Law

Supreme Court Strikes Down DOMA (Defense of marriage act)

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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. Read the rest of this entry »

“Estate Planning” Isn’t Just for the Rich and Famous. It’s for Everyone.

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I was at a favorite ‘watering hole’ last week enjoying a night out with my best friend and life partner, Nancy, and we started a conversation with some great people sitting next to us. The topic of what we all did for a living came up. When I said that I was an “estate planning” attorney and that I prepared wills and trusts for people, they asked “isn’t estate planning just for rich people?” My simple answer was “no” and then I went on to explain why.

In the context of “estate planning,” an “estate” is simply all of the property or assets that a person owns. Examples would include your home, a second home or vacation property, time shares, a small business, bank accounts, mutual fund or investment accounts, IRAs, life insurance policies, jewelry, your car – yes, even the clothes on your back.

If you own it or have an interest in it, then it’s part of your estate.

So, with this in mind, an “estate plan” is a strategy that can be legally enforced to protect, preserve and manage all of your assets if you die or become disabled. It can ensure that your property gets passed on to the people you love. It can name people to make crucial medical decisions for you when you’re not able to. It can help reduce the amount of inheritance taxes that have to be paid. It can name people to act as guardians of your minor children if something were to happen to you.

To use a sports analogy, it’s a “game plan” for life.  A football coach like Bill Belichick of the New England Patriots wouldn’t take the field on game day without some sort of game plan; if he did, his team would probably just have to “wing it” and the results wouldn’t be good. Why then if you have a family to protect would you want to “wing it” and not have a game plan in the form of an estate plan for life?

Most people, whether they’re 25 or 75, have worked hard to build their assets and are usually interested in providing some kind of financial security for their spouse, their children or their grandchildren. Doesn’t it make sense then to devise a “game plan” to protect them in the event that something happens?

Let’s face it, as morbid as it sounds, things happen to people every day. It’s the human condition. We suffer unexpected strokes, massive coronaries, car accidents and even random criminal violence that can take us away in a heartbeat. If a coach wouldn’t just let his team “wing it” on game day, why would you let your family “wing it” after something catastrophic happens to you?

And that’s the reason behind estate planning. It’s your “game plan” to protect, preserve and manage your assets when you die or become disabled. So the answer to the questions I posed at the beginning of this chapter is “No. Estate planning isn’t just for the rich and wealthy. It’s for everybody who cares about having a game plan for when they’re gone.”

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How Do We Define the “New American Family?”

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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.

Healthcare Proxies: Massachusetts Young Adults Need Their Medical Wishes to Be Legally Documented Too.

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Here’s a tip for families of college students and college students themselves – if your college student is over the age of 18, then they are legal adults. That’s right, they are no longer minors in the eyes of the law AND their parents are no longer legally in charge of them.

This means that if something awful happens to a college kid, (i.e., a bad car wreck, an accident on or off campus at a party, a trip to the hospital) and they cannot communicate for themselves, then there’s no one who is legally entitled to find out medical information, to make medical or legal decisions, to talk to insurance companies or to find out other information about them.

Bottom line: if something happens to a college student, their family is shut out of the process and the only way to be able to make decisions is to go through the time and expense of the Probate Court.

Yet there’s a simple way to avoid this: put in place one of the most important legal documents that a young adult needs: a Healthcare Proxy. 
Far too many people assume that their families would make the choices they would want in an emergency. 
But it’s not enough for young adults to just tell their parents about their wishes.  Instead, they need to clearly document their preferences in legally executed documents. The truth is most young adults will need the help of a trusted person in medical or legal emergencies. But to do that, it is critical that they choose someone to make legal and medical decisions for them before they are ever caught in a position where they cannot.

National Healthcare Decisions Day is on April 16th and it’s an important reminder for every adult, young or old, to appoint someone to make medical decisions and possible end-of-life care choices. So in honor of National Health Care Decisions Day, we encourage all families with young adults to legally nominate someone to make difficult medical decisions for them when they are not able to.

If you have questions or would like to learn more about healthcare directives, talk to your attorney and get something in writing before an unforeseen emergency strikes. If you don’t have an attorney and would like to schedule a meeting with us, just fill out the “Contact Form” on our website.

This April 16th let your young adults’ voices be heard, even if they can’t speak for themselves.

Why would a bank approve a Massachusetts short sale? 2nd Marriage Estate Planning Attorney

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Ep. 4 of “2nd Marriage Estate Planning

Will a Massachusetts bank approve a short sale? Andrew Garcia of Phillips Garcia Law answers this question in the 4th installment of “2nd Marriage Estate Planning.”

Watch our previous episodes involving short sales and estate planning on our channel or website.

http://www.youtube.com/user/PhillipsGarcia?feature=mhee

Should I short sell my Massachusetts home?

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Episode 3 of “2nd Marriage Estate Planning” where Andrew Garcia continues to answer a viewer’s questions regarding her debt due to a short sale in Massachusetts. Does her debt now lie on the shoulders of her new husband as well? To find out the answers to these questions watch our mini-series “2nd Marriage Estate Planning.”

Episode 1 – What is a short sale?
Episode 2  – What happens during a short sale?