Monday, April 22, 2019
Bridget J. Crawford recently published an Article entitled, Less Trust Means More Trusts, Tax Law: Tax Law & Policy eJournal (2019). Provided below is an abstract of the Article.
The word “trust” has multiple meanings. In everyday speech, it refers to a feeling of confidence associated with integrity, such as trusting that a friend will keep a secret. In the financial context, some law students, lawyers and lucky individuals also understand that a trust is a near-magical device that splits legal and equitable title. A trustee holds formal legal title to property for the benefit of a beneficiary simply because the grantor declares it to be so. By turning the spotlight on “trust,” in both senses of the world, one can discern fault lines in contemporary U.S. political and legal structures. These are made even plainer when examined through the lens of ongoing litigation involving human embryos created by actress Sofia Vergara and her former fiancé.
Just as termites can enter homes through foundational cracks or wood brought from the outside, interpersonal, community or structural confidence may erode in the face of hostility, indifference or inequality. Similarly, as termites can slowly damage a home over a period of years before the harm becomes visible, the beneficial form of ownership known as a trust gradually – and then suddenly – has morphed almost beyond recognition over the last twenty-five years. Eaten away are the traditional limitations on trust duration, trust modification and the type of property that can be held in trust. In some states, irrevocable trusts can last forever, be decanted to another trust with entirely different terms, or even hold legal “title” to human embryos. These changes to centuries of trust law reveal changing attitudes about wealth, property ownership, and personal autonomy. If society truly values equal opportunity for all people, then trust – and trusts – need attention.
Sunday, April 21, 2019
Mark Glover recently published an Article entitled, Boilerplate in Pour-Over Wills, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.
In their intriguing and innovative article, Boilerplate and Default Rules in Wills Law: An Empirical Analysis, 103 Iowa L. Rev. 663 (2018), Professors Reid Kress Weisbord and David Horton conduct an empirical examination of the use of boilerplate provisions in wills. This response essay explores the consequences of their decision to exclude pour-over wills from their data set.
Saturday, April 20, 2019
Lionel Smith recently published an Article entitled, Prescriptive Fiduciary Duties, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.
It has become an orthodoxy in some quarters that fiduciary duties are only proscriptive, forbidding certain actions, and never prescriptive, requiring positive action. I argue that this is a misunderstanding. The argument begins by attempting to explain how this orthodoxy arose, and then by challenging the presuppositions that led to it. The paper goes on to argue that some of the most important duties of a fiduciary are prescriptive duties. It further argues that the label 'fiduciary duties' is properly attached to all of the duties that arise out of a fiduciary relationship, just as 'contractual duties' arise out of a contractual relationship and 'parental duties' arise out of a parental relationship. Along the way, it suggests that we need a better understanding of the notion of a fiduciary conflict of interest; properly understood, this means a conflict between the fiduciary's self-interest and his or her fiduciary duty relating to the exercise of his or her fiduciary powers. This helps us to see that the rule against unauthorized profits is independent of the rules against exercising fiduciary powers while in a conflict situation. The overall goal of the paper is to develop a more accurate understanding of the fiduciary relationship and its many juridical features.
Friday, April 19, 2019
Eric Kades recently published an Article entitled, Of Piketty and Perpetuities: Dynastic Wealth in the Twenty-First Century (and Beyond), 60 B.C. L. Rev. 145-215 (2019). Provided below is an  of the Article.
For the first time since independence, in a nation founded in large part on the rejection of a fixed nobility determined by birth and perpetuated by inheritance, America is paving the way for the creation of dynastic family wealth. Abolition of the Rule Against Perpetuities in over half the states along with sharp reductions in, and likely elimination of, the federal estate tax mean that there soon will be no obstacles to creating large pools of dynastic wealth insuring lavish incomes to heirs for generations without end. The timing of these legal changes could hardly be worse. Marshaling innovative economic data extending back centuries, Thomas Piketty has shown that the relatively egalitarian incomes enjoyed in developed economies from the end of World War II until around 1980 were an aberration and that we are in the process of returning to the historical norm of much greater income and wealth inequality. This Article shows, unhappily, that this revival of unending inherited wealth is of even greater concern than previously thought. In doing so, this Article makes three significant contributions to the growing literature on income inequality and its devastating effects. First, this Article reveals the importance of Piketty's work to the law of inheritance, and in particular, it extends his "macro" economic insights to the "micro" level of families and the potential role for newly-legitimated perpetual trusts to instantiate a nobility consisting of a relatively small group of families forever privileged by ever-expanding inherited wealth. Second, this Article identifies three devastating consequences of perpetuities, consequences that more than justify rules restricting perpetuities. Finally, this Article reconceptualizes the harms resulting from perpetuities and proposes innovative normative solutions carefully calibrated to ameliorate those harms.
