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LONICH PATTON EHRLICH POLICASTRI
1871 The Alameda, Suite 400, San Jose, CA 95126
Phone: (408) 553-0801 | Fax: (408) 553-0807 | Email: contact@lpeplaw.com
LONICH PATTON EHRLICH POLICASTRI
Phone: (408) 553-0801
Fax: (408) 553-0807
Email: contact@lpeplaw.com
1871 The Alameda, Suite 400
San Jose, CA 95126
Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, specifically San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, San Benito, and San Francisco. For a full listing of areas where we practice, please click here.
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Partnering Your Prenups and Estate Plans
/in Estate Planning, Family Law /by Michael LonichPremarital, or prenuptial, agreements are usually associated with pre-marriage planning and divorce. However, they also provide several benefits for estate planning. Premarital agreements can protect one spouse from liability for the other spouse’s separate debts and help to implement other estate planning strategies. When premarital agreements and estate plans are considered in concert, couples can maximize financial planning and estate planning goals and avoid potentially triggering unintended tax consequences or inconsistent estate planning.
In California, a community property state, a surviving spouse has a 50% interest in all community property. This right supersedes the terms of a will but may be waived in a premarital agreement, which does not necessarily equate with disinheritance. Waiving community property rights allows spouses to specify the manner in which their assets will be distributed and helps to ensure that estate plans will be carried out as intended. This may be helpful, for example, in a family business setting. If one spouse runs a family business with his or her children, a waiver of community property rights will allow the business to pass more easily to the children without the other spouse acquiring an interest in the business, through divorce or inheritance.
There are several other scenarios in which a premarital agreement may affect an estate plan. Premarital transfers may trigger income and gift taxes; estate tax exemption opportunities for surviving spouses may be missed; and premarital agreements may not comport with estate plans for a family home. Premarital agreements often provide for the disposition of the family home or give the surviving spouse a right to continue living there. However, these provisions in a premarital agreement should be drafted such that they will not impede an estate plan’s ability to execute home-related strategies such as transferring the home to a qualified personal residence trust.
If you are interested in learning more about premarital agreements and estate plans, please contact the experienced family law and estate planning attorneys at Lonich Patton Erlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
D.C. Provides Same-Sex Couples with Divorce
/in Family Law /by Mitchell EhrlichThis summer, the Wyoming Supreme Court ruled that the state’s courts had jurisdiction to grant the divorce of a same-sex Wyoming couple who legally married in Canada. (See Blog). Now, Washington D.C. is set to provide same-sex couples who got married in the District of Columbia with a way to get divorced. (See Article)
D.C. began allowing same-sex marriage in 2010; however, those marriages are not recognized in most jurisdictions, which means that divorce proceedings cannot be started since the marriages are not recognized in the first place. After hearing reports that same-sex couples who wed in D.C. were being denied divorces after moving to jurisdictions that do not recognize same-sex marriage, a D.C. councilman proposed legislation to help give these couples more options. The bill removes a six-month waiting period during which someone seeking a divorce must reside in the district, as long as the marriage took place in D.C.
Same-sex marriage and divorce continues to be a developing area of family law. New York considered a same-sex divorce case in early 2008 when a judge granted a divorce to a same-sex couple married in Canada. An Oklahoma court granted a divorce to a same-sex couple who married in Canada and filed using just their first initials and last names, only to revoke it upon discovering both parties were women on the grounds they were never legally married. As noted in the Wyoming blog post, the California Legislature recently made significant amendments to the law governing same-sex divorces in California. The State Assembly adopted the Separation Equity Act of 2010 which clarified that same-sex couples married outside the state are able to dissolve their marriage in California. Additionally, same-sex couples who married during the brief period in 2008 when same sex marriage was legal have the rights and benefits of married couples, including divorce.
If you have a family law matter and are interested in learning more on the law governing same-sex marriage or divorce in California, please contact the experienced Family Law attorneys at Lonich Patton Erlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
Maximizing Retirement: Where a Divorce Might Benefit You
/in Estate Planning, Family Law /by Michael LonichIf you’re elderly and divorced, you might be getting shorted on Social Security payments by collecting lower benefits than you might be eligible for, based on the earnings history of a former spouse. (See Wall Street Journal Article) A person can collect SS benefits based on (1) his or her own earnings, (2) fifty-percent of her spouse or former spouse’s benefit, if it greater than his or her own, or (3) one-hundred-percent if he is deceased. Divorced spouses must have been married ten years or longer and the person seeking a former spouse’s higher benefit must currently be unmarried, unless she remarried after age 60, in order to receive larger monthly benefits.
