How Does Guardianship Work?

For family members of the estimated 6.5 million dementia patients in the U.S., it is crucial to understand whether guardianship may be an option for their loved one. A recent article from Next Avenue titled “Thinking of Becoming a Guardian?” explains how the guardianship process works and what factors go into the decision-making process.

Guardianship is the position of being responsible for someone else. State courts usually appoint a guardian to make decisions for a person, if the court finds that person to be incapacitated or unable to make safe and reasonable decisions for themselves. People who are placed under guardianship, known as “wards,” often lose their independence in making financial, legal and health care decisions.

If full guardianship is awarded, the person cannot make decisions about whether they may vote, marry, where they live, or make their own end-of-life decisions.

Two tasks that are evaluated when considering guardianship are a person’s ability to manage personal finances and to take medications as prescribed.

The court may call on a geriatrician or psychiatrist to evaluate the person’s functional behavior, cognitive function, disabling conditions and ability to meet their essential needs.

There are benefits to guardianship for someone who is not able to care for themselves. It ideally creates a safety net for a person who cannot make informed decisions for themselves.

this, of course, assumes that the guardian is honest and accountable, which is not always the case. The inconsistencies plaguing the guardianship system include minimum standards for guardians, lack of regular independent reviews of the need for guardianship and lack of educational requirements for guardians.

Once guardianship is assigned, there is a tendency for the person to become lost when no follow-up is done. The very same person who lacks capacity to care for themselves is not going to be able to advocate for themselves, contact an attorney or access funds for court proceedings.

There is also a tendency to assign full guardianship for a person, rather than less restrictive alternatives.

There are alternatives, but they require planning and discussion. More than 40% of Americans have not discussed their wishes for end-of-life care with their loved ones, according to an article in the Journal of the American Geriatrics Society. Families should have a conversation at the first sign of memory loss or when preparing for retirement regarding wishes for end-of-life care and write them down as part of an Advanced Directive—also known as a Living Will and Health Care Power of Attorney—when preparing their estate plan.

Another important document, although not legally binding, is a “Value History,” where you share your values and beliefs as they may impact care choices.

Designate a Power of Attorney and list two or even three back-up candidates. This person will be responsible for financial, legal and personal matters, avoiding the need for guardianship.

Appointing a family member or friend as a guardian is the ideal solution. However, there are instances when the best person to be a guardian is not a family member, but a court-appointed outsider. This relieves the family of being the ones who need to inform a person suffering from dementia with the news of having to move into a nursing home facility or sifting through financial records to learn that the family home is in foreclosure. The family can focus on being supportive and loving, while the guardian deals with the sometimes harsh realities of the person’s life.

Speak with your estate planning attorney to learn about how guardianship works, and whether it may be the right move for your family.

Reference: Next Avenue (Dec. 23, 2022) “Thinking of Becoming a Guardian?”

 

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Beneficiary Designation Mistakes to Avoid

Beneficiary Designation – Planning for one’s eventual death can be a somber task. However, consider what would occur if you failed to plan: loved ones trying to figure out your intentions, a long and expensive legal battle with unintended heirs and instead of grieving your loss, wondering why you didn’t take care of business while you were living. Planning suddenly becomes far more appealing, doesn’t it?

A recent article from yahoo! finance, “5 Retirement Plan Beneficiary Mistakes to Avoid,” explains how to avoid some of the issues regarding beneficiaries.

You haven’t named a beneficiary for your retirement accounts. This is a common estate planning mistake, even though it seems so obvious. A beneficiary can be a person, a charity, a trust, or your estate. Your estate planning attorney will be able to help you identify likely beneficiaries and ensure they are eligible.

You forgot to review your beneficiary designations for many years. Most people have changes in relationships as they move through the stages of life. The same person who was your best friend in your twenties might not even be in your life in your sixties. However, if you don’t check on beneficiary designations on a regular basis, you may be leaving your retirement accounts to people who haven’t heard from you in decades and disinheriting loved ones. Every time you update your estate plan, which should be every three to five years, check your beneficiary designations.

