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Trusts and Estates

Ca. Trs. & Estates Quarterly 2018, Volume 24, Issue 4

AN ESTATE PLANNER’S GUIDE TO FAMILY LAW PRESUMPTIONS

By Priscilla N. Hatton, Esq., and Lorin B. Bender, Esq.*

I. INTRODUCTION

As estate planners, we prepare carefully crafted estate plans for clients who typically have a clear view of their family dynamics and ultimate wishes. We aim to be thorough and to provide multiple contingency plans so our clients’ wishes are carried out upon their deaths. However, it cannot be ignored that, with the high rates of divorce, our clients’ assets often are being apportioned and distributed not upon their deaths, but upon dissolution of their marriages. With the high rates of divorce, as well as growth in the areas of trust and probate litigation, it is perhaps more important than ever for estate planners to understand the various presumptions that apply to testamentary documents, property characterizations, marital property transfers, and attempted transmutations. This article provides an overview of the California presumptions in these areas to enable estate planners to evaluate the various risks and safeguards that can be put in place to ensure that their clients’ estate plans accomplish their testamentary wishes.

II. CAPACITY IN MARITAL PROPERTY TRANSACTIONS

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