Yours, Mine, Ours and Theirs – What Kind of Estate Plan?

denver elder law

A Waiting Bench

 

Last week I zeroed in on the importance of having in place health care advance directives for blended families and for this week’s fourth installment, I am going to go back to the big picture.  Part of the post-modern impatience which afflicts so many of us is to rush to a solution to a problem which is often not fully identified and consequently, many options which may have more comprehensively addressed the situation are never considered.  This is the old saying “don’t just do something, stand there!”  I offer that somewhat tongue-in-cheek because I know this is foreign to most of us, who are much more comfortable with our roles as “human doings” as opposed to “human beings!”

So let’s consider first the background for this big picture with a questions: what kind of family are you?

I recently executed a will for an elder client who mentioned to me that, besides providing for her five children, she considered in many ways as a son a man for whom she had served as a foster parent.  She had made provision for him with an insurance policy.

There are many different types of family just as there are many different types of families.  There are those “families of origin” which are usually those into which we are born and sometimes adopted.  Then there are “families of creation” – those which we choose by the relationships we have, be they biological children or other children, partners, spouses, extended family and friends.

So, back to the question posed above. . . the first obvious question is:

Are you married?

What kinds of joint or separate assets accounts do you own and how will those assets devolve (legal term for be inherited by) upon your surviving spouse, your children or stepchildren, and others for whom you wish to provide?

Do you have a marital agreement which often helps inform the disposition of property in the event of divorce and/or death?

And if you are not married . . .  then what?

Well, quite honestly – this is where things can get much more interesting.  Where the institution of marriage can provide much clarity as to whom will inherit a deceased person’s assets, a lack of a marriage can create many difficulties in long-term relationships if certain measures are not taken.  Many of marriage’s “protections” are evident in the law of intestacy, set forth in our probate code, which provide a myriad of extras available only to a spouse.  There are also protections which allow a surviving spouse to “take against the will” of the first to die spouse if the surviving spouse is qualified to do so.  (This is somewhat complicated, so I will not explain further at this time.)

Have you and your partner ever “held out” as spouses? Then common law marriage might be applicable.  Contrary to some modern folklore, there is no amount of time alone of cohabiting that is sufficient to support the existence of a common law marriage.

Are you and your partner clear about remaining unmarried to each other? This sounds odd, but there are many reasons couples do not wish to marry.  I know of one couple that chose for many years not to marry simply because they were afraid of (read – unfamiliar with) the legal consequences of marriage on their children’s rights relative to the step-spouse!

Couples will sometimes enter into agreements with each other to delineate the boundaries of their relationship.  Some of these might include: a nonmarital agreement; a living together contract; or perhaps a designated beneficiary agreement.  There are a number of ways in which an unmarried couple can solidify their relationship and many of the legal uncertainties surrounding it by simply executing such agreements.  Of course, before these agreements can be entered into, discussion must be had.

As we Americans are living longer than we ever have, perhaps it is time to think a bit more about our living arrangements and the relationships on which they are based.  More on this later!

© 2016 Barbara Cashman  www.DenverElderLaw.org

Yours, Mine, Ours and Theirs – Health Care Advance Directives

Not quite empty nests!

Not quite empty nests!

 

I am continuing my series of posts on the theme of blended families, adult children and stepchildren, and some of the challenges of estate planning within such a modern context of family relationships.

In my first post, I gave an outline of some of the terrain I would be covering here.  In the second post, I looked at some of the unique questions posed blended family estate planning, along with the potential for conflict if nothing is done to plan.  The last point discussed in the second post concerned differing styles of coping with or managing conflict and the importance of identifying what is important as well as knowing the challenges.  A colleague emailed me after seeing the post, commenting “It’s as if you were listening  to my recent conversation with my husband of 18 months!”

