Following our line of discussion for Seniors who remarry or join into a Partnership, we’re tackling the tough issues of Estranged Children, Pre-Nuptial Agreements and Healthcare Advocates. We will break them apart by topic, but like all of these discussions, the topics/issues overlap when Senior Couples remarry or couple up.
Estranged Children:
Estranged Adult Children are very difficult issues for their Parents. As discussed before some take the position that “You want to reward those who are at the table with you”, and leave their Estate to their loved-ones/children or who are good to them. Others want to do an “Accounting” division. They are going to distribute out equally their assets between the Adult Children, whether they or not they have talked to that Child in a decade. (See Blog, Blended Families: Impact on Estate Planning)
The source of the “estrangement” is often the determining factor. If the Adult Child has chosen to withdraw from their Parent for some bitterness reason, especially if they have verbally “struck out” at the Parent because of how they were dealt with as a child, or some other perceived issue. The Parent may “Specifically Disinherit” that Adult Child. They specifically state in their Estate Plan that they are not leaving any assets to that Adult Child as that Adult Child “has chosen not to be in a relationship with them”.
I did an Estate Plan for a single gentleman with stage 4 cancer whose Son had chosen not to be in a relationship with his Father. His Father had stopped the Son’s stealing from him back in 2006. The Father had no idea where his Son was living now. All he knew was the last street that the Adult Son used to live on. The Adult Son had chosen not to be in a relationship with his Father to “punish” the Father.
The Son forged the Father’s signature to purchase a very expensive piece of equipment. When the Father told the Seller that it was not his signature and that his Son would have pay the debt, the son cut off communication with the Father. The Son refused to return his Father’s phone calls or respond to any mail. In spite of his Son’s actions the Father still left his Son one-half of his Estate.
I have had other Parents leave little to no assets to an Adult Child who has chosen not to be in a relationship with them. I have had a number of Clients who do not even know where their Adult Child is after the Adult Child “stormed off” after expressing their displeasure at the Adult Parent.
I have had Adult Children refuse to let their Parent see their beloved Grandchild. The Adult Child may end the relationship with the Parent after the Parent set a boundary with the Adult Child financially. They stop paying the Adult Child’s bills that the Adult Child is capable of paying. (See Blog, “Blended Families – Adult Children – Grandchildren). Or they stopped the Adult Child from stealing from them.
Estranged Adult Children are a very painful issue for the Parent. That is often the biggest rejection of that Parent’s life, whether warranted or unwarranted. That Parent is often hoping for reconciliation with that estranged Adult Child up until the day they pass on.
As discussed in our last blog, Blended Families – Impact on Estate Planning, it can also be a conflict issue between a Parent who later marries. One Spouse may be very unhappy with how the biological Adult Child treats their Partner. Possibly with disrespect or venom. They may want that Adult Step-Child boundaried and their new Spouse maybe unable to do so.
As we have said before, there is no right or wrong way to raise children. Also the outcome of how that Adult Child interacts with their Parents is just “in the wiring”. It’s how they were born and may have nothing to do with how they were raised. (Blended Families – Adult Children – Grandchildren Blog #5).
Pre-nuptial Agreements:
Pre-nuptial Agreements are often a position of conflict. However it is a much different situation when you have Seniors marrying late in life. That can relate to the responsibilities of the on-going nursing home expenses for the brand new Partner (Blog, Remarriage – Partner). It is a very major financial issue. You are on the hook for your new Spouse’s nursing home expense as soon as you say, “I do”.
Also it can be a major issue as each of the Seniors have already spent several decades in the work force, may be on the backside of the work force, or are completely retired out of the work force. They need their money to take care of them for the rest of their lifetime. Their assets can be at risk depending on how they handle everything in the event of a divorce.
Another issue is that many Adult Parents want all of their assets going to their Adult Children. They may be happy to have some version of a “joint overhead payment”, but want what they own to go to their Adult Children when they pass on. They may have been in a relationship with their Adult Child for several decades, and have only been in a short term relationship with the new Partner.
We often see a situation where the Parties have a joint overhead for their living expenses, but upon their death their assets go to their Adult Children. That’s a common Estate Plan that we see.
We have seen some situations where the remarrying Senior will leave some portion of their assets to take care of their new Spouse during their new Spouse’s lifetime. The other portion of their assets go to their Adult Children who they have been in a relationship for multiple decades.
