Divorce? It Depends."

Keeping Creditors and Predators From Inheritances

One concern that people often have when planning their estates is what might happen to their child's inheritance if the child gets divorced. Some people are concerned that an ex-spouse could end up with the money.

Different people have different feelings about their daughters-in-law and sons-in-law. Some treat them as if they had always been a part of the family while others treat them as if they cannot leave the family soon enough.

These different feelings are often reflected in the wishes of parents while estate planning.

Some people want to make sure that if their child ever gets divorced, the ex-spouse does not receive any portion of the inheritance. Other folks do not mind if the ex-spouse gets some of the inheritance.

Recently, Family Studies discussed this issue in "Inheritance and Divorce."

The article discusses a specific case where soon after getting married a man's father created a trust for the man's benefit. About 10 years later the man filed for divorce. One issue in the divorce was how to treat the trust and whether it should be considered marital property.

The court determined that the man's interest in the trust was worth $2 million and decided that it should be marital property. The man's wife was given 60% of the trust's value when the divorce was finalized.

The man appealed and won. The higher court declared the trust was not marital property.

The higher court's decision is the normal outcome. Inheritances are usually excluded from divorce settlements in most states.

Nevertheless, it is best when estate planning to think about what you want and to state specifically in the estate plan what you want to happen in case an heir gets divorced.

For more information about estate planning in Orlando FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Family Studies (Sept. 6, 2016) "Inheritance and Divorce."

How Not to Protect Your Assets in a Second Marriage

When people get remarried they are often concerned that after they pass away their assets will go to their new spouses and leave their children from previous marriages with very little. While there are several ways to ensure that does not happen, getting a secret divorce in a foreign country is not one of them.

The New York Post recently reported on a bizarre lawsuit in "Husband secretly divorced wife after wedding 'to protect assets'." It seems some 20 years ago Cristina Carta Villa, now 59 years old, married Gabriel Villa, now 90 years old. According to Cristina, as far as she knew the two of them were still married and they have lived together ever since.

However, when a tax bill for their Manhattan home arrived she grew suspicious when her name was not listed as an owner of the property. Gabriel is alleged to have taken her name off the deed. He did this by claiming that the couple was not married.

Apparently, a few months after the wedding ceremony, Gabriel Villa hired attorneys in the Dominican Republic to divorce the couple in that country even though the two of them were not living there and never appeared in court.

Cristina Villa claims that Gabriel is now trying to sell the Manhattan home to his adult daughter and cut her out. She is suing him to have the divorce she did not know about invalidated.

Perhaps one of the strangest aspects of this case is that Gabriel Villa is a lawyer. Consequently, he should have known that there were far better ways to shield some assets from his wife if he wanted to make sure they went to his daughter from a previous relationship.

For starters, before getting married Gabriel could have arranged for a prenuptial agreement. After marriage he still could have asked for a postnuptial agreement. Despite those two options, Gabriel should have remembered that a spouse does not necessarily need to inherit all of the assets of the deceased spouse. In fact, the surviving spouse is entitled to an elective share, but any assets beyond that can be distributed however the deceased wants as part of an estate plan.

As always, planning in advance is key.  Please contact my office if I can help with your plans.

Reference: New York Post (Jan. 24, 2016) "Husband secretly divorced wife after wedding 'to protect assets'."

Estate Planning Versus a Divorce Decree

Sometimes when people are upset about specific terms of their divorce they will attempt to use estate planning to possibly get around those terms. That is usually not a good idea.

When you think of all the possible things that could be ordered in a decree of divorce, requiring one of the parties to maintain life insurance for a specific beneficiary is probably not one of the first things that come to mind. However, that order is made all the time and it is often the cause of lingering resentment for the ex-spouse who is ordered to pay it.

For example, what if one spouse is ordered to pay the other spouse periodic payments? This order may not be for ongoing support but as the best way to make an equitable division of property. Sometimes the spouse who is ordered to pay might also be ordered to take out a life insurance policy and designate the other spouse as a beneficiary. That way if the paying spouse passes away before all of the payments are made, then the life insurance can be used to make the non-paying spouse whole.

A problem with this is that people often try to get around these orders. How? By designating someone else the beneficiary of the life insurance policies and not making any offsetting changes to their estate plans.

Recently, Market Watch answered what happens in those situations in "Can I leave my stepchildren nothing if my husband dies?"

A reader asked Market Watch a question about her husband's life insurance. It seems that as part of the divorce decree from a previous wife he was ordered to maintain a life insurance policy with his children as beneficiaries until those children reached the age of 23. The policy however listed only the new spouse as a beneficiary.

He had no will and the new spouse wondered if she could keep the insurance money or must she give it to the stepchildren if her husband did pass away.

The answer to the woman's question and other similar questions is simple.

The terms of the divorce can be enforced. The children could ask to have the man held in contempt of court and file a claim against the estate for the amount of the life insurance.

Solution? If her husband is insurable, then he should take out a new policy and designate her as the beneficiary.

To discuss possible ramifications of a divorce settlement on your estate plans, please contact my office.

Reference: Market Watch (Jan. 12, 2016) "Can I leave my stepchildren nothing if my husband dies?"

 

Hear Ye, Hear Me - On Wednesday, January 28, 2015

Please join me this Wednesday for an update on Estate Planning 2015.

The presentation will be held at Horizon Bay at 360 Montgomery Road, Altamonte Springs 32714 from 4:00 to 6:00 p.m.

There is no charge to attend but reservations are requested so we can have plenty of room and materials for all.

Call my friends at Horizon Bay at 407-786-5637 or register on my website.