You didn’t name your spouse as a primary beneficiary for a retirement account. When Congress passed the 2019 SECURE Act, the bill removed a provision allowing non-spousal beneficiaries to stretch out disbursements from IRAs over their lifetimes, also known as the “Stretch IRA.” A non-spouse beneficiary must empty any inherited IRA within ten years from the death of the account holder. If a minor child is the beneficiary, once they reach the age of legal majority, they are required to follow the rules of a Required Minimum Distribution. Having a spouse named as beneficiary allows them to move the inherited IRA funds into their own IRA and take out assets as they wish.

You named an estate as a beneficiary. You can name your estate as a beneficiary. However, it creates a significant tangle for the family who has to set things right. For instance, if you have any debt, your estate could be attached by creditors. Your estate may also go through probate court, a court-supervised process to validate your will, have your final assets identified and have debts paid before any remaining assets are distributed to heirs.

You didn’t create a retirement plan until late in your career. Retirement seems very far away during your twenties, thirties and even forties. However, the years pass and suddenly you’re looking at retirement without enough money set aside. Creating an estate plan early in your working life shifts your focus, so you understand how important it is to have a retirement plan.

An experienced estate planning attorney can help square away your beneficiary designations as part of your overall estate plan. The best time to start? How about today?

Reference: yahoo! finance (Dec. 19, 2022) “5 Retirement Plan Beneficiary Mistakes to Avoid”

 

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Is Flaxseed Good for Seniors?

Flaxseed – Some factors are out of our control, like genetics. However, we can exert control over what we eat. A nutritious diet can support healthy aging in more ways than one, according to the National Institute on Aging, reports Livestrong’s recent article entitled “Want to Age Well? Add a Spoon of This to Your Daily Diet”

“While we have yet to find the fountain of youth, there is research to suggest that the foods we put in our body may affect how quickly our organs and bodies and age,” says Dana Ellis Hunnes, PhD, RD, the senior clinical dietitian at UCLA Medical Center.

Eating more nutrients for longevity can be as simple as adding a single spoonful of flaxseed to your daily diet. It’s a rich source of healthy fats and other beneficial nutrients. It’s recommended that older adults eat four to five servings of nuts and seeds per week, according to the USDA 2020-2025 Dietary Guidelines for Americans.

The typical serving size of flaxseeds is one to two tablespoons. They should be eaten ground instead of whole.

Ground flaxseeds are easier on your digestive system and may provide more nutrients than whole flaxseeds, which can pass through your system undigested, according to the National Library of Medicine (NLM). Here are three benefits of flaxseeds for healthy aging.

  1. Flaxseed Has Nutrients Linked to Disease Prevention. The typical Western diet is high in fat, sodium, sugar and calories. This increases the risk of obesity and chronic illnesses like type 2 diabetes, according to November 2020 research in Missouri Medicine. This type of diet is associated with highly processed and fast foods that can cause inflammation and leave a lot of room for nutritional gaps. However, eating an antioxidant-rich diet neutralizes free radicals and prevents them from damaging cells and increasing the risk of adverse health conditions.
  2. They’re High in Omega-3s, Which Support Heart and Brain Health. Flaxseeds are high in omega-3 fatty acids, which are essential for healthy aging. There are three main types of omega-3 fatty acids: eicosapentaenoic acid (EPA), docosahexaenoic acid (DHA) and alpha-linolenic acid (ALA). Flaxseeds contain ALA, which can be converted into EPA and DHA.

“Omega-3s are beneficial for heart health and are anti-inflammatory, which is essential for healthy aging,” Hunnes says. Those who eat a diet rich in omega-3 have a lower risk of heart disease, heart problems and heart-disease-related deaths, according to the Academy of Nutrition and Dietetics.

The lignans in flaxseeds have also been tied to lowering cholesterol and blood pressure, according to the American Heart Association.

  1. They Have Protein, Which Supports Muscle Health. A big threat to older adults is the loss of muscle mass, strength and function. Sarcopenia, or age-related muscle loss, occurs when the muscles start to atrophy or waste away, leading to poor balance and weakness. However, a combination of exercise and a muscle-supporting diet may help. Protein is a crucial nutrient for fighting the natural loss of muscle that occurs over time. Seniors may need more protein in their diets to preserve and increase muscle mass. Flaxseeds consist of up to 30 percent protein, and two tablespoons of ground flaxseeds has 2.6 grams of protein, or about 6 percent of your Daily Value (DV), according to the 2020-2025 Dietary Guidelines for Americans.

