Wills, Trusts & Estates Prof Blog

Future Returns: Financial Reasons for Same-Sex Couples to Marry

Since the landmark Supreme Court decision, Obergefell v. Hodges in 2015, some couples who made their partnerships work for years without marriage may still be deciding whether or not it is financially sensible to marry now.

Annamarie Vitelli of PNC Private Bank Hawthorn, says couples should consider the costs and benefits of marriage, which include taxes, property protection, health care, and other direct benefits. “Once you are married, a whole array of benefits are open to you that may not be available even if you had a domestic partnership.”

There are many benefits that marriage offers that a domestic partnership doesn’t provide. Vitelli recommends planning ahead and working with professionals to choose the best plans and urges couples to consider a prenuptial agreement to protect individual wealth.

For more Information:

See Abby Schultz “Future Returns: Financial Reasons for Same-Sex Couples to Marry,” Barrons, June 21, 2022.

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

Opinion: Murder on the high seas: CT’s slayer rule on trial

Last month, Nathan Carman was charged with “murder on the high seas,” after allegedly killing his mother on a boating trip. Carman is also suspected of killing his grandfather, although he has not been charged at this time.

Connecticut, like most states, has a “slayer rule” on the books, which operates on the idea that nobody should profit from their own wrongdoing. Carman’s case is unique and raises two questions: (1) does the slayer rule apply to unintentional killings? And (2) should it apply in the absence of a criminal conviction if the killing is established in probate court?

Currently, Connecticuts slayer rule applies to reckless manslaughter and is triggered only by criminal conviction. 

For more Information:

See Frederick E. Vars “Murder on the high seas: CT’s slayer rule on trial,” New Haven Register, June 18, 2022.

 

Oklahoma family learns dad’s remains lost after being donated for medical research

In September 2018, the family of Elgie Hall Sr. chose to honor their father's final wishes by donating his body for medical research. They worked with the United Tissue Network and agreed to a two-year placement at the American University of the Caribbean School of Medicine in Sint Maarten, with the remains to be returned to the family after two years.

The error was due to the university’s closure and personnel turnover due to the COVID-19 pandemic. The family has sued the company for breach of contract, negligence, and intentional infliction of emotional distress.

For more Information:

See Ashley Moss “Oklahoma family learns dad’s remains lost after being donated for medical research,” Nexstar Media Wire, June 23, 2022.

Six of the Worst Assets to Inherit

Trillions of dollars are expected to transfer through generations in the upcoming decades, but not everyone will be pleased with their inheritance, as some assets are considered “better” than others. Cash is considered to be the easiest asset to value and divide. The following six assets are considered to be complicated:

1. Timeshares
2. Potentially Valuable Collectibles
3. Guns
4. Operating Business
5. Vacation Properties
6. Physical Property (especially with sentimental value)

Avoiding complications begins with a thoughtful estate plan that isn’t left to the last minute, which includes discussing the plan with beneficiaries. This can prevent arguments or unfulfilled wishes, and gives beneficiaries the opportunity to express that they might be uninterested in the property. 

For more Information:

See David Rodeck, Elaine Silvestrini “Six of the Worst Assets to Inherit,” Kiplinger, May 11, 2022.

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

Chevy is auctioning off a Corvette NFT, and the winning bidder gets the car, too

As automakers join the non-fungible token space, Chevy has announced plans to auction off a Corvette-themed NFT with a twist- the winner will walk away with the block chain and the sports car that inspired the artwork. 

Nick Sullo, an artist hired by Chevy, has created a lime green Corvette Z06 which will be accompanied but a custom-painted 2023 Corvette Z06 color-matched to the the NFT. It will be the only car painted in that color, as Chevy promises not to apply the “Minted Green” color to any other Z06.

The auction will take place between June 20-24, with all proceeds going to DonorsChoose, an education charity. 

For more Information:

See Andrew J. Hawkins “Chevy is auctioning off a Corvette NFT, and the winning bidder gets the car, too,” The Verge, June 14, 2022.

Special thanks to Suzanne Brown Walsh (Attorney, Hartford, CT) for bringing this article to my attention.

Article: The ‘Pallant v Morgan Equity’ in Australia: Substantive or Superfluous?

