Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

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Saturday, January 5, 2013

Is the Kansas Sperm Donor Case A Lesson Against Do-It-Yourself Artificial Insemination

TrustsAs I have previously discussed, the State of Kansas claims that William Marotta should have to provide financial aid to a child that was conceived from the sperm that he donated to a lesbian couple. The state agency that deals with child support claimed that the contract Marrotta signed with the couple was not valid, which would have relieved of his duty to provide for the child, because the sperm donation and insemination were not performed by a licensed physician.

Some would argue that the problem for Marotta was largely self-inflicted, in that he is paying for his decision and the couple's decision to ignore Kansas law. Others would argue that the situation Marotta has found himself in is likely the product of financial considerations. The costs of following the proper procedure of self-insemination is expensive and many women choose to avoid doctors. Artifical Reproductive Technology (ART) can cost on average between $2,000 and $3,000, and is not covered by most health insurance providers. This means people seeking ART are looking for alternatives, such home insemination kits, that are much cheaper than the official option. The law here does not help either. Marotta and his attorney believe the law is most likely the product of a conservative state that is trying to maintain the traditional family by reducing the number of  the options that others have to become a parent in an alternative family.

Still, it is important to remember that do-it-yourself (DIY) options often result in these types of problems, regardless of whether it is a DIY will or trust or now DIY ART. According to MySA.com, "Corey Whelan, who runs workshops for lesbian couples interested in having children...said avoiding professionals is 'a buyer-beware proposition.'"

See John Hanna, Kan. Case Highlights Legal Issues For Sperm Donors, Nation/World, MySanAntonio, Jan. 4, 2013.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.  

January 5, 2013 in Current Affairs, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (1) | TrackBack (0)

Kansas Precedent on Sperm Donor Case

BabiesAs I have previously discussed, William Marotta donated sperm to a lesbian couple so that they could have a baby of their own. He also signed a contract with the two to ensure that he would be relieved of providing financially for the child. When of one of partners, Jennifer Schreiner, had financial difficulties caring for the child, she applied for welfare. The State of Kansas refused, arguing that the biological father should care for the child. Marotta contested those claims arguing that he signed a contract stating that he would not have to care for the child. The state agency that deals with child support claimed that the contract was not valid because the sperm donation and insemination were not performed by a licensed physician, pursuant to state law. 

There was a particular case that was decided in Kansas in 2007 that might provide some insight to the case. In that case, the Supreme Court of Kansas denied a sperm donor parental rights because there was no contractual arrangement between the donor and the mother granting him those rights. Marotta's attorney, Ben Swinnen, argued that this case could provide a defense because it appears that the court's past ruling runs contrary to the assertions the Department for Children and Families. Without a contract granting rights to Marotta, his attorney has argued that Marotta did not have parental rights or the financial obligations that would stem from those rights.

See Kevin Murphy, Child Support Claim Rankles Sperm Donor To Lesbian Couple, Yahoo!News, Jan. 2, 2013.

Special thanks to Jim Hartnett, Jr. (Partner, The Hartnett Law Firm) and Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

January 5, 2013 in Current Events, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (1) | TrackBack (0)

Friday, January 4, 2013

eLearning Program for Paralegals

Unknown-11The ABA Section on Real Property, Trust & Estate Law is now launching a professional development series focused on paralegals, legal assistants, and others working in the areas of Trust & Estate law. 

The 2013 program will offer ten 60-minute eLearning sessions and attendees can register for the entire series or individual sessions.  

For more information and to register, please click here

January 4, 2013 in Conferences & CLE | Permalink | Comments (0) | TrackBack (0)

Texas Tech Law Student to Compete at the Miss America Pageant

536291_10100667959475743_1446577572_nDaNae Couch, a third-year student at Texas Tech University School of Law and a member of The Estate Planning and Community Property Law Journal, is headed to the 2013 Miss America Pageant.  She won the Miss Texas title in July and will compete in the Miss America Pageant in Las Vegas on January 12. 

Danae is a 24-year old from Coppell and she is one of 53 contestants competing for the Miss America crown. She plans to graduate from Texas Tech School of Law in May 2014.  