Thursday, April 18, 2019
Naomi Cahn recently published an Article entitled, The Golden Years, Gray Divorce, Pink Caretaking, and Green Money, Elder Law eJournal (2018). Provided below is an abstract of the Article.
This Article considers the impact of changing family structures on aging in contemporary America. It looks at two critical and interrelated aspects of aging—economic security and caretaking—and offers policy suggestions on how to improve the financial stability of and caretaking possibilities for elders. The core thesis is that our current social, legal, and economic structure for growing old is organized around the nuclear family with respect to both caretaking and financial security. As family structures change in terms of partnering (and re-partnering and non-partnering) and number of children, and with the increase in economic inequality, support for old age needs to change as well. Nonetheless, notwithstanding changing family forms and roles and economic disparities, we have not made the requisite changes to prepare for the forthcoming silver tsunami.
Wednesday, April 17, 2019
Henry Lowenstein & Kathryn Kisska-Schulze published an Article entitled, A Historical Examination of the Constitutionality of the Federal Estate Tax, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.
During the 2016 presidential debate, Hillary Clinton vowed to raise the estate (death) tax to 65%, while Donald Trump pledged to abolish it as part of his overall tax reform proposal. An interesting question resonates as to whether the tax is even constitutional. This paper takes a fresh look at the Estate Tax, appropriate in an era of a U.S. Supreme Court consisting of a majority of adherents to a more “strict constructionist” view of constitutional interpretation. Although historically regarded by the U.S. Supreme Court as being a constitutional excise tax, it can be theorized that the estate tax is an unconstitutional overreach of taxing power by the Federal government and constitutes a “taking” of private property banned by the 5th Amendment. This article directly confronts the constitutionality of the federal Estate Tax from a purely bedrock perspective. To meet this objective, were review the enumerated powers of Federal taxation as allowed by the U.S. Constitution; dissect the scope of the estate tax, to include an analysis of the judicial and legislative history supporting its constitutionality; theorize that the tax does not have a constitutional basis legitimizing its inclusion in the Federal tax code; and conclude that the estate tax violates the U.S. Constitution and should therefore be repealed.
Monday, April 15, 2019
Bridget J. Crawford and Michelle S. Simon recently published an Article entitled, The Supreme Court, Due Process and State Income Taxation of Trusts, 67 UCLA L. Rev. Disc. 2 (2019). Provided below is an abstract of the Article.
What are the constitutional limits on a state’s power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina’s income taxation of a trust with a contingent beneficiary, meaning someone who is eligible, but not certain, to receive a distribution or benefit from the trust, who resides in that state. Part I of this Article explains the background of Kaestner Trust and frames the constitutional questions that will be before the Court at oral arguments on April 16, 2019. Part II examines how and why due process applies in the state income taxation context, with a particular emphasis on how familiar concepts of general and specific jurisdiction apply uneasily to donative trusts. Part III articulates the reasons that the Court should hold that a state has no constitutional authority to impose a tax on trust income where the trust’s only connection with the forum state is the residence of a contingent beneficiary. Kaestner Trust is the most important due process case involving trusts that the Court has decided in over sixty years; it bears directly on the fundamental meaning of due process.
Sunday, April 14, 2019
In the American lexicon, probate has become a dirty word. In his influential book on the subject, Norman Dacey sought to foster a nationwide nonprobate revolution, and had a few choice words for the probate system and the "viciously corrupt, greedy" lawyers and judges who ride its "gravy train." Closer to home, Connecticut's probate system has been called a "scandal," with critics calling it among the nation's worst court systems, and offering blunt advice: "try not to die in Connecticut."