Reference: Livestrong (Sep. 26, 2022) “Want to Age Well? Add a Spoon of This to Your Daily Diet”

 

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Why Is Movie Star Chris Hemsworth More Likely to Develop Alzheimer’s Disease?

While working on his new docuseries, National Geographic’s Limitless with Chris Hemsworth, the 39-year-old had genetic testing and discovered that he has a greater chance of developing Alzheimer’s disease.

People’s recent article, entitled “Chris Hemsworth Learned He Has a Greater Chance of Getting Alzheimer’s Disease: ‘It Was Pretty Shocking’,” says the series features Hemsworth pushing his body’s limits to beat stress, maximize performance and fight back aging. In the fifth episode, “Memory,” a physician informs that star that he has two copies of the gene APOE4. The gene is linked to an increased risk of the disease, the actor revealed in an interview with Vanity Fair.

“They took all my bloodwork and did a bunch of tests, and the plan was to on-camera tell me all the results and then talk about how you can improve this and that,” Hemsworth told the outlet.

“And Peter Attia, who is the longevity doctor in that episode, and overseeing a lot of the show, called [show creator] Darren [Aronofsky] and said, ‘I don’t want to tell him this on camera. We need to have an off-side conversation and see if he even wants this to be in the show.’ It was pretty shocking because he called me up and he told me.”

The tests showed that the star of Thor and Extraction is eight to 10 times more likely to develop Alzheimer’s in the future.

“The show, which initially was an exploration of longevity and, of course, should be fun, became even more relevant and important for me, even more poignant than I ever thought it would be,” Hemsworth told Vanity Fair. “It was a really good catalyst to dive into everything I needed to be doing in either the prevention front or the management front or however you want to classify it. It’s not a pre-deterministic gene, but it is a strong indication.”

Hemsworth’s grandfather also has Alzheimer’s, so learning about his own genes wasn’t a total surprise.

“My concern was I just didn’t want to manipulate it and overdramatize it and make it into some sort of hokey grab at empathy, or whatever, for entertainment,” said Chris Hemsworth, who shares twin sons Sasha and Tristan, 8, and daughter India, 10, with wife Elsa Pataky. “It’s not like I’ve been handed my resignation.”

Hemsworth took it as an opportunity to make positive changes. His recent health news only reinforced the importance of keeping it up.

“If you look at Alzheimer’s prevention, the benefit of preventative steps is that it affects the rest of your life. When you have predisposition to cardiovascular heart disease, cancer, anything—it’s all about sleep management, stress management, nutrition, movement, fitness. It’s all kind of the same tools that need to be applied in a consistent way.”

Reference: People (Nov. 17, 2022) “Chris Hemsworth Learned He Has a Greater Chance of Getting Alzheimer’s Disease: ‘It Was Pretty Shocking’”

 

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What’s an Annuity ?

An annuity is a contract between an investor and a life insurance company. The purchaser of an annuity pays a lump-sum or several installments to the insurer, which then provides a guaranteed income for a certain period—or until their death.

Forbes’ recent article entitled “What Is A Joint And Survivor Annuity?” says that understanding an “annuitant” is key to understanding how a joint and survivor annuity works. An annuitant may be either the buyer or owner of an annuity or someone who’s been selected to get the payouts. A joint and survivor contract typically benefits joint annuitants: a primary annuitant and a secondary annuitant. Under this policy, both get income payments during the lifetimes of both the owner and their survivor.

With joint life contract, you can expect payments throughout the lifetime of the primary annuitant. If that person passes away, the survivor—the other annuitant—receives payouts that are the same as or less than what the original annuitant received. However, if the secondary annuitant dies ahead of the primary annuitant, survivor benefits aren’t paid when the primary annuity dies. The contract buyer can designate themself and another person, like their spouse, as joint annuitants.

A joint and survivor annuity differs from a single life annuity in a few ways:

  • A single-life benefits only the owner, so income payouts cease when that person dies; and
  • A single-life usually pays out less than a joint and survivor annuity, since a single-life contract covers just one life, while a joint and survivor covers two.

