Your Last Will and Testament: Don’t Die Without One!

Have you ever thought about how you will die? As morbid as that sounds, we all know that it is not if but when. It could be sudden like a car accident or maybe something more long-term like cancer. Listen, we get it, death is a topic that is uncomfortable to talk about. But taking the time to put things in place now, while you are alive, will set up all of the survivors to be taken care of in the wake of your death. No matter how young or healthy you are, you need a Last Will and Testament in place.

“If you fail to plan, then you are planning to fail” – Ben Franklin

The best possible scenario for everyone involved is that you have an estate planning document, like a Last Will and Testament, in place when you pass away. Planning ahead for the inevitable not only legally protects your loved ones but also guarantees that you leave your property to who you want. Having everything in writing before you die ensures that there are no questions about your wishes regarding your estate which, in turn, relieves pressure from your family during an already stressful time. With the help of a lawyer (preferably one who focuses their practice in probate), having a Last Will and Testament prepared is fairly simple and can save your survivors time and money after your passing. 

There are a few considerations to your Last Will and Testament to keep in mind. Last Will and Testaments are still subject to probate; conversely, a properly funded trust will avoid probate altogether. Additionally, a Last Will and Testament allows for you to disinherit a child; however, you cannot disinherit your spouse without a validly executed pre-nuptial or post-nuptial agreement and your spouses’ consent. Florida protects legal spouses with the elective share which means, at minimum, spouses are entitled to 50% of the probate estate or 30% of everything (probate and non-probate assets) you owned at the time of your death. 

Clearly there are many beneficial impacts of having a Last Will and Testament.  But what happens if you never get around to completing it? Every state has intestacy laws which provide the distribution of your property when you die without a Last Will and Testament.  These laws describe who inherits and what percentage each person receives. 

The following are examples to illustrate the complexities of what happens if, for instance, a (1) Florida man (2) dies without a Last Will and Testament (intestate) and (3) leaves all of his property in his individual name:

  • What if he was married? – The surviving spouse gets 100% of his estate. That said, if he has children from another relationship (which is about 80% of second marriages), the surviving spouse gets 50% and the other 50% goes to his children. 
  • What if he and his partner were not married? – This begs a few additional questions in order to be answered. 
    • Are there surviving children? 
      • Yes – Then equally to his descendants.  Nothing to his partner 
      • No – 
        • Then equally to the man’s mother and father or to the survivor of them. 
        • If both parents are deceased, then to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters. 
      • Unfortunately this has the effect of disinheriting a non-married partner, making it especially important to have a Last Will and Testament to ensure a partner inherits from another partner’s estate. 
  • What if there are half-siblings? “When property descends to collateral kindred of the intestate and part of the collateral kindred are of the whole blood to the intestate and the other part of the half-blood, those of the half-blood shall inherit only half as much as those of the whole blood; but if all are of the half-blood they shall have whole parts.” Sound a bit like Harry Potter? We thought so too. Here’s a translation — Half siblings only get half as much as whole siblings, unless all of the siblings are half-siblings and then they all get the same amount. 
  • What if there are no living brothers, sisters, or descendants of brothers or sisters? The estate shall be equally divided with 50% going to the maternal kindred and 50% going to the paternal kindred as follows:
    • To the grandfather and grandmother equally or to the survivor of them. 
    •  If there are no living grandparents, then  to aunts and uncles (or their children who are decedent’s cousins) 
    • If there is either no paternal kindred or no maternal kindred, the entire estate shall go to the kindred that survives in the order stated above. 
  • Ok, but what if there is NO surviving kindred? If there is no surviving family then the estate will go to the kindred(family) of the last deceased spouse of the descendent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.  (Before you panic, this does not mean a previous spouse the man divorced, just deceased.)
  • What if there is STILL NO ONE?  The man’s estate will escheat  (be given) to the State of Florida 
    • The state takes your property and sells it. The profits will then be deposited in the State School Fund. At any time, within 10 years, someone claiming to be entitled to the proceeds of the property can reopen the administration of the estate and assert entitlement.  
    • If no claim is made in 10 years, the state’s right to the proceeds shall be absolute.

