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INTRO: In the last decade or so, there seems to have been a heightened awareness of and interest in “asset protection”. One aspect of asset/creditor protection that arises in the estate planning process involves the desire by parents to protect their children from post-inheritance divorces.
During the estate planning process for clients with children, the topic of in-laws – current and/or future spouses of the children – arises.
Clients occasionally make a specific bequest in their Living Trust or Will for their daughter-in-law or son-in-law. However, this is relatively rare as a result of a high divorce rate, uncertainty about the future and a strong natural inclination to provide only for descendants or “blood relatives”.
A related, but more complex issue involves how assets might be protected so that if a child divorces after inheriting, that child’s spouse is not able to take any portion of the child’s inheritance. Varying degrees of concern by clients may stem from simple caution, a fragile relationship between one’s child and his or her spouse or a doubt about the possible motives of an in-law. It is in this context that I sometimes facetiously refer to the in-laws as “outlaws”!
Let’s take an example. John and Jane Doe have a daughter, Betty. Betty has been married to Bill for 8 years and they have two young children. John and Jane are working with their estate planning attorney to establish a Living Trust. They want Betty to inherit all of their assets.
Jane and John ask their attorney: “How do we make sure that part (e.g. half) of Betty’s inheritance does not go to Bill if Betty and Bill later get divorced?” It’s an important question, but not a quick, easy one to answer.
It is first helpful to explore the basic California rules of community and separate property. It’s not necessarily intuitive, but lifetime gifts made to and inheritance received by a married person constitute separate property. So, if a married person (here, Betty) receives an inheritance from her parents and then she and Bill divorce, Bill has no claim over the assets Betty inherited. So, why worry about Betty, right? Unfortunately, we can’t jump to that conclusion.
PART TWO: Learn more about “outlaw” protection in “Outlaw” Protection – Part Two
This article is intended to provide information of a general nature, and should not be relied upon as legal, tax, financial and/or business advice. Readers should obtain and rely upon specific advice only from their own qualified professional advisors. This communication is not intended or written to be used, for the purpose of: i) avoiding penalties under the Internal Revenue Code; or ii) promoting, marketing, or recommending to another party any matters addressed herein.
Mr. Silverman is an attorney with R. Silverman Law Group, 1855 Olympic Blvd., Suite 125, Walnut Creek, CA 94596; (925) 705-4474; rsilverman@rsilvermanlaw.com.
ESTATE LEGAL SERVICES: Need to find an estate planning attorney in Walnut Creek CA? Contact Robert Silverman at 925-705-4474 for legal advice on Revocable Living Trust, Wills, Durable Power of Attorney, Advance Health Care Directive, Special Needs Trusts, and Irrevocable Trusts & Advanced Estate Planning, including Irrevocable Life Insurance Trust (ILIT), Qualified Personal Residence Trust (QPRT), Defective Grantor Trust (IDGT), Grantor Retained Annuity Trust (GRAT), “Crummey Trust”, and various types of Charitable Trusts.