Monday, February 20, 2017
Heidi 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.
As we all know, President Trump has promised to repeal the estate tax, claiming that the tax is just plain wrong. It is easy to say that our country should repeal the estate tax, considering so few families actually pay the tax, but other tax areas will have to give in order to make up for the loss. The estate tax has two siblings—the gift tax and the generation-skipping tax. As of now, it is unclear how President Trump will balance the three taxes. His campaign website sketched out a plan that involved replacing the estate tax with a tax on all capital gains and no mention of the other two taxes. Ultimately, with the estate tax only generating 0.005% of annual tax collections, the tax incites more of a political debate than a federal revenue one.
See Brian J. O’Connor, Once Again, the Estate Tax May Die, N.Y. Times, February 18, 2017.
Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Sunday, February 19, 2017
Singer James Blunt made a chilling discovery while he was staying at Carrie Fisher’s home to record his debut “Back to Bedlam” album. Placed outside the room he was staying in, Blunt claims that Fisher had a Princess Leia cardboard cutout on which she wrote her date of birth and date of death on her forehead. Although he does not remember the exact date, it was somewhere around the time that she actually passed. After seeing the Fisher’s predicted lifespan, Blunt remembers thinking it was way too soon.
See Siofra Brennan, Carrie Fisher Chillingly Predicted She Wouldn’t Be Alive in February 2017 by Writing Her Date of Death on a Cutout of Princess Leia She Kept at Her LA Home, Daily Mail, February 19, 2017.
Jamie P. Hopkins recently published an Article entitled, Be Wary When Giving Investment Advice to Clients: Estate Planners May Run Afoul of the Department of Labor’s New Rule, Tr. & Est. (Feb. 2017). Provided below is an abstract of the Article:
In April 2016, the Department of Labor (DOL) finalized its long-awaited conflict of interest rule and related prohibited transaction exemptions, expanding the definition of fiduciary “investment advice” under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code. While the new rules were primarily developed in an attempt to further regulate the advice provided by professionals in the financial services industry with respect to individual retirement accounts, the newly expanded definition of “investment advice” will inevitably cover advice commonly by estate planners. As a result, estate-planning attorneys, who already owe their clients a high standard of care and duty of loyalty under most state laws, could be subject to more stringent fiduciary requirements under federal law, creating new liability concerns.
Saturday, February 18, 2017
As many Americans look to retire overseas, they will need to seek advice on the best way to plan for their ultimate destination. Between 2010 and 2015, the number of Americans receiving Social Security benefits abroad jumped from 400,000 to 550,000; similarly, the number of Americans annually retiring abroad increased by 17%. Not only are American retirees looking for a better climate, but they are also searching for better costs. Other reasons for retiring overseas include maximizing their nest egg with the strength of the United States dollar and benefiting from nationalized healthcare systems.
However, retiring abroad does have its concerns—the first being financial. It is necessary to plan for any tax implications and impact on retirement benefits. Before fleeing the United States for a relaxing retirement lifestyle, Americans will also need to make sure they have solid estate plans that will put inheritances into the right hands. Further, contingency plans are always essential, so retirees need to maintain a location in the United States or set aside money to use for a potential return. Ultimately, American retirees should consider all social and psychological concerns as they venture into retirement abroad.
See Christopher Robbins, More Americans Are Retiring Abroad—But Do They Have a Plan?, Financial Advisor, February 15, 2017.
Jackie Collins fans have a chance to bid on her collection of art and jewelry as the writer’s $3 million estate hits the auction block. Collins wrote thirty-two bestsellers throughout her career, and yet again, it is time for her to give back to her enthusiasts. After two years since her death, fans will now get to bid on pieces from her collection, which include a 6.04-carat diamond ring that is estimated to sell between $100,000 and $150,000. Another item from the estate is Collins’s 2002 gold Jaguar XKR Sportscar, which is expected to sell for around $20,000. Collins’s daughters are using the auction as a way to honor their mother’s legacy and will donate a portion of the proceeds to support empowering young women in the arts and education.
See Erica Tempesta, Real Life Hollywood Wife! Famed Writer Jackie Collins’ $3 Million Estate to Hit Auction Block - and the Late Star’s Luxe 6-Carat Diamond Ring and Gold Sports Car Are All Up for Grabs, Daily Mail, February 17, 2017.
