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April Harris Jackson

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What is a prenuptial agreement and how do I get one?

When you think of marriage, you likely think of doves, flowers, white dresses, cake, and eternal love, right? When a lawyer thinks of marriage they think of something a little less romantic: contracts! I know it’s not exciting to think of your upcoming nuptials as a contract, but hey, it is what it is. Why not set aside your weird feelings about it and define the financial terms of the marriage instead. Think of a prenuptial agreement as an extra document in your estate plan.

a happy groom is picking up his bride while on the beach. They have a prenuptial agreement to protect themselves from financial harm in the event of a divorce.

What is a prenuptial agreement?

A prenuptial agreement (better known as a prenup) is a legal document that couples enter into before getting married. This agreement sets out the terms and conditions of what happens if the couple splits up. It can be something as simple as specifying how property will be divided or who will financially support whom in the event of a break-up.

A will vs a prenup

A will and a prenup are very similar. Both are legal documents that set forth the wishes of an individual regarding their estate. Like a will, a prenup can also address a surviving spouse’s rights upon the death of the other spouse. Spouses may choose to waive their inheritance rights entirely or specify what each spouse should receive upon the death of the other. 

Best practices for obtaining a prenuptial agreement

Follow these steps if you want your agreed-upon inheritance rights upheld in court.

Before the Save the Dates

It is best to begin the prenuptial agreement process long before your desired wedding date. Waiting until the week or even the month before your wedding may indicate to a future court that the agreement was signed under duress and should not be enforced. 

Both parties must disclose all of their assets and liabilities to each other. You should gather your most recent records for any stocks and bonds, retirement accounts, checking and savings accounts, and even an appraisal for your house and car. Make a list of any student loans, personal loans to family or friends, mortgage debt, and car loans. If you do not disclose all of your assets and liabilities, your prenuptial agreement may be invalidated by the court. 

After the Honeymoon 

After you have signed your prenuptial agreement and married your spouse, your attorney may advise you to record your prenuptial agreement with the clerk’s office. While this is a great option to ensure you will always have access to a copy of your prenup, it is important to note that if recorded, your prenup will become a public record. A more private alternative would be for each spouse to keep a copy of the agreement in a fire and waterproof lockbox with other important documents. 

Create an estate plan after the marriage

Shortly after your marriage, you should create or update each of your estate plans with your marital status. Update the estate plans again if you have children.

In conclusion: A prenuptial agreement is financially smart

Prenups are becoming more popular and are perfect for young couples who are still learning how to navigate being an adult in this world. Overall, a prenuptial agreement is not an indication that your or your spouse believes the marriage will fail; instead, it lays a strong financial foundation for the marriage. Both parties walk away feeling protected and confident that there will be no ambiguity or surprises later in life.

If you are not sure if a prenup is right for your situation, consider reaching out to our office. Our attorney can help you figure out what to do. Book your free 15-minute initial call now!

3 Tools for Estate Planning for Blended Families in Tennessee

a family with children from multiple relationships hug on a beach at sunset in tennessee
If you have a blended family, you really need an estate plan.

Many people do not begin to think about estate planning until well after they have started a career, gotten married, or had children. By the time we reach the point in our lives where we begin to think about what will happen to our belongings and our loved ones after we die, we have often already experienced big life changes. For many of us, that could mean multiple marriages and a blended family. So when we sit down to work out our estate plan, how do we navigate the murky waters of estate planning for blended families? 

Can I use a prenuptial agreement in an estate plan for my blended family?

Just like with other estate planning tools, a lot of couples do not want to think about obtaining a prenuptial agreement. After all, who can blame an engaged couple for not wanting to think about how their marriage might end? However, just like other estate planning tools, prenups have a bad rap. They can be incredibly useful for couples with a lot of assets, or blended families who want to keep certain properties separate. Through a prenuptial agreement, you and your spouse will be able to delegate which property is joint and which is to remain separate. This can make the division of your assets among your blended family a lot easier in the event one spouse predeceases the other.

