During such a trying time Estate Planning probably will not be at the top of your priority list, but it should be close.
The most pressing issues usually occur in one of three areas; asset distribution, custody/guardianship of children, and successive marriages. These any many other issues can be pre-empted with properly drafted Last Will & Testaments, Power of Attorney and Advanced Healthcare Directive documents, and by retitling appropriate assets.
Without getting divorced, your spouse will always be able to claim at least one-third of your probate assets depending on other circumstances. Even when it would contradict the terms of your will, Maryland law allows a spouse to claim 1/3 of the probate property if you have children, and up to ½ if not. The same is true if you die without a will. In many cases where a spouse dies intestate, their partner can claim $15,000 plus ½ of whatever is remaining.
Not retitling bank accounts, insurance policies, etc. can also lead to unintended consequences. Financial and insurance institutions will not care what is going on in your life, they are bound by the paperwork they have on file. If your account lists an ex-spouse as a co-owner or beneficiary of an account, that is who will own the asset upon your death.
The outcome would be very similar in cases involving minor children or your health. Unless there are extenuating circumstances i.e. the remaining parent is unfit or other potential caregivers have an established relationship with the minor or making healthcare decisions for you, a surviving parent, divorced or not, is often a court’s first choice of parents for minor children or to make medical decisions should you become unable to do so.
These potential problems may seem overwhelming due to their complexity and far reaching consequences, but with proper estate planning, you can assure your wishes will be known and followed should the worst happen.
Mr. Abraham is an experienced attorney and founding member of the Law Firm of Abraham & Bauer. The Towson, MD office of the firm concentrates its practice in Elder Law, Estate Planning, Probate, Medical Assistance (Medicaid), Guardianship, Asset Preservation and Fiduciary Representation.
He is an active member in a number of professional organizations that focus on law, the senior community, and estate planning. He works with clients in Central Maryland, especially in Towson, Hunt Valley, Lutherville/Timonium, Parkville, White Marsh, Bel Air & Northern Baltimore City.
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