Boston Estate PlanningDivorce | Boston Estate Planning

What happens if divorced parents disagree on a guardian for their child?

gabrielcheong — Fri, 13 May 2011 09:00:43 +0000

Usually when the first parent passes away, that parent will not have a say in who will be in charge of raising the child. In most cases, the surviving parent will take custody. Exceptions to this would be if the parent has a history of abuse, if the parent doesn’t want custody of the child, or if the parent is in prison. Then, the parents will will say who will be the guardian of the child.

In the unlikely event that both parents passes away at the same time, it is preferable that the parents can agree on who will be guardian for their child. If this doesn’t happen, then there will probably be a contested court case if there are competing parties that want guardianship of the child.

Will my former spouse remain my health care agent after we divorce?

gabrielcheong — Thu, 16 Sep 2010 14:34:50 +0000

No, Massachusetts General Laws Chapter 201D, Section 7 says that “a health care proxy shall also be revoked upon: (i) execution by the principal of a subsequent health care proxy, or (ii) the divorce or legal separation of the principal and his spouse, where the spouse is the principal’s agent under a health care proxy.”

This means that if you are divorced or even separated from your spouse, and you had named them as your health care agent, you will no longer have a health care agent. You would need to execute a new health care agent that names someone else as your agent.

Disinheriting a Spouse

gabrielcheong — Sun, 01 Nov 2009 17:37:17 +0000

Why would a person disinherit a spouse? Can you disinherit a spouse and if so, how?

There are a myriad of reasons why someone would want to disinherit a spouse. It might be a second marriage and they think that children from the first marriage should take priority over the new spouse. The spouse might be abusive. They might not trust the spouse with financially taking care of the home and children. They might be in the middle or contemplating a divorce.

In the Commonwealth of Massachusetts, unfortunately (or fortunately for the spouse), a person cannot completely disinherit their spouse. If a person draws up a will or trust without providing anything for the spouse, the spouse can, after the testator’s death, seek to void the will and take an elective share of the estate. Depending on if there are children involved, the spouse will take a certain percentage of the estate.

There are two sound ways to make sure that the spouse you want to disinherit doesn’t wreak havoc on your estate if you were to die and quite possibly cause massive heartache for your heirs. One obvious way is to simply give them something. Give them the minimum that the spousal elective share provides in Massachusetts and thereafter, you can plan around that share. The second way is to simply get a divorce. Divorce is the sure way to make sure that the spouse cannot claim against the estate.

If you are in the process of getting a divorce or planning your estate, tell and ask your attorney about the spousal elective share that worries you. A good divorce or estate planning attorney will create a plan in place before the divorce is finalized and revise the plan once the divorce has been finalized.