Don’t Leave Life Insurance To Your Ex-Spouse!

Quote "Not all the people in your life are meant to stay"Ever heard horror stories about accidentally leaving an inheritance to an ex-wife or ex-husband? Here’s how it
happens–

Suppose you have a life insurance policy issued as part of an employee benefit plan that identifies your spouse as your primary beneficiary and your adult child as the contingent beneficiary. Maybe you even have a portion of the policy passing to your dog–this happens, too. 

Years down the road, your marriage ends and you get a divorce.

Your divorce decree provides that your ex-spouse is divested of all right, title and interest in any proceeds from your insurance policies. This solves that problem . . .right?  Nope.

Quick Answer –Why Is This Important To You? 

In layman’s terms, you need to re-name your beneficiaries under your insurance policy after a divorce unless you want your ex-spouse getting that money when you die.

The easiest way to avoid any of this happening is to make sure you review your beneficiary designations regularly and to update your beneficiary designations as your life changes.

  • Get married . . .change the beneficiaries
  • Have kids . . .change the beneficiaries
  • Divorce . . .change beneficiaries

There is case law to support the idea that a lawsuit could be brought against the ex-spouse to enforce the ex-spouse’s waiver of those benefits in the divorce decree; however, that may lead to protracted litigation and significant expense.

What does Texas Law Say?

Under Texas law, a designation in favor of a spouse is not effective after a decree of divorce or annulment is rendered unless the decree designates the ex-spouse as a beneficiary or the owner of the policy re-designates the ex-spouse as the beneficiary after the decree becomes final.

This saves you . . .right?

Maybe not.

State law applies to insurance policies acquired independent of your employment. If you die owning such a policy and you named your spouse as the primary beneficiary and then got divorced, the designation in favor of your ex-spouse would not be effective and the proceeds would pass to the alternate beneficiary.

What Does Federal Law Say?

However, insurance policies issued as part of an employee benefit plan are controlled by the Employee Retirement Income Security Act of 1974 (ERISA). This federal law trumps state law with respect to most employee benefits. Under ERISA, a plan administrator must distribute benefits to a beneficiary named in the plan regardless of the state law divesting the ex-spouse of his or her right to the benefits.

So if you obtained your insurance policy through your employer, your ex-spouse would be entitled to the proceeds.

Call our office for help or questions

We’re glad to visit with you about updating your will to change or add beneficiaries and to advise you on more changes to protect your family’s inheritance.  Give us a call at 817-6389016 to schedule an appointment or email us at Tweaver@WeaverLegal.net.

Travis Weaver, Attorney

Travis Weaver, Attorney

10 Items Your Kids Don’t Want To Inherit & Remedies For All

Piles of inherited collectibles being sold at flea marketDon’t want to see your beloved collection of books, records, china, or figurines on a table at the local flea market?

Check out our “Top 10 Items Your Kids Don’t Want to Inherit” AND remedies for finding a good home or at least peace of mind regarding your treasured items–

No. 10: Books

Unless your grown kids are professors, they don’t want your books. There are a couple common mistakes my clients make in valuing books:

The 17th-century books are likely to be theological or grammar-based, and are not rare. The 19th-century books are probably not in good condition, and since most came in a series or set, it’s unlikely you’ll have a full (valuable) set.

Remedy: If you think the book is relatively common plug the title, author, year of publication, and publisher into a search engine. Once you have the information, try selling on Amazon or donating to a library. People always need books.

No. 9: Paper Stuff – Photos, greeting cards, postcards

Family snapshots, old greeting cards, and postcards are not worth anything unless the sitter is a celebrity or linked with an important historical event or the subject is extremely macabre, like a death memorial image. Old greeting cards are not valuable unless handmade by a famous artist or sent by Jackie O. Postcards are valued mainly for the stamps.

Remedy: Take all your family snapshots and have them made into digital files. The other option is to sell those old snapshots to greeting card publishers who use them on funny cards or give family photos to image archive businesses like Getty. If the archive is a not-for-profit, take the donation write-off.

No. 8: Steamer Trunks, Sewing Machines and Film Projectors

Trust me, every family has at least three steamer trunks from the 19th century. They are so abundant that they are not valuable, unless the maker is Louis Vuitton, Asprey, Goyard or some other famous luggage house.

Likewise, every family has an old sewing machine. I have never found ONE that was rare enough to be valuable.

And every family has a projector for home movies. Thrift stores are full of these items, so, unless your family member was a professional and the item is top-notch, yours can go there as well.

Remedy: Donate this category and don’t look back. Declutter your life.

