Family lawyers and estate planning attorneys operate quite independently of one another. Each discipline is complex, and its practitioners are specialized to the point that it may be unreasonable to expect attorneys to be fully versed in both areas. But it is important for attorneys to recognize that their advice and actions in one context for one purpose may well have significant implications for the other. It is important for attorneys in both specialties to educate themselves about Automatic Temporary Restraining Orders (ATROs), which are integral to family law, but may also have a significant impact on estate planning.
To protect the rights of the parties during a dissolution or legal separation proceeding and to preserve the financial status quo, Fam C §2040 imposes automatic temporary restraining orders (ATROs) on both parties to the action as soon as a dissolution or legal separation petition is filed and served. The ATROs restrain specific types of property transfers and encumbrances, and are found on the back side of the family law summons. This means that the family law attorney should discuss with the client the need for estate planning advice on actions the client might want to take before filing a family law petition, because certain actions may be restricted under the ATROs.
Pre-petition actions to be considered include:
- Revoking an existing revocable trust;
- Creating and funding a new revocable trust;
- Severing joint tenancies; and
- Changing beneficiary designations.
If these actions are taken before the petition is filed, then they may be done without giving notice to, or obtaining the consent of, the other spouse (or registered domestic partner) or the court. That’s obviously much simpler.
Even though creating, modifying, or revoking a will, and revoking existing powers of attorney and executing new ones can be done unilaterally, they should be considered among the important estate planning actions to consider before filing a family law petition.
Family law practitioners are often well versed in ATROs, but estate planners may not be as familiar with them, much to their (and their clients’) detriment. Being aware of ATROs is critical to assisting clients with estate planning when the client is contemplating or has started a dissolution or legal separation proceeding.
ATROs are just one of many issues that crossover between the family law and estate planning practice areas. For a comprehensive look at all the crossover issues, check out CEB’s Crossover Issues in Estate Planning and Family Law. This book is discussed in my YouTube video with Jon Heywood, a CEB Publications Attorney and one of the book’s editors. Also check out our program Crossover Issues in Estate Planning & Family Law, available On Demand.
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