See Brittany Hoover, Miss America Pageant to Have West Texas Flavor, Lubbock Avalanche-Journal, Jan. 3, 2012. 

Special thanks to  Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

January 4, 2013 in Current Events | Permalink | Comments (0) | TrackBack (0)

Wills, Trusts & Estates Prof Blog wins "fan favorite" in ABA Journal Blawg 100’s Niche category

Blawg100Badge_NICHEI was honored and humbled to learn earlier today that this blog was voted as the "fan favorite" in the ABA Journal's Blawg 100's Niche category.

I appreciate tremendously the support of my loyal readers, contributors, and assistants.

Thank you!!!!

 

January 4, 2013 in About This Blog | Permalink | Comments (1) | TrackBack (0)

President Obama used autopen to sign fiscal cliff legislation

AutopenIn an unusual move, President Obama used an autopen to sign the fiscal cliff legislation.  Thus, he could technically claim in the future that he never actually signed the legisation.

Below is an excerpt from Dave Boyer, Republicans question Obama’s use of autopen to sign ‘cliff’ bill, The Washington Times, Jan. 3, 2013:

Terry Turnipseed, a law professor at Syracuse University who has written about the legality of the autopen, said it sets a bad precedent.

“I’m very, very surprised that this is now the third time that President Obama has done this, especially given that it was the Bush OLC that produced the memo and Bush himself refused to take advantage of the autopen,” he said. “Even Bush did not think that this was something that should have been utilized on a constitutional basis.”

Mr. Turnipseed said it’s not the use of the autopen that’s unconstitutional per se, but the fact that the president is not in the presence of the device when it’s being used. He said it should only be used in the rare case of a president being incapacitated, similar to the signing of a will by a person who is physically unable to do so.

For more information on autopen signing, see Prof. Turnipseed's articles in Slate here and his law review article here.

January 4, 2013 in Estate Tax | Permalink | Comments (0) | TrackBack (0)

Court Rulings on the Kansas Sperm Donor Case

BabiesAs I have previously discussed, William Marotta donated sperm to a lesbian couple so that they could have a baby of their own. He also signed a contract with the two to ensure that he would be relieved of providing financially for the child. When of one of partners, Jennifer Schreiner, had financial difficulties caring for the child, she applied for welfare. The State of Kansas refused, arguing that the biological father should care for the child. Marotta contested those claims arguing that he signed a contract stating that he would not have to care for the child. The state agency that deals with child support claimed that the contract was not valid because the sperm donation and insemination were not performed by a licensed physician, pursuant to state law. 

Courts across the country have somewhat already grappled with this issue. Typically, courts have held that where a man donates sperm and maintains a relationship with the child, he can be required to financially support the child through child support. In many of the cases, the sperm donor often sent aid to the mother and child and would sometimes be referred to as a "dad" or "papa". Recently, the State of Texas held that a police officer did not have to pay child support for a child he conceived with a woman he formerly knew by donating sperm to her. By the time that the suit was filed, the officer had already moved on with his life. In fact, the suit came as a bit of a shock to him. Whether this trend among the states will help Marotta remains to be seen.

See Isolde Raftery, Kansas Demands That Sperm Donor Pay Child Support, NBC News, Dec. 31, 2012.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention. 

January 4, 2013 in Current Affairs, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Speaker John Boehner Increases His Support of the Defense of Marriage Act

John BoehnerAs I have previously discussed, the Defense of Marriage Act (DOMA) is currently under constitutional attack by Edith Windsor on the grounds that the law violates the equal protection clause of the 14th Amendment to the United States Constitution. The case is  Windsor v. United States. The Obama Administration has chosen to not defend the law, and so the Bipartisan Legal Advisory Group (BLAG), a group composed of the leaders in the House of Representatives, has decided to defend the law.

On January 3, 2013, Speaker Boehner announced that the Opening Day Rules package would contain language that would allow the continued use of taxpayer funds to defend cases like Windsor and state that BLAG would continue to speak for the House on legal matters. Democrats within the House have stated repeatedly that BLAG does not support their position and does not speak for all members of the House. On the other hand, Michael Steele, spokesperson for the Speaker stated that this is an important check on the President, who would be able to otherwise reject a law unilaterally by choosing to not defend it against a legal challenge.  As I have previously discussed, the Supreme Court is set to hear whether BLAG has legal standing to defend DOMA.