Under some joint and survivor annuities, the amount of the payout is decreased after the death of the primary annuitant. The terms of any decrease are set out in the contract.

The payout to a surviving secondary annuitant, generally a spouse or domestic partner, ranges from 50% to 100% of the amount paid during the primary annuitant’s life, if the contract was bought through certain tax-qualified retirement plans.

Ask these three questions before setting up a joint and survivor annuity:

  • How much in payout is needed for both annuitants to support themselves?
  • Do you have other assets (like a life insurance policy) to help the surviving joint annuitant after one of the annuitants dies?
  • How much would the payouts be lessened after the death of a joint annuitant?

Remember that you usually can’t change the survivor named in a joint and survivor annuity.

Reference: Forbes (Dec. 19, 2022) “What Is A Joint And Survivor Annuity?”

 

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What Did Kirstie Alley Do for Estate Planning?

Radar’s recent article, entitled “Kirstie Alley Left Behind $40 Million Fortune & Massive Real Estate Portfolio Following Her Death At 71,” reports that the actress had several starring roles that afforded her a luxurious lifestyle, including on Cheers and the Look Who’s Talking franchise.

She also became a regular fixture on reality TV, making appearances on Kirstie Alley’s Big Life, Celebrity Big Brother, Dancing With the Stars and The Masked Singer.

In addition to her significant net worth, she had a mansion in Wichita, Kansas.

In addition, Alley posted about building her dream farmhouse on two acres of land in Clearwater, Florida, back in 2020.

“The bulk of her estate will go to her kids, then the rest to charities,” said an insider.

The farmhouse was incomplete at the time of her passing.

“Hi!! been so busy remodeling that I’ve been MIA … 🙂 windows installed this week.. exciting as there is such a shortage,” she tweeted on October 27, just weeks before her death.

Alley previously gave her 1.5 million followers a sneak peek at the property being built from the ground up in August 2021.

The Drop Dead Gorgeous star reportedly also still maintained another six-bedroom, 11-bathroom waterfront Clearwater property she purchased in 2008 for $1.8 million. Alley sold her longtime home in California for $7.8 million in 2021.

After the news of her death after a brief battle with colon cancer, RadarOnline.com found out the Church of Scientology held a memorial for their longtime member.

Alley’s children, William and Lillie Parker, announced that she died on December 5: “We are sad to inform you that our incredible, fierce and loving mother has passed away after a battle with cancer, only recently discovered,” they said in a statement.

“She was surrounded by her closest family and fought with great strength, leaving us with a certainty of her never-ending joy of living and whatever adventures lie ahead,” they continued. “As iconic as she was on screen, she was an even more amazing mother and grandmother.”

Reference: Radar  (Dec. 12, 2022) “Kirstie Alley Left Behind $40 Million Fortune & Massive Real Estate Portfolio Following Her Death At 71”

 

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Should Each Child Get Equal Inheritance?

Every estate planning attorney has conversations with their clients about how adult children should inherit. While most people assume siblings should all inherit equally, in many situations, equal is not always appropriate. There are many situations where an equal inheritance might be unfair, says a recent article, “How Should Your Children Inherit? 4 Scenarios Where ‘Equal’ Is Not Appropriate,” from Kiplinger.

The Caretaker Child Lives With the Parent. When one of the children lives with the parent and has taken on most, if not all, of the responsibilities, it may be fair to treat the child differently than siblings who are not involved with the parent’s care. Taking care of paying bills, coordinating health care appointments, driving the parent to appointments and being involved with end-of-life care is a lot of responsibility. It may be fair to leave this child the family home or leave the home to a trust for the child for their lifetime. The parent may wish to leave the caretaking child a larger portion of the inheritance to recognize the additional help they provided.

A Special Needs Child. If the parent has been the primary caregiver for a special needs child, the estate plan must take this into consideration to ensure the child will be properly cared for after the parents die or are unable to care for the child. Depending on what government benefits the child receives, this usually means the parents need to have a Special Needs Trust or Supplemental Needs Trust created. Most government benefits are means-tested. To remain eligible, recipients may not have more than a certain amount of personal assets. The Special Needs or Supplemental Needs trust could receive more or less than an equal amount of the estate the child would have inherited.

