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Supreme Court Strikes Down DOMA (Defense of marriage act)

US Supreme CourtIn a landmark decision, hailed by equal rights advocates all over the country, a divided U.S. Supreme Court struck down a section of DOMA (the Defense of Marriage Act) that denied legally married same-sex couples the same federal benefits that are provided to heterosexual spouses. Prior to the Court’s ruling, DOMA defined marriage as only between a man and a woman.

“Although Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment,” said Justice Anthony Kennedy. Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

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Utah Man’s Self-Penned Obituary: Lessons We Can Learn

 

Patterson’s Obit

An obituary written by a 59 year old Utah man who died of throat cancer has gone viral.  Apparently in his obit, Val Patterson, spoke sweetly of a well-lived life and expressed his undying love for his wife who watched and cared for him as his cancer drained him.  But, Patterson also used his obit to expose his biting humor and to reveal some little known secrets about himself according to reporter A.J. Willingham of HLNTV.com (see Willingham’s full story here).

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July Fourth is My Favorite Time of the Year!

July 4th has always been one of my favorite times of the year. I was a history major in college (S.M.U. to be exact – and, I’m talking about THE SMU that we know here in the SouthCoast – Southeastern Mass. University now known as UMass Dartmouth). As a history major, I was always drawn to the struggles of our Founding Fathers in forming this great nation of ours. To this day, I enjoy programs and books about that era and still enjoy learning.

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A Father’s Day Message. A Father. A Teacher. A Hero

My father is my hero. Truth is that I can’t tell you a heart-wrenching story of inspiration about my father. I can’t tell you that he’s rescued someone from the jaws of death. Or, that he’s helped underprivileged children overcome tremendous odds against them.

Manny Garcia. A father. A teacher. A hero.

What I can tell you about my father, though, is that he is a man of strong conviction. He is a man that never accepts defeat. He is a man that will rise to a challenge. He is a man that always thinks of his family first – my mother/his wife, his children (me included), his siblings, his nieces and nephews, his cousins…all of them.

My father was brought to this country by his family when he was 7. He came from a small village in the Azores. He lost his father at a very young age. He was the youngest of 4 children, but he grew to be a leader of them all. A stalwart.

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Massachusetts Does Not Recognize Common Law Marriage

US Supreme CourtMassachusetts does not recognize the doctrine of “common law” marriage. It doesn’t matter how many years you’ve lived together, it could be 7 years or 70 years, you cannot have a marriage under common law in Massachusetts. This is true for both heterosexual couples and same sex couples.

Only a limited number of states in the United States recognize common law marriage – nearby Rhode Island happens to be one of them. Generally, though, in those states that do recognize common law marriage it isn’t the number of years living together that matters, it’s usually the “intent” of the couple. They must intend to be considered to be married, they must act like they are married in the community, and they must live together (the length of time usually doesn’t matter).

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My Stepchildren are Driving Me Crazy! and Other Refrains from a Blended Family

Like many couples out there, I’m part of a blended family. You see, my life isn’t just about law.  I’m living in a committed, long term relationship with my life partner. She has 2 daughters from a previous marriage and I have a daughter. So, we live as a blended family.

Now, despite the interesting title to this blog, her children DO NOT drive me crazy. Promise. I just found it to be a catchy title for this blog and an appropriate way to introduce the topics to be discussed in it.

Living in a blended family is one of the reasons that I’m so interested in focusing on estate planning for couples in second marriages and blended families because I know first hand some of the issues, and stresses, that they face everyday. But, let’s take a break from my regular blogging about legal topics and consider some of those challenges.

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Living Together: Does Massachusetts Recognize Common Law Marriage?

All across the United States people of all ages are making a choice to live together in a long-term, committed relationship. Some simply call it “living together.” Some call it “cohabiting.” Lately the term “domestic partnership” has become more popular particularly in same-sex relationships.

For all intents and purposes, many of these cohabiting couples, whether heterosexual or same-sex, act like a married couple. They share bank accounts. They buy property together. They make major decisions together. They may even be raising children together.

However, technically they are not married because they haven’t had the official marriage ceremony.

There is a common belief that if you live together for 7 years, then you are married by “common law.”  This is simply not accurate. Only a few states recognize “common law marriage.  And, Massachusetts is not one of them. (The closest state to us that does is Rhode Island).

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The Importance of the “Story” Behind Life’s “Little Treasures”

Remove the story and it's just a toolbox.

One of the purposes of writing your will or a living trust is to direct how your property is passed on and to whom. What I’ve found over the years, though, is that when people work with lawyers or even with online will writing services, there is a tendency to just focus on how their “big ticket” items of property will be passed on. For example, they’ll decide how their house, their life insurance policies or their financial investments will be divided amongst their surviving spouse and children.

While this is absolutely important and a major part of any estate plan, what it tends to “gloss over” are the smaller personal pieces of property in our lives that have become treasured and which have deep meaning to us.   Making a “specific gift” or legacy in an estate plan allows you to give a piece of personal property to someone in your will or in your trust. For example, you may wish to leave your stamp collection to a nephew or your gold wedding ring to your goddaughter.

By making these types of gifts as part of your estate plan, you get a chance to pass on your memories of your life’s treasures. But, when doing so, don’t forget to tell the story behind the item so that your loved ones will always know why it’s such a treasure to you.

Let me give you an example. Most people who know me well, know that one of my hobbies (well a passion really) is building hardwood furniture in my workshop.  I’ve probably spent countless hours over the years in my shop surrounded by my tools and my hardwoods, in front of my workbench, hand finishing an end table or “squaring up” a cabinet door.