Bring your questions and come see me this week.

 

UK Historic Wills Are Available Online - Will Yours?

 

Wills can tell a lot about what people value. Looking through old wills can show how values might have changed over the years. The UK has recently aided that effort by making its archived wills available electronically dating back to 1858.

 

We often hear about the estates of recently deceased celebrities. Anyone can read the newspaper or search Google to find out the details of Michael Jackson's estate. However, the estates of historic famous people are more difficult to find. It often requires going to the library and pouring over history books.

 

 In the United Kingdom, however, some historic wills have recently been made available online for people to search through. The Independenthas the story in an article titled "New digital archive will allow public to view wills of historic names."

 

The database includes many famous names, such as Winston Churchill and Charles Dickens. This is an interesting project and well worth a look for anyone who is interested in the lives and deaths of historic figures.

 

 Closer to home, in the United States, something like this would need to be done on the state level.

 

One important message for modern estate planning is that wills are public.

 

 When filed with a probate court, wills become available for the public to access. While it is not as easy to access wills in the United States as it is in the United Kingdom, it can still be done.

 

 Thus, if you want your estate to remain private, you should not rely on a will. Please consider a consultation to explore your options.  Visit my website for more information and to schedule an appointment.

 

 

 

Reference: The Independent (December 27, 2014) "New digital archive will allow public to view wills of historic names"

High-Drama Estate Battle - What Not To Do

Sarah Long was found dead in her home last July. While police are still investigating the circumstances of her death, the battle over her estate is heating up.

Sarah Long was reported missing last July and found dead in her home of gunshot wounds. Initially, her death was ruled to be a suicide. However, inconsistent evidence at the scene later caused police to open up a homicide investigation. The police still do not know what happened to Ms. Long.

 She left behind an estate worth nearly $1 million.

 DavidsonNews.net has the full story in "As police investigate, battle rages over shooting victim's estate."

 Here is a quick overview:

 Long had previously made a will that left everything to her boyfriend. She also had an estranged husband and, under South Carolina law, the husband should be entitled to 15% of her estate regardless of what her will states.  (In Florida, the amount would be 30%.)

 The husband and the boyfriend have been fighting over the estate in probate court. To make interesting matters more interesting, Long's family has also intervened.

 There are allegations that Long made the will giving everything to her boyfriend under duress and that her husband abused her.

 The latest development? The boyfriend and the husband have reached an agreement to which Long's family objects. If it turns out that Long was murdered, then the identity of the killer may also play a role in who gets the estate.

Even if your estate won't involve this kind of intrigue, advance planning can save your family a lot of heartache.  Please contact my office to so we can keep your estate plan drama-free.

 Reference: DavidsonNews.net (December 24, 2014) "As police investigate, battle rages over shooting victim's estate"

Actor's Plan is Ordinary - And Public

The details of another celebrity's estate have recently been revealed. This time it is the estate of late actor Bob Hoskins. Unlike some other celebrity estates, Hoskins' is fairly ordinary.

Actor Bob Hoskins passed away last April at the age of 71. He was known for playing tough guys in movies who normally had a soft interior. Recently, the contents of his will were released.

 He left his entire 1 million pound estate to his wife of 32 years.

 The Daily Mailhas the full story in "Pennies from heaven... Bob Hoskins leave 1 million to wife of 32 years who helped him battle depression." The article includes a brief rundown of Hoskins' acting career, including his time as a circus fire-eater.

 Hoskins' will is somewhat refreshing. Recent celebrity estate cases have often been fairly messy with serious estate planning mistakes. Hoskins, however, did what many ordinary people choose to do, he left everything to his spouse.

 If a mistake was made here, it is that we know what Hoskins chose to do with his estate. By using a will, the details of his estate were made public. If he had used a trust, it is more likely that his estate and his wife's privacy would have remained free from public scrutiny.

 That is something that everyone should keep in mind. Wills are made public. If you do not want everyone knowing the details of your estate, then you need something besides a will.

 I would be happy to educate you on the full range of options available to fit your unique circumstances.  Please visit my website for more information.

 Reference: Daily Mail (December 20, 2014) "Pennies from heaven... Bob Hoskins leaves 1 million to wife of 32 years who helped him battle depression"

Ruby Says "Don't Do It!" - Let Your Dog Survive You

For many people, dogs are more than just best friends. They are a valued member of the family. However, pets, unlike other family members, are legally property. This raises the question whether you can direct that your pets be put to sleep after you pass away.

An Indiana woman named Connie Ley passed away in November. In her will, she made provisions for her pet German shepherd. The first provision was fairly standard. Ley directed that one of her friends should look after the dog. However, Ley also went on to direct that the dog should be put to sleep, cremated and that its ashes should be buried with Ley.

 The Washington Posthas the full story in an article titled "Indiana woman wants to be laid to rest with her German shepherd. One problem: The dog is still alive."

In this particular case, the dog is currently in a shelter waiting for a court to determine whether Ley's wishes will be followed.

 This is not the first time that the issue has come up. In some other cases courts have decided to put pets down as directed in the wills of the owners. The reason for this is that as much as we often think of our pets as part of the family, the law treats them as personal property.

 Animal cruelty laws aside, we are free to do with our pets as we please, including directing what should happen to them after we pass away.

 The lesson here? If you want to determine what will happen to your pets after you pass away, then you should make that a part of your will.   I would be happy to assist in crafting a plan that is fair to you and your furry friends.  

Reference: Washington Post (December 17, 2014) "Indiana woman wants to be laid to rest with her German shepherd. One problem: The dog is still alive"