As you can see, it can get a little sticky trying to figure out who gets what. Without a Last Will and Testament, there are so many unanswered questions that can sometimes lead to rifts in families upon the division of the estate. It is easy to see that having a Last Will and Testament signed before you pass makes an already hard time a little bit easier for all of those who survive you. The professionals at McCart & Tesmer have a focused practice in Estate Planning and Probate so if you are ready to begin your Last Will and Testament, schedule your appointment with us. 

Divorced Parents Guide to Summertime Co-Parenting in 2021

The 2020-2021 school year is just about over, and just like that summertime is upon us! Without school days to break up visitation time, divorced or unmarried parents everywhere are posed with unique challenges of co-parenting outside of the school schedule. 

Before exploring ways to help the parents, it is vital to keep the child(ren)’s perspective and experience in mind. Without a doubt, summertime is usually a few months of fun and magic for children and the children’s experience should be a large part of the decision-making process. This will allow the children to create amazing memories and mitigate any potential disputes. 

Now for the parents! The following is a one-stop-shop and list of considerations to help facilitate a less stressful, more meaningful summer while co-parenting. 

For Best Results –

  • Create a Parenting Plan – A Parenting Plan can be very useful to delineate custody, child care, and visitation or time-sharing  in writing. This document can be as detailed as necessary and can help take some of the guesswork out of co-parenting in the long term. Click here for a free Parenting Plan template. If you already have a parenting plan in place make sure you follow it and are flexible when changes are necessary. 
  • Keep Rules and expectations consistent – This consideration can be tough if the parents are not able to communicate well but it’s also one of the most vital considerations in co-parenting. Especially outside of the structure of the school setting, it is very important to have similar rules and mindsets regarding the rules to be followed over the summer vacation. 
  • Plan ahead for summer camps and vacations- There are likely summertime activities such as camp and vacation that will keep you and your kiddos very busy. These activities could create bumps in the road if both parents are not on board to work together to keep the summer as fun as possible for the child or children. Providing advance dates and schedules help. Do not forget to be flexible where you can, keep in mind that the earlier you start planning your summer the more flexible you can be. Perhaps a joint meeting in April or May to come up with ways to manage work, travel and activity schedules will benefit both parents and ultimately the children. 
  • Plan for Parents to have a life – Similarly, the parents may have schedules to work around in addition to the children.  What if one of the parents wants to sail away to Hawaii for a portion of the summer sans kids? Or what if one of the parents has a date? Some amount of communication, preparation, and consideration must be taken to ensure success for both parents to carry on with their lives.
  • Equal time-sharing for family events – Events like graduations, weddings, and family reunions double when parents do not reside together.  Anticipating that these events will occur sets the expectation for flexibility and cooperation.  Each parent should extend the courtesy of communication and flexibility to the other parent. 
  • Consider and agree upon childcare – Most of the time childcare is necessary as typically both parents work. It must be agreed upon who will pay for childcare as well as who will be responsible for drop off and pick up? Can the parents work together if one parent isn’t available for either?

Now that we’ve laid out considerations, how in the world are two separate households supposed to keep everything straight? That is a great question and luckily in 2021, there are many applications and resources available to divorced parents to communicate regarding time-sharing and exchanges. Apps that include features such as expense logs, shared calendars, and even messaging can smooth out some prickly moments that two household families can experience. Two applications that many families ulitize with success are: 

OurFamilyWizard –

COST – $99/year per parent (with optional add-on’s)

OurFamilyWizard was created by a divorced couple who understood there was a need for a tool to help the process of divorce and custody as smoothly as possible. The application allows each parent to have their own account and then they can add in other users such as therapists, lawyers, and extended family. Here are some of the best features:

  • Shared Calendar – This easy-to-use calendar allows both parents the ability to trade and swap with one touch. Parents can send schedule alterations for the other parent to accept or reject. Everything is documented automatically and stored for future use (if necessary).
  • Expense Log – You can save your credit card in the application and track expenses between parents for ease of reimbursement. This feature creates a seamless and secure line of communication between parents regarding expenses. 
  • ToneMeter – This feature is an added cost but comes in very handy if the parents have a tough time with communication. ToneMeter is kind of like a spellcheck, but instead of detecting misspelled words, it detects negative tones in your message. It then offers a more neutral alternative message that could avoid an argument. 
  • Instant Messaging – The instant messaging function allows for parties to communicate easily through the app, rather than using phone numbers or emails. All messages are permanent, uneditable, and archived. 
  • Event Chronicle – This ongoing journal feature gives a timeline chronicle of events such as doctor’s appointments, school events, communication with family members, court dates, etcetera. Journals are, again, uneditable and permanently housed on the ap.