What is a Life Estate on property in Tennessee?

A lot of the time, when a couple remarries, one spouse will move into a home owned by the other. If this is the case for you, it may be worth considering a life estate.

What is a Life Estate?

A life estate is an ownership interest in real property for the duration of a person’s life. In other words, a life estate will allow the surviving spouse to continue living in the marital home until the end of their life without them inheriting the house outright or passing it down to their own children.

two mothers snuggle their toddler and baby while sitting on a park bench. They are considering making an estate plan for their blended family
Blended families are also called step families.

Use a Trust when Estate planning for blended families with multiple children

I want to make sure my children inherit from my estate

In some cases, your spouse may not distribute your estate to your children the same way you would. If you have certain assets or a specific amount of money you wish to go to your children, your best bet is to leave it directly to your children through a trust. Of course, this can be a difficult discussion to have with your spouse, but it may be the best decision for your family. 

These are just three estate planning tools to consider for your blended family. There are dozens of others that you, your spouse, and your lawyer may find better suit your needs. Blended families are exciting and rewarding, but it is important to maintain your estate plan through one of life’s biggest changes! 

If you’re a blended family with questions about how to create your estate plan in Tennessee, consider contacting an estate planning attorney to discover what is best for your situation.

How to appoint a guardian for a child in your will

How to appoint a guardian for a child in your will

One of your main concerns when drawing up an estate plan in Nashville will be appointing a guardian for a child in case of death. As a parent, you likely consider “what if’s” every day. Estate planning is no different, especially when it comes to your children. There are multiple considerations to keep in mind when thinking of a potential guardian for your children. We will go over a few of these below.

What if I Am No Longer in a Relationship with My Child’s Other Parent? 

Tennessee law presumes that the parents of a minor child are the child’s “natural guardians”. If one parent dies before the other, the surviving parent will usually obtain full custody of the child.  

If parentage has not been legally established, you may want to appoint the child’s other parent as the legal guardian in your estate plan. Naming the other parent will ease the transition through the legal system. A court may need to establish a child’s parentage if they were not married at the time of conception and birth. A court will decide a child’s parentage for custody or inheritance purposes. 

Hopefully, there are no concerns about your child’s welfare if they need to live with their other parent full-time. However, if you have concerns, consider them objectively and put them in writing. Write down the name of the person you prefer to appoint as the guardian of the minor children. The only way to make sure the other parent does not gain custody is to have their parental rights terminated. This is an extreme measure. 

If the surviving parent is the father, a paternity test will be required before petitioning the court for custody. Paternity can be established through a signed birth certificate, an acknowledgment of paternity form, or a blood test. Establishing paternity typically grants a father certain rights in regard to his child. However, paternity is not a guarantee that he will be awarded custody of the child. The court will use its own judgment to determine which guardian would be in the best interests of the child. 

What If I Am Married to My Child’s Other Parent, but Something Happens to Us Both?

Generally, the surviving spouse will be granted custody of any minor children. But what happens if you both die? You must consider who you want to care for your children in the event that neither of you is living. Failing to do so could result in confusion and trauma for grieving children. 

Many people make the mistake of believing that if you die, the guardian of a child will be granted to grandparents, aunts, or uncles. However, if the will does not specify a guardian, the court may be faced with multiple petitions for guardianship from family members and friends. In this scenario, the judge will choose a guardian with no input from you. So, what should you consider when choosing a guardian for your children? 

Who should I consider appointing as a guardian for my children in my will?

Did you know that you can appoint different guardians for your child to manage different aspects of their future? The most obvious guardian is the one who will have custody and take care of your child. This guardian will provide a home and make important decisions for your child. These decisions can be about doctors, schools, and how they maintain relationships with friends and family. 

