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San Antonio, TX Family Law and Military Divorce Blog

Wednesday, September 10, 2014

Claims During Probate: Medicaid Estate Recovery Program (MERP)

During probate, the executor or heirs often must certify whether the Medicaid Estate Recovery Program (MERP) has a claim against the decedent's estate.  MERP stems from Federal law.  MERP requires States to submit claims against the estate of dededents who received "covered long-term care" for persons age 55 or older paid for by Medicaid.  A few examples of covered long-term care include the following:

  1. Nursing facility services;
  2. Community Living Assistance and support services;
  3. Home and Community-based services; or,
  4. Hospital and prescription drug services received while on the above programs.

Exceptions exist where a MERP claim will not be filed against the estate.  Two examples of exceptions follow:

  1. There is a surviving spouse; or,
  2. There is a surviving child or children under age 21.

In Texas, MERP is administered by the Department of Aging and Disability Services (DADS).  DADS publishes a form that can be sent to its MERP contractor to obtain certification of whether or not a claim exists.  Even if the family is "certain" that no covered long-term care was paid for by Medicaid, obtaining certification is a prudent step during probate.  Click here to get a copy of the MERP certification form from DADS' website.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a
spectrum of family-related legal services in the greater San Antonio Region.


Saturday, August 30, 2014

Assisted Reproduction - Part 3: Death

This is the last in a three-part series that describes legal issues in assisted reproduction.  In this blog, we'll explore the parental status of a "deceased spouse."

If a spouse dies prior to the eggs, sperm or embryos being placed, then the deceased spouse is not a parent of the resulting child unless two conditions are met.  First, the deceased spouse must have given written consent to becoming the parent of a child that might be born by assisted reproduction after his or her death.  Second, a record of the deceased spouse's written consent must be on file with the licensed physician providing assisted reproduction services.

Why is this distinction important to someone once they're deceased?  It is important because--if the deceased spouse is the parent--the child born after their death is a "pretermitted child."  We'll delve into the nuances of exactly what it means to be a "pretermitted child" in a later blog.  For now, know that it can impact the inheritance of the surviving spouse and children under the deceased spouse's Will (or the laws of intestacy if there was no Will).  A qualified family law, probate and estate planning attorney can explain options for safeguarding the now-deceased spouse's plan for distribution of their property during lifetime estate planning.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Wednesday, August 20, 2014

Assisted Reproduction - Part 2: Divorce

This is the second in a three-part series that describes legal issues in assisted reproduction.  In this blog, we'll explore the issue of "divorce."

First, if the parties have a contractual agreement that states in the event of later divorce what will happen to the eggs, sperm or embryos stored for purposes of assisted reproduction, then a Texas court will enforce that agreement.  If no agreement exists, then the eggs, sperm or embryos are community property that a Texas court can award to one spouse or divide between the spouses in divorce.  So, if no agreement exists and the court awards your ex-spouse the eggs, sperm or embryos, do you have to worry about your ex-spouse making you a "legal parent" (to include an obligation for 18 years of child support) against your will?  No.

The law states that if divorce occurs prior to placement of the eggs, sperm or embryos, then the former spouse is not the parent of the child unless two conditions are met.  First, the former spouse must have consented in writing to becoming the father or mother based on assisted reproduction that might occur after divorce.  Second, record of that consent must have been kept by the licensed physician who provided the assisted reproduction services.  The story doesn't end there.  Even if the former spouse had given consent in a written record, his or her consent can be withdrawn any time prior to placement of the eggs, sperm or embryos.

In sum, the key take-away is that neither your ex-spouse nor a Texas court can force you into becoming a "legal parent" of a child born of assisted reproduction that you never agreed to have.

In part three of this series, we'll look what happens if a spouse dies before placement of the eggs, sperm or embryos in storage.  Stay tuned.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Sunday, August 10, 2014

Assisted Reproduction - Part 1: Consent

This blog post is the first in a three-part series that describes legal issues in assisted reproduction.  In this blog, we'll explore the issue of "consent."

