When one spouse wants to disinherit the other, but they are still married, it can be a complicated process. In most cases, disinheriting a spouse is only possible if you have a valid prenuptial agreement or if you are divorced.
Let’s illustrate this with an example:
Jack and Jill have been married for five years, and have one child together. Their house was purchased by Jill before they were married, and Jack’s name was never added to the deed.
Jill recently discovered that Jack is cheating on her with the Instacart shopper. She and Jack are now separated and have started the divorce process, but she wants to make sure that if she dies before the divorce is final that Jack won’t get anything from her.
What can Jill do?
Jill can disinherit her spouse after the divorce
Unfortunately, Jill cannot disinherit Jack until she files for divorce. Tennessee law does not allow you to disinherit your spouse- even if you write a will that says that! My advice is to get divorced as quickly as possible. Unless divorced, Jack is entitled to his share.
The good news is that once divorce papers have been filed, there will be an automatic injunction that specifies that the pair no longer have spousal rights on the property through marriage. This is primarily to protect things like bank accounts, real estate, relationships with the children, and health insurance coverage. However, all that does is prevent money from being spent by either spouse outside of regular expenses. Jill won’t be able to do anything, like estate planning, until after the divorce has been settled or through special permission from a judge.
In the meantime, there are still a few steps Jill can take:
Utilize her prenuptial agreement
Jack and Jill signed a prenuptial agreement prior to their marriage. In it, they waived the right to inherit from each other. All Jill needs to do now is to rewrite her will to specifically omit Jack.
Divide assets into separate trusts
Jill can establish a trust under her name and place the house in it. Since Jack’s name isn’t on the deed or on the trust, he has no right to the house if Jill were to pass before the divorce is finalized.
Rewrite her will
Jill can rewrite her will so that Jack only gets what he is entitled to by law, called his elective share. In Tennessee, spouses are entitled to a homestead allowance, a year of support, and elective share. The elective share amount depends on how long you are married.
Hire a family law attorney
The divorce will go much quicker with the help of a family law attorney.
Jill can get a jump start on planning her estate.
Finally, if Jill is preparing for a divorce, she can take advantage of all the legal documents at her fingertips and get a head start on creating the estate plan she desires. Once her divorce decree is finalized, she can meet with her lawyer and sign the document to make it valid.
Are you getting a divorce and want to start over with your own will and estate plan in Tennessee? Are you looking for a referral to a family law attorney? Let us know! We are happy to help you make plans for your new life. Not sure where to start? Give us a call. We offer a complimentary 15-minute call to see if we are the right fit for you and your situation. You can schedule your call by clicking here.
A Davidson County will and trust lawyer’s job is to make sure that you have all of your ducks in a row so that if you become incapacitated or die, your loved ones will know how to manage your estate and follow your wishes. Laws in Tennessee vary from those found around the country, which is why you want to work with an attorney who is skilled in understanding your specific needs. One area that should be considered is your service providers.
Make a list of your service providers and put it in your estate plan
“Service providers” covers a wide range of individuals involved in your life. Should you be unable to communicate with them, you want to ensure that your trustee, executor, conservator, or other responsible person is able to communicate with them on your behalf. Having them all listed in one place will make this job much more manageable.
Household Providers
This list should include all of the people or companies that you deal with when it comes to the maintenance of your home. In some cases, your home will need to continue to function in your absence, and your representative will need to be able to contact these people to make sure things keep running smoothly. In other cases, whether you are deceased or incapacitated, there are certain services that you may no longer need, and the person in charge needs to be able to contact the service providers and cancel with them.
Some examples of household providers that you will want to list might include:
Computer support
Food or water delivery
Gardening
Pet care
Housekeepers
Heating/Cooling system maintenance
Heating oil delivery
House sitters
Pest control
Pool or spa maintenance
Utilities
Vehicle maintenance
Basically, anything that you have performed on a regular basis should be noted, along with contact and payment information.
