Wills, Trusts & Estates Prof Blog

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

Friday, November 27, 2015

Article On Posthumously Conceived Child's Inheritance Rights

WillsHeather LaCount (Suffolk University School of Law) recently published an article entitled, Dead money: a posthumously conceived child's inheritance rights under the Social Security Act & state intestacy law, 20 Suffolk J. Trial & App. Advoc. 219-252 (2015). Provided below is an an excerpt from the article:

Jack was diagnosed with an aggressive form of Leukemia. Doctors advised Jack to undergo chemotherapy immediately but indicated he was at a high risk of becoming infertile. Knowing they wanted to have children together someday, Jack and Jill had Jack's sperm frozen and stored in a sperm bank.

Despite aggressive treatment, Jack's prognosis was poor and it was obvious death was impending. The only solace Jack had in his final days was his belief Jill would use his frozen sperm to conceive a child after he died with assisted reproductive technology. Eventually, Jack died at the tender age of twenty six.

Eighteen months after Jack's death, Jill gave birth to twin girls conceived using Jack's frozen sperm. Genetically, the twin girls are Jack's children. Are the twins entitled to receive benefits through Jack from the Social Security Administration? Are the twins entitled to inherit from Jack under intestate succession?

November 27, 2015 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, November 25, 2015

Article On Succession Issues For Multi Parent Children

ArticlePictureJudith F. Daar (Professor of Law, Whittier Law School) recently published an article entitled, Multi-Party Parenting in Genetics and Law: A View from Succession, 49 Fam. L.Q. 71-92 (2015). Provided below is an excerpt from the article:

In early 2014, two independent advances introduced the possibility of creating children with more than two genetic and legal parents. Researchers sought permission to proceed with human trials using “three-parent IVF,” a technique that would produce a child with three genetic parents. Concurrently, a newly enacted California law permits judges to recognize more than two parents when failure to do so would be a detriment to the child. Multi-parent families raise numerous questions about the well-being of the affected individuals but future impacts are rarely discussed. This article considers multi-party parenting through the lens of succession, the rights of heirs to succeed to property of a decedent who dies without a will. Using intestate models that pay homage to relationships forged by blood, marriage and adoption, this article assesses whether multi-parent families could or should be captured by existing schemes, governed by newly tailored schemes, or dismissed from succession altogether.   

November 25, 2015 in Articles, Science | Permalink | Comments (0)

Tuesday, November 24, 2015

Article On The Economics Of A Fiduciary Litigation Practice

GavelRobert Barton & Wendy Walker recently published an article entitled, Alternative Litigation Finance, Part 1: The Waiting Game—The Economics of a Fiduciary Litigation Practice, Probate & Property Magazine: Vol. 29 No. 05. Provided below is an abstract of the article:

Although payment is a common cause of distress for many (if not all) lawyers, obtaining timely and consistent payment of monthly bills is particularly challenging for litigators with trust and estate cases. Financing options specifically designed for financing trust and estate litigation, however, have emerged as extremely useful tools for clients and attorneys in this area.

November 24, 2015 in Articles, Trusts | Permalink | Comments (0)

Article On The Failure Of The Community Property Reform

ArticlePictureElizabeth Ruth Carter (Professor, Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) recently published an article entitled, The Illusion of Equality: The Failure of the Community Property Reform to Achieve Management Equality, Indiana Law Review, Vol. 48, 2015. Provided below is an abstract of the article:

This Article argues that equal management does not exist in any important sense, and that the true goal of the equal management laws was never equality. Community property laws can no longer be honestly described as “a vehicle to ensure the devotion of the couple’s resources to this unique partnership’s purpose: the well-being and future prosperity of the family the couple creates” unless the wife and children are not considered a part of that family. Today, wives in community property states have no better rights than wives in separate property states. In some cases, their economic position may even be worse.

Part I describes the various allocative systems identified by sociologists and provides empirical support for the importance of egalitarian management. Part II describes the historical development of the two legally sanctioned management regimes in the United States: the separate property regime and the community property regime. Part II also examines how spouses actually managed their money in the pre-1970s era. Part III argues that equality was not achieved in fact or in law. First, Part III relies on quantitative and qualitative research to demonstrate that equality was not achieved in fact. Then, Part III examines the history of the reform era and argues that equality was not the primary goal of the legal reforms. Part IV elaborates on this thesis and examines how the laws in effect today perpetuate inequality.