The law states that if a husband either provides sperm or consents to assisted reproduction by his wife, then he consents to being the father of that child.  That statement comes as no surprise.  What might surprise some to know is that the husband's (and wife's) consent, however, must be in a signed record kept by the licensed physician who provides the assisted reproduction services.  So, maintaining documentation of consent is critical.  Mostly.

Without a record of consent, the husband can still be found to be the father of the child if the husband and wife openly treated the child as their own.  If the husband did not treat the child as his own, then he can bring an action to challenge paternity any time prior to the child's fourth birthday.  Then, a court must find that the husband did not consent either before or after the child's birth.  The husband can bring an action after the child's fourth birthday only if three elements are present as follows: (1) he didn't provide the sperm for or consent to the assisted reproduction; (2) he and his wife didn't live together since the probable time of assisted reproduction; and (3) he never openly treated the child as his own.

In part two of this series, we'll look what happens if divorce occurs before eggs, sperm or embryos in storage are placed into the wife.  Stay tuned.   

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Wednesday, July 30, 2014

Alternatives for Formal Probate - Part 3: Family Settlement Agreement

This is the third blog in a three-part series that describes alternatives available in Texas when a full, formal probate either isn't possible or necessary.  Today, we'll discuss the "Family Settlement Agreement."

The Family Settlement Agreement is an agreement among all persons entitled to a portion of the decedent's estate (i.e. the "distributees") about how the estate will be divided.  A Family Settlement Agreement is available for use whether or not the decedent died intestate (i.e. without a Will) or having left a Will. 

An often-asked question is how can persons forge an agreement that is contrary to the decedent's intention as expressed in the Will?  A contrary outcome is made possible by two tenets of law.  First, it is the policy of the State of Texas to encourage resolution of disputes through means that avoid litigation.  Second, and when a Will exists, the Estates Code Section 101.001 provides that the decedent's estate vests immediately in the Will's distributees-- subject to payment of valid debts.  It is this immediate vesting of title that provides the authority for the distributees to craft their own agreement that might alter the Will (and avoid litigation).

This blog post will not attempt a full description of the process for creating a Family Settlement Agreement.  The reality is that the process can change based on the players and interests involved.  For our purposes, it will be sufficient to note that anyone having a property interest in the estate is a necessary party to the Family Settlement Agreement.  It's also important to note two entities that have no standing to object to a Family Settlement Agreement: (1) a Will's Executor, since he or she has no property interest in the estate; and, (2) the decedent's Creditors, as long as payment of their claims is unaffected by the agreement.  Beyond those quick notes, a qualified probate attorney can advise on the potential benefits and pitfalls of the Family Settlement Agreement alternative.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm. The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.

 


Sunday, July 20, 2014

Formal Probate Alternatives - Part 2: Small Estate Affidavit

This is the second blog in a three-part series that describes alternatives available in Texas when a full, formal probate either isn't possible or necessary.  Today, we'll discuss the "Small Estate Affidavit."

The Small Estate Affidavit may used by the heirs of the decedent's estate who are entitled to a share of the decedent's property (i.e. the "distributees") under Texas laws of intestacy.  The laws of intestacy prescribe the order in which descendants (e.g. children and grandchildren), ancestors (e.g. parents and grandparents) and/or other relatives (e.g. brothers, sisters, nieces and nephews, and cousins) share in distribution of the decedent's property when there was no valid Will.

When approved, the Small Estate Affidavit permits distribution of the property directly to the heirs without need for appointment of a Personal Representative to administer the estate. Other requirements that must be met before a Small Estate Affidavit can be used include:

  1. At least 30 days have elapsed since the decedent's death;
  2. No petition for appointment of a Personal Representative is pending or has been granted; and,
  3. The value of the estate's assets, excluding the decedent's homestead and exempt property, does not exceed $50,000.

