Marriage, Assets, and Chocolate Milk.

Hear ye, all marrieds, to-be-marrieds, those facing first marriages, subsequent marriages, adult children with remarried parents, et al.

Separating “marital assets” into “separate assets” can be like trying to undo chocolate milk. Pour chocolate syrup into milk to get chocolate milk; that’s easy. But afterward, try to separate them back to syrup and milk? Good luck.

The happy couple should never, ever change the names on assets (investments, real estate, etc.) naively, casually, or offhandedly. Thoughtfully, yes; deliberately, yes.  But casually, no.

Here’s the deal.  Sometimes marriages go sour.  When that happens, the law knows there’s (a) separate property and (b) marital property. (Obviously, we’re not talking about Wii consoles and Bundt pans.)

The difference: separate property stays with its owner. Separate property can be controlled when a marriage ends at death. Separate property can stay separate in a divorce.

But marital property is treated differently. It gets divided up “equitably.” This means someone decides the who-gets-what percentage each owner gets.  In an unhappy marriage, it can take a judge and jury to decide.  Same for the dissolution of other relationships.

So the first threshold: is the disputed property separate or marital? If the latter, how is it to be divided up fairly, including whatever growth is in the assets, improvements, etc. etc. etc.

It’s not an easy question to answer. Consider a seemingly-harmless home ownership (and this is a real case). Husband owned the house. Got married.  Wife moved in. Five years later, the husband signed a deed making him and his wife “tenants in common” but with a “right of survivorship.”  (That combination is a little bizarre, but it’s basically ok.)

A few years later, the marriage soured. And the house, which had been the husband’s separate property despite their both living there, became marital property by his signing that deed.

It gets worse. What’s “separate vs. marital” is not always that clear-cut. How about the husband and wife who met on a dating website, and got married. They did a nice pre-marriage job dividing up who would keep what.  And each had a house which they were going to keep, even though they would live together in his.

The marriage ended after 19 months.

The wife then claimed that the husband’s house should be treated as marital property, and not as his separate property, as previously agreed upon.

Why? After moving in, she had spent over $15,000 fixing up his house.  She used her own money to make payments on the husband’s mortgage. At one point, he deeded the house into her name and then they undid that, when he heard that doing so wouldn’t help him protect the house from his creditors.

Long story short: the trial court and the Supreme Court both held that the house stayed his separate property, and was not marital property.

If you’re looking for consistency in deciding between marital property and separate property, it’s a case-by-case issue.  So we recommend: confront the issue. Discuss the issue.  Get legal counsel.

Especially if there are children from an earlier marriage. What a parent owns and which should go to his/her children after remarriage and subsequent death could easily become marital property . . . gutting what the children will get.

Choices? If you get an inheritance, keep it separate. That hurts nothing.  If you die, your Will can deal with it. If you’re incapacitated, your financial power of attorney can preserve it.

If you’re getting married, think through – and get advice on — what things should be titled in whose name. You can light a unity candle. You can plant a unity tree.  But don’t heave your combined assets into a financial unity dumpster without getting counsel on the consequences.

You can even consider a hybrid: a limited liability company.  In a particular structure, it enables you to keep things combined for some purposes, and separate for others.

But that’s topic for a different day. Go get some chocolate milk.

Marriage, Assets, and Chocolate Milk.

Hear ye, all marrieds, to-be-marrieds, those facing first marriages, subsequent marriages, adult children with remarried parents, et al.

Separating “marital assets” into “separate assets” can be like trying to undo chocolate milk. Pour chocolate syrup into milk to get chocolate milk; that’s easy. But afterward, try to separate them back to syrup and milk? Good luck.

The happy couple should never, ever change the names on assets (investments, real estate, etc.) naively, casually, or offhandedly. Thoughtfully, yes; deliberately, yes.  But casually, no.

Here’s the deal.  Sometimes marriages go sour.  When that happens, the law knows there’s (a) separate property and (b) marital property. (Obviously, we’re not talking about Wii consoles and Bundt pans.)

The difference: separate property stays with its owner. Separate property can be controlled when a marriage ends at death. Separate property can stay separate in a divorce. Read more

Uncle Sam Wants You to Have a Simple Will.

You don’t pay the max income tax each April 15th. So why pay unnecessary taxes to IRS when you’re dead?
That’s effectively what happens with: “simple” wills, revocable or living trusts, and computer-generated legal papers or copied forms, which omit the tax tools available for your particular assets. And that’s why IRS loves simple estate planning. Or none at all.

What’s the price of “I don’t care”?

Try these examples from people who should have known better:

  • The lawyers wrote in The Wall Street Journal that they just sent a $1.3 million check to the U.S. Treasury for a parent’s estate. They didn’t like it one bit and blamed the government. Only a passing nod of blame went to the parent, who had refused to do any estate tax planning at all.
  • The retired CPA never put the most basic tax paperwork in place while her husband was alive. She didn’t do anything when he became ill. The CPA still didn’t do anything when her husband died. After she passed away, too, their children wrote a five-figure check for estate taxes.
  • The couple with everything in IRAs filled in “form” beneficiary designations. When they died, the amount which could have been tax-sheltered was fully taxed. (Worse, their heirs could have cured that tax problem in the nine months after death, but their “financial planners” never told them how.)

