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Pensacola Family & Estate Planning Legal Blog

What is a health care directive, and why have one?

Many times, when a Florida resident goes to the doctor's office or has to be admitted to a hospital, he or she will be asked whether they have formally created plan for their health care. While over 90 percent of those asked believe that it is important to have a health care directive, only about 30 percent can answer that question positively. Perhaps that is because many people do not fully understand what a heath care directive is and why they need one. 

The advance health care directive, or living will, is a legal document that allows the maker to specify his or her exact wishes concerning health and end-of-life care should the maker be unable to communicate those decisions because of illness or incapacity. With this document, the maker can designate what he or she wants in those circumstances when it comes to health care. Also, friends and family can have a clear understanding of what the person wants to be done in life-threatening situations, or when he or she is not able to communicate.

Estate planning in a second marriage

In the United States, having been married more than one time is not at all uncommon. When planning a second marriage, however, many Florida residents never consider the ramifications that it could have on their estate planning. When families blend, the income and assets also intermingle, causing finances to become a bit complicated in some cases. Because of this, there are a few things to keep in mind when getting married for the second time.

First of all, both parties should let the other know if they have any old debts with an ex. If the two newlyweds combine their assets and income, creditors from those old debts could access the new couple's funds. If the wife and her ex are still paying a mortgage until their house sells, for example, and the ex stops paying, the new couple's assets may be at risk if the creditor comes after her for the money. For this reason, some couples that are involved in second marriages will set up separate accounts and pay their bills separately.

Mistakes to avoid when filing for divorce

For some people in Florida, the decision to divorce can bring about feelings of relief and happiness. For others, it can intensify their feelings of hurt and abandonment. People who are involved in high-asset divorces should not let their feelings get the best of them during this time in their lives. Their emotions can distract them from the big picture and make it harder for them to protect themselves and move on, resulting in them getting less than their fair share in their divorce settlements. 

With so much at stake in a high-asset divorce, here are some common mistakes that separating couples should try to avoid. 

The need for a health care directive in one's estate plans

When it comes to end-of-life and estate planning, there are many aspects to consider. The need for a health care directive, for example, is often a question in the minds of those who are consulting with their attorney on such matters. There are many reasons that one may wonder why he or she would need to document his or her wishes for health care. For those in Florida, it is important to have someone who understands the state's laws on the subject.

In many states, for example, medical decisions are made by the spouse or immediate family when a patient is unable to voice his or her desires. Some may feel that they trust their spouse to make these choices and therefore do not need paperwork to show what they would want. But what if the spouse is also unable to share that person's choices? If both spouses were involved in a car wreck or other accident, they may not be able to act as each other's representative.

Parental responsibility and custody rights for disabled parents

One state representative is seeking custody rights for parents who are disabled. He feels that parental responsibility is not shared fairly with disabled parents in a divorce, and he wants to put an end to it. The man adds that whether a judge purposely shuns the disabled parent or does it subconsciously, it is an unfair practice. Although this state representative is not from Florida, the outcome could affect the state's disabled citizens and their children.

The man has filed a bill that would make it illegal to use a parent's disability as a negative factor when determining custody or visitation. If custody is denied to a disabled parent, the judge must provide a written explanation of how the parent's disability could have harmed their child. While discrimination against the disabled already exists in America, most states' laws do not address the issue during custody cases.

Military benefits during divorce clarified by justices

In a recent decision from the Supreme Court, it was stated that a state cannot increase the amount that a former spouse gets from a veteran's military retirement pay in certain circumstances. This cannot be done in order to make up for any loss of benefits that the spouse may experience, if that loss is because the veteran filed a waiver to receive disability pay. When such a waiver is filed and accepted, the veteran's military benefits are decreased in order to keep the veteran from receiving double benefits. This decision affects those military members residing in Florida and other states.

The decision stems from a case that began in 1991 when a member of the military and his wife were divorced. At the time, the two agreed that she would be entitled to half of the husband's retirement pay when he began receiving it. They both started getting the monthly pay when the man retired from the military.

Building a prenup with property division in mind

Many people hold to misunderstandings about a prenuptial agreement. Some see it as bad luck or an omen that the marriage will not last, while others think that such a document is only for high-net-worth couples. A prenup is actually agreed upon by both parties to decide how the couple's assets would be divided in the event of a divorce. Florida is known as an equitable distribution state, meaning that marital property is divided fairly in a divorce, though not necessarily equally. If the couple has a valid prenup, that contract would control. 

The act of creating a prenuptial agreement to protects one's assets is simply a smart idea before entering a marriage. It is basically a type of insurance policy, just in case the marriage doesn't work in the future. When a person buys homeowner's insurance, the hope is that the policy will never be needed. The same is true of a prenup. It can also offer protections when one of the spouses dies by preserving any inheritance that is to be passed down to that spouse's children from a prior relationship.

Do not overlook a QDRO in a Florida divorce

Dividing property in a divorce is a common source of conflict. There are many assets you have to consider, and one you do not want to forget about is your retirement plan.

Your soon to be ex-spouse may have a right to claim some of your retirement benefits in the future. This is done through a Qualified Domestic Relations Order either during the divorce process.

Unfunded trusts in estate planning

Most people who have a trust are made aware that it needs to be funded in order for it to work as it should. In fact, most estate planning attorneys stress the importance of funding the trust several times throughout the process of setting it up. There are still some people, however, who -- for whatever reason -- forget to fund the trust once the trust document is in place. What can someone in Florida or another jurisdiction do with an unfunded trust?

Unfortunately, the answer to that question is not a simple one. If the assets are not included in the trust, the trustee will have to review every one of them to find out how they are owned and who will get them. One cannot know where the asset should go until ownership has been established.

Military divorce: what are service member rights?

For those who are in the military, divorce may seem like a complicated process. What are the service member rights for those going through a divorce? Where does one even file for a military divorce? For the thousands of military personnel in Florida, these questions may be all too valid.

First of all, for military personnel who wish to get a divorce, it will require a civil suit in state court just as it does for the public. Since most states require a person to live in the state in order to file for divorce there, this can sometimes be an issue. Some states may relax the residency requirements for service members. An experienced family lawyer can help a client determine if this is true in the state they are in.

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