In this scenario, siblings are generally understanding. The siblings often know they will be the ones caring for the family member with special needs when the parents can no longer provide care and welcome the help of an elder law estate planning attorney to plan for their sibling’s future.

An Adult Child With Problems. It’s usually not a good idea to leave an equal portion of an inheritance to an adult child who suffers from mental illness, substance abuse, is going through a divorce or has a life-long history of making bad choices. Putting the money into a trust with a non-family member serving as a trustee and strict directions for when and how much money may be distributed may be a better option. In some cases, disinheriting a child is the unpleasant but only realistic alternative.

Wealth Disparities Among the Siblings. When one child has been financially successful and another struggles, it’s fair to bequeath different amounts. However, wealth can change over a lifetime, so review the estate plan and the wealth distribution on a regular basis.

How To Decide What Will Work For Your Family? Every family is different, and every family has different dynamics. Have open and honest discussions with your estate planning attorney, so they can help you plan for your family’s situation. If possible, the same frank discussion should take place with adult children, so no one is taken by surprise at a time when they will be grieving a loss.

Reference: Kiplinger (Dec. 18, 2022) “How Should Your Children Inherit? 4 Scenarios Where ‘Equal’ Is Not Appropriate”

 

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Are Flavonols Good for My Brain?

Researchers found that total flavonol intake was linked to a lower decline in global cognition, according to Thomas Monroe Holland, MD, MS, of Rush University Medical Center in Chicago, and co-authors.

MedPage Today’s recent article entitled “Flavonols Linked to Slower Cognitive Decline” says that slower declines in episodic, semantic and working memory also were tied to overall flavonol intake. Associations were independent of cardiovascular conditions and lifestyle factors, the researchers reported in the medical journal, Neurology.

The findings suggest specific diet choices may result in a slower rate of cognitive decline. “Something as simple as eating more fruits and vegetables and drinking more tea is an easy way for people to take an active role in maintaining their brain health,” Holland said in a statement.

Flavonols are a type of flavonoid, a group of phytochemicals found in plant pigments. Earlier research has shown that high flavonol intake was connected to lower risk of Alzheimer’s dementia.

The mechanisms behind these relationships aren’t fully understood, the researchers acknowledged. However, the anti-inflammatory features of flavonols may lessen the amplitude or duration of neuroinflammation, Holland and his team suggested. The antioxidant characteristics of flavanols may also prevent or reduce oxidative stress from reactive oxygen species and free radicals.

In this study, Holland and his team evaluated 961 people with no dementia at baseline who participated in the Rush Memory and Aging Project, an ongoing community-based, prospective cohort. Participants were followed for 6.9 years. The sample was predominantly female (75%), white (98%),and had an average educational level of 15 years and a mean baseline age of about 81. Overall, 22% carried at least one APOE4 allele (a risk factor for susceptibility to coronary artery disease (CAD) and Alzheimer’s Disease (AD)), and 42% reported a history of smoking.

The researchers looked at diet using a food frequency questionnaire and measured cognitive performance annually with about 20 standardized tests. They adjusted findings for age, sex, education, APOE4, late-life cognitive activity, physical activity and smoking.

The study examined both total flavonol intake and intake of four constituents — kaempferol, quercetin, myricetin, and isorhamnetin. Kale, beans, tea, spinach, and broccoli were top food contributors for the natural flavonol kaempferol in the study. Tomatoes, kale, apples, and tea were main contributors for quercetin; tea, wine, kale, oranges, and tomatoes for myricetin; and pears, olive oil, wine, and tomato sauce for isorhamnetin, another flavanol.

Holland and colleagues noted that the study has several limitations, such as the fact that the sample population was white, highly educated and from the Midwest. In addition, dietary intake was recorded by self-reported food frequency questionnaires.

Reference: MedPage Today (Nov. 23, 2022) “Flavonols Linked to Slower Cognitive Decline”

 

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Does Elder Abuse Victim have Obligation of $25 Million Gift?

Regena Cole’s Long Beach Superior Court lawsuit alleged financial elder abuse, fraud, negligent misrepresentation and unjust enrichment. She seeks at least $500,000 in damages and a court order declaring the agreement to make a $25 million donation to music education at Cal State Long Beach void.