Okay, let’s get started with the third post already!  Here’s a link to some helpful information about stepfamily members and inheritance.    I’m including resources here about inheritance expectations of children, stepchildren and so forth because they are part of the equation, they are the “theirs” which I include in my title for the series.  In my experience working with blended families, the “theirs” is always part of the picture, whether the expectations of adult children are acknowledged as such or whether they are  described and set forth from the parent’s point of view in the estate plan.  Hence my inclusion of that term “theirs” – even if the adult kids are not at the table so to speak…. So getting back the content of this post, let’s consider some of the  “what happens if” and the “what happens when” scenarios in the blended family or some “de facto[i] version of it.

Getting back to my original premise about blended families estate planning having no “template” like the historically “traditional” American family did, it is worth considering first – what kind of blended family are you? Do you have: kids from both sides; aging adult parents; older, established adult children; any special needs children to provide for; an inheritance from a deceased parent or other relative which you wish to keep in your line of descendants; are long term health care considerations important; and lots of other questions.  Most of us like to go directly to problem solving mode when we face a challenge.  What I think is important to consider as a preliminary matter here is holding off on that step until you determine what are the important values which will inform both your individual and your joint decision making.  If you get to problem solving too quickly, there will be likely misunderstandings about the purpose and nature of what was decided and, of course, the utility of such decisions.  I should also add that, just like the rest of us over the age of 18, we should be having these conversations about who we want to make decisions for us in the event we are unable and expressing our end of life wishes to family members and loved ones.

I’m focusing on one particular issue in today’s post – advance directives for health care.  “Advance directives” include two important documents: a health care (medical durable) power of attorney (POA) and a living will.  These two documents work together for the most part, but from my perspective, if you only have one of these documents – execute a health care POA because that document names a person to make decisions for you in the even you are unconscious, unable to communicate or otherwise unable to provide informed consent for medical care.  Remember, health care POAs are, by their nature, what we call in my line of work a “springing” POA – meaning that the agent named in the document is only empowered to act as agent if the health care provider determines that the patient/principal is unable to give informed consent.  An agent cannot give informed consent for a procedure when the principal is otherwise able to provide informed consent.  This is informed consent matter is important, I have previously written about it in the context of the Nuremberg War Crimes tribunal.

I don’t usually like to use fear as a motivator to cause people to act, but a failure to execute a health care POA and name an appropriate agent to make decisions for you can have dire consequences in the blended family context.  A failure to discuss and plan for either the unlikely or the inevitable can result in conflict between the spouse and their step-children.  This is seldom what people want!

With the health care POA, the principal (the maker of the POA) should carefully consider who is the best person for the job – who is the best equipped emotionally to make difficult decisions and who will be able to effectively communicate with all the necessary parties involved.  Usually, if adult children know that this conversation is taking place with a parent and step-parent, there is a collective sigh of relief.  I suggest continuing the conversation at a family dinner or other event, so everyone is informed of who is named as gent and successor agent, who will be in charge of decision-making and how communication will be conducted.  It goes without saying that this should be an ongoing discussion over the course of our lives!

You can imagine that there have been many difficult lawsuits brought where there was no such document in place or plans were not otherwise sufficient.  Family peacekeeping often involves thinking ahead to avoid conflict, and this is just what advance directives can provide for a blended family.  Here is a link from the CDC with many helpful resources, including the American Bar Association’s Consumer’s Toolkit for Health Care Advance Planning.  In future posts, I will be looking at the financial power of attorney and other useful means to manage our longevity and disability.

And in celebration of our glorious sunshine here in Denver (after a lot of snow over the weekend!) how ‘bout a bit of eye candy?  Check out Colossal’s post about “The House of Eternal Return,” a previously abandoned bowling alley in Santa Fe which now houses a brilliantly colored immersive art installation.  Inside the space is a house, complete with a bathroom with a wavy tile floor.  I think the “eternal return” theme goes nicely with the desire of so many of us to remarry.  Here is that oft-quoted statement from Oscar Wilde about marriage:

Marriage is the triumph of imagination over intelligence. Second marriage is the triumph of hope over experience.

