San Diego Estate Planning Lawyer Blog

Published on: February 19, 2014

“Undue Influence” Between Spouses Can Affect Estate Planning

Marriage may be sacred, but under California law, one spouse cannot take advantage of the other when it comes to estate planning. Spouses have a fiduciary duty to one another, and when one party exerts undue influence over the other, the courts may intervene. Recently, a California appeals court upheld a lower court’s decision to invalidate part of a deceased man’s trust after finding his wife exercised such undue influence.

Lintz v. Lintz

Robert Lintz was a real estate developer worth millions. He was married several times, including twice to his final spouse, Lois Lynne Lintz. Shortly after their second marriage in 2005, Robert Lintz amended one of his trusts-which held his northern California properties-to give his wife a one-half share upon his death. The trust was amended several more times between 2005 and Robert Lintz’s death in 2009, each time increasing Lois Lintz’s share and decreasing the amount left to Lintz’s children from his prior marriages.

Published on: February 17, 2014

The Potential Conflict Between a Prenuptial Agreement and Estate Planning

by Scott C. Soady

How does a prenuptial agreement affect your estate planning? A prenuptial agreement is a contract between intended spouses designed to settle any property disputes that may arise following divorce or the death of one spouse. In many cases, a prenuptial agreement may override state laws providing for certain spousal rights in the other’s estate. That’s why, as with any contract, it’s important for both spouses to fully understand any prenuptial agreement before they sign it. Failure to do so can result in costly litigation down the line.

Liu v. Wang

A recent decision by the California Court of Appeals addressed the interaction of prenuptial agreements and estate planning. Please note this case is discussed here simply to illustrate the types of issues involved and should not be construed as a definitive statement of California law on the subject. The case itself involves a wife’s challenge to a prenuptial agreement with her late husband.

Published on: February 10, 2014

Unmarried Couples May Face Unique Estate Planning Issues

by Scott C. Soady

Estate planning is an important subject for all married couples. It is also an issue though for unmarried couples in long-term relationships. If you are living with a non-spouse partner-and especially if you own property or enter into a business venture with that partner-your estate planning should provide for an orderly distribution of any assets acquired in the course of the partnership.

Married and unmarried couples are treated quite differently under the law. In California, married couples may own community property, or property acquired in the course of the marriage and jointly held by both spouses. Upon the death of one spouse, his or her estate plan may only dispose of up to 50 percent of any community property, with the remainder staying in the possession of the other spouse.

Unmarried couples cannot own community property, but they can hold property as joint owners. For example, they could co-own a home as joint tenants (or tenants in common) or open a joint bank account, but these assets are not community property. Typically, when one co-owner dies, the survivor automatically inherits the deceased partner’s interest. This can be a useful estate-planning tool, as such assets are generally not considered part of a probate estate. For example, if you and your unmarried partner open a joint checking account, you would automatically assume sole title upon your partner’s death without having to go through a formal estate.

Published on: February 8, 2014

California Appeals Court Dismisses Lawsuit Against Attorney Over Unsigned Will

by Scott C. Soady

It’s never a good idea to wait until the last minute to complete an important task. This is especially true when talking about making (or revising) your estate plan. There is nothing you can do about your will or trust after you’re dead, and if you are contemplating a new or amended estate plan, it is imperative you speak right away with an experienced California estate planning attorney.

Don’t Blame the Estate Planning Attorney

Recently, the California Court of Appeals dealt with a lawsuit arising from the failure of a dying woman to complete revisions to her estate plan before her death. This case is not a binding statement of California law, but it provides a useful illustration of the perils of waiting until it is too late. In this case, the deceased woman’s relatives attempted, unsuccessfully, to blame her attorney for the failure.

Published on: February 6, 2014

Jahi McMath Case Raises Concerns Over Definition of Legal Death

by Scott C. Soady

The recent case of Jahi McMath has renewed the media and ethical debate over the question of when an individual can truly be declared deceased. McMath was a 13-year-old girl declared legally brain dead on December 12th, 2013, in Alameda County. The family contested this diagnosis, claiming she still had heart and lung function. Although an Alameda County judge confirmed the hospital’s determination that McMath was dead, the family filed a federal lawsuit, arguing this violated their religious beliefs, as protected by the First Amendment, which hold that McMath is still alive.

Defining “Legally Dead”

A majority of U.S. states, including California, have adopted the Uniform Determination of Death Act, a model law developed at the behest of the White House and the medical community in the early 1980s. California incorporated the uniform act into its Health and Safety Code. The Act defines death as either “(1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem.”

Published on: January 31, 2014

Distinguishing Between a Conservatorship and a Probate Estate

by Scott C. Soady

A conservatorship is a court-ordered relationship whereby one adult assumes responsibility for the finances and/or personal care of another adult. In California, conservatorships fall under the same law as probate estates, that is, the estates of deceased individuals. Indeed, the same branch of California’s superior courts hear probate and conservatorship matters.