Press-Telegram’s recent article entitled “Woman, 95, disputes $25 million gift agreement to benefit CSULB” reports that Cole says those involved in allegedly deceiving her “used their relationship with her, her weakened physical and mental health and her dependence and trust in others, to intimidate and control Cole so that they could exert control and dominion over her and her property to gain an alleged irrevocable cash contribution of $25 million to CSULB.”

The agreement requires her to make the donation or have the sum considered a debt to her estate after she dies.

“Further, the alleged gift agreement was drafted and put forward solely by defendants for their direct benefit by isolating Cole from her family and friends, including long-time trusted financial advisors and attorneys… ” the suit states.

Over the past decade, Cole has gradually suffered from memory lapses and moments of confusion, especially after late morning, which cause her to be susceptible and vulnerable to manipulation and isolation, the lawsuit says.

The CSULB 49er Foundation is a nonprofit group that manages endowment funds, donation, and estate planning gifts to Cal State Long Beach. In 2020, Michele Cesca, who at the time served as an agent of the foundation and as vice president of university relations and development for CSULB, used her perceived friendship to gain access and control over Cole, the suit states. Over time, Cesca and others allegedly coerced the 95-year-old into signing the gift agreement. Cesca did not show the alleged donation to Cole’s attorneys until months after the signing, the suit details.

Because the signatures of three university representatives appear after the date of Cole’s alleged penning of her name on Aug. 19, 2020 —including that of CSULB President Jane Close Conoley — there is no sign that any of the alleged signings by representatives from CSULB and the 49er Foundation were executed on the same day, the suit states. The attorneys for Cole argue that there also is no indication that the donation was properly witnessed, notarized, and disclosed in full to Cole.

In November 2020, Cesca contacted Cole’s attorneys in an email that “completely misrepresented key facts in this matter,” the suit states. In addition, a confidential attorney-client communication produced by university attorneys purporting to document the donation was in fact only a draft outline of a preliminary discussion between the plaintiff and her lawyer regarding a matching gift agreement and does not state she agreed to an irrevocable cash contribution,” the suit states.

Not until recently were Cole’s attorneys able to “uncover the paper trail of fraud committed by Defendants and their actions to improperly cause the acts of elder abuse, fraud, negligent misrepresentation and unjust enrichment against Cole through deception, manipulation, undue coercion, fraud and concealment,” the suit says.

Reference: Press-Telegram (Nov. 24, 2022) “Woman, 95, disputes $25 million gift agreement to benefit CSULB”

 

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Why Would I Need a Post-Nup?

Vigour Times’ recent article entitled “Here’s Why Married Couples Might Want To Sign A Postnuptial Agreement” looks at the situations that might prompt a couple to prepare a postnuptial agreement.

For example, married couples may need to adjust a pre-nup they signed before they were married. They want to make certain the new terms are based on the things that have occurred since that time.

Changes in marital dynamics can trigger a change in the terms of a pre-nup. For instance, couples may not have thought that one spouse would begin to earn a lot more than the other or that, as the marriage endured over time, greater trust grew between the partners.

A post-nup may also come into play when a couple is thinking about divorce but still trying to work things out. According to the Centers for Disease Control and Prevention, over 10 years as many as 43% of first marriages can fail.

Because divorcing sooner rather than later could be more advantageous to one of the spouses, their agreement may say the marriage ended as of the date of the post-nup for purposes of calculating alimony and property division, should efforts to repair a marriage be unsuccessful.

There are circumstances when a post-nup is needed to work around state laws to allow one spouse to leave the other one less than what is required by state law.

Many people don’t know that once they’re married, state law usually gives their spouse a minimum percentage of the estate, even if the deceased spouse tried to leave it to someone else. One example of this is where a person in a second marriage wants to leave all their assets to children from a previous marriage.

Ask an experienced estate planning attorney to make sure the plan is consistent with the estate documents, especially as to trusts.

There also may be external forces, such as a future change in wealth that trigger a post-nup. For instance, in the event of a potential inheritance, for example, an heir — or the relatives leaving the assets — may insist on a post-nup, so the wealth will stay on their side of the family and not be included in any possible divorce negotiations.

Reference: Vigour Times (Nov. 27, 2022) “Here’s Why Married Couples Might Want To Sign A Postnuptial Agreement”

 

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