Talking Parents –  

COST – *Free or up to $60/year per parent with Premium features

Talking Parents is one of the most popular apps out there for co-parenting for a few reasons. While much of the functionality is similar to OurFamilyWizard, there is a *free desktop version of Talking Parents that makes this option more attractive. With a la carte “premium” add-on’s if you want to use features such as the mobile app and download PDFs of conversations and calendars. The most valuable features are: 

  • Secure Messaging – The simple messaging feature resembles the text messaging on your phone. You get the sent and received time-stamp for each message and you can upload files to messages. All messages are permanently stored and are uneditable.
  • Realtime notifications – When one parent posts a message or sends a schedule approval, the other parent receives a push notification. This makes it simple to stay on top of any changes happening.
  • Share and store files – Kind of like Google Docs, this searchable feature makes it easy to not only save important images and documents but also share them within the application. You can see who the files have been shared with as well.
  • Printable PDFs – Easily download and/or print files from the application for use in mediation and custody meetings. You can export all conversations, journal entries, and documents.

For further questions regarding parenting plans, summer time-sharing, or holiday exchanges, please contact us at McCart & Tesmer, P.A.

Age Difference and Second Marriages: Tips for Round 2!

Sometimes the first marriage just doesn’t work out. That said, so many folks are finding love and companionship for the second time around! The number of second marriages in the US is higher than ever before. Most of these happy second-timers have a significant age difference between them which comes with many unseen obstacles that can be planned for and possibly avoided altogether. For those of you who have had the big wedding day #2 and are older or younger than your spouse, we’ve put together a few considerations and tips to make your second marriage the most successful. 

After the honeymoon, it’s a great idea to have a few important items front-of-mind for the future of your second marriage. These considerations aren’t given to rain on your love parade and say that it won’t work out. Quite the opposite, in fact. The family law professionals at McCart & Tesmer want you and your new partner to have all of the facts in place and the pro’s and con’s weighed so that you can be proactive and successful the second time around. 

  • Estate Planning should be a high priority in your considerations with your new partner. Did you know there is a Legal Right to Inherit? Absent a prenuptial agreement or postnuptial agreement, if you never update your estate plan, the new spouse is entitled to  the“pretermitted share” equal to a value ranging from 50% of the probate estate to the entire probate estate depending on the circumstances.  Your new spouse may also be entitled to  the “elective share” equal to 30% of the aggregate estate. If you plan ahead with your estate, you can be sure that everything lands where it should if things do play out well for the marriage or one spouse dies.
  • Because of an age difference in the coupling there is a high likelihood of one spouse outliving the other spouse. 
    • It is vital that the both spouses decide how to handle providing care for each other when necessary (day-to-day, long term care, hospice).
    • It’s a good idea to set up a Trust – 
      • A trust allows for intentional distributions to be set for a surviving spouse.
      • If there is a child from a different relationship, a trust can be set up to reserve money for that child as well.
      • A trust can also act as a safeguard to prevent the surviving spouse from depleting all assets.
      • If a surviving spouse remarries, it could prevent any family wealth from passing to the surviving spouse’s new spouse.
  • When one spouse passes away, the surviving spouse can be left with a mess to clean up. That said, if properly planned for, this unfortunate event doesn’t have to be messy. 
    • Decide on beneficiary designations ahead of time.
      • Depending on the terms of a prenuptial agreement or postnuptial agreement, there could be money left to the surviving spouse.
      • As part of an estate plan, the deceased spouse could leave specific amounts of money to children outside of the will or trust (this would likely still be subject to the “elective share”).
      • Planning ahead can allow money left to be used for the younger spouse’s continued needs

What if the second marriage doesn’t work out? It’s important to think ahead in order to avoid a lengthy dissolution of the marriage. First, both parties should have their own counsel before moving forward with any legal matters. Once that is done, both parties should consider and agree upon whether a Prenuptial or Postnuptial agreement would work best for the couple if things go south. Both options will help avoid a lengthy dissolution of the marriage but there are pros and cons to each.

