Wills, Trusts & Estates Prof Blog

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

Tuesday, March 14, 2017

Michigan Is the Latest State to Allow Asset Protection Trusts

DaptMichigan is now the 17th state that will allow wealthy individuals to set up domestic asset protection trusts, which can shield assets from creditors. The new law became effective on March 8, 2017, and also helps settlors save on estate taxes and keep their assets protected for several generations to come. The state has implemented a two-year statute of limitations for creditors to bring claims against the trust assets and a carve out for child support. Michigan residents can now rely on their own state laws to obtain good asset protection trust laws.  

See Ashlea Ebeling, Michigan Debuts the Latest State Asset Protection Trust, Forbes, February 10, 2017. 

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

 

March 14, 2017 in Current Events, Estate Planning - Generally, Estate Tax, New Legislation, Trusts | Permalink | Comments (0)

Friday, March 10, 2017

Article on the New HEAR Act

Hear actAmelia K. Brankov & Lily Landsman-Roos recently published an Article entitled, Congress Passes Important Law Governing Nazi-Looted Art Claims, Tr. & Est. 62 (March 2017). Provided below is an abstract of the Article:

A new law signed by former President Obama on Dec. 16, 2016 addresses the Nazis’ theft of hundreds of thousands of artworks, an event that Congress has called “the ‘greatest displacement of art in human history.’” That law, the Holocaust Expropriated Art Recovery (HEAR) Act of 2016, establishes a uniform, federal statute of limitations (SOL) for claims seeking the recovery of artwork and certain other objects that were confiscated by the Nazis. Now, these claims may be brought within six years of the claimant’s actual discovery of facts giving rise to the claim (including the whereabouts of the object). Before the HEAR Act, the timeliness of such claims was governed by generally more restrictive state laws, which varied from state to state, leading to costly choice-of-law battles, unpredictability and rulings barring meritorious claims. The new statute, which is a sea change in the law applying to Holocaust recovery claims, is expected to alleviate these concerns in ongoing and future disputes. 

 

March 10, 2017 in Articles, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Thursday, March 2, 2017

Heirs Looking to Invoke New Act in Case over Nazi-Looted Art

Art lootingThe Holocaust Expropriated Art Recovery Act was enacted to help Holocaust heirs recover art stolen from their families during World War II. The Act will finally be put to the test in a New York court, as the heirs of Fritz Grunbaum are looking to claim two valuable drawings by Egon Schiele. The heirs claim that Grunbaum’s collection, which included eighty-one Schieles, was confiscated by the Nazis. Countering that argument, collectors, dealers, and some museums argue that the Nazis did not steal it and that Grunbaum’s sister-in-law sold fifty-three of the Schieles to an art dealer in 1956. Further, the opponents argue that previous courts have found that they were not stolen. Ultimately, the heirs hope the Act will help them prove they are victims of Nazi art looting. 

See William D. Cohan, A Suit over Schiele Drawings Invokes New Law on Nazi-Looted Art, N.Y. Times, February 27, 2017. 

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

 

March 2, 2017 in Current Events, Estate Planning - Generally, New Cases, New Legislation | Permalink | Comments (0)

Tuesday, February 21, 2017

New Jersey Amends Legislation to Discharge Loans for Deceased Students

Discharge student loanNew Jersey recently amended legislation for their college loan program, no longer obligating a parent or guardian cosigner to repay the loan of a student borrower who has passed away. Testimony from grieving parents prompted the New Jersey legislators to modify student loan requirements. New Jersey’s student loan program was one of the strictest in the nation, coming under a substantial amount of criticism. The federal government and approximately one-third of private lenders also discharge student loans after the student has passed.  

See Jerilyn Klein Bier, N.J. Is Discharging Loans for Families of Deceased Students, Financial Advisor, February 21, 2017. 

 

February 21, 2017 in Current Events, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Monday, February 20, 2017

Article on Domestic Partnerships for the Elderly After Obergefell

Domestic partnershipHeidi Brady & Robin Fretwell Wilson recently published an Article entitled, The Precarious Status of Domestic Partnerships for the Elderly in a Post-Obergefell World, 24 Elder L.J. (2016). Provided below is an abstract of the Article:

The Supreme Court’s landmark decision in Obergefell v. Hodges gave same-sex couples the right to marry in all fifty states, correcting the injustice that non-marital legal statuses like domestic partnerships were intended to remedy. Now that same-sex couples can marry nationwide, the federal government and states that created domestic partnerships are considering how to treat couples in those statuses — specifically, whether to treat domestic partners like spouses and whether to continue to offer non-marital legal statuses at all. Three states face a particularly thorny question post-Obergefell: what should be done with domestic partnerships made available to elderly same-sex and straight couples at a time when same-sex couples could not marry. This Article examines why California, New Jersey, and Washington opened domestic partnerships to elderly couples. Although domestic partnerships in these states primarily responded to the needs of gay couples who could not marry, legislators also saw the elderly as sympathetic: unfairly prevented from remarrying for fear of losing benefits from a previous marriage. This Article drills down on three specific obligations and benefits tied to marriage — receipt of alimony, Social Security spousal benefits, and duties to support a partner who needs long-term care under the Medicaid program — and shows that entering a domestic partnership rather than marrying does not benefit all elderly couples; rather, the value of avoiding marriage varies by wealth and benefit. The Article concludes that as pressure mounts to fold domestic partners into marriage after Obergefell, legislators should examine whether domestic partnerships have become a province of the wealthy, undercutting the impetus for maintaining a second, collateral status.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

 

February 20, 2017 in Articles, Current Events, Elder Law, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Thursday, February 16, 2017

Health Insurance Providers Are Witnessing a "Death Spiral"

Health insuranceThe CEO of Aetna, one of the United States’ largest health insurance agencies, claims that statistics indicate that health law has entered into a “death spiral.” This is a result of healthier people dropping out, while premiums continue to increase. The Trump Administration is working on new efforts to make tax compliance with Obama’s health law less burdensome, hopefully changing the direction of the law and market. However, insurance companies are reducing their presence in the markets started by ObamaCare but looking forward to gaining more flexibility to design tailored coverage. 