You may also decide to appoint a separate guardian for your child’s financial future. This person would be in charge of the administration of a trust or other financial planning arrangement. If you want to learn more about leaving property to a minor child, read this article.

Whether you appoint one or multiple guardians, you will need to carefully weigh several important factors such as:

Young woman hugging a child. The child looks a little sad. The adult looks pensive. Appointing a legal guardian for your child in your will is an important decision to make.
Who is the best guardian for your child if you die?

Age and Ability of the Guardian

Your first choice for your children’s custodial guardian might be your parents; after all, they raised you! However, it is important to consider your parents’ age and physical ability to care for your children. This may be especially relevant if your children are younger or have special needs. Similarly, think about your preferred guardian’s emotional ability as well. Appointing your younger sister as a guardian for your child who has yet to finish school or maintain a job may not be the best choice. You will need to choose someone who is both physically and emotionally capable of providing for children. 

Religion and Education 

If you intend for your children to follow certain religious practices or receive a certain type of education, it is important to choose a custodial guardian who holds your values or who you know will follow through with your wishes. Naming a specific church or school that you want your children to attend does not mean that your custodial guardian will have to obey that wish. 

Location of the Guardian of your Child

You will also need to decide if it is important that your children are raised in a certain city or state. In some cases, your desired custodial guardian may not be able to relocate for the sake of your children. In that case, your children may need to move to the custodial guardian’s home or you may need to select somebody else. 

Specify each child’s guardian(s) and their role in your will

Finally, be sure to name all of your children in your will, and specify what role you want each guardian to play for each of them. Your attorney may advise you to select both a primary guardian and an alternate guardian. Most importantly, do not forget to ask your guardian if it is okay to name them in your will. As your children age, you may want to change the legal guardian. Ask a qualified attorney to help you modify your will if you want to do this.

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How do I protect my Kid’s inheritance if they divorce?

How do I protect my Kid’s inheritance if they divorce?

As a parent, you want your child to lead a happy and fulfilling life and have healthy marriages of their own. However, it is hard to ignore the possibility of divorce. No matter how much you may love your child’s spouse, your interest is always in protecting your child. So when estate planning, how can you ensure that your child’s inheritance will not be split with their spouse in a divorce? 

Division of property in a divorce will depend upon whether the property is considered “separate property” or “marital property”. 

What is the difference between separate and marital property? Separate property is the property that belonged to an individual before marriage. This can include monetary assets, cars, real estate, and sometimes even pets. Marital property, on the other hand, is the property that was acquired or shared during the marriage. So what happens if your child puts their inheritance into a joint bank account? To answer this, we need to discuss how Tennessee law views inheritance.

How does Tennessee view “inherited” property in a divorce?

In Tennessee, inherited money or property is generally considered to be separate property. This means that whether your child inherits before or during their marriage, the court will treat the inheritance as exclusively belonging to your child. They are not obligated to share it with their spouse.  However, have you ever heard a long-married couple say “what’s mine is yours, what’s yours is mine?”  Many couples treat property this way, which can work well unless the couple decides to separate. This brings me to a very important point:

If your child puts an inheritance into a joint banking account shared with their spouse, it would become marital property subject to division at divorce.

How can you ensure that your child’s inheritance will be divorce-proof, no matter how your child handles the inheritance? 

One way to ensure the safety of your child’s inheritance is to set up a Family Trust. In general, a family trust is an estate planning tool that protects your family and your assets. A family trust is a three-party relationship between you (the Grantor), your child (the Beneficiary), and the person in charge of maintaining and distributing the assets in the trust (the Trustee). Through a Family Trust, you will be able to determine how and when your assets will be distributed by the Trustee to your Beneficiaries after your death. 

In the divorce context, a Family Trust is a great option because the property is held by the Trustee. This means that on paper, the property from the Trustee will not technically belong to your child. So in the event of a divorce, a court will not consider the assets from the trust for division. Family Trusts are generally flexible and easy to set up, and they are even cost-effective. Of course, if a Family Trust is not right for you, your estate planning attorney will be able to provide alternate options to achieve the same goal! 

close up of estate planning documents that have a family trust
Do you need a family trust to protect your children’s inheritance?

