Friday, March 7, 2014
Melissa J. Willms (Davis & Willms, PLLC) recently published an article entitled, Decanting Trusts: Irrevocable, Not Unchangeable, 6 Est. Plan. & Cmty. Prop. L.J. 35 (Fall 2013). Provided below is the introduction to the article:
The term “decanting” sounds mysterious and can evoke fear in some estate planners. In reality, decanting is simply a form of trust modification initiated by a trustee. In the strictest sense, a trustee accomplishes the modification by moving assets from one trust to a new trust, with different terms. Although the future of trust beneficiaries may be unknown, especially to beneficiaries, estate planning attorneys continue to draft trusts designed to last for generations. Decanting comes from this standpoint: a desire for changes in an otherwise irrevocable trust. This article will attempt to demystify the issues by looking at decanting and trust modifications from statutory, common law, and trust agreement standpoints.
Should a portability election be filed for the estate of every first spouse to die? What if the joint marital estates are relatively small? Is there a downside to overreliance on portability? Let’s consider how the deceased spouse’s unused exemption (DSUE) impacts planning in several different scenarios and consider the latest IRS guidance on extensions for filing the election from Revenue Procedure 2014-18.
Thursday, March 6, 2014
Tom Andrews (Professor of Law, University of Washington School of Law) recently published an article entitled, Not so Common (Law) Marriage: Notes from a Blue State, 6 Est. Plan. & Cmty. Prop. L.J. 1 (Fall 2013). Provided below is the introduction to the article:
One of the continuing challenges for American marital property law in the twenty-first century, broadly understood, is what to do about property disputes between domestic partners who are not married. More precisely, the challenge is determining what to do when there are property disputes between unmarried intimate partners, whether heterosexual or homosexual. From what I can tell, this is as much of a challenge in Texas as it is in the rest of the country.
In the northwest corner of the country, we have a set of attitudes that, like many social and cultural norms, have found their way into our common law. These northwestern attitudes might not be so common, or at least so commonly understood, in Texas. Thus, the purpose of this article is to describe how my Blue State of Washington handles property disputes between domestic partners, as well as to discuss what Texas might be able to take from a Blue State approach.
Justin A. Kesselman (University of Massachusetts Amherest) recently published an article entitled, Can State Law Remedies Revive Statutes Stricken by ERISA's Preemption Provision?, ACTEC, Vol. 38, No. 2 and 3 (Fall 2012/Winter 2012). Provided below is the abstract to the article:
Since the United States Supreme Court's holding in Egelhoff that ERISA preempts state law revocation-on-divorce statutes, courts and legal scholars have attempted to fashion a way to apply the policies of these statutes to effect the presumed intent of an employee not to provide retirement plan benefits to a former spouse. This paper analyzes those efforts and contrasts the statutory remedy of imposing a constructive trust on the recipient of those benefits. In this author's view, the constructive trust is the sounder approach, because it preserves the presumption embedded in ERISA that an ex-spouse's continued presence in the plan documents is an expression of the participant's intent. Although the statutory approach will often produce a similar result, it fundamentally changes the nature of replacing a federal rule that errs on the side of the spouse with a state rule that errs against the spouse, the statutory remedy seems more likely to fall within ERISA's preemptive scope.
Wednesday, March 5, 2014
Edward A. McCoyd and Jon Perrelle (Garden City, New York) recently published an article entitled, Anatomy of an Anomaly: How the QDOT Credit Provisions Defy Logic and the Principles of the Marital and Charitable Deductions, ACTEC, Vol. 38, No. 2 and 3 (Fall 2012/Winter 2012). Provided below is the introduction to the article:
The marital deduction is one of the most commonly used estate planning tools. In the estate tax context, the marital deduction is, in most instances, relatively straightforward: it permits an estate to deduct the full value of property that is transferred from the decedent to his or her surviving spouse. One situation in which the marital deduction is not so simple, however, is where the surviving spouse is not a U.S. citizen.
Tuesday, March 4, 2014
Benjamin C. Carpenter (Minneapolis, Minnesota) recently published an article entitled, Sex Post Facto: Advising Clients Regarding Posthumous Conception, ACTEC, Vol. 38, No. 2 and 3 (Fall 2012/Winter 2012). Provided below is the abstract to his article:
Apart from tax considerations, trust and estate law is often viewed by outsiders as a somewhat dusty area of the law. However, few examples better illustrate the intersection of law and technology than posthumous conception and estate law. While judges, legislators, and commentators have tacked some of the issues created by posthumous conception, few estate planning lawyers discuss the issue with their clients. Such hesitance has been understandable, given the moral sensitivities involved with posthumous conception and the relatively small likelihood that it will affect any one particular client. However, that likelihood is becoming greater with each passing year, and, in the context of grandchildren, the possibility of posthumously conceived children is out of the clients' control. Rather than ignoring this possibility and leaving the result to chance (or litigation), lawyers have the opportunity-if not the responsibility- to raise the issue with their clients and provide them the opportunity to ex-press their intentions. Ultimately, whether to address the issue in an instrument is the client's choice, but she cannot make this choice is she is not made aware of the issue. With this Article, estate planning attorneys will have the background necessary to introduce the topic to clients, to educate clients about the technology itself, the legal responses to date, and their various options, and then to draft language to carry out the clients' interest -whatever it may be.
