04 Jan Week 1 Q&A with Gerald Gray – A Kansas City Attorney
Questions can be submitted on Facebook at G.Gray Law, LLC or by email at firstname.lastname@example.org
Q1. My dad recently passed away. He did not have a will but he did have a house, a car and life insurance policy. However, the insurance company rejected my mom’s claim because she and my dad were divorced. What will happen with my dad’s property?
First let me say I am sorry to hear of your dad’s passing . Because your dad died without a will, that is known as “intestate” which simply means without a will. Therefore, intestate succession law requires property of the decedent (“your dad”) to be passed through the Probate process. Probate is required to ensure that the decedent’s property is accounted for and eventually transferred to the intended beneficiary or heir of the estate. Probate is also used to ensure that Uncle Sam is paid any taxes due from the decedent and/or the estate. The house and car will certainly pass through the Probate process. However, the life insurance policy will only pass through Probate if there are no designated secondary beneficiary(s) named. Some states have laws prohibiting an ex-spouse from collecting on an insurance policy in which the beneficiary designation was never changed after divorce. Some insurance companies won’t pay ex-spouses insurance proceeds. Therefore, whoever is named as the secondary or contingent beneficiary will collect the proceeds. If no such designation is made, then the proceeds will become part of the decedent’s estate and will pass through Probate to the decedent’s next-of-kin. In your dad’s case, you along with any of his other kids (your brothers and sisters) would be his next-of-kin and therefore would stand to inherit any property that passed through your dad’s estate. Any property will be distributed equally and you all would have equal title to your dad’s house and car. Therefore, such property could not legally be sold without unanimous consent of all those with an ownership interest.
Q2. I was recently the victim of a road-rage incident while riding with a friend. The other driver pulled a gun and began shooting and I was struck by gunfire? Is there anything I can do?
That sounds like a horrible situation. To answer your question this situation is similar to being involved in a car accident. As a passenger in your friend’s car, your friend had a duty to the passengers of the vehicle to ensure their safe transport. However, if your friend engaged in a dangerous road-rage incident that ultimately led to you being injured. Therefore, your friend could be liable for your injuries and you could recover from his/her insurance company for the damages/injuries you incurred. The issue is that most if not all insurance policies have exclusions for what are deemed intentional acts or criminal acts. A shooting is an intentional act. Another coverage issue is whether or not the injuries were related to the ownership, use or maintenance of the vehicle. There is established law that states that being injured in a vehicle is not enough to trigger insurance coverage if such injuries are not related to ownership, use or maintenance of the vehicle. This is where it can be helpful to speak with a lawyer. It is our job to be resourceful and creative so that facts are crafted in a manner that helps our client. Insurance companies have no interest in paying out claims so they are extremely reluctant to do so under questionable circumstances. Regardless of the circumstances surrounding an injury, never give a statement, recorded or otherwise without at least speaking with an attorney first.
Q3. I was injured while working on my job? However, after I reported the injury to my employer, I was written-up for missing work and ultimately fired for attendance? Can the company do that?
It is unfortunate that you experienced this treatment from your former employer. All states recognize employment at-will which means that you can be fired for any reason including no reason. However, there are three main exceptions such as Public Policy, Implied Contract and Covenant of good faith and fair dealing. Both Kansas and Missouri have a public policy exception while Kansas also recognizes implied contract. Both Kansas and Missouri also have laws prohibiting work comp retaliation. To bring a claim for retaliatory discharge for filing a workers compensation claim in Kansas, you must prove certain elements (1) you filed a claim for workers compensation benefits or sustained an injury for which you might assert a future claim for such benefits; (2) the employer had knowledge of the your workers compensation claim injury; (3) the employer terminated your employment; and (4) a causal connection existed between the protected activity or injury and the termination. In Missouri, you must only show that your filing of a work comp claim was a contributing factor to the employer’s discrimination or discharge. Without direct evidence or what’s known as a smoking gun, retaliation and other discriminatory acts must be shown by strong inferences for example: everyone is late or misses work, including you. Maybe you were a longtime employee who regularly had attendance issues but never were disciplined. Such factors could be evidence of retaliation. When it comes to claims for various types of employment discrimination, you must always keep in mind that just because something seems wrong or unfair does not make it against the law. That is why it is always helpful to speak with an attorney.
Q4. I was in a long-distance relationship. The lady that I was seeing recently told me that she is pregnant with my child. As a father, what are my rights?
Well there are several things to consider. The first is whether or not you have any concerns with paternity. Because you and the young lady are not married, the law does not presume that anyone is the father and paternity must be established. The reality is that until paternity is established, your only rights as a father will be what rights the mother will allow you to have. The situation is delicate and you must walk a fine line of being as supportive as possible to her during the pregnancy process while taking the necessary steps to protect yourself from being labeled as the father until you are certain that is the case. Your first conversation should include the fact that not only do you want to pursue DNA/Paternity testing to alleviate any doubt but you should also let her know that you are eager to be the best father you can be and you look forward to a positive co-parenting relationship and you want only the best for the child. Do not sign the birth certificate if you are uncertain about paternity because if it turns out that you are not the father, you will need a Court order to be removed from the birth certificate. There are also time restrictions associated with challenges to paternity so the longer you wait, the harder it is being removed as the father, regardless of the DNA results. These situations are always filled with so much emotion and often times, there is no realistic hope for an agreement to be reached without Court intervention. One important misconception is that because you pay child-support, you are entitled to see your child. However, the reality is that a child custody determination and parenting plan must be established by the Court to be enforceable. It is helpful to speak with an attorney early on to receive guidance regarding your options and on how to proceed. It is not necessary to wait until the child is born.
Q5. My wife is starting her own business. Does she need to hire a lawyer to help her get started?
Well first off, I’d like to say congratulations on your wife’s leap of faith as an entrepreneur and I pray that her business is prosperous. It does not require much to start a business. Technically, the kids mowing lawns or selling lemonade at their lemonade stand are business owners. However, to be a reputable, legitimate business, there are certain formalities that must be followed and safeguards put in place. The first thing I would recommend is forming a business structure under the state in which you operate and making sure that you are registered with the secretary of state. There are many types of business structures so seek legal advice on the type of entity to form by learning the pros and cons to each. A lot of the differences between various types of business entities have to do with size of the business, various tax consequences and liability protection. Liability protection is extremely important because it shields personal assets such as your home, cars and banks accounts from being seized if your business is ever sued. If you fail to create a business entity, then you can be sued personally and anything you own is at risk of being seized if you incur a business liability. The types of entities you can create are an LLC, (which stands for limited liability company), also limited liability partnerships and corporations to name a few. There are also compliance requirements you must follow when forming these types of entities otherwise you could still be personally liable. This is why it is important to seek legal representation especially if you are a first-time business owner. If you are not educated on the do’s and don’ts in business operation, you could find yourself facing financial ruin, civil and even criminal prosecution.