  •  A Prenuptial Agreement is an agreement between a couple signed before they get married which sets forth the division of their assets in the event of divorce or death.”
    • This option is one that allows all parties to make an agreement before they are legally bound. 
    • Both parties must disclose all assets 
    • Gives the couple an opportunity to address alimony and whether or not it will be waived before the relationship fails.
    • A Prenuptial Agreement, in effect, allows the couple to get ahead of emotions that will surely arrive if the relationship fails.
    • This option can feel transactional but it is necessary to protect your assets especially when a second marriage is involved..
  • A Postnuptial Agreement is an agreement between couples after they are married so they can each protect themselves in the event of a divorce. This agreement is a legal contract that outlines how assets will be divided and what each individual in the marriage is entitled to should they divorce. It may also include other provisions that the couple agrees on.”
    • A Postnuptial Agreement is like a Prenuptial Agreement, but instead of before, it’s made after marriage has taken place. 
    • A Postnuptial Agreement requires additional “consideration” which is the exchange of something of value, such as property, money, services or a promise.
    • Alimony can still be considered with this option but this might be tougher to decide on once legally married.
    • As a part of the agreement it is possible to waive entitlement to each other’s estates and inheritance.
    • Oftentimes a Postnuptial Agreement will include the agreement to provide life insurance if the greater earning spouse dies.

Having all of the facts out in the open makes it much easier for your and your new spouse to make the right decisions for your relationship from the get go. It can be tough to think about what happens if things don’t go as planned. But if you have done the work of planning ahead, those things that seemed like roadblocks before, become things that have already been dealt with and decided. Still have questions regarding your second marriage? With nearly 20 years of experience, McCart & Tesmer specialize in both Family Law and Estate Planning. Click here to drop us a line and/or schedule your Free Consultation today!

Remarriage: What you should know before saying “I Do” again!

There is much to celebrate in finding another companion for your life, but there are more things to consider before you tie that knot again than you might think. According to statistics, remarriage is very common nowadays. In fact, remarriage in the United States today is 3 times as high for 2nd and 3rd marriages as we saw in 1960. Did you know that four out of ten new marriages include at least one partner who has been married before? Pew Research Center found that the number of adults who have ever remarried was at an astounding 42 million!

Although many of the considerations and tips in this blog apply to Same-Sex couples as well, there isn’t quite enough data that has been collected since the legalization of marriage equality to be included. That being said, it’s widely known that men are much more likely to remarry a younger spouse than women. The percentage of men marrying younger spouses is 67% by age 40 and 73% by age 70. Regardless of these statistics, both men and women should know what to expect before they remarry again so that both parties are successful in this new relationship.

So what should you consider before remarrying? First off, there is likely to be a disparity of the partners’ income if there is a significant age gap. This is due to the older spouse having more time in the workforce which means more time to grow their career and income. Another consideration is when one partner is retired and the other keeps working. Both of these scenarios are important to consider because, without proper planning, an income disparity could cause a rift in the relationship.

Secondly, there are some very important rules regarding Social Security for couples that decide to remarry. A remarriage could result in a loss or reduction of Social Security benefits, depending on the type of benefits received and the age of the Social Security recipient. The last consideration to keep in mind involves alimony. Alimony in Florida is based on need and ability to pay. Alimony awarded in a prior divorce could be modified or terminated based on a change in the parties’ financial situations. If one (or both) of the partners are receiving alimony from a previous marriage, they may want to reconsider marriage and/or cohabitation altogether as these circumstances could cause this income to be terminated.

With all of these considerations in place, how do you protect yourself? Get a Prenuptial Agreement. A Prenup, as it is commonly known, has many benefits. For one, it allows you to avoid a lengthy divorce process (if applicable). With a prenup, you can also set the amount of alimony payments, waive entitlement to each other’s estates and inheritance and set rules in place to provide life insurance funds if the greater earning spouse dies. It is also important to consult with an attorney to make sure that your desire to remarry, or even cohabitate with someone will not have a negative impact on current alimony you may be receiving or other benefits you may be entitled to.

Our team at McCart & Tesmer are well versed in all things involving marriage rights and family law in accordance with the state of Florida. Our team of lawyers would love to help you navigate and plan your future so the outcome is the maximum benefit for both parties involved. You can also read more about the rights of unmarried couples in Florida here. Contact us below!

