Cohen Law Office

San Mateo California Estate Planning Law Blog

Divorce, whether amicable or not, is a reality for many

No couple saying their wedding vows anticipates that their marriage might not last. After all, they are pledging to stay together, "'til death do us part." However, the reality is that many couples in San Mateo will find that as the years go by, their relationship is no longer tenable, and they are best-off getting a divorce.

Some divorces are amicable, with the couple being able to set their differences aside long enough to reach an agreement on their divorce legal issues. Mediation can be one way for some couples to settle their divorce out-of-court. But, the end of a marriage is not always an easy time, and sometimes, couples find they must turn to the court to make decisions on child custody, child support, spousal support and property division.

Even a comprehensive estate plan could be subject to litigation

A person in California can carefully execute a comprehensive estate plan, with the hopes of making it clear what their wishes are with regards to who will inherit what, as well as what end-of-life care they desire. Yet, no matter how detailed their estate plan is, once they pass on, there is always the potential for litigation. Grief aside, sometimes, an heir has a legitimate reason to contest a will or trust.

For example, they may believe the deceased was subject to fraud or undue influence when he or she executed the will or trust. This may be especially true if the person's mental or physical health was declining, making them dependent on the care of others who may have taken advantage of their vulnerability. It could be argued that the deceased lacked the testamentary capacity to create a will or trust. Even suspected forgery could be a reason to contest a will or trust.

What spousal support factors will California courts consider?

Unlike child support, there is no statutory formula for calculating spousal support. When a judge is issuing a final order for spousal support, under California Family Code, Section 4320, he or she may take the following factors into account.

One factor is the earning capacity of each spouse and whether it is enough to keep up the standard of living the couple enjoyed while married. When determining earning capacity, the judge will consider the marketable skills of the spouse seeking support and the applicable job market wherein the spouse can utilize these skills. The court will also take into account the time and cost it will take for a spouse seeking support to obtain these skills.

Paying a deceased person’s debts

Settling the affairs of someone who passes away is not always easy, especially if that persons died while owing creditors. Depending on the nature of the debt, these creditors may pursue surviving family members for the balance, and if the family is not careful, creditors may convince them to pay debts they do not legally owe.

One of the first things that many people ask when these issues arise is "who pays the deceased person's debts?" The short answer, with only a few exceptions, is the deceased person pays their own debts, or at least their estate does. This usually means that a deceased person's creditors may settle their debts from the assets of the deceased before the rest of the survivors divide the estate.

Claims of undue influence can lead to trust litigation

When a person in California dies, their loved ones will grieve. However, this grief is only amplified if the person's survivors disagree with the contents of the person's trust. Sometimes, these disagreements are small enough that the parties involved can resolve them on their own. But, these disagreements are so big that they lead to trust litigation. This may be especially true if one party believes the deceased was unduly influenced when he or she executed or modified the trust.

For example, as a person ages, they start to lose their physical and mental abilities. When such persons are vulnerable, a loved one might try to influence their estate planning. Though, to constitute undue influence, the person's actions must go beyond mere nagging. The person's behavior needs to be so extreme that it leads their aging loved one to give in and modify their estate plan in a way that either favors that person or disfavors other beneficiaries.

What are some benefits of mediation?

Grieving the loss of a loved one can be an emotional time. Whether the death was sudden, such as in a car crash or whether the death came after a long illness or old age, losing a loved one is never easy. The situation can become even more emotionally charged when a family member wants to challenge the deceased's will or trust. This can drive a wedge between family members during a time when they should be able to lean on one another for support. Therefore, instead of pitting one family member against another in court, some families choose to first pursue alternative dispute resolution processes, such as mediation.

Mediation is an out-of-court method for people in California to resolve their disputes in a mutually satisfactory manner. In mediation, people will not call witnesses or present evidence. Instead, it is simply the two parties and their attorneys working with the aid of a trained mediator to negotiate a settlement.

Divorce, property division and the family home

Home may be where the heart is, but when a couple divorces, the home is not just a place with sentimental value -- it is often one of the couple's most financially valuable marital assets. Some spouses in California may be eager to leave what was a place filled with unhappy memories, while other spouses may be itching to stay established in the home they have been in for years, especially if they have custody of the children. However, there are important things to consider when it comes to the family home and divorce.

If a spouse wants to keep the family home, they will have to consider the expenses associated with home ownership. For example, repairs are inevitable, the mortgage will need to be paid, as will taxes and insurance. Moreover, once the divorce is final, the party keeping the home will be responsible for these costs on a single income. Therefore, before fighting for the family home, it is important to consider whether one can actually afford the home post-divorce.

Why is a prenuptial agreement so valuable?

When a couple in California is planning to marry, they may envision sharing not just their lives, but also their property. Perhaps one party owns the house that they both will live in. Or, perhaps they will open a joint bank account, in which both their paychecks will be deposited. When a couple shares their financial lives, however, discord can occur that might lead to divorce and the subsequent division of assets. Couples can plan for this possibility by executing a prenuptial agreement before marrying.

To understand why a prenuptial agreement is so valuable, it is first important to understand the difference between community property and separate property. California is a community property state when it comes to property division in a divorce.

Understanding asset protection trusts

Building an estate plan is not a simple process, especially in states like California, which carries more regulations and additional taxes than many others. Once a person begins looking into estate planning, they might easily get overwhelmed by the variety and complexity of the financial planning tools available.

This is perfectly reasonable. After all, estate planning professionals study the field for years and regularly review new laws and financial tools to make sure they maintain a clear, functional understanding of changing guidelines. While it is certainly possible for individuals to build their own estate plan without any guidance, the risks to doing so are enormous.

How does trust litigation differ from challenging a will?

Many people in California have established a living trust as a means for distributing their assets to their chosen beneficiaries upon their death. However, even the most carefully thought-out trust can be the subject of trust litigation brought by a beneficiary who believes the trust should rendered invalid. When a beneficiary wants to challenge a trust, they will have to file a lawsuit against all other beneficiaries. This makes challenging a trust more complicated than challenging a will.

For example, to invalidate a will, the person contesting it may argue the decedent was under coercion when the will was signed or that the decedent lacked the mental capacity to create a will. However, since a trust goes into effect while the decedent is still alive, a beneficiary is under the burden of proving that the trust was invalid when it was signed.

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The Cohen Law Offices, PC
1720 S. Amphlett Blvd.
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San Mateo, CA 94402

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