State laws govern the disposition of assets in the event of a divorce; however, state laws vary greatly. With more people marrying later in life, and sometimes more than once, these agreements allow a couple to decide how best to divide their assets. By addressing these issues prior to a marriage, when tensions are low, the couple may be able to make any future divorce less acrimonious. Most marital agreements are entered into prior to the marriage (and are known as “prenuptial” or “antenuptial” agreements), but agreements may also be entered into after the marriage. A prenuptial agreement also may be amended after the marriage, so long as each side provides adequate consideration for any change.
State laws often permit a surviving spouse to elect to inherit a specified portion of the estate of the first spouse to die, regardless of the provisions of the deceased spouse’s will. In addition to specifying the division of property in the event of divorce, marital agreements often change these default inheritance provisions, limiting or expanding a spouse’s right to inherit property from the other in the event the parties remain married and he or she is the surviving spouse. These agreements are particularly useful when a client wishes to preserve an inheritance for children of a prior marriage, or when the assets include a family business or real estate in which other family members have an interest. Post-marital agreements are also often used by couples who are experiencing issues and desire to separate, but do not want the law to consider all assets acquired during their time apart as marital assets.
Domestic partnership agreements are typically utilized by those who are not married to outline the legal and financial details of their relationship. If a couple is not married, partners are not given rights under divorce or probate laws, making it increasingly important to address the manner in which assets brought to the relationship by each person are to be owned and shared. Having a domestic partnership agreement in place helps couples avoid the struggles frequently encountered when sorting out commingled finances and shared property.
Families are sometimes unable to resolve disputes that arise in regard to aspects of their wealth and its proper management or distribution. Such disagreements can occur within or outside the context of a trust or estate administration. Should these disputes rise to the level of litigation, even if the owner of the assets has not passed away, we can help the client manage the situation or represent them in court.
“Decanting” refers to the transfer of assets from one trust to another, which has the effect of changing the terms of the use of trust assets, even if the trust is irrevocable. Whether or not decanting is available for any particular trust depends upon the terms of the trust and state law. Our attorneys review trusts to determine whether decanting is available, and draft the new trusts to which the assets are decanted.
If the trust instrument is unclear, or there is (or could be) a disagreement between beneficiaries or between beneficiaries and the trustee, we can petition the court for construction of terms or other guidance. Through this process, we can put the matter to rest without opening up the trustee to liability for its actions.
We represent defendants and plaintiffs regarding the validity of wills or trusts based on incapacity, undue influence, or other legal bases for invalidating a will or trust.
If a trust or estate is subject to court supervision or does not provide for successor or substitute trustees, we can petition the court on behalf of trustees or beneficiaries seeking to change trustees. Such actions can include suits on behalf of trustees to defend against trustee removal, or petitions for removal for cause on behalf of a beneficiary.
There are many situations where a guardian of a person or their property may be needed or desired. A parent of an adult disabled child may desire continued management of the child’s property and benefits. A minor child may inherit outright assets that cannot be reached and managed without a court-appointed guardianship. An incapacitated parent who has not executed a power of attorney may need a court-appointed guardian. We regularly advise clients in this area of law, assisting with simple and disputed guardianship proceedings.
Beneficiaries may need our assistance to protect their rights with respect to a trust or estate. This may begin with requesting copies of trusts from a trustee and proper accounting, but could lead to litigation against a trustee regarding proper management and distribution of a trust.
We represent corporate and individual trustees and executors with respect to all legal issues that may arise and can be resolved through the courts.
Regardless of whether we have prepared the estate or gift tax return, we can represent clients before the IRS on gift and estate tax audits and appeals.
Occasionally a client will want to request the option of the IRS before completing a transaction, or request relief from the IRS for an action in the past that has not yet been brought to the attention of the IRS. For these purposes and others, we file for private letter rulings on behalf of our clients.
