Wills, Trusts & Estates Prof Blog

Comment on Death with Dignity for the Seemingly Undignified: Denial of Aid in Dying in Prison

Kathleen S. Messinger recently published a Comment, Death with Dignity for the Seemingly Undignified: Denial of Aid in Dying in Prison, 109 J. Crim. L. & Criminology 633-673 (2019). Provided below is an abstract of the Comment.

The medical community has fundamentally changed how we think about life and death. Humans in privileged parts of the world are living longer and have access to life-saving treatment. The focus on quantity of life then has shifted to emphasizing quality of life and questioning whether longevity should at the expense of comfort or satisfaction. The conversation surrounding quality of life, and by extension end-of-life care, has included whether a competent adult has a right, or should have a right to end their own life on their own terms. The history of aid in dying is wrought with political ideology, notions of morality, and discussions of autonomy. In the wake of an aging population, aid in dying is more relevant now than ever. Aid in dying is often supported by notions of autonomy and dignity in choosing the conditions of if, when, and how to end one's life, however, there is one noticeable segment of the population entirely left out: incarcerated individuals. The incarcerated population is particularly relevant to the aid in dying conversation because, as the justice system continues to balloon and incarcerate more people, prisons are overcrowded, underfunded, and ill-equipped to support terminally ill and aging inmates. This leaves the aging incarcerated population vulnerable. As states continue to contemplate and pass legislation that permits aid in dying in particular circumstances, one is left wondering how, if at all, this legislation will affect those incarcerated. Early signs, in the form of prison policies and regulations, of how prisons will approach aid in dying for qualifying inmates suggests that the same dignitary respect afforded to non-incarcerated folk is explicitly forbidden to inmates in prison.

This Comment seeks to answer the question of who may choose to die on their own terms, in their own way. If we find that incarcerated individuals have a right to aid in dying, are there reasons or justifications for why we should not permit it?

The Legal Dangers of Living Together

According to the U.S. Census Bureau, the number of unmarried couples who 50 and over shot up 75% between 2007 and 2016. For many it is because they have already experienced one difficult divorce and are nervous to entangle themselves and their possessions again. But simply living together can end up being complex because estate planning laws were written to favor married couples.

If one partner has a medical emergency and has not executed a health care power of attorney, the other partner cannot make any decisions for them. They would be considered "legal strangers." If they were married, however, not having the document would not hinder the healthy partner from making appropriate choices. Unmarried couples also need to get signed HIPAA releases so medical information can be released to them. Death of one partner can also create more woes. Without the proper legal documents, the surviving partner won’t be entitled to make decisions regarding the donation of the deceased’s organs or arrange for the person’s burial or cremation.

When there is a financial imbalance and one partner has promised to take care of the other, with no trust or will in place can cause serious problems for an unmarried couple. If the wealthier one dies intestate, their assets will be distributed according to the intestacy laws of their state and an unmarried partner is not recognized as an heir. On the other hand, if they were married and died intestate in a community property state, the surviving spouse is automatically entitled to inherit as much as half the value of the deceased’s assets.

See Brad Wiewel, The Legal Dangers of Living Together, Next Avenue, August 28, 2019.

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

CLE on Common Issues Involving Unusual Assets: What Estate Planners Need to Know

The American Law Institute is holding a webcast entitled, Common Issues Involving Unusual Assets: What Estate Planners Need to Know, on Wednesday, September 25 2019 from 1:00 pm to 2:00 pm Eastern. Provided below is a description of the event.

Why You Should Attend
Sometimes it is a client’s most cherished possessions beyond financial accounts that require extra planning by the estate planner. These types of assets, often referred to as unusual assets, pose a unique set of problems when attempting to draft an estate plan that is suited to the client’s intentions. Issues can arise when these assets are highly regulated, hard to value, or the rules for handling a specific asset varies widely from state to state. What is the best way to deal with these out-of-the-ordinary items?

What You Will Learn
Join us for this 60-minute video webcast that addresses the challenges that surface when advising fiduciaries on the valuation , liquidity, transfer of control, and payment of taxes involved with the planning and administration of unusual assets, including:

• • Digital assets
  • Firearms
  • Children of new biology
  • Wine
  • Aircraft

Questions submitted during the program will be answered live by the faculty. All registrants will receive a set of downloadable course materials to accompany the program.