Is a simple Will ever worth it?
Maybe, if your assets are below $5.45 million. And strategically, that’s for you if you’re single, or for each of you if married.

 “This can’t happen to me; I’ve got a Living Trust.”
Forget the articles, “free” seminars, and ads: no form Living Trust automatically contains tax-saving, probate-avoiding, and asset-moving benefits tailored to what you have.
At best, you have a starting point; at worst, a placebo.
Reality: Living Trusts don’t eliminate needing a Will unless every asset is titled in the trust. A simple “pour-over” Will can clean up what’s left out of a trust, but it is a Will.
Reality: A Living Trust doesn’t affect any tax — estate, gift or income — unless the Living Trust has the same tax-saving devices you’d put in a Will.
Reality: A Living Trust doesn’t eliminate filing an Estate Tax Return. The same appraisals IRS requires are needed. And a final Income Tax Return still must be filed.

“Forget it. Everything’s in joint accounts with my kids.”
You don’t want to be the child who “inherits” a parent’s joint account to divide among your siblings. You could get tax problems of your very own:

  • The “$14,000 per person” gift tax rules apply to what Mom left you to give to your brothers and sisters. When you start giving more than this amount, you’re using up your own estate tax credit.
  • If you’re dividing up stock that’s gone up since the date of death, sister and brother get your basis, not the stepped-up one. You also could get your own capital gain. It’s not a nice day.

The quick answers.

List the assets by whose names they’re in.
Then find out the latest tools and strategies which can be used with those assets.
Remember: sophisticated assets require more than simple answers.
Want help? That’s why we’re here.

George practices in Sandy Springs and Big Canoe, and is also Adjunct Professor in Emory Law School’s Center for Transactional Law. Questions are welcome; reach him at Fox@GaLaw.com or on Facebook. He also cautions that what’s above is not legal advice, and you should seek professional advice before doing or not doing something based on this material.

A Joint Will Is Not A Bargain BOGO

Sales, discount, savings, coupons, percentage signs and similar.

Two for the price of one is irresistible. The proverbial “Buy One, Get One Free” (compressed these days into the acronym “BOGO”) is a pretty good deal: buy the 2-liter bottle, get a second one at no cost.

Some people figure that idea applies to legal documents, too: “If I don’t have to get two wills, but can get a Joint Will which we share, well, that’s a pretty good deal, right?” Wrong. Read more

An IRS-Approved Way to Cut your Required Minimum Distribution.

Wealth growth ( with Clipping Path )Chutes and Ladders comes to mind when you’re trying to figure out how much you must take out of your IRAs, etc. at age 70½ and after. If you land here, you slide to there and take that much out.  If you get here, you go down the chute to there and take something else.

But now there’s a ladder, an opportunity to let a significant part of your IRA keep growing. And it’s courtesy of IRS. Read more

What’s Wrong With a Handwritten Will?

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One morning, farmer Cecil George Jones told his wife that he was going to work with his tractor on some land away from their house, and he’d be home by 10pm. When he wasn’t, she went looking for him.

It was raining when she found him lying on the ground. He was still alive, but unable to move because his entire left leg – from his ankle to his hip — was pinned under the tractor’s left wheel. The tractor only had metal wheels, no tires. On each wheel were 4-inch v-shaped metal lugs.

She rushed to get help, and with the others, was able to jack up the tractor. Her husband was still breathing, so they were able to lift him into a car. Ironically, the rain had turned the road into a muddy path, and so the friends had to use the tractor to tow the car out of the mud and up to the main, gravel road. Read more

Charitable IRAs Are Back!

Over 70 ½? Once again you can deflect up to $100,000 to a charity, without paying tax on those dollars first. The charitable rollover can also be part of any Required Minimum Distribution you have to take.

The President signed the new tax act on Friday, and it resurrects this charitable move.

Call us or your CPA for more details.

The Anti-Doc Antidote: The Advocate.

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When waves of medical professionals are trying to help diagnose or treat a tough condition, it’s easy for the patient to become a puzzle, an experiment, an object. So who’s best to judge what’s best for the patient, especially when he or she can’t communicate? The patient, the spouse, the children . . . who need to be the patient’s very vocal advocate. Here’s a real-life example why. Read more

George In The News. . .

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Turkey! A Thanksgiving Questionnaire for You.

3866850No, not the bird in the oven, soon to be on the table. You, turkey. Or really, your parent or your adult child is the turkey if they won’t fill out this questionnaire.

But there’s more fowl play: not pushing them to share this information makes you an ostrich, head in the sand, ignoring the obvious. And making the legal and family situations much, much worse.

A word of explanation. This is your third chance to get critical information. Many readers have mentioned that the two previous Thanksgiving Questionnaires were very useful. Some readers even thought they were funny. Read more