Medical Service Providers
You should also provide your representative with contacts for your medical service providers. This information could be very valuable should you need medical attention but be unable to reach out to these providers on your own. Additionally, if you have standing appointments with these providers, it will be helpful to have them canceled so you don’t accrue charges for services you’re not using.
Some of the medical service providers you may want to include on your list are:
Chiropractor
Counselor
Dentist
Massage therapist
Ophthalmologist
Physical therapist
Primary care physician
Psychiatrist
Specialists
Personal Service Providers
There are other types of regular services that you may use, and you’ll want to include these as well for the same reasons already mentioned. Some personal service providers to keep in mind for inclusion:
Childcare provider
Hairdresser
Home care provider
Meal preparation
Transportation
Tutors
Additional Information
Along with the contact information for these service providers, it’s a good idea to make notes about when they are expected, and you may even want to include service agreements and contracts. For example, if you have a standing arrangement to have your sprinkler system blown out each fall, make a note of that.
Your estate planning attorney may not include all of this information directly in your estate plan, but they will want to be able to assist your family with where it can be located when the need arises.
If you are seeking estate planning services, please book a call with our office here .
This month we will discuss the subject of powers of attorney. In week one, we will discuss how to name a financial power of attorney. This is also known as a durable power of attorney.
There are many things to consider when appointing a financial power of attorney (aka an attorney-in-fact). This is an important position. Whoever you appoint would have the ability to make decisions regarding how you manage your finances. While it may seem obvious, it’s important to focus on choosing someone who is organized, trustworthy, and financially responsible.
What powers does an agent have when they have a financial power of attorney?
As stated earlier, the agent with a financial power of attorney can handle your finances just as you can. An agent will have the ability to go to your bank and handle banking transactions. They can contact your investment account broker and manage those funds. They can handle your insurance and sell your house. Of course, you want your agent to only make financial transactions in your best interest while you are incapacitated.
Can things go horribly wrong? Yes! Your agent has the power to clean out all of your bank accounts and sell your home. Heck, if they wanted to, they could take your assets, move to Fiji, and set up a little beach bar! I want to reiterate: It’s important that you choose someone who would never even think of doing something like that. You need to choose someone who will only have your best interest at heart.
Who should be your financial power of attorney?
When considering who should serve as a financial power of attorney, a lot of people are compelled to choose someone close to them. A lot of times this will be a relative, such as your children or possibly a sibling, but it doesn’t have to be. The agent could also be a close friend or even a professional if that is who fits that role in your life. In our practice, we like to make sure that our client acknowledges this very important point: the person you name as your agent in a financial power of attorney will have the ability to handle your finances pretty much the same as you will.
Choose an agent who can communicate effectively
Not only do you need to trust your agent, but we also recommend that you find someone that other people trust! While this element is not completely necessary, it may be important to you that your agent be relied upon to communicate important information effectively with the people in your life.
For example, if one of your relatives says to your agent: “Hey, my Aunty saved a lot of money and invested it well, how much does she have now and what has the spent money been used for?”. Ideally, you would have an agent that relatives intuitively trust to spend your funds in your interest. However, it would be really awesome if your agent took the time out of their day to respond thoroughly to your relative’s questions.
Choose an agent that is comfortable with online banking
Your agent should be good at bookkeeping
In a perfect world, your agent with financial powers of attorney would be held accountable for the transactions coming out of your assets. A good agent can effectively answer questions about spending and back it up with good bookkeeping!
An agent with power of attorney does not have to live in your state
As we mentioned before, the era of digital banking is here and it allows us the option to choose from a larger pool of agents, regardless of their location. Now, many people think that their agent under a power of attorney cannot be someone who lives out of state. And that is simply not true. Sometimes it helps to have somebody who lives in the state, but that is not a requirement in Tennessee. We do so many things by email and telephone, texting, and online business transactions that your financial power of attorney person, your agent, will likely be handling any business transactions online.