We have done Estate Plans where assets are made available for the Surviving Spouse in some version of a Marital Trust so that the income and other assets help take care of the Surviving Spouse during their lifetime. Upon the death of the Surviving Spouse those assets go to the owner Spouse’s Adult Children, as opposed to going to the new Surviving Spouse’s Adult Children.
We will see this type of planning in the versions of a Pre-nuptial Agreement with the Parties and modifications of the Party’s Estate Plans accordingly to set-up such a Martial Trust structure within their Estate Plans.
Often Estate Plans are setup so that “if my spouse is still living with me full time as my spouse at the time of my death”. That way if the spouse has already separated from their Spouse, they do not get any inheritance from the abandoned spouse that passes on. In North Carolina it takes over one year to get a divorce. The Parties are often separated a long time before they eventually get around to getting the legal divorce. Without the Pre-Nuptial Agreement their separated Spouse still has a claim on the Estate.
State Law may allow a Partner to have a legal interest in their new Spouse’s Estate if they have been married for ten (10) minutes. Even if a Spouse has been married for a short period of time, they automatically have a certain percentage interest in all of the real estate that their new spouse owns and other legal claims to their new Spouse’s property as soon as the words “I do” are said. Even if the Parties don’t stay together as they walk back down the aisle. They could walk back down the aisle and one Spouse walk out the front door of the church leaving the abandoned Spouse behind never to return.
Some Parties do Post Nuptial Agreements:
Some Parties enter into a Post Nuptial Agreement. This is an Agreement that is entered after they are married that sets out provisions for the division of assets upon divorce and releasing claims to each other’s Estate. These are not seen nearly as often as the Pre-nuptial Agreement. There is less bargaining position available after the Parties are married.
Sometimes you will see a Post Nuptial Agreement where an Adult Child works in a Professional Practice of their Parent, such as a medical or dental practice. In these situations the Post Nuptial Agreement is to protect the Senior Professional’s medical or dental practice from a divorce proceedings dividing an interest in the Professional Practice. This can be where the Senior doctor has made his Adult Child doctor a Partner in the medical practice. Suddenly they have to buy out the leaving son or daughter-in-law’s “Marital Interest” in that practice. This is something that Clients rarely consider, but it needs to be discussed by their Professional Advisors in the event an Adult Child becomes a partner in the Professional Practice of their Parent.
Health Care Helpers:
Who you have as your Health Care Authorities: (1) your Health Care Power of Attorney, (2) who has Access to your Medical Information, and (3) who may have input in regards to End of Life medical decisions from a legal standpoint, should be chosen carefully. They need to be people who will be a Strong Advocate for you. It is easy to get bounced around or pigeon holed inside of a large medical system.
Your strong Medical Advocate will have no problem standing up for you and saying “No, let’s get another medical opinion”. They may need to be somebody who will say, “No, we are going to go to another medical provider”. The small time hospital may not be a good situation if someone has certain types of Cancer. Also some Orthopedic Surgeons are going to be better than others. You want to have the best specialist available.
Often we will see Clients that will move from the local hospital then they are taken to Duke, Sloan Kettering in New York, MD Anderson in Houston, one of the Mayo Clinics or the Cleveland Clinic. There are many fine medical institutions that specialize in certain medical treatments. You may take the cancer patient to MD Anderson in Houston, Sloan Kettering in New York, or Duke. You might take the heart patient to the Cleveland Clinic, John Hopkins in Baltimore or another well-known hospitals.
You want a Health Care Advocate who is going to do the research and be strong enough to hold up to the pressures from family and medical institutions and seek the best possible medical care that you can receive.
I read a few years ago that the third leading cause of death in the US was Medical Malpractice. That is normally unnecessary. Get the best medical care possible.
Make sure that you have the strong Advocate who will act on your behalf to do the research and push for your best medical care. That might not be your Spouse or your Adult Child. It may be your best friend or someone else.
We will have more Tough Talks next time as we discuss Generational Differences that will definitely effect your Estate Planning.
The issue At the Law Firm of Steven Andrew Jackson, Attorney and Counsellor at Law, we have helped hundreds of families protect themselves and their loved ones, avoid Estate Taxes and Probate Costs, and keep their Estate Plans current with the law through The Customized Protective Estate Planning Solution™.