Co-Parenting During the Holidays

The holidays have arrived, which means it’s time to put up the decorations, wrap the gifts, spike the eggnog, and get prepared for a possible co-parenting nightmare! The holidays are already stressful enough so adding the idea of sharing your children with your ex, can make it quite a bit difficult. Because of this possible co-parenting fiasco, we have decided to create a go-to list of tips and tricks on how to co-parent during the holidays.

Continue reading

Balancing Work & E-Learning During COVID-19

Wait, you want me to balance work, facilitate e-learning AND deal with COVID-19?

Kids have been participating in e-learning for a little over a month now and since it’s clear schools are not going to open up their physical locations for the remainder of this school year, it’s up to us to last through May 29th, the last day of school in Hillsborough County, Florida. Now, take a deep breath and take the time to let it out. Feel better? No? Us either BUT, we have learned a few things during the past month that have worked for us, perhaps they will work for you too! Pour a glass of wine and read on!

1. Don’t freak out! – We know, easier said than done… BUT, we are not home schooling and we are not teachers; we are e-learning facilitators and parents. We do not need to come up with a curriculum, simply follow the plan that your teacher has come up with. They are the professionals. Take a relief sip.

2. Know your strengths. – It is always important to utilize your strengths to overcome your weaknesses. We have kids in two different age groups, one in middle school and one in elementary school. Our elementary school kid needs a lot more supervision and guidance than our middle schooler. Our elementary school kid wakes up really early and our middle schooler sleeps in a bit. Knowing these things helps us manage our day. We can start our younger child’s school day earlier, before we start our own work and help him to get organized before our middle schooler wakes up. We break up assignments into smaller bits of work each day so he can focus on one assignment for a set amount of time until it is complete, then we can check it. This also gives us time to complete our own work. Knowing what time of day works best for your kids to learn and where they are most productive is a huge help. If mornings are not great, don’t fight it, let them have some free time and complete schoolwork in the afternoon. If sitting at the kitchen table (like my son) keeps them focused, great… if they work better at a desk in their room (like my daughter), even better! Sip that wine!

3. Make a Plan. Most schools issue some form of school planner each year. Use the planner! It will typically have each day broken down by subject. We write the assignments that need to be completed each day in every subject area within the planner. Our teachers are giving out assignments at the beginning of the week, some specify what needs to be done each day, others don’t. We break the work out over the week into manageable chunks so that it does not become overwhelming and we can go through the planner each day to make sure that everything was completed. We do this with our kids on Monday mornings, but you could also do it daily if your teacher is not providing a week’s worth of assignments at a time. For assignments with no specified due date during the week we let the kid pick what day they want to do them, this gives them control over a situation they have little control over. And who doesn’t like some control? Drink up!

4. Set expectations. I am an attorney and my husband is an executive director therefore we both have demanding jobs which require time where we work without interruptions. Communication is key. But really, it’s key! John and I must communicate when we are not able to handle parenting duties. If you lack communication, your significant other has no way of knowing that you are not able to help. We also have to communicate with our kids, especially when we can and can’t be interrupted. My kids understand that there are certain virtual meetings they can pop by and waive, and others that are totally off limits. If I am about to participate in a virtual hearing or mediation where they are not allowed to pop by, I make sure to talk to each kid and let them know that I am about to start a meeting where I cannot be interrupted. I also ask if they need anything before I begin and ensure they understand that everything else will have to wait until I am done. This method does not work for dogs… When I get there, I’ll let you know! Drink two sips now.

5. You will miss stuff, communicate that with the teachers. We have missed e-learning assignments and tasks due to the above-mentioned uninterruptable work meetings. Sometimes we both have work at the same time that cannot be interrupted. My son missed a quiz last week because neither of us were able to facilitate the sign-on process due to work obligations. We simply e-mailed the teacher and she was able to reopen the quiz so he could take it the next day. The same thing happened to our daughter regarding a zoom math class. Take that in for a moment, a zoom math class… In this situation we were both working unable to be disturbed and she was having technical difficulties. We again e-mailed the teacher and she provided us with the recorded session of the class. Teachers are expecting these types of situations to happen therefore they are being very flexible and understanding. Just ask and they will help you! Do you have any wine left? Just finish it and pour another glass.