The Wall Street Journal provided this example:
The fact that the ex-husband might have remarried does not affect what his current spouse will receive nor does it require any involvement with the former spouse. The Social Security Administration should have former spouse earnings history, whether alive or not, and make it determination based on those records.
If you are interested in learning more about divorce or preparing for your retirement, please contact the experienced family law and estate planning attorneys at Lonich Patton Erlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
California Case Update: Form of Title Presumption Controls Characterization of Life Insurance Policy
/in Family Law /by Mitchell EhrlichCalifornia is a community property state, which means that all property, with certain exceptions, acquired during marriage is considered to be a part of the marital community and not one’s separate property. At common law, there is a rebuttable “form of title” presumption which, absent a contrary state law or proof as to otherwise, deems record title as determinative of the property’s characterization as separate or community. In a 2011 California Appellate Court case, the Second District confirmed that this rule applies when a life insurance policy is in the name of one spouse.
In Marriage of Valli, 195 Cal. App. 4th 776 (2011), Husband purchased a $3.75 million life insurance policy on his life with community property funds and put the policy in Wife’s name. Husband and Wife were married for twenty years with three young children. At the time of purchase, Husband had been experiencing medical problems and wanted to ensure his family was taken care of. Husband put everything in Wife’s name so that she could use it to take care of the children or disburse it as she saw fit. When the couple decided to separate, there was a dispute as to whether the policy was community property or the wife’s separate property.
The trial judge found that the policy was community property because it was acquired during the marriage and the policy’s premiums were paid during marriage. The appellate court reversed the trial court holding that the “form of title” presumption applied and the policy was therefore Wife’s separate property. The court reasoned that the act of taking title to property in the name of one spouse during marriage with the consent of the other spouse effectively removed that property from the general community property presumption. This presumption can only be overcome by clear and convincing evidence that there was an agreement that the title did not reflect the parties’ intent. In Valli, Wife established that the policy was taken in the Wife’s name, and Husband failed to rebut the title presumption with any evidence of an understanding with Wife that, despite the policy being in her name, they did not intend the policy to be Wife’s separate property.
While decisions made during marriage may seem appropriate at the time they are made, it is important that marital partners take the time to consider every scenario that may arise in the future. The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in-depth analysis of your issues. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization
Navigating Long-Term Care Insurance Policies
/1 Comment/in Estate Planning /by Michael LonichLong-term care (LTC) services assist an adult with day-to-day living to help them remain as independent as possible. These services may become necessary at any age: an older adult may need LTC services as daily life becomes increasingly difficult; a younger person might need assistance following a disabling event or accident; and anyone may need LTC services as a chronic illness progresses or during a period of rehabilitation. Most people, however, do not start thinking about long-term care until the services are needed.
LTC service costs are not covered by medical insurance or Medi-Care (designed primarily to provide access to a basic level of healthcare) and, without proper planning, can be debilitating for a family’s funds and estate plans. LTC insurance, for those who can afford it, provides a method of payment or reimbursement for services. Depending on the policy and coverage selected, LTC insurance can cover LTC in your own home, adult day care centers, residential care facilities, and nursing homes. However, navigating the plans and options available can be a challenge for most people.
There are several online resources that can assist in the consideration of long-term care insurance. The Wall Street Journal created a checklist to assist in the evaluation of a policy’s features. This tool can be used to compare policies before making a final decision on different options. MetLife, whose LTC insurance is not currently available in California, created an educational guide that defines terminology generally used in the industry, presents basic issues, and provides answers to some frequently asked questions.
Without LTC insurance, self-insurance (setting aside enough money to pay privately for potential future LTC services) becomes exponentially more important. If you are interested in learning more about creating a comprehensive plan to ensure that you or your family members are well-prepared to handle your needs and estate near the end of life, please contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.