Panel Disucssion for Older Women, January 12

"Older Women: Sex, Health and Wealth"

Hear Attorney Adele Harris of The Karp Law Firm and other panelists discuss issues of importance to older women at this January 12 event presented by the National Organization for Women.

Newlyweds, tend to these important plans

Across the country, thousands of eager couples, young and perhaps not-so-young, are busy with preparations for a June wedding. Guest lists, flowers and bridesmaids' dresses take center stage right now. But after the honeymoon, newly married couples should attend to something definitely not as glamorous, but definitely important: a basic estate plan. If you and your spouse have already discussed your budget and your finances, that's wonderful - but there's more to be done.

Hopefully your life together will be a healthy, happy, and long one - but let's face it, sometimes life has other ideas for us. For your financial and legal health, and most importantly for your peace of mind, you should address the following issues without delay:

Beneficiary designations

You'd be surprised at how many people fail to update their beneficiary designations when they marry. (This happened in my own family, when a relative found out her deceased husband's ex-wife had not been removed as the beneficiary of his life insurance policy.) Examine your retirement accounts, insurance policies, annuities, bank accounts, brokerage accounts. Also consider naming a contingent beneficiary, in case your spouse predeceases you.  

Titling of assets

Do you already own property with your spouse? There are three legal forms of titling when spouses co-own an asset: tenants in common, joint tenants with rights of survivorship, and tenants by the entirety. Consider ownership as tenants by the entirety, which is available only to married couples and can provide additional credit protection not afforded by the other forms of ownership.

Last Will and Testament

Your marriage has brought a new spouse into your life, and perhaps, new real property or other assets. A will allows you to name who you want to get your assets when you pass away. If you or your spouse do not already have wills, you should create them. If you have existing wills, have them reviewed. The law makes provisions for a "pretermitted spouse," i.e., a spouse who became your spouse after you wrote your will. The pretermitted spouse is legally entitled to 50% of your probatable assets. In addition, regardless of whether you change your will, your spouse has certain legal rights to your homestead property and elective share rights against your estate, including all non-probatable assets, unless you have a pre- or post-nuptial agreement that states otherwise. Bottom line, see a qualified elder law/estate planning attorney to get your ducks in a row.

Durable power of attorney

Do not assume that your spouse automatically has the legal authority to handle your financial affairs if you are incapacitated. Each of you should establish a durable power of attorney that  explicitly names the other (or some other responsible person) to handle your financial affairs if you are not able to do so. Once you have established your durable power of attorney, submit it to each of your financial institutions to be sure the institution will honor it.

Health Care Surrogate

Under Florida law, if you are no longer able to make your own wishes for medical care known, your spouse (after a court-appointed guardian, if there is one), gets priority as your health care decision maker. It is necessary to execute a health care surrogate naming your spouse as your health care agent. That assumes, of course, that you want your spouse to have that authority. If you want someone else to act as your health care agent - for example, a sibling - your health care surrogate must explicitly reflect that desire. Naming a contingent agent is also wise, if your first choice is unable to serve for any reason.

Children from a prior marriage?

If you have a child from a prior marriage, who will be the child's legal guardian if you pass away or are incapacitated, particularly if the child's other parent is no longer in the picture? Who will handle the child's money? These are important issues to be discussed with your attorney without delay.

Changed your name? 

Let your financial institutions know about your name change. Change your name on other documents, such as your passport and drivers license. Discrepancies between your new legal name and existing documents may seem like a minor issue, but can mushroom into a major inconvenience and bureaucratic nightmare. (Try getting through airport security when your drivers license says Mary Smith and your boarding pass says Mary Jones!) 

In summary: Enjoy your honeymoon - then make an appointment to see a certified and experienced elder law or estate planning attorney to get your plans underway. And keep the attorney's number on hand. As your married life evolves - perhaps with children, a new home, new assets - your estate plan will have to keep up. Congratulations!

Getting remarried? Be sure to protect your children from your prior marriage

If you're remarrying later in life, you may gain more than a new spouse. You may also gain a new, bigger family: your spouse's children. You may have your own grown children, too. Hopefully, everyone will get along beautifully. But even under the best of circumstances, remarriage almost always presents unique estate planning concerns. Addressing those concerns wisely and proactively is essential to ensure that your new, bigger family continues to get along after you're gone.