Monday, March 3, 2014
Nathan Rick Allred recently published an article entitled, The Uncertain Rights of the Unknown Child: Federal Uniformity to Social Security Survivors Benefits for the Posthumously Conceived Child After Astrue v. Capato, 66 Okla. L. Rev. 195 (Fall 2013). Provided below is the introduction to his article:
In today's economy, possibly more than ever, the modern family is faced with the worry and need for financial security. That necessity is only intensified when a family starts to expand with the addition of children. In 2010, the United States Department of Agriculture calculated that the total expenditures spent raising a child from birth to age seventeen was $226,920. This represents a 22% increase from 1960, with children's health care expenses doubling as compared to other costs during the same time period. Given the large costs associated with raising a child, it is understandable that parents and potential parents look to utilize all available means of income.
For some unfortunate families, the economic hardship of raising a child may be exacerbated by the death of one parent. Such a situation often leaves the surviving parent as the sole financial provider for the child. Some surviving parents, however, may find a potential source of income from the federal government through the Social Security Act (the Act). The Act provides financial relief to qualified workers and their family members if they meet certain requirements. While there are many benefits for which a family member may qualify based on his or her relationship to a qualified worker, this note specifically addresses the relationship status of a posthumously conceived child to a predeceased worker-parent and the right of such a child to claim social security child's insurance benefits.
The posthumously conceived child's right to child's insurance under the Act has been a contentious issue in recent years. As a result, the circuit courts were continually called upon to answer the question of insurance availability. The answers, however, failed to be consistent. More specifically, the circuit courts split on the child status question, reaching opposite conclusions on who qualified as a “child” under the provisions of the Act.
As a result of the circuit courts' failure to reach consensus, the Supreme Court granted certiorari in Astrue v. Capato ex rel. B.N.C. to resolve the issue. The Court, based on the language of the Act and the proper standard of review, correctly held that a posthumously conceived child does not automatically qualify for child's insurance benefits. Instead, his or her “child” status must be determined based on applicable state intestacy statutes. To hold otherwise would have contradicted the purpose and plain reading of the Act. As a result, the posthumously conceived child's right to claim child's insurance benefits under the Act rests solely on that child's ability to claim from his or her predeceased parent's estate through state intestacy law.
Understanding this position to be correct requires knowledge of the history of the issue, which will permit fuller comparison and a more thorough analysis of the ultimate “child” status question. Part II of this note provides that history, discussing the standard used by courts to evaluate an agency's interpretation of a federal statute. The section also reveals the competing views that different jurisdictions took prior to Capato when considering the question of status for posthumously conceived and born children. This framework sheds light on Part III's analysis of the Capato decision itself. Part IV assesses the present state of the law and considers how states like Oklahoma, a state with unclear intestacy laws regarding posthumously conceived children, may fit within the Capato paradigm. Given precedent from other jurisdictions, rights of the posthumously conceived child may or may not be protected under extant Oklahoma legislation and case law.
Stephen R. Akers (Dallas, Texas) and Philip J. Hayes (San Francisco, California) recently published an article entitled, Estate Planning Issues With Intra-Family Loans and Notes, ACTEC, Vol. 38, No. 2 and 3 (Fall 2012/Winter 2012). Provided below the abstract of article:
Intra-family loans are quite prevalent, and can present significant estate planning opportunities. Loans among family members may seem simple, but they involve numerous complexities. The article addresses many of the complexities including estate, gift and income tax consequences of loans to both the lenders and borrowers in a wide variety of situations - from simple case loans to sophisticated sale transactions.
Sunday, March 2, 2014
Carla Spivack (Oklahoma City University School of Law) recently published an article entitled, Killers Shouldn’t Inherit from Their Victims—Or Should They?, 48 Ga. L. Rev. 145 (Fall 2013). Provided below is the beginning of her article:
Almost all states have laws, called “Slayer Rules,” barring killers from inheriting from their victims. At first glance, the idea behind these statutes seems reasonable, indeed, morally obvious: killers should not profit from their crimes. This Article, however, suggests reasons why this age-old truism may not necessarily be true. Where murder and inheritance overlap, we often find family. When family members kill one another, the equities are often cloudy. The sociopathic child who kills a grandparent to hasten an inheritance is an anomaly. In reality, murders within a family are usually a product of that family's harmful, often violent, dynamics, from which, because of the failures of state and society, a family member sometimes can find no escape except murder. Most women who kill their husbands or partners do so to protect themselves or their children from violence. Most children who kill a parent act to stop severe and prolonged abuse by that parent; most other parricides are acutely mentally ill. Most mothers who kill their children suffer from postpartum psychosis, a severe mental illness with symptoms including visual and auditory hallucinations and delusions. In many of these cases, social, political, economic, and cultural factors have combined to block the suffering relative's escape, sometimes leaving murder as the only way out.
Once the tragedy has played out, resulting in a murder, a corpse, and a defendant, the legal system often fails to recognize or address the defendant's plight: it often bars effective defenses at trial, extorts pleas that stand in as guilty verdicts without reliably reflecting guilt, and offers defendants inadequate representation. Even defendants who bypass these obstacles and are found not guilty at a criminal trial may still fall within the reach of the Slayer Rules due to the lower standard of proof and different definition of intent in civil proceedings. Depriving such defendants of the decedent's estate compounds their vulnerability by depriving them of resources. In this context, it is far from clear that barring such killers from inheriting is morally or legally justified, or sound public policy. I explain here why it is not, and propose revisions to the Slayer Rules to address this problem.
Saturday, March 1, 2014
John R. Ivimey (Reid and Riege, P.C.) recently published an article entitled, 2012 Developments in Connecticut Estate and Probate Law, (September 1, 2013). 87 Connecticut Bar Journal, 2013. Provided below is the abstract from SSRN:
This Article provides a summary of recent developments impacting Connecticut estate planning and probate practice. Part I discusses 2012 legislative developments. Part II provides a brief review of the new Probate Court Rules of Procedure. Part III surveys selected 2012 case law relevant to the field.