The Small Estate Affidavit filed with the court must contain sworn statements by two disinterested witnesses and all distributees (i.e. persons who will take property) that list:

  1. All estate property and debts;
  2. The names and address of each distributee; and,
  3. Relevant marital and family history that proves each distributee's right to received property.

Once approved and signed by the court, the distributees must provide a copy of the Small Estate Affidavit to each person who owes money to the estate (i.e. borrowers) or has custody of property off the estate (i.e. banks holding the decedent's money).  Prior to distributing the decedent's property, the distributes must also ensure the decedent's valid debts get paid by liquidating assets other than an exempt homestead and any exempt personal property.

When title to the homestead will transfer, the Small Estate Affidavit can be recorded in the deed records of the county in which the decedent's homestead is located. Then, any bona fide purchaser of the homestead is entitled to rely upon the Small Estate Affidavit to take ownership free and clear from future claims of any potential undisclosed heirs.  A bona fide purchaser of the homestead, however, remains liable to any lawful creditors who were not paid by the distributees prior to distribution of the decedent's property.

Altogether, there a several advantages and potential pitfalls to using a Small Estate Affidavit.  A qualified probate attorney can advise whether use of a Small Estate Affidavit, rather than some other alternative to a full, formal probate, fits your circumstances.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm. The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Thursday, July 10, 2014

Formal Probate Alternatives - Part 1: Proceeding to Declare Heirship

This blog post is the first in a three-part series that describes alternatives in Texas when a full, formal probate either isn't possible or necessary. Today, we'll discuss a "Proceeding to Declare Heirship."  There two main scenarios in which a Proceeding to Declare Heirship becomes necessary are:

  1. The decedent died "intestate," meaning without having left a valid Will; and,
  2. The decedent's Will was not probated within four years after death (in which case the Will no longer is valid).

An application can be filed with the court by an heir, guardian, creditor or other interested person.  The application includes four important categories of information:

  1. A description of the decedent's marital and family history (i.e. the known heirs, who must be served with notice of the proceeding);
  2. A description of the decedent's separate and community property, including both real property (e.g. house/land) and personal property (e.g. cars, furnishings, money);
  3. A listing of the percentage of the decedent's separate and community property, both real and personal, that each known heir will receive (assuming no unknown heirs are identified) with the percentages determined by Texas law; and,
  4. Identification of at least two credible, disinterested witnesses who can testify to the decedent's marital and family history; a disinterested witness can be a long-time friend or family member, but they must be someone who will not "take" property as a result of the proceeding.

Next, an Attorney Ad Litem must be appointed by the court to represent the interests of potential "unknown heirs."  The Attorney Ad Litem will interview the disinterested witnesses and perhaps other persons who have the similar knowledge before filing a report with the court.  If no previously unknown heirs are discovered during the Attorney Ad Litem's investigation, the next step is the heirship hearing in court.

The Application for a Proceeding to Declare Heirship may or may not need to be accompanied by an Application for Independent Administration.  Whether an Independent Administration (meaning, a probate adminstration largely free of court supervision) is necessary will depend on the nature and extent of the decedent's property and debts. An example of when an application for Independent Administration might not be required is when the only issue is resolving title to real property.  In those cases, the Proceeding to Declare Heirship can take as little as two to three months, depending on everyone's schedule, including the court's. A qualified probate attorney will be able to advise you after discussing the specific facts of your situation.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm. The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Monday, June 30, 2014

Social Study's Role in Child Custody Disputes

A "social study" is a common tool court's use to help determine the outcome of child custody disputes.  Texas Family Code Section 107.0511 specifies the minimum qualifications that a social study evaluator must meet.  In general, the evaluator must be a licensed social worker, counsel, family therapist or psychologist who meets the certain education and experience requirements.  Basic elements of a social study are specified in Section 107.0514 as follows:

  1. an interview, conducted in a developmentally appropriate manner, of each child at issue in the suit who is at least four years of age;
  2. observation of each child at issue in the suit, regardless of the age of the child;
  3. the obtaining of information from relevant collateral sources (e.g. school teachers);
  4. evaluation of the home environment of each party seeking custody of a child at issue in the suit or visitation with the child, unless the condition of the home environment is identified as not being in dispute in the court order requiring the social study;
  5. for each individual residing in a residence subject to the social study, consideration of any criminal history information and any contact with the Department of Family and Protective Services or a law enforcement agency regarding abuse or neglect; and
  6. assessment of the relationship between each child at issue in the suit and each party seeking custody of or visitation with the child.