November 24, 2015 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Monday, November 23, 2015

Article On Medicaid Planning For Long Term Care In California

Nursing HomeJohn A. Miller (University of Idaho College of Law) & Vanessa S. Stroud (Law Office of Vanessa Stroud) recently published an article entitled, Medicaid Planning for Long Term Care: California Style, American College of Trusts and Estates Counsel (ACTEC) Law Journal, 2015. Provided below is an abstract of the article:

California’s Medicaid program, “Medi-Cal”, differs significantly from programs in other states. This article sets out the major distinctions between California's program and other state programs as applied to long term care for disabled seniors. It illustrates the major planning techniques that are employed throughout the country and also those techniques that are available only in California.

Medicaid is the means tested, cooperative state and federal program that pays for much of the nursing home and other long term care in the United States. California’s uneven implementation of federal legislation regulating Medicaid over the last several decades has created many challenges and opportunities for disabled seniors that are specific to the Golden State. In presenting these challenges and opportunities, the article guides the reader through eligibility procedures and the long-term care planning process, delineates vital considerations for practitioners and their clients, and addresses important developments on the horizon.

November 23, 2015 in Articles, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Saturday, November 21, 2015

Article On The Advisory Function Of Law

ArticlePictureReid K. Weisbord (Professor, Rutgers Law School) recently published an article entitled, The Advisory Function of Law, Tulane Law Review, Vol. 90, No. 1, 2015. Provided below is an abstract of the article:

As a blueprint for applying the advisory function, this Essay presents a detailed exposition of this theory through three illustrations in the wealth transfer law context: (1) processes facilitating proper will execution; (2) processes facilitating proper completion and timely updating of non-probate death beneficiary designation forms administered by financial intermediaries (including retirement account custodians and life insurance providers); and (3) bridge rules encouraging the drafting of trusts that properly and affirmatively articulate the settlor’s material purposes. Applying the advisory function theory, the essay also identifies features of wealth transfer law that not only fail to prevent legal error but invite it.

November 21, 2015 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Friday, November 20, 2015

Article On The Rise of Statutory Wills

ArticlePictureRosie Harding  (Professor, University of Birmingham - School of Law) recently published an article entitled,The Rise of Statutory Wills and the Limits of Best Interests Decision‐Making in Inheritance, The Modern Law Review, Vol. 78, Issue 6, pp. 945-970, 2015. Provided below is an abstract of the article:

This article addresses ‘statutory wills’ executed under the Mental Capacity Act 2005 (MCA) for persons with impaired mental capacity. The article provides an overview of the historical development of statutory wills, before exploring their rising contemporary significance. It considers the shift from the previous ‘hypothetical substituted judgment’ test to the contemporary ‘best interests’ orientation of the MCA. The article assesses the problems that the best interests approach raises in this area, and its (in)compatibility with the right to equal recognition before the law under the UN Convention on the Rights of Persons with Disabilities, arguing that the pervasive reach of best interests in contemporary mental capacity law requires reconsideration. The paper concludes by suggesting that a more limited framing of the power to execute statutory wills is required in order to appropriately balance the rights of individuals with disabilities with practical considerations around the distribution of assets on death.

November 20, 2015 in Articles, Wills | Permalink | Comments (0)

Thursday, November 19, 2015

Article On The Economy of Charitable Giving


Allison Anna Tait (Professor, University of Richmond School of Law) recently published an article entitled,The Secret Economy of Charitable Giving, Boston University Law Review Vol. 95, 2015. Provided below is an abstract of the article:

