1. CHAPTER 17
Family Law and Estates

2. Introduction
The legal relationships of people within a family are governed by family law
Family law governs dissolution of families through divorce, which is a major area of work for paralegals
Whether property is distributed before or during a marriage, or when one ends, property must be transferred when a person dies
Wills and trusts are often used to transfer a person’s real and personal property, or estate, after death

3. Family Law Marriage and divorce Adoption Child support and custody
Child and spousal abuse
Parental rights and duties

4. Family Law Marriage Requirements Two persons Currently unmarried
Not closely related by blood
Over a certain age
Usually 18 years old
Exception: emancipated persons
Cont.

5. Family Law Marriage Requirements Procedural requirements
Marriage license
Blood test
Waiting period
Marriage ceremony
Marriage license must be recorded

6. Family Law Marriage Requirements Same-sex couples
2004: Massachusetts became first state to allow same-sex marriages
Some states allowed civil unions, domestic partnerships
Obergefell v. Hodges, 576 U.S. __ (2015) held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.

7. Family Law Common Law Marriages
Parties become married solely by mutual consent and without license or ceremony
Four general requirements
Must be eligible to marry
Must have present and continuing intention and agreement to be a married couple
Must live together as a married couple
Must hold themselves out to the public as a married couple

8. Family Law Marital Duties
Previously, marriages were private contracts arranged between families
Now, marriage contracts are governed by the state

9. Family Law Marital Duties Financial support Spousal abuse
One spouse has duty to support other spouse and children
Food, shelter, medical care
Spousal abuse
Restraining order
Domestic abuse

10. Family Law Parental Rights and Obligations
Direct the upbringing of their children
Parents have control over
Where children live
What school children attend
What religion children practice
What medical care children are given
Behavior of their children
Punishment of their children
Cont.
Learning Objective: The legal rights and obligations of parents and children.

11. Family Law Parental Rights and Obligations Must provide
Food
Shelter
Clothing
Medical care
Schooling
These duties generally end when child is 18

12. Family Law Parental Rights and Obligations
Liability for children’s wrongful acts
State laws vary considerably
Child abuse and neglect
In loco parentis
Children born out of wedlock
Law provides rights and protections for these children
Paternity suits
Inheritance rights

13. Family Law
Adoption
Procedure in which persons become legal parents of a child who is not their biological child
Not to be confused with foster care, which is temporary
Requirements for adoptions

14. Family Law Adoption Agency adoptions Independent adoptions
Stepparent adoptions
Surrogacy
Court approval and probation

15. Family Law Marriage Termination Annulment
Court decree that invalidates a marriage
Children born during the marriage are considered legitimate
May be based on various grounds
Lack of genuine consent
Fraud
Bigamy
Learning Objective: How marital property and debts are divided when a marriage is dissolved.

16. Family Law Marriage Termination Divorce
Formal court proceeding legally dissolves a marriage
Fault-based versus no-fault divorces
Irreconcilable differences
Living separately for a period of time specified by state statute
Incompatibility
Divorce procedures
Petition for divorce
Negotiation and mediation

17. Family Law Child Custody
Typically the most contentious issue in a divorce
Court may appoint a guardian ad litem
Factors considered in determining child custody
Types of custodial arrangements
Legal custody
Joint custody
Visitation rights
Right to have contact with the child

18. Family Law Child Support
Court makes provision for child support, regardless of custody arrangements
Financial support for child’s needs
States have standardized guidelines, often percentage formulas based on parental income

19. Family Law Child Support Withholding payment
Interstate enforcement of child-support decrees
Uniform Interstate Family Support Act
Every state agrees to enforce orders

20. Family Law Spousal Support Alimony, or maintenance
Financial support paid to a former spouse
Permanent or temporary
Rehabilitative alimony
Education
Training
Palimony

21. Family Law Property Division Marital property Separate property
All property acquired during the course of a marriage
Separate property
Property that a spouse owned before the marriage, plus inheritances and gifts acquired during the marriage