Ying Khai Liew and Cristina Poon recently published an article entitled, The ‘Gallant v Morgan Equity’ in Australia: Substantive or Superfluous, Australian Property Law Journal, 2002. Provided below is an abstract of the Article:

The ‘Pallant v Morgan equity’ is a relatively new but well-entrenched constructive trust doctrine in English law. However, its precise status in Australia is uncertain. This paper asks whether the Pallant v Morgan equity is a superfluous or substantive doctrine in Australia. It explores four different equitable doctrines which judges have at one point or other suggested can account for that doctrine, and comes to the conclusion that it is not simply a manifestation of those established doctrines and therefore superfluous in Australian law, but a substantive doctrine with a distinct sphere of application. The paper then discusses the justificatory rationale of the Pallant v Morgan equity, and observes how that justification provides normative ground for understanding the equity as a distinct doctrine.

Article: Freedom of Testamentary Disposition

Paul B. Miller recently published an article entitled, Freedom of Testamentary Disposition, Oxford University Press, Philosophical Foundations of the Law of Trusts, Forthcoming. Provided below is an abstract of the Article:

American law is notoriously solicitous of property owners’ testamentary freedom. Interpretive theorists cannot but acknowledge its centrality to enabling law. Yet freedom of testamentary disposition has attracted criticism on normative grounds for centuries. Indeed, it is widely viewed as one of the most tenuous of incidents of private ownership.

This chapter examines leading arguments offered in defense of wide testamentary freedom of the sort found in American trust law. Viewed, as it has been, within conventional frames of the morality of property – its central preoccupations with autonomy, need, scarcity, and equality – testamentary freedom is widely considered morally suspect. And, indeed, as I explain, arguments from property conventions, autonomy, social utility, and obligations of provision each fail to show that laws enabling wide testamentary freedom are morally defensible.

In the chapter I suggest that testamentary freedom can be defended more robustly on the footing of the morality of gift relationships, with particular attention to the value of testamentary benefaction in enabling the expression of moral motivation, the practice of virtue, and realization of goods essential to the flourishing of a testator’s intended beneficiaries. An advantage of this approach is that it recognizes moral complexity, allowing one to appreciate the value of dispositions that track the focal moral and legal sense of benefactions as gifts, while at the same time pinpointing ways in which some dispositions prove morally defective as gifts despite their legal validity (e.g., spiteful or malicious disinheritance, wasteful or harmful inheritance) and accommodating side constraints responsive to concerns surfaced within the morality of property (e.g., regarding the interests of future generations, and the impact of inheritance on distributive justice). 

Survey: 25% of Americans are delaying retirement due to inflation

The market is currently experiencing one of the largest downturns in recent history, which is not only impacting how people spend money now, but is impacting future plans for retirement.

A quarterly survey conducted by BMO Real Financial Progress Index reports that 25% of Americans reporting plans to delay retirement due to inflation, and 60% of those between 18-34 have pulled back on savings contributions due to rising costs.

Overall, 21% of Americans are putting away less for retirement and 36% have reported reducing their savings as well.

For more information: 

See Dan Grossman, “Survey: 25% of Americans are delaying retirement due to inflation,” KGUN 9 Tucson June 22, 2022.

Prof. Elaine Gagliardi named Interim Dean of University of Montana School of Law

Prof. Elaine Gagliardi was named Interim Dean of the University of Montana School of Law effective July 1, 2022.  She is an accomplished trusts and estate practitioner and Academic Fellow of the American College of Trust and Estate Council. She also serves ACTEC's Montana State Chair.

See Skylar Rispens, University of Montana law school names interim dean after search comes up short, Missoulian (June 17, 2022).

Article: Would the Securing a Strong Retirement Act Secure More Retirement Equity?

Albert Feuer recently published an article entitled, Would the Securing a Strong Retirement Act Secure More Retirement Equity?, Tax Management Comp Plan Journal, 2022. Provided below is an abstract of the Article:

On March 29, 2022 the House approved H.R. 2954 that is titled the Securing a Strong Retirement Act of 2022 (the SECURE Act 2.0) by a vote of 414-5.

On May 26, 2022, a discussion draft of the Retirement Improvement and Savings Enhancement to Supplement Healthy Investments for the Nest Egg (RISE & SHINE) Act of 2022 was released by the Senate Health, Education, Labor, and Pensions Committee Chair Senator Patty Murray (D-WA), and Ranking Member Senator Richard Burr (R-NC).

The article argues that despite providing tax incentives in excess of more than $70 billion, the bills in concert would intensify rather than diminish retirement benefit disparities, while leaving tens of millions of American families and workers with insufficient savings to retire comfortably. The article analyzes those bills’ provisions and describes:

• those bills’ provisions that would secure more retirement equity and how to improve those provisions,

• those bills’ provisions that would secure less retirement equity, and

• provisions that would secure more retirement equity, if added to the bills would secure more retirement equity.