See Ariane de Vogue, Boehner Bolsters Support of Defense of Marriage Act, ABC News, Jan. 3, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

January 4, 2013 in Current Events, Estate Tax, New Legislation | Permalink | Comments (0) | TrackBack (0)

Thursday, January 3, 2013

Non-Tax Estate Planning Considerations

Unknown-9In order to optimize an estate plan, one should consider the following non-tax considerations: 

1. Plan For the Possibility of Estate Tax: Don't ignore the tax laws completely and it might be wise to insulate assets from future estate taxation by allocating some of the deceased spouse's assets to a separate trust that is covered by the deceased spouse's exemption amount.

2. Reassess Existing Life Insurance Policies: One should review his or her life insurance policy regularly to ensure the policy will remain in effect through the insured's death and is performing competitively with currently available insurance products. 

3. Incorporate Asset Protection Planning into Estate Plans: It is wise to structure a child's inheritance in a way that protects the assets from unforeseen circumstances. 

4. Plan For The Disposition of Family Businesses: A business owner's estate plan should address the future ownership, voting control, and management of the family business. 

5. Clearly Identify Estate Beneficiaries: Avoid inadequate or incorrect identification of a beneficiary that could give rise to litigation. 

6. Fund And Periodically Review Revocable Trusts During Lifetime: A periodic review of revocable trusts ensures that assets remain in the name of the revocable trust. 

7. Review Beneficiary Designations For Life Insurance Policies, IRAs, Retirement Plans, And Annuities: The beneficiary designation, not the will, controls these policies, so it is important to pay close attention to who is designated.  And if it is a child who is designated, then an expense trust or a custodial arrangement should be made if that child is a minor.  Otherwise, the assets are held by a court-appointed guardian until the child turns 18 and the court can distribute the assets outright to the child. 

8. Use Durable Powers of Attorney and Health Care Powers Of Attorney To Plan For Incapacity: These documents should designate an alternate agent in addition to an agent. 

9. Generally, Avoid Joint Tenancy in Assets or "Transfer On Death" Accounts: Such accounts frequently produce results at odds with an individual's estate plan and can lead to litigation, so it is best to deal with these assets through a well-drafted will or trust. 

10. Provide For Flexibility In Trust Arrangements:  Provisions can be made for the naming of future, currently unidentified, beneficiaries and removal and replacement of an ineffective trustee. 

See Stuart B. Dorsett, Top 10 'Non-Tax' Estate Planning Recommendations, WRAL Tech Wire, Jan. 2, 2013. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

January 3, 2013 in Estate Planning - Generally | Permalink | Comments (1) | TrackBack (0)

Three New Year's Resolutions for Your Estate Plan

Unknown-10It is the time of year where we are all making resolutions and re-committing to improvements.  There are three things you can do as 2013 kicks off to stay on top of your estate plan.

1. Review your beneficiary designations: While the terms of your will control the distribution of your probate property, beneficiary designations control who inherits your non-probate assets. To review these designations, identify your non-probate assets and the beneficiaries you have designated to that asset.  If you have married, divorced, or had children, you may want to change your beneficiary designations.  If those current designations leave your assets to a minor or an individual with special needs, you should hold that asset in a trust for that person's benefit. 

2. Plan for the disposition of your digital assets: If you do not plan for the disposition of digital assets, your loved ones may have trouble accessing financial accounts or lose family memories.  You can start by making an inventory of your digital assets, and write down the passwords associated with each asset.  Then put that inventory in a safe location and share that location with loved ones. 

3. Contact your estate planning attorney to schedule a review of your estate plan: It is a good idea to review your estate plan every few years.  This is particularly important if you have recently experienced a significant change in circumstances. 

See Anna R. Valkovich, PLLC, 3 Estate Planning New Year's Resolutions, Dec. 31, 2012. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

January 3, 2013 in Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)