Tomi Rae Protection

Tomi Rae Protection

By: Martin M. Shenkman, CPA, MBA, JD

If you're a partner (or possibly a second or later spouse) in a situation like Tomi Rae, there are many steps you can take to avoid the problems and legal entanglements facing Brown's estate:

  • Write a will that clearly explains what your partner will be left, what her rights are, and so on. Hire a lawyer specializing in estate planning and get it done right. List in the will all key family members and other relationships, and what you bequeath to each of them. Brown could have listed Tomi Rae as his partner, wife, or former partner or former wife, and depending on which, could have changed what she was left. Clarifying the relationships, and your intentions, is vital to minimizing legal entanglements. It's simple, doesn't take much time or legal cost, and saves bundles of agony for your heirs.
  • Communicate your personal concerns and wishes to your lawyer. Focus on the people you want cared for (or not), not just taxes and legalities. If your lawyer advises that your requests could be problematic, seek his counsel on better ways to achieve your goals. If he can't get you what you want, without a reasonable rationale, or doesn't help you to think about all possible options before coming to a conclusion, then maybe it's time to consider switching attorneys. It's easy for a lawyer to "yes" you and write whatever you say in your will, but often that's not protecting your goals or your heirs. Example: Brown could have given Tomi Rae the right to live in his home for life (a life estate) and following her death the house could pass to his children. Sounds easy, but how would she pay for upkeep? What if a repair or improvement were needed? A better approach may be a trust with an independent trustee and sufficient cash to fund upkeep. Life estates can be really problematic. In a second or later marriage/relationship you might want to grant your partner some period of time, say 90-days, to live in your residence even if it is bequeathed to others. During the emotional trauma following your death, a loved one (even if not intended to inherit your house) should not be thrown out by children from a prior marriage, or a lawyer doing his job as executor, etc.
  • Write a personal note of instruction to family, friends and other important people explaining what you are doing and why. In many cases a simple note can take the edge off the pain heirs feel. Perhaps Brown felt that Tomi Rae had adequate housing and that his home should be made into a museum to encourage some of the values dear to him. A note explaining that might have avoided some of the problems.
  • Never make your estate plan or will vindictive. If you have an ax to grind, deal with it while you are alive and able to, not at the end. Even if Brown felt he didn't want to provide for Tomi Rae, they still had a child and many years of a relationship together. Perhaps some bequest to help her out, even if not what he thought necessary may have minimized or eliminated the problems and pain which she is now dealing with.
  • Watch how assets are owned ("title" in legal terminology) and note beneficiary designations (e.g., IRA, insurance). Title and beneficiary designations determine where your assets go regardless of what your will says. It all must be coordinated. Brown could have had his house owned jointly with Tomi Rae if he wanted her to have it. Even if she would not have been mentioned in his will, if her name was on the deed to the house, it would have gone to her. If Brown wanted to protect Tomi Rae, avoid the media circus, and then have the house to go to charity to establish a museum, he could have transferred ownership of the house to a revocable living trust which reserved 90-days for Tomi Rae to live there following his death, and then transfer the house to the charity.
  • Take steps to keep your estate decisions out of the limelight. Set up trusts now to avoid publicity. But, this won't work unless you tie up loose ends and address key issues that could create problems later. Celebrities are often better off using lifetime transfers (inter-vivos) to minimize post-death media attention. Also, to minimize the success of a post-death lawsuit, set up a pattern of benefiting the people you bequeath your estate to, especially if there are others that view it differently. Example: If Brown wanted to minimize what Tomi Rae would receive, he should have made lifetime gifts to other heirs intentionally leaving Tomi Rae out to demonstrate consistency with his will that may provide limited bequests for her (if that turns out to be the case).
  • Have a family law attorney prepare a legal document to protect your partner. If Brown thought he was marrying Tomi Rae he should have had a pre-nuptial agreement signed. If Brown knew he and Tomi Rae were not married he should have had a living together agreement signed. If Brown wanted to assure Tomi Rae of certain bequests he could have signed a document committing to make those bequests to her in his will (a will contract). All the uncertainty could have been avoided and this would have prevented Brown from changing his will to cut out Tomi Rae.
  • Assure your partner has sufficient assets in her name to get her through the transition period following your death but before bequests or trusts for her benefit can be effectuated

Plan ahead, be clear, don't be vindictive, establish a pattern...clean up loose ends and minimize the problems.

Our Consumer Webcasts and Blogs

Subscribe to our email list to receive information on consumer webcasts and blogs, for practical legal information in simple English, delivered to your inbox. For more professional driven information, please visit Shenkman Law to subscribe.

Ad Space