No. 7: Porcelain Figurine Collections and Bradford Exchange “Cabinet” Plates

These collections of frogs, chickens, bells, shoes, flowers, bees, trolls, ladies in big gowns, pirates, monks, figures on steins, dogs, horses, pigs, cars, babies, Hummel’s, and Precious Moments are not desired by your grown children, grandchildren or any other relation. Even though they are filled with memories of those who gave them to your mom, they have no market value. And they do not fit into the Zen-like tranquil aesthetic of a 20- or 30-something’s home.

Remedy: Find a retirement home that does a gift exchange at Christmas and donate the figurines. If you want to hold on to a memory of your mom’s collection, have a professional photographer set them up, light them well and make a framed photo for your wall. Collector’s plates will not sell anywhere to anyone. Donate these to a retirement village as well or to anyone who will take them.

No. 6: Silver-Plated Objects

Your grown children will not polish silver-plate, this I can guarantee. If you give them covered casserole dishes, meat platters, candy dishes, serving bowls, tea services, gravy boats, butter dishes and candelabra, you will be persona-non-grata. They might polish sterling silver flatware and objects, but they won’t polish the silver-plated items your mom entertained with. The exception may be silver-plated items from Cristofle, Tiffany, Cartier, Asprey, and other manufacturers of note.

Remedy: None. Give it away to any place or person who will take it.

No. 5: Heavy, Dark, Antique Furniture

There is still a market for this sort of furniture, and that market, in the fashionable areas of the U.S., is most often the secondhand shop. You’ll receive less than a quarter of purchase price if you sell on consignment in one. Unless your furniture is mid-century modern, there’s a good chance you will have to pay someone to take it off your hands.

Remedy: Donate it and take a non-cash charitable contribution using fair market valuation. You can always sell these items at a consignment store or on craigslist.

No. 4: Persian Rugs

The modern tranquility aimed for in the décor of the 20- to 30-somethings does not lend itself to a collection of multicolored (and sometimes threadbare) Persian rugs.

Remedy: The high-end market is still collecting in certain parts of the U.S. (think Martha’s Vineyard), but unless the rug is rare, it is one of the hardest things to sell these days. If you think the value of the rug is below $2,000, it will be a hard sell. Like antique furniture, it may be best to donate. Tax deductions are helpful. 

No. 3: Linens

Go ahead, offer to send your daughter five boxes of hand-embroidered pillowcases, guest towels, napkins, and table linens. She might not even own an iron or ironing board, and she definitely doesn’t set that kind of table.

Remedy: Source those needlewomen who make handmade Christening clothes, wedding dresses, and quinceañera gowns. Also, often you can donate linens to costume shops of theaters and deduct the donation. 

No. 2: Sterling Silver Flatware and Crystal Wine Services

Unless the scrap value for silver is high enough for a meltdown, matching sets of sterling flatware are hard to sell because they rarely go for “antique” value. Formal entertaining is not a priority these days. And of course, sterling must be hand-washed and dried. Can you see your kids choosing to use the silver? Same goes for crystal: The sets you have are too precious, and the wine they hold is too small a portion. Period.

Remedy: Sites like Replacements.com offer matching services for folks who DO enjoy silver flatware and have recognized patterns. Because they sell per piece, and therefore buy per piece, sellers get a rather good price. Sell your whole silver service; it will be “pieced out.”

Unless your crystal is Lalique, Moser, Steuben, Baccara, or another great name, you will not be able to sell your “nice set.” Give “unknown maker” sets away, fast.

No. 1: Fine Porcelain Dinnerware

Your grown children may not want to store four sets of fancy porcelain dinnerware, and frankly don’t see the glory in unpacking it once a year for a holiday or event.

Remedy: Like silverware, china is something to consider for sale to a replacement matching service like Replacements.com. Know your pattern to get a quote from one. Because such replacement companies buy per piece, the aggregate of the selling price is always more than a bulk sale at a consignment store, which might be your only other option.

These are typically items we don’t include in a will. If you need to update your will or trust, give our office, Weaver Firm-Attorneys, a call today at 817.638.9016 or send an email to TWeaver@weaverlegal.net. We’ll be glad to help you sort things out. 

Travis Weaver, Attorney

Travis Weaver, Attorney

How to Inherit an IRA

For many, the most special person in their lives is their spouse. The tax code treats spouses in unique ways by granting them abilities unavailable to others. Inheriting an IRA is one of those times.

Your spouse has options when inheriting your IRA. Here they are:

The most often used spouses-only option is the ability to roll the IRA into their own name. This makes things very simple for the surviving spouse. By rolling into their own name, they call all the shots and the funds are treated as if they had always been in the spouse’s name.

Most surviving spouses do this reflexively as the default. It feels like a no-brainer.

However, there are circumstances in which other options should be considered. Three that we see a lot are a surviving spouse who is older than the deceased spouse, a surviving spouse who is under 59 ½ years old and a surviving spouse in a high marginal income tax bracket.