When a court orders a social study, its cost is usually split by the parties.  In Bexar and surrounding counties, the typical cost is between $1,000 to $2,500 depending on the evaluator's qualifications and the complexities of the situation.  Upon completion, the social study is filed with the court and becomes part of the case record.  It can be used at trial and is subject to the customary rules of evidence.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Friday, June 20, 2014

Naming Guardians for Minor Children in a Will: A Better Approach

Many people include a provision in their Will that designates a guardian for minor children after their death.  That approach may prove insufficient.  Remember, a Will only has effect after your death.  It has no effect, for example, if you're still alive but incapacitated (e.g. in a coma after getting "hit by a bus").

A better approach is to execute a stand-alone document that has effect after either incapacity or death.  The Texas Estates Code lays out the legal requirements for this type of stand-alone document.  A stand-alone "Declaration of Guardian for Minor Children in the Event of Death of Later Incapacity" is a great complement to the Will and your estate plan.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Friday, June 6, 2014

Non-Probate Assets and Will-Making

Many people believe that upon making a Will, they now have an up-to-date plan for distribution of all property after death.  That's true--but only for assets that the Will actually controls.

A Will only controls "probate" assets.  A Will does not control "non-probate" assets.  Non-probate assets are assets that transfer after the owner's death according to the laws of contract, such as a valid survivorship or beneficiary designation. 

An example of a survivorship designation is a jointly owned bank account with "right of survivorship."  Upon proof of death, the surviving joint owner gains title to the whole account without regard for what the deceased owner's Will might say.  An example of a beneficiary designation is life insurance.  Upon proof of death, the company pays the policy amount to the named beneficiary. 

But that's not the end of the story.  It is possible for what are normally "non-probate" assets to become probate assets.  This transformation would occur under the following non-exhaustive list of circumstances: (1) the deceased's estate is named as beneficiary (i.e. John Smith's life insurance policy names "The Estate of John Smith" as beneficiary); (2) all primary and alternate beneficiaries predecease the insured;or, (3) a joint account has no right of survivorship provision and no pay-on-death designation.

The moral of the story is that updating your estate plan involves more than just updating your Will.  It is wise to review the status of probate and non-probate assets in order to make deliberate choices.  Either bring certain non-probate assets under the control of your Will or validate/update the applicable survivorship or beneficiary designations so your intent will be met.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Saturday, May 10, 2014

Military Couples and Overseas Divorce

Military couples should be wary before filing for divorce in a foreign country simply because it might be quicker of cheaper than obtaining a divorce in the U.S.  A divorce decree from a foreign country generally won't be recognized in the U.S. unless one of the spouses was domiciled in the foreign country at time of divorce (i.e. resided there with intent that the foreign country be their "permanent home"). 

The U.S. Supreme Court established that a State court must have jurisdiction over the parties for a divorce to be valid.  Jurisdiction is based on one of the parties being domiciled in the State in which the divorce court is located.

One place this issue absolutely will bite a former spouse is when he or she files to obtain their court-ordered share of the member's military retired pay.  The Defense Finance & Accounting Service (DFAS) will not honor a divorce decree from a foreign country.  Per the Uniform Services Former Spouse Protection Act (USFSPA), DFAS can only honor divorce orders from courts of "competent jurisdiction," which according to the USFSPA does not include courts of foreign countries.  Check out DFAS' frequently asked questions, or FAQs.

Author Jim Cramp is an attorney and retired active duty colonel.  He provides a spectrum of family-related legal services in the greater San Antonio region.


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