Adam Hirsch and William M. McGovern have published the 2017 edition of the California Probate Code Annotated (Thomson Reuters). This book provides the complete text of the California Probate Code, related state and federal statutes, and rules of court regarding estate planning and probate.
This volume contains:
- Authoritative commentary, annotations, and analysis of leading cases
- Law Revision Commission editorial notes that provide additional guidance in the construction and application of particular sections
- References to Witkin's Summary of California Law, 10th which direct you toward further research
- A table of Judicial Council forms to help you identify forms to be used in conjunction with the statutes and rules
- A table of cases illustrating the cases discussed in the author's commentary
- A table of affected sections indicating recent modifications
- Underlining to indicate additions or changes in statutes
- Asterisks to indicate deletions
Friday, February 17, 2017
Scientists are petitioning for more people to donate their brains for research at death. A lack of brain specimens is holding back the research community from further developments. Specifically, they note that they lack brains of people with disorders such as depression and PTSD, in part, because people are unaware that those conditions are caused by changes in brain wiring. The goal is to be able to develop new treatments for mental and neurological disorders.
See Pallab Ghosh, Scientists Appeal for More People to Donate Their Brains, BBC News, February 17, 2017.
As President Trump moves to reduce the number of immigrants, retirees will see an increase in price for assisted care and nursing facilities. In turn, this could force seniors out of their homes and cause them to spend substantially more on these health care needs. Approximately one in four homecare aides are undocumented immigrants, forcing Latino and Muslim nurses to worry about potential deportation. If this correlation continues, seniors will be forced to spend more or undertake a lower standard of living. Ultimately, the trend shows that Trump’s immigration policies will cause a decrease in the availability of long-term care needs for seniors.
See Ted Knutson, Trump Immigration Moves Could Mean Big Bills for Seniors, Financial Advisor, February 17, 2017.
Foreword – The Supreme Court’s Estate Planning Jurisprudence by Bridget J. Crawford
The Four Horsemen and Estate Taxation by Jasper L. Cummings, Jr.
The U.S. Supreme Court and the Law of Trusts and Estates: A Law Reformer’s Perspective by Thomas P. Gallanis
Irwin v. Gavit: Income Is (Sometimes) in the Eye of the Beholder by William P. LaPiana
Taft v. Bowers: The Foundation for Non-Recognition Provisions in the Income Tax by James R. Repetti
Helvering v. Clifford: The Supreme Court Spoils the Broth by Mark L. Ascher
Helvering v. Horst: Gifts of Income from Property by Jerome M. Hesch & David J. Herzig
Helvering v. Safe Deposit & Trust Co.: Underestimating the Power of a Power of Appointment by Samuel A. Donaldson
Oklahoma Tax Commission v. United States: Death Taxes on Restricted Indian Personalty by Thomas E. Simmons
Smith v. Shaughnessy: Slippery Remainder Interests and the Intersection of Gift and Estate Taxes by Ann-Marie Rhodes & Erica E. Lord
Robinette v. Helvering: Valuation of Gifts to Split-Interest Trusts by Stephanie E. Heilborn & Cindy Zhou
Merril v. Fahs: Release of Marital Rights Is Insufficient Consideration for Transfer Tax Purposes by Kevin E. Packman
Fidelity-Philadelphia Trust Co. v. Smith: Form over Substance? by Deborah V. Dunn & Domingo P. Such, III
Commissioner v. Estate of Noel: The Double Life of Life Insurance by John McGown, Jr. & Jason Melville
Commissioner v. Estate of Bosch: 50 Years of Relevance by Jonathan G. Blattmachr & Madeline J. Rivlin
United States v. Estate of Grace: Seeking a More Objective Test for the Application of the Reciprocal Trust Doctrine by Dennis I. Belcher & Kristen Frances Hager
United States v. Byrum: Too Good to Be True? by Ronni G. Davidowitz & Jonathan C. Byer
Dickman v. Commissioner: Loans as Property Transfers by Carlyn S. McCaffrey & John C. McCaffrey
Commissioner v. Estate of Hubert: How the I.R.S. Stole Hubert’s Blessing by Kristen E. Caverly
United States v. Windsor: The Marital Deduction that Changed Marriage by Lee-ford Tritt