When the survivor is older than the deceased and rolls the IRA into their own name, the IRA is treated as if it were always the survivor’s so Required Minimum Distributions are based on the survivor’s higher age. RMDs will be larger if they had already begun or will start sooner if they had not already begun.

This can be addressed by taking the deceased’s IRA as an inherited IRA. The IRA stays in the deceased’s name and the surviving spouse is referred to in the title with wording like “spousal beneficiary”. RMDs will then be based upon the deceased’s birthdate and the Single Life table unless and until the funds are rolled into an IRA just in the surviving spouse’s name.

When it comes to retirement, 60s are the new 50s
 
When the survivor is under 59 ½ and rolls the IRA into their own name, the IRA is treated as if it were always the survivor’s so distributions could be subject to the 10% early distribution penalty. This too can be addressed by taking the deceased’s IRA as an inherited IRA. The survivor will be able to take distributions at will, pay the applicable taxes but avoid the 10% penalty. Once the survivor reaches 59 ½, they can roll the deceased’s IRA into their own IRA if they wish.

A surviving spouse in a high-income tax bracket with no need for the taxable income that comes from the IRA may prefer that lower income family members inherit the IRA money instead. The surviving spouse can disclaim their interest. The disclaiming spouse does not get to decide how the funds are distributed. The funds flow to the contingent beneficiaries as though the disclaiming spouse pre-deceased the original IRA owner. Anyone interested in disclaiming should consult a qualified attorney.

If you have questions about your IRA or an inherited IRA, please contact us today. 817.638.9016.

5 Tips for Preventing Blended Family Legal Problems

Divorce and remarriage are more common than ever today. Blended families require extra attention from estate planning attorneys, but this extra attention to detail is crucial to avoiding costly legal fees for  probate litigation and more. 

Prenuptial Agreements are Your Friends

Two people blending a family can protect their goals and financial resources by entering into a prenuptial agreement. While a prenup may not be necessary for couples entering a first marriage, for a second marriage or any more after that there are all sorts of complex issues that may make such an agreement not only useful but necessary.

  1. Before getting married, people should discuss estate issues with their new intended spouse;
  2. A prenup ensures that both parties enter into the relationship with a clear understanding of assets and intentions;
  3. Both sides have a chance to discuss this plan with an attorney. 

Separate Checking & Savings Accounts

We encourage newly married couples to clarify any ground rules up front regarding “yours,” “mine,” and “ours” in order to avoid confusion. Understanding each other’s finances is key to avoiding fights down the road. Many people will start out having separate checking and savings accounts, primarily using them to pay for personal expenses, including those for children from a previous marriage. Don’t combine your accounts before speaking to an attorney!

If you choose to maintain a joint account for ongoing expenses as a couple, it’s important to discuss how much each spouse is going to contribute monthly – an equal amount or a percentage. 

Update End-of-Life Medical Documents 

Who gets to make end-of-life decisions? If people don’t put their wishes in writing, their loved ones can be left with legal disputes and family fights at one of the most difficult times in their lives.

Talk with your future spouse about this issue.

Children from a previous marriage may have very different ideas about who should make decisions about health care and what decisions should occur. Without specifying those wishes in a living will, also called an advanced healthcare directive, you are looking at thousands in potential litigation.

Update Your Will & Other Documents

In our experience, the ugliest family disputes that occur after someone passes away are not about money but possessions with sentimental value. Even the smallest item can have a significant emotional value, and squabbles over these belongings can cause rifts that are difficult to heal. Discuss your intentions with your family BEFORE you pass away.

Trusts should be as specific as possible about what each beneficiary is to receive. Once again, add this to your discussion.

For those who wish to leave assets to stepchildren, it’s important to include those directives in the trust or will. Stepchildren are not generally considered legal heirs, and they won’t inherit anything without being named in these documents. This is a rue awakening to those who don’t receive an inheritance when expected.

Estate plans can also become complex when a person wants to provide for his or her surviving spouse and still give the children access to inheritances as soon as possible.

For people with children by a previous marriage, a trust can be a good way to protect their inheritance. It can also be used to help ensure that any previous spouses or step-children who were part of that marriage are not inadvertently disinherited by the new relationship.

Prevent Legal Issues For Your Blended Family – Talk To Professionals

Experienced estate planning attorneys understand the unique challenges facing blended families. If you need to discuss the use of trusts or other asset protection strategies, please contact our office. We encourage people to have discussions and to communicate clearly with loved ones about their final goal: a happily blended family that remains a family after the parents have passed.

Avoid litigation. Plan Ahead. I’m glad to help you with questions about preventing legal problems for your blended family. Give me a call at the Weaver Firm – Attorneys at 817-683-9016 or visit WeaverLegal.net to learn more about our services. 

travis-r-weaver

Travis Weaver, Attorney