22. Family Law Property Division Pension benefits Community property
All property acquired during the marriage
Common law marital property
Equitable distribution

23. Family Law Prenuptial Agreements
Contract between parties that is entered into before marriage
Provides for disposition of property in the event of a divorce or death of one of the parties
Must be in writing to be enforceable
Uniform Premarital Agreement Act
Adopted by about half the states
Standardizes legal framework

24. Family Law Family Law and the Paralegal
Many areas of opportunity in this area
Divorce
Adoptions
State welfare departments
Publicly sponsored legal aid foundations
Groups that assist persons of low income with family-related legal problems
Many different types of work and tasks

25. Wills, Trusts, and Estates
Final declaration of a person’s wishes
Testator
Testate and intestate
Intestacy laws
Executor
Administrator
Learning Objective: What estate planning is and why it is important.
Learning Objective: The various devices that are used in estate planning.

26. Wills, Trusts, and Estates
Laws governing wills
Probate
Requirements for a valid will
Testator must have testamentary capacity
Will must be in writing
Must be signed by the testator
Must be witnessed
In some states, must be published
Learning Objective: The requirements for a valid will and the laws that govern property distribution when a person dies without a valid will.

27. Wills, Trusts, and Estates
The probate process
Procedures vary depending on size of estate
Intent must be established by an affidavit
Family settlement agreements
Private agreements among the beneficiaries
Formal probate likely
Probate court typically supervises settlement of larger estates
Learning Objective: What estate planning is and why it is important.

28. Wills, Trusts, and Estates
Living trusts (inter vivos trust)
Revocable or irrevocable
Trust administration
Testamentary trust
Special types of trusts
Life insurance trust
Charitable trust
Spendthrift trust

29. Wills, Trusts, and Estates

30. Wills, Trusts, and Estates
Other Estate-Planning Devices
Some persons arrange to have property transferred in ways other than by will and outside the probate process
Establish a living trust
Arrange to hold title to certain property as a joint tenant with a spouse or other person
Making gifts to children or others while one is still living
Take out a life insurance policy
Learning Objective: The various devices that are used in estate planning.

31. Wills, Trusts, and Estates
Online Help for Estate Planning
Internet offers an abundance of estate-planning websites
Where to begin

32. Wills, Trusts, and Estates
Online Help for Estate Planning
Other websites
American College of Trust and Estate Counsel
Society of Trust and Estate Practitioners (STEP)
Software tools
Market Center of FindLaw
Technology tip

33. Wills, Trusts, and Estates
Estate Administration
Process of collecting a decedent’s assets, settling his or her debts, and distributing all remaining assets
Executor
Personal representative who administers the estate
Inventories and collects assets
Arranges for appraisals, if necessary
Manages assets during administration period

34. Wills, Trusts, and Estates
Estate Administration
Duties of personal representative
Pays debts owed by decedent
Arranges for estate to pay taxes
Distributes estate pursuant to court order
Renders accounting to the court

35. Wills, Trusts, and Estates
Wills, Trusts, and Estates and the Paralegal
General law practice
Could handle tasks in all areas
Estate planning and administration
Probate proceedings
Coordinating efforts of personal representatives
Trust law
Trust departments of banking institutions

36. Summary
Marriage is a status conferred by state law that establishes the rights and duties of spouses to one another and to any children born to them
Obergefell v. Hodges, 576 U.S. __ (2015) held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.

37. Summary
Adoption is a procedure by which persons become the legal parents of a child who is not their biological child
A marriage can only be terminated by the state, through annulment or divorce A will is the final declaration of how a person desires to have his or her property disposed of after death
To probate a will means to establish its validity and administer the estate through a court process

38. Summary
A trust is an arrangement by which property is transferred from one person (the grantor, or settlor) to be administered by another (the trustee) for the benefit of a third party (the beneficiary)
Other strategies to transfer property include owning property as joint tenants, giving gifts to children or others while one is still alive, and purchasing life insurance policies