For the estate planning practitioner to effectively do his or her job, it is important to understand how family law matters can impact what they are trying to accomplish for the client. Whether it be a prior, pending, or future family law matter, the estate planning attorney should be aware of and advise the client on the effects of each on an estate plan.
- Prior Family Law Matters
At the information-gathering stage of preparing an estate plan, it is important that any prior family law matters are disclosed and discussed and that any final orders (such as final decrees of divorce and any modifications thereto) are provided to the estate planner. Such orders are filled with information that the estate planner needs to be aware of, as it might have an impact on what you are trying to do and how you can do it. A simple example of this is a divorce decree that requires a life insurance policy to secure a support obligation. Such insurance policy should not be redesignated as part of the estate plan in violation of the decree.
- Pending Family Law Matters
Many Texas counties have implemented similar Standing Orders that go into effect immediately upon the filing of a family lawsuit. These Standing Orders often contain several provisions that are relevant to estate planning, such as prohibitions against selling, transferring, or encumbering assets. However, courts cannot prohibit divorcing parties from changing or executing a will or disability documents. Although many clients are not told the importance of updating such documents upon the filing of a divorce, it would provide many clients with relief knowing that their soon-to-be-ex would not be the one making life or death decisions should something happen to them during the pendency of the divorce.
- Future Family Law Matters
In many cases, spouses are not thinking of divorce when they meet with the estate planning attorney, but the attorney should be. It is crucial to ascertain from the beginning whether either spouse has separate property through ownership prior to marriage, gift, or inheritance. If separate property exists, the estate planner should educate the client about the impact a divorce could have on the estate plan, particularly Texas’ community property laws, so that the client can make well informed and consented decisions.
Our team at Thrash, Carrroll & Vanway Law Group is especially equipped to navigate these family law issues in relation to estate planning and would be happy to assist you! Contact us at 512.263.5400 or info@tcvlaw.com.
Author: Haley Bullard