Who Should Attend
This accredited continuing legal education program will benefit all estate planning attorneys and professionals.

Canadian Manhunt Killers Recorded 'Last Will and Testament' on Phone Before Killing Themselves

The two young men that led the Canadian police and military on a manhunt that spanned across three provinces were found dead on August 7 of self-inflicted gun wounds. Kam McLeod, 19, and Bryer Schmegelsky, 18, were wanted for second-degree murder of a British Columbian man, Leonard Dyck, and were also suspects in the killings of American Chynna Deese, 24 and her Australian boyfriend, Lucas Fowler, 23. The Royal Canadian Mountain Police reported that the two men were dead for "a number of days" before their bodies were discovered 2,000 miles away from where the two murders occurred and 5 miles away from the suspects' burnt out truck. 

It has also been reported that they left a video message entailing a "last will and testament" on a mobile phone. An unnamed family member who did not personally view the video said the family was shown 30 seconds of a videoin which the two men said goodbye and described their last wishes for their remains.

See Travis Fedschun, Canadian Manhunt Killers Recorded 'Last Will and Testament' on Phone Before Killing Themselves, Fox News, August 20, 2019.

Article on For Love and Affection: Elder Care and the Law's Denial of Intra-Family Contracts

Nina A. Kohn recently published an Article entitled, For Love and Affection: Elder Care and the Law's Denial of Intra-Family Contracts, 54 Harv. C.R.-C.L. L. Rev. 211-256 (2019). Provided below is an abstract of the Article.

As the U.S. population ages, demand for care providers for older adults is rapidly growing. Although the law's treatment of care contracts between older adults and their family caregivers has substantial implications for the country's ability to meet this demand, there has been no prior empirical examination of the law's current treatment of such agreements. This Article fills that gap by assessing how courts and other legal actors treat intra-family agreements to pay family members for elder care. A look into a long-ignored area of case law--Medicaid eligibility determinations--reveals that courts, administrative law judges, and state regulators typically attach little or no monetary value to elder care provided by family members. Rather, payments for caregiving are routinely treated as fraudulent transfers. The result is that, in the name of combatting Medicaid fraud, states penalize older adults who pay for their own care.

Treating family-provided elder care as lacking monetary value stands in sharp contrast to the high cost of elder care purchased on the open market and is at odds with states' increased willingness to directly pay family care providers. This Article shows that this incongruence can be partially explained by public distaste for Medicaid planning and distrust of agents acting on behalf of older adults. Entrenched stereotypes about care work and related expectations about familial care also contribute to the law's refusal to recognize these agreements and the economic value of care provided under them.

This Article offers lessons for social policy, legal theory, and legal practice. On a policy level, it shows that states are engaged in counterproductive behavior that will discourage the very type of family care they purport to encourage. On a theoretical level, it indicates that attitudes toward care work and courts' willingness to enforce contracts between family members have not changed to the extent commonly described by family law scholars. Finally, at a practical level, it suggests that attorneys should adapt the advice they give clients to better account for distrust of agents.

Why You Should Change Your Will Now

If you have made the adult decision to create a will, you have taken a step in the right direction. But even if you think that your estate is modest or you life has not changed much since you signed your will, it is still a good idea to review - just in case.

Federal laws regarding wills and estates are ever-changing, especially from one administration to another. State laws regarding inheritance and gift taxes can also be updated. You may have also written your will before a large promotion or before your parents died, leaving you a portion of their own estates. Often, parents want to protect their children from themselves. If your child is currently in a rebellious stage or not making the best choices, you may have to create a trust to ensure their assets are safe.

A person's estate plan should grow with them, and if you have not look at yours in a while, the time is now.

See Christine Fletcher, Why You Should Change Your Will Now, Forbes, August 27, 2019.

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

Democrats’ Emerging Tax Idea: Look Beyond Income, Target Wealth

The tax system of the United States may experience a serious overall if Democrats win the White House and Congress in the next election. Instead of simply taxing income, Democratic presidential candidates and legislators want to dive into taxing the wealth of the rich in America.

