Tuesday, May 26, 2015

Update Your Estate Plan Before Summer Travel Season

Headed for spring or summer travel? Update your estate plan before you go.

With spring right around the corner, many of us are looking forward to a much needed vacation.  In preparing for a vacation there are usually many plans to make, flights to schedule, hotel rooms to book, etc.  Important estate planning questions usually pop up around this time as well, such as “if something happens to me on this trip, will my family be taken care of?” 
If you have not considered whether your estate plan is up to date, or have been putting off contacting your attorney to have it updated, your upcoming trip can be a great motivator to finally get it taken care of.  Ensuring your estate plan is up to date will help give you peace of mind on your travels, knowing that if something happened to you, your affairs are in order.   A few common issues to review are included below to help you consider whether your estate plan will perform the way you intend:

Life Changes.  As we all know, the only constant in life is change.  Your estate plan needs to be reviewed and updated to account for these changes.  Changes in your family (such as through a birth, death, marriage, or divorce) or changes in your finances commonly require a review of your estate plan.   Also, consider whether the people you have named to handle the various jobs upon your incapacity or death are still the best choices.  The people you named five or ten years ago to handle a probate, serve as Trustee, or make medical and financial decisions for you may not be the best choice today. 
Beneficiaries.   Does your Will or Revocable Trust leave your assets to the individuals you intend?  Are there better ways to leave assets to those individuals, such as leaving assets in trust for their benefit?  It is important to consider where your assets will go upon your death and how they will get there.   Additionally, check to make sure the beneficiary designations on your life insurance policies and retirement accounts are up to date.
Illness or Incapacity.  Illness and injury always seem to strike at the least opportune time.  If something happened to you while on vacation which prevented you from handling your medical or financial decisions, having the appropriate documents in place can make all the difference in the world.  Having up to date “Advance Directive for Health Care” and “Durable Power of Attorney” documents is critical to ensure you are taken care of.  If both of these documents are up to date, you will have a trusted person in place to handle your affairs if you could not handle them on your own.
Minor Children.  If you have minor children, one of the biggest travel concerns is who would raise them if the unthinkable were to happen and you passed away.  It is a big responsibility to name someone to raise and care for your child.  It is especially important to name someone who is not only willing and able to take on this responsibility right now but can continue to provide a stable environment for years to come.  Make sure your Will is up to date and names a Guardian you are comfortable with.
Organization.  With all the technical decisions involved in creating and updating your estate plan, sometimes the practical considerations get overlooked.  Specifically, if someone needed to use your estate planning documents, could they find them?  Before you leave on your trip it is important to organize your estate planning and financial documents so that if something did happen to you, a trusted advisor could easily locate the documents to handle your affairs.  Given that so much of our lives are online these days, you should consider making a list of your online accounts and passwords and leaving it in a secure but accessible location along with your estate planning documents.
If you need help updating your estate plan to ensure your affairs are in order, the estate planning attorneys at Gevurtz Menashe can help.  Please contact us to set up an appointment.

Thursday, May 14, 2015

Estate Planning For Second Marriages – 5 Things to Consider

Everyone believes in second chances. Second chances can bring a lot of joy, especially in the context of getting remarried. In fact, blended families now outnumber traditional families, according to the U.S. Census Bureau. This is not just because of rising divorce rates – our longer life spans mean that many more people are outliving their spouses and remarrying. However, second marriages bring with them unique challenges, and the need to have comprehensive estate planning becomes increasingly important. It is likely that in your first marriage, you and your spouse generally had the same goals when it came to your estate planning: taking care of the surviving spouse during their lifetime and then leaving whatever assets remain to your children. Now, not only do you have to take into consideration the needs of your new spouse, you also have to consider the needs of your children from your previous marriage and possibly the needs of children from your second marriage.
  1. Wills. In Oregon, when a person becomes married, his or her existing will is automatically revoked. So, even if you updated your estate planning documents after your divorce, a remarriage may require you to take a second look at your existing estate plan.
  2. Beneficiary Designations. Certain assets let you name a beneficiary and are not controlled by a will or trust. These assets include life insurance policies, employer retirement plans, IRAs, annuities, and certain investment and bank accounts. You most likely named your spouse as beneficiary when you were married. Given the fact that you have remarried and may have additional children, updating your beneficiary designations is critical: beneficiary designations will override a will or trust if the documentation isn’t consistent. What does this mean? It means your ex-spouse will receive the assets if he or she is still named as the beneficiary!
  3. Qualified Terminable Interest Property (QTIP) Trust. A QTIP Trust is a type of trust that can provide for your new spouse until his or her death or remarriage, with the remainder of the assets passing to the beneficiaries of the trust – usually your children (though you can name anyone). The surviving spouse is entitled to the income produced by the trust during their lifetime, but the surviving spouse does not have full ownership of the trust assets and cannot sell them or give them away. In addition, these are special IRS-favored trusts that have special estate tax implications. The benefit of a QTIP trust for a second marriage is that it provides for flexibility in treating beneficiaries, can save assets for children of a previous marriage, and can generate tax savings and deferrals of estate tax in taxable estates.
  4. Irrevocable Life Insurance Trust (ILIT) . An ILIT is an irrevocable trust that is both the owner and beneficiary of one or more life insurance contracts. An ILIT could be a way to prevent conflict in your blended family because it would provide for an immediate death benefit to whomever you designate as beneficiaries (most likely your children from your first marriage), instead of forcing children to wait for your spouse to die before having access to assets (as is the case with a QTIP trust). Then, the remainder of your assets would be available to your spouse and perhaps children from your second marriage. As an added bonus, because the insurance proceeds are not part of your estate for estate tax purposes, an ILIT is a useful tool to avoid state and federal estate taxes.
  5. Power of Attorney and Health Care Directive. Now that you are remarried, you want to make sure that you have designated the proper person to make financial and health care decisions for you in the event you become incapacitated. In many cases this will be your new spouse. In Oregon, divorce does not automatically revoke a power of attorney, so failure to update your estate planning documents could cause your ex-spouse to serve as your agent.
Most people think that their situation is “too simple” to necessitate any estate planning. In the case of second marriages, this thinking could not be further from the truth. Estate planning in second marriages presents many challenges and requires the assistance of well-qualified estate planning attorneys to ensure your goals are achieved. Gevurtz Menashe’s estate planning attorneys are well-versed in assisting clients in this area. If you would like to learn more about the necessity of estate planning for second marriages, any one of our estate planning attorneys would be happy to assist you.
Call us at 503-227-1515 or request a consultation online.