Of course, nobody wants to believe that their child’s marriage will end in divorce. However, estate planning is all about considering life’s “what if” questions.  In the end, setting up a trust for your family will allow you and your child the confidence that their inheritance is safe. 

To learn more about trusts and other estate planning tools that Elder Law Attorneys in Tennessee use, follow us on Facebook or Instagram!

My spouse and I are separated. How do I disinherit my spouse?

My spouse and I are separated. How do I disinherit my spouse?

When one spouse wants to disinherit the other, but they are still married, it can be a complicated process. In most cases, disinheriting a spouse is only possible if you have a valid prenuptial agreement or if you are divorced. 

Let’s illustrate this with an example: 

Jack and Jill have been married for five years, and have one child together. Their house was purchased by Jill before they were married, and Jack’s name was never added to the deed. 

Jill recently discovered that Jack is cheating on her with the Instacart shopper. She and Jack are now separated and have started the divorce process, but she wants to make sure that if she dies before the divorce is final that Jack won’t get anything from her. 

What can Jill do? 

Jill can disinherit her spouse after the divorce

Unfortunately, Jill cannot disinherit Jack until she files for divorce. Tennessee law does not allow you to disinherit your spouse- even if you write a will that says that! My advice is to get divorced as quickly as possible. Unless divorced, Jack is entitled to his share. 

The good news is that once divorce papers have been filed, there will be an automatic injunction that specifies that the pair no longer have spousal rights on the property through marriage. This is primarily to protect things like bank accounts, real estate, relationships with the children, and health insurance coverage. However, all that does is prevent money from being spent by either spouse outside of regular expenses. Jill won’t be able to do anything, like estate planning, until after the divorce has been settled or through special permission from a judge. 

In the meantime, there are still a few steps Jill can take:

Utilize her prenuptial agreement

Jack and Jill signed a prenuptial agreement prior to their marriage. In it, they waived the right to inherit from each other. All Jill needs to do now is to rewrite her will to specifically omit Jack.

Divide assets into separate trusts

Jill can establish a trust under her name and place the house in it. Since Jack’s name isn’t on the deed or on the trust, he has no right to the house if Jill were to pass before the divorce is finalized. 

Rewrite her will

Jill can rewrite her will so that Jack only gets what he is entitled to by law, called his elective share. In Tennessee, spouses are entitled to a homestead allowance, a year of support, and elective share. The elective share amount depends on how long you are married. 

Hire a family law attorney

 The divorce will go much quicker with the help of a family law attorney. 

Jill can get a jump start on planning her estate.

Finally, if Jill is preparing for a divorce, she can take advantage of all the legal documents at her fingertips and get a head start on creating the estate plan she desires. Once her divorce decree is finalized, she can meet with her lawyer and sign the document to make it valid. 

Are you getting a divorce and want to start over with your own will and estate plan in Tennessee? Are you looking for a referral to a family law attorney? Let us know! We are happy to help you make plans for your new life. Not sure where to start? Give us a call. We offer a complimentary 15-minute call to see if we are the right fit for you and your situation. You can schedule your call by clicking here

My partner and I are committed but we don’t plan to get married. What legal protections do we need?

Every family is different and has different needs. The family unit can be as simple as a married couple or as complex as a blended family with committed partners. Regardless of who makes up your family, you need to ensure that you have adequate legal protection for your partner and any children. This week we will discuss why legal documents like wills, trusts, and powers of attorney are appropriate for unmarried couples and why these documents are important to make sure your family comes first. 

a man and woman sitting on a park bench looking at each other. They are unmarried in Tennessee and wondering what legal protections they have in place.
How do you plan to care for your life partner in Tennessee?

