There is no one size fits all solution for
an unhappily married person to begin contemplating divorce and the impact that
might have on a recent inheritance from a recently deceased parent or other
family member. This is one of the most common inquiries we get in the
overlapping world of my practice (estate planning, probate, and tax
controversy) and my law partner Angela’s (all things family law) to take care
of the lifetime legal needs of families.
There is no one size fits all solution
because it depends on what type of assets they are (cash, land, or stuff) just
as much as how it fits into the overall estate plan you have in place just as
much as the state of life your beneficiaries and fiduciaries are in just as
much as managing the possible tax consequences of one maneuver over another
while balancing the potential need to have that cash available in the future to
pay medical bills or college tuition for children or grandchildren.
Trusts can be revocable or irrevocable and
that is a big difference to appreciate the benefits and burdens of each,
especially as they relate to the overall comprehensive estate plan that is
already in place. Depending on the size of the inheritance that might force tax
planning updates to your estate plan which are relevant for gift, estate, and
GST tax reasons unrelated to a possible impending divorce. Trusts cost money to
set up. Trusts cost time and energy to set up. Trusts require additional
reporting requirements once they are funded. And trusts are not an opaque vessel
– it’s a standard request in discovery in a contested divorce case and it is
discoverable.
State law marital property concepts are
important too: marital property characterization, community property
presumption, tracing, commingling, reimbursement, and more can come into play
depending on the exact specifics. Inheritances are separate property, until
they are not.
“Lawyer in a box” packages you can buy off
the internet are usually not asking you any of the important questions to be
able to advise you based on the facts and the law, they are just trying to move
product. That product is appealing to some people since they can order it off
of their phone pretty cheaply and take care of the paperwork in their living
room without ever needing to go into a lawyer’s office. But the consequences of
taking your legal advice that way can definitely impact you financially later
on – those papers you got in the mail or downloaded offline might not be doing
what you thought were doing for you and now you have expensive problems in a
divorce case, or more serious problems with the IRS with hefty civil penalties
and interest; and perhaps an opened tax crimes investigation as well.
There are two kinds of estate plans:
comprehensive estate plans and estate plans that are not comprehensive. Asset
protection, trusts, and other maneuvers are a part of that conversation if you
have received a large inheritance or other windfall, just as much as if you are
contemplating divorce and you need someone to explain community property and
separate property to you and how that looks in a contested divorce case with
boxes and boxes of discovery as we commonly see.
Frye, Oaks, Benavidez & O’Neil, PLLC:
Over 105 years of legal experience now under one roof.
713-227-1717
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