What many people may not know is that it was my father who started me down this road. He’s an avid “do it yourselfer” and was always building things around the house when I was growing up.

Well, probably some six years back, he gave me a toolbox that he had handcrafted himself from one of my favorite types of hardwood – American black cherry. The box was fashioned with hand cut dovetails and was hand finished by him with his own recipe of linseed oil.

This toolbox means the world to me. I carry all of my favorite hand tools in it.

The box is a treasure to me because it was made by my father for me to use in a passion that I had learned from him. It is a gift to me that is priceless.  It’s an heirloom because of the story behind it.

Now here’s the rub: if you take away the story behind this gift then it’s just a toolbox. Granted it’s a nice toolbox, but if you were to put that box in a yard sale you might fetch ten or twenty bucks.

And isn’t that the way with most of the personal items that are “treasures” in our life? Look around you? Think about what you treasure? What has meaning to you?

When I counsel clients these days about their estate plans and we talk about personal items that they’d like to pass on, I try to get them thinking about what the true “treasures” in their life really are and why they’ve become such treasures. And, I urge them to tell the story behind the item in writing so that their loved ones always remember why it meant so much to them. In that way, the gift will most likely become a treasure to them.

Remember – it’s the story behind life’s little treasures that make them priceless.

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I’m in a Second Marriage. Is Estate Planning Really All That Important?

Simple answer: it’s probably MORE important now in your second marriage than it was in your first.

In most second marriages, each spouse comes into the new relationship with “baggage” from the first marriage (and I don’t mean “baggage” in the negative sense). They have kids from the first marriage. They have a house from the first marriage. They have a 401k from the first marriage. Maybe they have a business that survived the first marriage.

Other than the “kids,” these pieces of “baggage” are all “assets” in the eyes of the law from the first marriage.

Now, usually there’s a pretty interesting dynamic that I see surrounding how each spouse feels about these different pieces of “baggage” from the first marriage. Generally, they tend to think of the property, or “baggage,” from the first marriage as their own individual property.

It’s not necessarily a negative or selfish feeling that they have about these assets – it is understandable – but they tend to have the view that they worked hard for them, they survived the break up of a first marriage and came out with them in tact, so they view them as “mine.”

Added to this dynamic each spouse then usually has very strong feelings about how these pieces of “baggage” should be handled when they pass away.

Here’s a great “real life” example that many second-marriage couples face. This couple’s been married for over 10 years. They both have adult kids from a first marriage. The couple is living together in the home that the wife brought from the first marriage.

Now, they live in this house, which has no mortgage, as if it is “their” home. They act as if it is “their” home. They both contribute to its upkeep. They pay taxes on it. But, if something happens to her, then the wife wants her husband to live in the house for as long as he wants (and for as long as he remains single after she’s gone), and then the house should go to her kids from the first marriage only. She doesn’t want the house to go to her stepchildren.

So here’s the rub: if that wife dies without some sort of estate plan in place, then state laws will determine how that house is passed on. So, the surviving husband will now have part ownership in that house with her kids from the first marriage. If that surviving husband then dies without a will, his kids will inherit his share of the property – a result that the wife didn’t want.

For this couple, like most couples in a second marriage, a living trust combined with wills could solve their dilemma and help get them the result that they want.

So as you can see, if you’re in a second marriage (or a third or even a fourth), it’s imperative that you do some estate planning. If you have questions, contact an estate planning attorney to talk about your second marriage questions.

Andrew J. Garcia - "Don't leave a financial mess for your loved ones. Get some Family Legal Planning done before it's too late."

The Family Legal Planning system at Phillips & Garcia has been designed to help busy families get their Massachusetts estate planning done in a convenient and affordable way. To learn more about trusts and how they can be used in your estate plan, schedule your complimentary Family Legal Planning session with Attorney Andrew Garcia. To speak with Attorney Garcia call him at (508) 998-0800 or email him at [email protected]

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How Do We Define the “New American Family?”

Not long ago, the traditional American family typically consisted of a husband, a wife and two to three kids (think “Leave it to Beaver”). But, the growing incidence of separation, divorce, remarriage and unmarried hetero and same-sex couples living together with kids has changed the landscape of how we as a culture define a family.

Noted Indiana University sociologist, Brian Powell, set out to determine how Americans’ definition of what constitutes a family has changed over the last decade. Not surprisingly, what he found was that we’ve been moving away from the traditional “Leave it to Beaver” idea of family to arrive at a view of the “New American Family” which comes in many different forms.

Powell’s findings revealed that almost 100% of people consider a husband, wife and kids as a family. Yet, he also found that over 83% of people consider cohabiting heterosexual couples with kids to be a family and that now over two-thirds of Americans agree that same-sex couples with kids are a family.

Take the kids away from the “family equation” and those percentages drop drastically. For example, only 39% of people consider a cohabiting hetero couple with no kids to be a family even though that cohabiting couple might consider themselves a family.

In the end, though, when it comes to defining a family all that may matter is how people view their own living arrangements. Whether you’re a traditional family, blended family, domestic partnership or single parent, over 60% of people now agree that if you consider yourself a family, then you are a family.

Regardless of how it’s defined, the “New American Family” faces many different legal issues in this day and age. From designating health care agents, to drafting wills that protect everyone, to choosing guardians for kids, all families are faced with these challenges.  So like the old program “All in the Family,” our blog is dedicated to tackling the legal issues facing our New American Family.