*One caveat before we discuss what you can do, let me say what you cannot do.  You cannot disinherit your spouse.  So if you are in a new relationship but still legally married to someone else, your options will be limited. To read more about this topic, click here.

Tennessee does not recognize common law marriage

Many people believe that even without a marriage certificate, couples who live together for a certain number of years and hold themselves out as spouses to the community become “common law married.”  Only about ten U.S. states allow common law marriage, and if you meet the requirements for common law marriage in one of those states before moving to Tennessee then you may qualify to inherit from your partner as a spouse, but it would be an uphill battle if anyone challenged your right to inherit as a spouse. The better (and less expensive) option is to create an estate plan. 

Siri: Contact a qualified estate planning attorney near me

Make it as official as you can 

While there are some rights and privileges that you cannot achieve without the formality of marriage, we can re-create many spousal rights through an estate plan. An estate plan requires evaluating your family situation, your assets, and your wishes to develop legally binding documents that will meet your goals for decision-making during your lifetime and asset transfer upon death.  

Most people don’t like to think about their own death or their partner’s, but this is essential to having a solid plan in place. Estate planning is a big part of my Nashville law practice, and here is what I recommend for families choosing to forgo the traditional contract of marriage: 

Create appropriate Powers of Attorney in Tennessee

If you are in a committed relationship and trust your partner to make decisions for you, you should both create the appropriate powers of attorney. A Power of Attorney will allow your partner to have decision-making authority in an emergency situation if you are unable to do so.  This can include medical and financial powers of attorney.  Depending on your personal comfort level, your partner may also be authorized to act on your behalf and at your direction even if there is not an emergency, for example, if you were out of town for something that had to be done in person like a real estate closing. 

Create a Will

When you die, your family of origin may feel entitled to an inheritance in favor of your life partner. Without a Will, Tennessee law is on their side. In order to protect the family you have created with your partner, you will need a properly executed Will. A Trust may also be appropriate depending on your situation.  

Consider what will be important to your family of origin when you are gone.  Will they be upset if you pass family heirlooms to your partner or children who are not legally related to them by blood?  Are there significant assets that they expect will “stay in the family?”  If so, and assuming it is safe to do so, I encourage you to discuss your wishes with your family of origin and see what provisions can be made for them.  It is often easier for your loved ones to accept your wishes if they heard them directly from you, rather than reading them on paper when you are gone. 

In order to make sure that your companion receives any inheritance that you would like them to have, you will need to have a Will and make them a beneficiary of whatever share you would like them to receive. I encourage you to speak to your loved one about your resources and how they would be passed in three scenarios- (1) if you die first, (2) if they die first, (3) if you die together in a common accident.  Particularly if you have kept your finances separate, think about how you would gain access to each other’s accounts, how long it would take, and how the family would support itself in the meantime. 

POD accounts are an excellent way to pass on assets to your unmarried partner.

Add Beneficiary Designations to your accounts

Many types of accounts allow you to add beneficiary designations to them. The most familiar type is life insurance, but there are many others. If you have retirement accounts like IRAs and/or 401k accounts, look at adding your partner as the beneficiary to those funds when you pass. The same can be done with brokerage accounts and bank deposit accounts. 

Rather than going through your “estate” as laid out in a Will, the financial institutions holding money for you will essentially cut a check to your beneficiary when they learn that you have died. 

And finally…. 

Think about who depends on you? 

You need to consider what might happen to your partner when you pass away. Similarly, how would you care for the family if they were to die or become disabled? How can you ensure that any serious long-term disruption to your family life is a bump in the road (at least financially speaking) and not a train going off the rails?

Whether you make significant earnings at your career or you make valuable contributions within the home or both, your family would be lost without you. That’s why it’s important to have a plan in place. If you are a Tennessee resident committed to helping your family, whether married or not, schedule a call with us to talk about how you can protect your family when they need it the most.