ElderLaw News

ElderLaw News is a weekly e-newsletter that brings you reports of legal developments and other trends of vital interest to seniors and their advocates. This newsletter is brought to you by The Estate Planning & Elder Law Firm, P.C., William S. Fralin, Esq., President.

Elective Share and Separate Property

A recent Fairfax Circuit Court case highlights the need for premarital or marital agreements for blended families.

In Higham v. Williams (CL2006-11954, March 28, 2008), the husband and wife maintained separate property throughout their marriage. The wife died, and the husband filed an elective share claim against her estate. The wife's estate claimed that the parties maintained separate property so that they could leave their property to their respective children from previous marriages.

The husband and wife did not have a premarital or marital agreement that would prevent either party from electing a marital share of the other spouses' property. The husband asserted that the court could not deny his elective share claims in the absence of such an agreement. The court agreed with the husband's position, and held that it could not impose a premarital or marital agreement on the parties that waives the right of each spouse to claim against the estate of the other spouse, when the spouses did not make such an agreement themselves. The court could not impose such an agreement even though there may be concerns of fairness to the wife's two children and one grandson. The court also considered which of the wife’s assets should be included in the augmented estate, and which assets should be excluded.

Blended families often have unique and complex estate planning issues. The attorneys at The Estate Planning & Elder Law Firm, P.C. can help blended families with their estate, financial, insurance, and long-term care planning needs.


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The Estate Planning & Elder Law Firm, P.C. is an elder law firm. We represent older persons, disabled persons, their families, and their advocates. The practice of elder law includes estate planning, estate and trust administration, powers of attorney, advance medical directives, titling of assets and designations of beneficiaries, guardianships, conservatorships, and public entitlements such as Medicaid, Medicare, Social Security, and SSI, disability planning, income tax planning and preparation, care management, and fiduciary services. For more information about The Estate Planning & Elder Law Firm, P.C., please visit our website at http://www.chroniccareadvocacy.com.

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