At the end of 2017, U.S. households had $3.8 trillion in unrealized gains in stocks and investment funds, and the majority of the value of estates over $100 million is comprised of those unrealized gains. Much has never been touched by individual income taxes and may never be because capital gains are taxed only when gains are realized through a sale and become income. “The whole tax system is stacked in favor of the tax-avoidance crowd,” said Senator Ron Wyden, who has outlined a plan for annual taxes on unrealized gains. Many of the agendas center on using wealth taxes to finance societal needs, such as expanding health-insurance coverage, combating climate change and aiding low-income households.

Experts across the political spectrum agree income inequality widened in recent decades, and wealth inequality even more. But there does not appear to be a consensus necessarily on what to do about it. Conservatives fear heavily taxing the wealthy will hinder investment and disrupt markets, while liberals believe the lighter tax rate on wealth compared to income is morally wrong and a contributor to wealth gaps between blacks and whites.

See Richard Rubin, Democrats’ Emerging Tax Idea: Look Beyond Income, Target Wealth, Wall Street Journal, August 27, 2019.

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

Article on The Stranger-to-the-Marriage Doctrine: Judicial Construction Issues Post-Obergefell

Lee-ford Tritt recently published an Article entitled, The Stranger-to-the-Marriage Doctrine: Judicial Construction Issues Post-Obergefell, 2019 Wis. L. Rev. 373-396 (2019). Provided below is an abstract of the Article.

The recent Supreme Court decision in Obergefell v. Hodges changed the legal understanding of marriage in the United States. By making same-sex marriage legal in all fifty states and requiring all states to recognize same-sex marriages from other states, the Court in Obergefell recognized evolving social attitudes toward same-sex marriage and expanded the legal definition of "marriage" to include spouses of the same sex. In so doing, the Court necessarily altered the implication of terms like "spouse," "husband," and "wife" - post-Obergefell, courts will need to construe these words in a way that acknowledges an evolving understanding of marriage. Courts have faced similar construction issues before. When the notion of the American family shifted in the mid-nineteenth century to include adopted children as "natural" children, courts struggled to ascertain donative intent behind language like "child," "children," and "descendants" that had traditionally excluded adoptees. The legalization and growing popularity of adoption made presumptive exclusion of adoptees for inheritance purposes socially obsolete, but neither society nor the law can move directly from presumptive exclusion to presumptive inclusion. In the adoption context, courts used several construction approaches to ascertain and effectuate donative intent in a period of definitional transition when words with once-plain meaning were inherently ambiguous. The construction approaches used by courts to navigate social and legal change in the context of adoption provide insight by analogy into the circumstances that courts face today, as they must construe language that no longer presumptively excludes same-sex spouses.

New IRS Addresses for Filing Estate Tax Returns

The addresses for Form 706 (United States Estate (and Generation-Skipping Transfer) Tax Returns were released November of last year. However, it may be prudent to remind filers that are sending in the form after June 30, 2019 of the new address. Also, for decedents that pass away after December 31, 2018, the address for filing amended Form 706’s will be updated and not be the same as for original filings.

The new address original filings is:

Department of the Treasury
Internal Revenue Service
Kansas City, MO 64999

For those using a Private Delivery Service, the address is:

Internal Revenue Service
333 W. Pershing Road
Kansas City, MO 64108

See Jody H. Hall, New IRS Addresses for Filing Estate Tax Returns, Fiduciary Law Blog, August 27, 2019.

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

Article on Big Data and the Modern Family

Shelly Kreiczer-Levy recently published an Article, Big Data and the Modern Family, 2019 Wis. L. Rev. 349-372 (2019). Provided below is an abstract of the Article.

Despite numerous reforms over the years, intestate succession rules continue to privilege traditional, white, heterosexual families. It is evident that the one-size-fits-all scheme cannot truly reflect diversity of lifestyles and associations. This Article considers an innovative option that has become increasingly popular in recent years: using big data to create personalized rules, tailored to the personal characteristics of each decedent. This Article explores the promise and drawbacks of personalized intestacy, arguing that personalized default rules fall short in the realm of inheritance, because these rules are personal and inheritance law is inherently relational. It then offers preliminary guidelines for adapting big data techniques to the relational aspects of inheritance.