Thursday, May 7, 2015

Actress Sofia Vergara Battles Over Frozen Embryos

By William J. Howe III

This week, 42-year-old actress and star of the hit TV sitcom "Modern Family," Sofia Vergara spoke out for the first time after her former fiancĂ©, Nick Loeb, said he should be allowed to use her frozen embryos to have children, even without her consent. According to CNN, Their relationship ended over a year ago, but Loeb has gone public in his law suit over the embryos. Loeb is suing for custody of the embryos, writing in a New York Times op-ed, “in my view, keeping them frozen forever is tantamount to killing them.” Loeb also admits the couple signed a consent form before getting started with IVF, stating nothing could be done with the embryos unless they both agreed. However, the form did not specify what would happen if the two were to separate, a separate consent required by California law.

Dahl vs. Angle

For Gevurtz Menashe, after arguing the Dahl vs. Angle case in 2008, both at the trial and appellate level(s), this story has been an interesting one to follow. This case still remains the only frozen embryos case to appear before the Oregon Court of Appeals—and as far as we know—the only one litigated in Oregon.  However, cases similar to these are certain to follow. With more same sex couples marrying and wishing to rear children, the declining male fertility rate, and the increasing number of women waiting longer to have children, the population of those who are likely to seek fertility assistance is growing.  The law has been slow to adapt to these rapid social changes—and the advancements in medical technology. 
Gevurtz Menashe is a family and estate planning law firm based in Portland, Oregon and Vancouver, Washington.  For more information, call us at 503-227-1515 or request a consultation online.

Embryo Law – Is an Embryo a Living Creature?

With over 600,000 frozen embryos in the country (according to the U.S. Dept. of Health and Human Services), it’s inevitable these IVF issues will continue to grow as a common dispute among couples, in every state. Although this specific case is receiving national attention due to the celebrity involved, it still raises several fundamental legal questions exploring areas such as “when does life begin?” and “what is conception?”—and further, in the eyes of the court, “is an embryo considered a living creature or is it property?”
For what it is worth, I predict that Mr. Loeb has virtually no chance of persuading the court to allow him to bring to life the frozen embryos carrying Ms. Vergara’s genetic material.  The cases from the U.S. and around the world are unanimous in ruling, under the circumstances of this case, that a child will not be brought into this world without both parent’s consent.

For Oregon couples considering any in vitro fertilization procedure, we recommend you seek legal advice from a lawyer experienced in this area. The lawyer will generally advise each party to sign a strong and clear contract provision, or premarital agreement indicating what should happen to any genetic materials should the couple’s relationship end.

About Bill Howe

Bill Howe is our leading authority of relationship agreements and has worked with several cases involving the agreements and litigation of genetic material, including the Dahl vs. Angle case in 2008, on frozen embryos. Bill’s family law practice includes a special emphasis on relationship agreements, premarital agreements, complex property and children’s issues and appeals—and for decades—he has been a leader in crafting the very legislation and procedures that govern family law in Oregon. 

If you would like to learn more about the legal impact of in vitro fertilization, or how you and your partner can better plan for the future, we would be happy to assist you.