Charitable giving is big business. In 2009, the Internal Revenue Service reported close to 100,000 private foundations, almost double the number from fifteen years earlier. Some of these charitable trusts, like the Gates Foundation, are multi-billion dollar enterprises. Trust instruments and other governing documents set forth the terms that control these gifts. Because charitable trusts can exist in perpetuity, however, changing circumstances sometimes render the terms difficult to fulfill. Courts can apply cy pres, a doctrine that allows for the modification of gift restrictions, but in the past courts have tended to apply cy pres narrowly and privilege donor intent above all other considerations. Recent reforms, however, have moved courts toward a more flexible application of the doctrine. In this Article, I analyze certain high-profile cases that have driven these reforms — including the presumption of general charitable intent, the recognition of “wasteful” as a criterion, and the deployment of deviation — and explain how these reforms represent positive change. Moreover, I provide a theoretical grounding to account for the correctness of these reforms. I argue that charitable giving should be understood as embedded in a nexus of material and social exchanges — part of the “charitable gift economy.” I describe how charitable giving provides a range of benefits to donors, including both tangible tax benefits and intangible benefits such as status, social identity, and “warm glow.” Based on this understanding of the charitable gift economy, courts and charities alike should embrace current reforms and seek to expand them further.

November 19, 2015 in Articles, Estate Tax | Permalink | Comments (0)

Wednesday, November 18, 2015

Article On Reforming Medicaid for Disability

ArticleStephanie R. Hoffer  (Professor, Ohio State University - Michael E. Moritz College of Law) recently published an article entitled, Making the Law More ABLE: Reforming Medicaid for Disability, Ohio State Public Law Working Paper No. 309. Provided below is an abstract of the article:

Passed on the eve of Medicaid’s fiftieth anniversary, the Achieving a Better Live Experience (ABLE) Act was a hard-fought victory for individuals with significant disabilities and their families. The law, which creates a new form of tax-preferred savings account, represents an invaluable work-around for highly restrictive Medicaid eligibility requirements. Medicaid eligibility is crucially important for individuals with intellectual, developmental, and other significant disabilities because it provides nearly exclusive access to government-coordinated habilitative care, such as in-home assistance, job supports, and adaptive equipment. These services are necessary to maintain a base-level quality of life, facilitate independent living, and preserve the dignity of individuals with disabilities. Despite their importance, they are difficult to purchase and coordinate in the private market, and due to income and asset-holding restrictions on eligibility, only the very poor can access them through Medicaid, even after passage of the Affordable Care Act. This Article argues that despite their facial neutrality, income and asset-holding restrictions, commonly referred to as means testing, result in undue hardship when they are applied to the provision of government-coordinated habilitative care for individuals with significant disabilities. Congress’s attempts to mitigate this hardship, including the recently passed ABLE Act, are important steps forward, but they also can impose economic, dignitary, and emotional harms on individuals with disabilities.

Based on the distinctive needs of individuals with significant disabilities, this Article takes the counter-intuitive position that these individuals should be afforded access to government-coordinated habilitative care without regard to income or wealth. Under current market conditions, non-means tested access to habilitative care is a normatively superior solution because it preserves the autonomy and dignity of individuals with disabilities and may be simultaneously cost-neutral and utility increasing. Granting unrestricted access to government-coordinated habilitative care to individuals with significant disabilities would eliminate perverse employment and financial planning incentives created by Congress’s past attempts to broaden access. Finally, it would create parity among parents who plan for the future of children with disabilities and those whose children are typically-abled, as well as parity for retirement savings among workers with significant disabilities and those without. As a result, Congress should revisit and revise means tested access to disability-related services through Medicaid.

November 18, 2015 in Articles, Disability Planning - Health Care | Permalink | Comments (0)

Tuesday, November 17, 2015

Article On Gender And Language In Wills

ArticlePictureKaren J. Sneddon (Professor, Mercer Law School) recently published an article entitled, Not your mother's will: gender, language, and wills, 98 Marq. L. Rev. 1535-1584 (2015). Provided below is an abstract of the article:

“Boys will be boys, but girls must be young ladies” is an echoing patriarchal refrain from the past. Formal equality has not produced equality in all areas, as demonstrated by the continuing wage gap. Gender bias lingers and can be identified in language. This Article focuses on Wills, one of the oldest forms of legal documents, to explore the intersection of gender and language. With conceptual antecedents in pre-history, written Wills found in Ancient Egyptian tombs embody the core characteristics of modern Wills. The past endows the drafting and implementation of Wills with a wealth of traditions and experiences. The past, however, also entombs patriarchal notions inappropriate in Wills of today. This Article explores the language of the Will to parse the historical choices that remain relevant choices for today and the vestiges of a patriarchal past that should be avoided.

November 17, 2015 in Articles | Permalink | Comments (0)