Choose an agent who will outlive you
While this is not a requirement, it is a good idea to think about someone who will outlive you. Generally, when you are using your power of attorney, it’s when you’re incapacitated. While there are times when a durable power of attorney is used on a temporary basis, such as during a medical event, it is more likely going to be during a period when we are at the end of our lives and are experiencing some type of ongoing health condition that is not likely to improve. We recommend that you look for an agent who can help on a continuing basis. A well-suited agent allows everyone to relax and enjoy the time you have left on this earth.
Who should NOT be your durable power of attorney
Again, while it may seem obvious, it is important to reiterate that anyone who is untrustworthy, unlikeable, terrible with money, incapable of balancing a checkbook, or unable to effectively use online banking might not be the best choice for becoming an agent of financial power of attorney. The goal is to find someone who can keep good accounting records and knows exactly where your money went, down to every last penny! A good agent is someone who is willing to communicate with everyone without hesitation. The main point is that no one in your circle should be concerned that your agent is taking advantage of you if you are incapacitated.
Now, if you are not incapacitated, your agent should only be acting if you are telling them to do so. Even if you have your power of attorney take effect immediately, your agent can and should only act under your direction. If you find that the agent acts otherwise, there are legal actions you can take against them in court.
In conclusion
A power of attorney is a useful tool for organizing the “adulting” part of your life, especially in incapacitation. A financial power of attorney should be someone that you absolutely trust; someone who will not give pause to others in your life. Someone who is financially responsible and organized, and someone who is familiar with handling online transactions. It does not matter if your agent lives in your state. In short, find an agent you believe will always have your best interest at heart.
There are many types of powers of attorney. Many powers of attorney are used when creating a well-thought-out estate plan. Do you think you could use a durable power of attorney in Nashville? Schedule an initial call to see if we can help you with your situation.
In some families, every gathering is another opportunity for disputes, whether you’re meeting up after a death in the family or a holiday. Maybe you just have a uncle who thinks he’s entitled to everything after your mom passes.
No matter what the issue is, let’s see if we can keep the peace among family (and non-family) during the estate planning process! Put the boxing gloves down and keep reading.
Begin with the End in Mind
Start with the goal of clear skies and peaceful resolutions. Visualizing a successful meeting where everyone leaves with a handshake can set a positive tone.
Remember, it’s not just about dividing assets; it’s about honoring relationships and the legacy of the will maker.
Timing is Everything
Just like planting your tomatoes after the last frost, timing in estate discussions is key.
Choose a moment when stress levels are lower, perhaps after a family dinner. (Maybe skip the moonshine to keep heads clear – but good luck keeping the uncle away from it!)
By allowing everyone to digest both the meal and the information, you’ll be setting the stage for a fruitful conversation.
Bring in a Neutral Party
Sometimes, it helps to have someone who isn’t Uncle Bob facilitating the discussion. An attorney experienced with family dynamics can guide the conversation without the risk of playing favorites.
Listen Like You Mean It
Active listening is like making biscuits from scratch — it takes patience and practice. Nodding along and providing a safe space for each family member to share their thoughts allows for open communication and reduces misunderstandings.
(This doesn’t mean not to speak up – just follow the golden rule and listen before you state your feelings on the matter.)
Embrace the Emotional
Acknowledge that emotions will be as present as fireflies on a humid Tennessee night. It’s natural for folks to feel a whirlwind of sentiments when it comes to inheritance. The key is to address these feelings with empathy and respect. “No apologies” is not a great way to live your life!
Document, Document, Document
Such important conversations deserve more than a handshake and a “y’all remember this now.”
Having the decisions made in these talks put down on paper by an attorney ensures that everyone’s memory stays as sharp as the details in a log cabin quilt.
Education is Your Best Friend
Familiarize yourself with estate planning essentials by visiting reputable sources like this one on estate planning. Understanding the basics can help you steer the conversation and clarify common misconceptions.
Keep It Light
While discussing the future can be as daunting as facing a bluff on the Cumberland Plateau, a touch of humor can ease the tension.
After all, we’re aiming for a family gathering, not a courtroom battle.
Graceful Aging Legal Services: A Neutral Third Party
Remember, estate discussions don’t have to be as much fun as a thunderstorm at a picnic. With these strategies, you can transform family estate planning into a process as peaceful as a Tennessee sunrise.