If you're like most of my clients in these circumstances, you probably want to provide some security for your new spouse in the event you predecease him/her. At the same time, you probably want your own children - not your spouse's children -  to ultimately inherit your hard-earned assets. To achieve those goals and avoid family disputes, you must make thoughtful and precise legal plans. You can't be casual about this issue, because Florida certainly isn't casual about it: In the absence of a valid pre- or post-nuptial agreement, Florida law entitles your spouse to (1) a minimum of 30% of your assets (the "elective share"), and (2) a life estate in the homestead property, or a 50% ownership share in it.

As you look forward to this promising new chapter of life, you may be tempted to just leave everything to your new spouse. Perhaps he/she has promised to leave all the assets that originated with you, to your kids, you know your spouse is trustworthy, and you have complete confidence that the promise will be kept. But guess what: circumstances beyond your spouse's control may arise that may make it impossible for your spouse to fulfill that promise, notwithstanding his/her good intentions. Consider these possible scenarios that could arise if your new spouse outlives you:

• Your spouse may come under pressure from his/her children to keep your assets instead of pass them on to your children. Trust me when I say it happens, and frequently. I recently heard this story from one family: "Mrs. K" spent six years caring for her second husband who had Alzheimer's. After he passed away, her children told her she was "morally entitled" to keep everything he'd left her, given how selflessly she'd cared for him. They took it one step further, too:  Since they were caring for their mother in her own declining years, they felt the house should be left to them. After several years of resisting their pressure, she relented and modified her estate plan to pass her second husband's money, and house, to her own children.   

• Your new spouse is only human and presumably, a loving parent. Suppose one of his/her own children falls on hard times or becomes ill and needs money?  Your spouse might be hard-pressed to deny funds to that child - even if that includes funds that were promised to your kids. It doesn't matter if your spouse has a will saying certain assets go to your kids, because a will can be changed at any time, so long as the will-maker is competent. Besides, a will is a death instrument; it has no control over what your spouse can do with the money during his/her lifetime. This also goes for any assets on which you've made your spouse co-owner. There's nothing to prevent a surviving spouse from naming his/her own kids as co-owners or death beneficiaries. 

• Don't assume that if your new spouse outlives you, the balance of his/her years will be healthy ones. Your spouse could become mentally incompetent, and then any "promises" that have been made could become meaningless. Conceivably, your savings could be squandered with bad financial decision-making. And if your spouse's children get control of his/her assets through a durable power of attorney, they will be able to manage the assets, even spending assets that are payable on death to your children.

So, with all these possible twists and turns, what can you do to ensure your kids get their inheritance? There are several possible approaches:

• Create a trust that gives your spouse access to the interest from your estate, and to a portion of the principal under certain circumstances. Once your spouse dies, the principal then gets distributed to your own children. I caution against making your spouse and your own children co-trustees. An arrangement like that can be a tinderbox, providing fertile ground for serious friction between the parties. Instead, I recommend selecting an independent, third-party trustee.

• Enter into a pre-nuptial agreement, or if you've already married, a post-nuptial agreement in which both of you waive your right to an elective share and/or homestead rights. You can agree on what you must leave to each other, if anything. Otherwise, under Florida law, your spouse has the right to the homestead for the balance of his/her life (either to live in it or to rent it out), or to force the sale of the property and take one-half of the proceeds. If you want your children to inherit the house, this issue requires careful consideration.

• Depending on your financial condition and health, consider purchasing life insurance on your life, naming as beneficiary your spouse and/or your children from your first marriage, and leaving some of the proceeds to each. Another possibility if you purchase life insurance is to set up a trust for the insurance that will distribute a specific amount of your choice to your spouse for the balance of his/her life, with the remainder going to your children upon your spouse's death.

The takeaway: Enjoy your new relationship. You are fortunate to find companionship and love again. But please, take the necessary steps to ensure that your money ends up in the right hands.

Can someone with dementia sue for divorce? Palm Beach County Court says no

Estate planning is as much about planning for life's curve balls as it is about what happens when you are gone. A recent Florida case demonstrates how failing to anticipate those curve balls can plunge a family into chaos.The key question in this case came down to whether a person with dementia can sue for divorce, but there were many preceding legal twists and turns along the way. For simplicity's sake, I'll break down the case to its essential elements:

Palm Beach resident Martin Zelman, a wealthy real estate investor with three adult children from a prior marriage, married his second wife, Lois, in 2000. Under the terms of the couple's prenuptial agreement, if they were married when he died, Lois would get $10 million in cash and property, be allowed to continue residing in their New York and Palm Beach homes, retain their club memberships, and keep their cars and artwork. But if they were divorced, Lois was to receive nothing from his estate - provided that Martin initiated the divorce proceeding.  Here's the catch, though: The prenup made no mention of what would happen if either became cognitively impaired.

