Tag Archive for 'Estate Planning'

Estate Planning and Divorce

I’ve written here and here before on the unique challenges planners face when drafting a plan for people who are not in their first marriage.  One such challenge is advising clients whether they have any lingering rights or responsibilities from their divorce decree or another agreement that arose when their prior marriage ended.  Such decrees and judgments can have serious effects on any proposed plan and must be considered by your estate planner before signing anything.

Yesterday’s decision out of Oregon deals with a common aspect of divorce decrees when children are involved, the mandatory life insurance requirement.

In this case, decedent was required, pursuant to the terms of the stipulated judgement entry that ended the parties’ marriage, to maintain life insurance on herself – the requirement was reciprocal.  When she allowed the policy to lapse and subsequently died without such life insurance, her former spouse made a claim against her estate for the money he would have received had she not allowed her policy to lapse.  There was some discussion in this case about whether the surviving ex-spouse should be able to make such a claim given that he was the life insurance agent who issued the policy and therefore, the argument went, he should have known that the policy lapsed so he can’t now complain about his failures, but the court dismissed this argument almost out of hand and awarded the surviving ex-spouse his claim.

The point here is two-fold:  1) Pay attention to the documents that ended your prior marriage when doing planning now.  As much as you may want to, you can’t just pretend you were not previously married and, 2) Do what those documents tell you!

(As always there is a third point here:  Please, don’t try this at home!  For any planning needs, contact a qualified estate planning lawyer in your area. )

Suing Your Estate Planning Attorney For Malpractice in Ohio

I have written before about some pretty poor estate plans; some so bad that I can’t imagine them having ever done anyone any good such that they now seem only to serve as wanton conduits for human despair.  And I have also often commented that someone ought to sue such’n’such attorney for malpractice.  Skip ahead… I was combing through my analytics results this morning and saw the below search inquiry that lead a visitor to my site last week:

inquiry

I touched on this issue last year in this post about Ohio’s privity rule and the Zipperstein case that birthed it and so I write here again to remind people that, yes, Ohio still adheres to its antiquated “privity rule” in order to sue an attorney for malpractice. 

In summary, this rule states that in order to sue an attorney for malpractice you must have been in privity with that attorney.  (There are some exceptions for malice and collusion.)  In the estate planning context this means that you must have been the one who engaged the attorney’s services to draft the document that you are alleging they messed up.  Sounds innocent enough, however, no damage actually results from a poorly drafted will until after the person who engaged the attorney to draft the will – the only person in privity with the attorney– is dead…  All of sudden, there is no one left who was in privity with the attorney.  All of a sudden there is no one left to sue the attorney for their poor work product and therefore there is no accountability…  Attorneys can still be subject to state disciplinary action but there should be civil malpractice liability as well.

I have written an article on this subject and have also given multiple speeches on how to change this problem for the citizens of Ohio.  It needs done soon.  We just need the right case to make it happen.