Once a person under a conservatorship dies, the conservatorship also terminates, and a separate probate estate must be established. This may lead to some confusion, as a recent decision by the California Court of Appeals illustrates. This case is discussed here for informational purposes only and should not be treated as a comprehensive statement of California law on the subject.

Borden v. Dise

Published on: January 30, 2014

California Supreme Court Rejects Application of “No-Contest” Clause in Trust

by Scott C. Soady

A “no-contest clause” is a common California estate planning device used in wills and trusts to discourage litigation over a person’s estate. The basic idea is simple: If a beneficiary named in a will or trust files a lawsuit challenging that document’s validity, that beneficiary is effectively disinherited. What’s not so simple, however, is California’s approach to no-contest clauses. Such clauses have long been recognized under the common law in California, but the state legislature has adopted numerous restrictions on their enforcement over the years.

The most recent law, which took effect in 2010, limits enforcement of no-contest clauses to three types of claims: (1) “A direct contest that is brought without probable cause”; (2) a creditor’s claim; and (3) a beneficiary’s claim to trust property (also known as a “forced election”). These latter two case types must be expressly mentioned in the no-contest clause in order to have effect.

Prior to 2010, California law allowed beneficiaries to file “safe harbor” proceedings, which allowed them access to the courts without invoking a no-contest clause. The 2010 law eliminated such proceedings. But what about safe harbor applications still pending as of 2010? Recently, the California Supreme Court considered just such a case.

Published on: January 26, 2014

How Do You Define “One Acre of Land”?

by Scott C. Soady

When leaving real estate to someone under a trust or last will and testament, it’s important to describe the property in precise enough detail so as to avoid conflicting interpretations. California courts try to construct wills and trusts strictly in conformance with the maker’s wishes. The clearer your wishes, the easier it will be for a court to determine them-and, ideally, the less chance anyone will seek a judge’s interpretation in the first place.

Smith v. Smith

Here’s a recent example-a case from Alabama-where imprecise language in a will spurred litigation between family members. The deceased in this case is Billy Ernest Smith, a horse trainer, who married his second wife Elizabeth in 1996. Smith had two adult children from a prior marriage. When Smith died in 2009, his will gave Elizabeth Smith a life estate in his “house and the one acre of land on which same is situated.” This meant she could continue to live in the house until she left voluntarily, died or remarried. A separate paragraph in the will also allowed Elizabeth to have “her pick of all my horses.”

Published on: January 24, 2014

The Future of Same-Sex Marriage & Estate Planning

by Scott C. Soady

The movement towards legal recognition of same-sex marriage continues unabated. In December 2013, the New Mexico Supreme Court declared that “civil marriage” in that state must be open to couples of the same gender. A day later, a federal judge in Utah held the state’s definition of marriage as “one man-one woman” violated the United States Constitution.

In California, of course, state officials resumed recognizing same-sex marriages following the United States Supreme Court’s June 2013 decision in Hollingsworth v. Perry, a case that defeated an anti-same sex marriage amendment to the state’s constitution. The Supreme Court simultaneously held in a separate case that the Defense of Marriage Act-defining marriage as applying only to opposite-sex couples for purposes of federal law-was unconstitutional. That decision meant federal agencies could no longer deny recognition to same-sex marriages performed in a state where the practice was legal.

On the international front, the Parliament of the United Kingdom approved legislation in July 2013 permitting same-sex marriages in England and Wales, which will take effect in March 2014. (Scotland, which has a separate parliament, is presently considering same-sex marriage legislation for that country.) Similarly, New Zealand’s House of Representatives voted in April 2013 to alter the legal definition of marriage in that country to include same-sex couples. That law took effect this past August.

Published on: January 16, 2014

Executor Recovers $1.25 Million from Caregiver Who Took Advantage of 100-Year-Old Woman

by Scott C. Soady

Proper estate planning is key to protecting your assets from those who might take advantage of you, both during and after your lifetime. One all-too-common situation faced by individuals is the presence of home caregivers who might take advantage of their elderly charges. In some cases, it may fall to the executor or trustee named in the person’s estate planning documents to recover money improperly obtained by such caregivers and their associates.

Lintz v. Ramirez

A recent California case dealt with just such a situation. This case is discussed here as an illustration only and should not be considered a definitive statement of California law. The deceased in this case was Ruth Moynes, who died in 2006 at the age of 100. Moynes did not appear to have any blood relatives, but she was close with the family of Lynn Lintz. In 1994, Moynes executed an estate plan that included a living trust and what’s known as a “pour-over” will. Upon her death, any assets remaining in Moynes’ probate estate would be automatically transferred to the trust. Lintz was named executor of the will and successor trustee and sole beneficiary of the trust.