And that's just what happened to Martin. As his dementia worsened, his son, Robert, petitioned the Palm Beach County Probate Court for guardianship, claiming that his stepmother was not giving his father the necessary care and was agitating him. Many of the couple's friends, and even their rabbi, testified that the Zelmans appeared to be a loving couple. Yet testimony from caregivers seemed to support the notion that Lois was abusing Martin. Ultimately the court sided with Robert, appointing the children as Martin's guardians and ordering Lois to vacate the couple's Palm Beach condo.

As a ward, Martin lost many rights, including the right to sue and be sued. This is a crucial point, because in order for the children to get $10 million more from Martin's estimated $50 million estate, Martin had to be divorced from Lois prior to his death. And the prenup stated it was necessary for Martin himself, not the guardian, to sue for divorce. Unsurprisingly, his son later petitioned the court, successfully, to restore his father's right to sue and be sued.

Still with me?

Now the divorce saga began. As Zelman v. Zelman worked its way through the court system, Zelman's children and their stepmother accused one other of being more interested in Martin's money than his welfare. The children contended that their father had told them he was miserable with Lois. They claimed they didn't even know about the terms of their father's prenup when they first petitioned the court for guardianship. "It was never about the money," Robert said. For Lois' part, she claimed she still loved her husband of fifteen years, the children were trying to push her out of the picture out of pure greed, the children were manipulating the courts, and her rights were being trampled on. “What makes it so sad is they broke up a love affair,” she said. 

In the end, it all boiled down to this question: Can someone with dementia sue for divorce? That's the question the court had to answer. In November 2015, Judge Charles Burton decided the answer is no. Burton found Martin to be incompetent, unable to understand what he was seeking, and therefore, not legally entitled to file for divorce. With that issue resolved, a settlement was hammered out by the lawyers for each side. It awarded Lois $9.75 million of her husband's assets, with the children continuing to serve as his guardians.  

As one of the lawyers on the case said, it must have been a fair settlement - because no one was completely happy with it.

While the Zelman case is unusual, our longer life spans, greater risk of experiencing diminished mental capacity, and more and more instances of blended families all mean we are likely to see more cases of families being plunged into this kind of legal minefield, particularly when significant money is involved. In other words, those curve balls are no longer quite so unusual. We must adjust by carefully planning for all the curve balls life can throw at us.

Is there common law marriage in Florida?

In my estate planning practice, I advise many clients who have been living together for a long time, sometimes for decades. They are committed to one another, take care of one another, and often refer to each other as spouses. But they have chosen not to marry, typically because (1) there are children from prior marriages whose inheritances they wish to protect, and/or (2) each one wishes to shield his/her assets if the other requires long-term nursing care.

These individuals often ask me if Florida considers them to be common-law married. In most cases, the answer is no. Florida recognizes common law marriage only if the marriage is valid in one of nine states that recognize it, or if it occurred in Florida prior to January 1, 1968. In all my years of practice, I have run across only one case of a couple whose union would be considered a common law marriage.

Not being considered married is a relief to most unmarried clients, because it allows them to avoid the above-mentioned legal entanglements. But there's a downside, too: they are denied the automatic privileges they may want, such as property rights, or even something as simple as the right to talk with their partner's doctor in the event of a medical emergency. From a legal perspective, unmarried couples are no more connected than two strangers.


If you are in a committed, non-married relationship, the good news is that there are affirmative legal steps you can take to protect one another and secure some of the benefits married couples enjoy. Here are a few of the most important issues you should consider and discuss with your estate planning attorney:

• Who will get to make your health care decisions if you are incapacitated? It's not uncommon for a patient's children and partner to lock horns over those decisions; emergency room waiting areas are frequently where such battles begin. If you want your partner to make your decisions, to participate in the decision-making with other family members, or even have the right to talk to your health care providers, you need to make your wishes clear with the appropriate written documents, such as a health care power of attorney.

• Unmarried couples often live in a home owned by just one of them. Unlike a married couple, the survivor has no legal right to stay in the home after the owner passes away, and could be forced out - unless the appropriate arrangements have been made to prevent that from happening. These arrangements should be carefully built into your will or trust.

• Take a look at your IRA, 401K, life insurance, etc. People tend to forget about these items as the years go by. Make sure your beneficiary designations reflect your wishes and are up-to-date.

To discuss your options, contact The Karp Law Firm and we will be happy to talk with you.