None of this situation is ideal but we can and will get through it. It can be frustrating to balance all of this from home, especially if you are a single parent or parents who are both working longer than normal hours. It is ok to be frustrated! Take a time out, count to ten, breathe. Be sure to let your kids know that you are frustrated. They will learn how to deal with frustration by seeing how you resolve your own in a positive way. All that said, there are no right answers here. This is what has worked for me, hopefully it will work for you. Also, reach out to someone. If you need help call a friend. Sometimes talking to someone and venting for a few minutes can help you gain perspective. Well, that and wine. Lots and lots of wine.

Name change for an Adult or Minor

Occasions may arise where an individual is in need of changing his or her name. For example, a divorced woman may have kept her married name and is ready to return to her maiden name, a man never went by his legal name and has conflicting names on his governmental identifiers, or a child was given his birth mother’s last name and the parents now desire to add the father’s last name. An applicant can change his or her first, middle or last name entirely so long as the name is not being changed for an ulterior purpose.

For an adult wanting to change his or her name, the applicant must file a petition for name

change in the county where the applicant resides. If the applicant is not restoring a prior name, the applicant must have to have his or her fingerprints taken for a background check with the Florida Department of Law Enforcement. Upon competition and receipt of the background check, a final hearing will be set with the circuit court judge. After receiving the Final Judgment of Name Change, the applicant will provide a certified copy of the final judgment to the Social Security Administration and Department of Motor Vehicles to begin changing their governmental identifiers.

To change the name of a minor, the parents or guardians must file a petition for name change in the county where the child resides. Both parents or guardians must sign consents to the name change as well as complete fingerprinting for background checks with the Florida Department of Law Enforcement. In the event that both parents do not consent to the name change, the parent wanting the name change will have to commence litigation against the other parent. Upon receiving a Final Judgment of Name Change, the applicant may provide a certified copy of the Final Judgment with an application for Amended Birth Certificate to the Department of Vital Statistics. This will result in the child receiving a new birth certificate with his/her new name.

If you have questions about a name change for an adult or minor, please call McCart & Tesmer (813) 498-2757, to schedule your free consult today.

How is Child Support Calculated?

The amount of child support a parent may pay is one of the first questions typically asked during a family law consult for a divorce or paternity action. Unfortunately, the answer is “it depends”.

The Florida Legislature has provided guidelines from the amount of child support which should be paid for the support of a child based solely on the parent’s combined monthly net income. However, the calculation does not stop there. The child’s health insurance, uncovered medical cost, and day care expenses are all factored into the calculation as well as the parents’ timesharing schedule. The money a parent pays for the foregoing expenses and the more time a parent has with the child the less child support that parent will have to pay.

The Court will look at financial documents such as pay stubs, bank statements and tax returns to determine each parent’s relative income. Each parent will also be required to file a financial affidavit which provides a monthly snapshot of their income and expenses. All these documents and affidavits must reconcile.

Determining an accurate child support calculate is extremely important and should be reviewed by an attorney. The attorneys at McCart & Tesmer, P.A. are ready to assist in your family matter. For a free consultation please call (813) 498-2757 or email the firm at info@McCartTesmer.com.

Name Change After Divorce

Many individuals, mostly women, struggle with the decision whether to change their last name following a divorce. Some parents want to maintain an identifiable last name with their children while the children remain in school; however, waiting to change a name after the divorce can be costly. Either way, it is up to the spouse changing his/her name to decide if and when to change their last name, even over the objection of the other spouse whose surname is being kept.

What happens when a parent keeps his/her last name at the conclusion of the divorce and later decides to change it? If the last name was not formally changed in the Final Judgment of Dissolution of Marriage (Florida’s version of a Divorce Decree), a Petition for Name Change must be filed with the Court in the county where the Petitioner resides. Additionally, finger prints must be submitted through the Florida Department of Law Enforcement unless the Petitioner is requesting a former name be restored. This process can cost $500.00 or more.

The process for changing a name after divorce can become complicated and the attorneys at McCart & Tesmer, P.A. are ready to help. For a free consultation to discuss your matter please call (813) 498-2757 or email info@McCartTesmer.com.