That’s all for now, will continue next time with more details for the ongoing discussion. . .

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[i] I use the term de facto here to distinguish from de jure blended family.  Most of my posts will covered married persons, but I do not wish to exclude couples who make other, nonmarital arrangements which often resemble marriage, but without its conventions and protections.  Here’s a good description of the difference between the two legal concepts.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Yours, Mine, Ours and Theirs Part 2: Opening the Conversation

Spring Flowers

Spring Flowers

This article from last June in The Huffington Post cites a Pew Research Center number from 2011 which states that a whopping 42% of American adults have a step relationship – as in step-parent, step- or half-sibling, or step-child.  I suspect the numbers have risen since that study….

It is not surprising that with the large number of remarriages involving children from a prior relationship, some of the basic priorities in estate planning can be much more fluid and complex.  In the title of this series I have added “theirs” at the end of “yours, mine and ours” – and this is for the simple reason that, in my experience, many spouses in a blended family relationship wish to preserve for their own descendants a certain portion of their estate.  In my experience with blended family estate planning, many spouses in blended family later life relationships consider their children’s inheritance as something separate in a way that few people married only to each other and with common children have ever done.  So let’s begin with identifying some of the terrain we will cover.

The Questions. . . .

What are the common goals that both spouses have in mind?

First off is the obvious question – how to provide for your adult children while taking care of your surviving spouse?  Considering things like life insurance, retirement benefits and other available resources can be immensely helpful, particularly when these resources are coordinated in such a way as to meet the common identified goals.  Since I represent primarily older adults with grown children, I won’t be looking at the second family and providing for them along with a spouse as well as from a first marriage?  How do we balance providing for children with providing for the surviving spouse?  Well, I must repeat that lawyer mantra here: it depends.  The fact is – there is no template for the values, choices, or goals of spouses in a blended family and how they provide for their respective children.  Yes, life is getting more complicated all the time it seems, but I would submit that with the exploration of some basic information, many otherwise inevitable conflicts can be avoided or at least minimized!  This is why it is so important to identify these questions that can loom large and cause much anxiety.

The Nature of Potential Conflict . . .

When a couple can identify the goals and values of their planning, developing a strategy for meeting them can become a bit simpler (note – I did not say easy – there is a huge difference between simple and easy!).  Identifying the source of conflict that can arise, which can threaten those values and goas the couple has identified, is a simple but powerful way of bringing more daylight into the conversation.  Talking about personality conflicts, communication styles and how to allocate scarce resources – be they common or separate resources, can have a positive impact on the planning process.  If this all sounds like a bit too much, I would submit that this groundwork laying is imperative and indeed makes for going early on in the process.  Perhaps you are familiar with the expression to go slow at the beginning to go fast later.  Reminds me of a favorite Ella Fitzgerald song!

The Varying Styles of Conflict Among People . . .

Important to consider here are some of the stumbling blocks that many of us place in front of this conversation, as well as those which may arise and otherwise derail a constructive and wanted conversation on this topic.  What I am talking about here is how each of us deals with conflict in terms of how we communicate in the midst of conflict.  There are five basic conflict communication styles:

  • Confrontation
  • Accommodation
  • Compromise
  • Conciliation
  • Avoidance

Many of us do not exclusively rely on a single style here, and that is a good thing!  What the conflict styles can teach us – and how this conversation can enrich and deepen a relationship among spouses – is about values (the first item I wrote about above) and how they shape who we are and how we behave.   Our perceptions and assumptions about who we are, who our spouse is and how the children of the blended family are included in the planning (either directly or indirectly) can be valuable ways to explore the depth of a relationship and chart a course through otherwise troubled waters.

I’m not saying that a plan is going to be 100% foolproof – I would not say that because everything is subject to change.  What I’m saying is that it is better to talk about the elephant in the room, to identify its function for shedding light on our goals and values of the spousal and family relationships we have.

More to come!

© 2016 Barbara Cashman  www.DenverElderLaw.org