See ObamaCare in ‘Death Spiral,’ Aetna CEO Says, Fox News, February 16, 2017. 

 

February 16, 2017 in Current Events, Disability Planning - Health Care, New Legislation | Permalink | Comments (0)

Wednesday, February 15, 2017

Republican Congress Moves to Block D.C. Death with Dignity Law

Dc death with dignityNow that Donald Trump has been elected as President, Congressional Republicans are looking to assert their power over the District of Columbia’s local government. On Monday, the House Oversight and Government Reform Committee voted to block a D.C. law, the Death with Dignity law, giving physicians the right to administer lethal medication to terminally ill patients. Opponents of the law are arguing that this law clashes with ethical prohibitions against suicide, worrying about a potential marketplace for death. Unless Republicans can get the committee-passed “resolution of disapproval” through both the House and Senate and signed by President Trump by the end of the week, the law will likely take effect as passed by D.C. Council and Mayor Muriel Bowser.    

See Mikaela Lefrak & Martin Austermuhle, Congress Moves to Overturn D.C. ‘Death with Dignity Law’, npr, February 14, 2017. 

 

February 15, 2017 in Current Events, Death Event Planning, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Thursday, February 9, 2017

Elder Abuse Act Likely to Become Law This Year

Elder abuse acThe Elder Abuse and Prevention Act has a high chance of becoming law this year. The legislation has received substantial support among elderly advocacy groups because of its promise to make the world a safer place for seniors. Additionally, the Act will increase penalties for marketing fraud schemes targeting seniors and expand data collection of elder abuse to help create more reliable statistics highlighting the prevalence of this problem. The Act is also aiming to enlist the Justice Department to become a greater protector of seniors.   

See Ted Knutson, Elder Abuse Act Has Good Chance of Becoming Law This Year, Financial Advisor, February 9, 2017. 

 

February 9, 2017 in Current Events, Elder Law, New Legislation | Permalink | Comments (0)

Wednesday, February 8, 2017

Why Are Funeral Prices Still Unclear?

Funeral pricesThe Funeral Rule was designed to protect consumers seeking burial arrangements for lost loved ones. Among other things, it requires funeral homes to provide clear price information to potential customers. However, the rule’s transparency often goes unfulfilled. For decades now, the death care industry has maintained a strategic ambiguity about prices as part of its business model, and an estimated one in four funeral homes break this rule. With today’s technology, many are now requesting that this rule be implemented into searchable data and social media—prices should be online.  

See Robert Benincasa, Despite Decades-Old Law, Funeral Prices Are Still Unclear, NPR, February 8, 2017. 

 

February 8, 2017 in Death Event Planning, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Tuesday, February 7, 2017

Article on Mississippi's Slayer Statute Amendment

Slayer statuteZachary Roberson recently published an Article entitled, Oh the Insanity: After 124 Years, It Is Time to Amend Mississippi’s Slayer Statute to Account for the Insane Slayer, U. Miss. Sch. L. (2017). Provided below is an abstract of the Article:

While almost every jurisdiction in the United States addresses slayer inheritance, many states have failed to account for the possibility of a slayer with a mental disability or disorder. Courts in states that do not have a modern slayer statute are left with the potentially unsettling task of applying an outdated slayer statute to a modern insanity fact pattern that was not contemplated by the state legislature when the slayer statute was enacted. For example, Mississippi’s slayer statute has not substantively changed in the 124 years since its original enactment. In a 2015 case, Estate of Armstrong v. Armstrong, the Mississippi Supreme Court held that the state’s slayer statute was inapplicable to killers who were found to be insane at the time of the killing. The court reasoned that an insane person lacks the ability to willfully kill as required by the state’s slayer statute. 

Considering the Mississippi Supreme Court’s recent decision in Armstrong and its public policy ramifications, this article, the first to analyze the Armstrong case, focuses on Mississippi law and the reasons why the Mississippi legislature must update the state’s slayer statute. This article contends that so called insane slayers should not be allowed to inherit from their victim. First, under Mississippi law, any monetary inheritance received by the insane slayer will be taken by the state to pay for the reasonable cost of care provided during the insane slayer’s involuntary commitment. Second, the insane slayer should not inherit from his or her victim because of the inferred change in the victim’s intent created by the insane slayer’s murderous act. Finally, the precedent set by the Armstrong decision disregards the traditional public policy justifications for slayer statutes. This article concludes with a recommended amendment to the Mississippi slayer statute which would create a mandatory disclaimer on the part of an insane slayer.

 

February 7, 2017 in Articles, Current Events, Estate Planning - Generally, New Legislation | Permalink | Comments (0)