Consider us as your companions on this journey, offering a range of services to ensure that your family discussions avoid trouble as much as possible.
Getting married is an exciting time: a celebration of love and commitment, and the beginning of a new chapter together. Along with the joy and happiness, it’s important to consider the practical aspects.
One is the prenuptial agreement, often referred to as a “prenup.” While prenuptial agreements may not be the most romantic topic to discuss, they can play a vital role in safeguarding your future together and preparing for the difficulties of marriage before you say “I do.”
Do you remember the viral Reddit post of the man who was upset when his partner wanted to share the expenses of having a child? While that couple wasn’t legally married, this is the perfect example of how to negotiate a prenup. An experienced attorney will guide you through lots of questions when discussing your options for a prenup. Think of them as ways to get closer to your future spouse, rather than preparing for a break up.
Regardless of what personal matters you may want to address within your prenuptial document, here are the primary reasons you should consider getting one.
1. Financial Security
One benefit of a prenuptial agreement is the financial security it provides. A prenup allows couples to have open, honest conversations about their financial expectations and obligations.
In outlining each person’s assets, debts, and financial contributions, both parties can feel secure knowing their rights and financial interests are protected. This helps minimize conflicts and misunderstandings during the marriage. Some points to consider about prenuptial agreements include:
Protection of pre-marital assets: It can ensure that property or assets acquired by either party before marriage remain in their possession after a divorce.
Clarification of financial responsibilities: Clearly stating each party’s financial obligations during the marriage can minimize potential disputes about finances.
Division of marital property: A prenup can provide guidelines for the division of marital assets in case of divorce, reducing time spent on legal battles. Consider that you intend to continue making contributions to your 401k after you wed. That account will likely become a marital asset and your spouse will become entitled to part of it, even if they didn’t personally put any money in. However, your intended spouse can waive your rights to the account as part of the discussion and signing of a prenuptial agreement.
2. Protecting Family Interests
Another benefit of a prenuptial agreement is the ability to protect family members’ interests, particularly children from previous relationships. Addressing the distribution of assets and financial responsibilities in the event of a divorce or death can ensure that children from previous relationships are provided for.
Some thoughts about protecting family interests through a prenuptial agreement:
Protection of inheritance rights: This can outline the distribution of assets and inheritance rights so the intended beneficiaries receive their rightful share.
Financial protection for minor children: When partners have children from other relationships, a prenup can offer financial security for well-being and education.
Stress-free estate planning: Outlining property rights and distribution can simplify the estate planning process and minimize potential family conflicts. If your family or friends have ever started to use the phrase “gold digger” about your new beloved, a prenup is a clear way to make it clear what you want for everyone in your life.
3. Preserving Business Assets
For business owners, a prenuptial agreement can protect entrepreneurial efforts and keep business operations running smoothly. It can also help shield business assets from division during a divorce.
Considerations for business owners when it comes to prenuptial agreements:
Protection of business interests: Establish that the business, including its assets and future growth, is considered separate property.
Succession planning: With succession planning, a prenuptial agreement can ensure the smooth transition of the business in case of death or divorce.
Financial stability for the business: Outlining the financial responsibilities and obligations of each partner can maintain financial stability and growth.
Prenuptial agreements are not just for the wealthy or those anticipating divorce. They are valuable legal tools for couples looking to protect their individual rights and interests. By addressing important financial and family matters upfront, prenups can build a strong foundation of trust, transparency, and shared goals.
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Talking about prenuptial agreements may feel uncomfortable or unromantic, but they offer benefits for couples preparing to tie the knot. Whether it’s about financial security, protecting family interests, or preserving business assets, a prenup can lay the groundwork for a successful and harmonious marriage.
If you’re considering a prenuptial agreement, get in touch with an experienced attorney who can guide you through the process. At Graceful Aging Legal Services, we understand the significance of protecting your future together. We’re well-versed in helping couples create prenuptial agreements that meet their unique needs.