Probate's poor reputation lingers despite recent meaningful reform. In 2011, a major restructuring accelerated the pace of prior reform efforts and resulted in a more centralized, efficient, and professional court system. Now, the probate courts have their own rules of practice designed to streamline proceedings, minimize unnecessary paperwork, and deter litigious behavior and destructive litigation tactics. The system is overseen by an administrative office that takes great pains to educate judges and the public, update and standardize major probate forms, and maintain a website that is comprehensive and user-friendly. In contrast to our often overburdened superior court system, the probate courts can handle cases more expeditiously and cost-effectively, and deal with complex family matters in an environment that is more approachable, less adversarial, and easier to navigate for pro se parties.
Why then do many trusts and estates lawyers routinely counsel their clients to avoid Connecticut probate? Why has a revocable living trust become the cornerstone of most sophisticated Connecticut estate plans? Why is there a continued reference to Connecticut's probate courts as a scandal, among the worst such courts in the nation?
I contend that Connecticut's probate courts have become far more desirable than their detractors would acknowledge, and far more efficient and effective than their reputation would suggest. Part of the disconnect is attributable to the fact that old reputations die slowly. At the same time, both the legislature and the courts can do more to build upon recent progress and continue to bring Connecticut's probate system into the twenty-first century. In this essay, I explore the lingering challenges facing Connecticut's probate courts, and proffer solutions that a thoughtful legislature and the courts themselves should embrace.
Friday, April 12, 2019
Megan S. Wright recently published an Article entitled, Dementia, Autonomy, and Supported Healthcare Decision Making, Elder Law eJournal. Provided below is an abstract of the Article.
Healthcare providers often rely on surrogates to decide on behalf of their patients with dementia who are deemed incapable of exercising autonomy. There is a longstanding debate about the appropriate standard of surrogate healthcare decision making for these patients. Many influential scholars argue that the precedent autonomy of the person with dementia should be respected, and healthcare decision-making laws generally reflect this principle. These laws direct surrogate decision makers to follow instructions in living wills or to decide on the basis of the wishes and values of the person before the onset of dementia. But other prominent scholars have questioned whether surrogates should instead use the best interests standard, which accounts for the current interests of the person with dementia.
This debate about decision-making standards ignores an arguably more important issue: who should be deciding? Empirical research demonstrates that persons with mild dementia retain the ability to make or participate in decisions despite their acquired cognitive impairments, and that they prefer to be actively involved in healthcare decision making. However, persons with dementia are routinely marginalized in the decision-making process, which leads to a decline in their psychological wellbeing.
Based on studies of their decision-making abilities, preferences, and experiences, this Article argues that persons with dementia should not be prevented from making their own healthcare decisions. Stated differently, persons with dementia should have the legal right to make their own healthcare decisions at the time when the decisions need to be made. Ensuring this right will require looking beyond surrogate-based healthcare decision-making law, which facilitates the exclusion of persons with dementia from decision making.
Disability law in four states provides an alternative decision-making model, known as supported decision making, which empowers persons with cognitive impairments to make their own decisions and could be usefully applied to dementia. In supported decision-making, an adult with a disability (the “principal”) voluntarily chooses people to assist them in decision making (a “supporter”), and formalizes this arrangement in a written agreement. The supporter’s role is to help the principal gather relevant information, think through the decision, and convey the decision to other people. Supported decision making preserves the legal decision-making authority of a person with a disability rather than transferring such authority to a surrogate. Because supported decision making accords with the preferences and interests of persons with dementia, supported decision-making laws should be widely adopted.
This novel application of supported decision making to dementia also provides insight into the nature of autonomy in the larger context of late-life healthcare decision making. My past research has demonstrated that autonomous decision making in this context is relational, which is consistent with supported decision making. This Article further builds upon this conceptualization and advances a new understanding of autonomy in healthcare decision making as more closely approximating relational agency. With this revised understanding of autonomy and the adoption of supported decision making, persons with dementia can remain autonomous for longer in the progression of their disease.
Thursday, April 11, 2019
Jalila Jefferson-Bullock recently published an Article entitled, Quelling the Silver Tsunami: Compassionate Release of Elderly Offenders, Elder Law eJournal (2018). Provided below is an abstract of the Article.
Sentencing reform appears resurrected. Following a brief hiatus and an expectedly unwelcoming recent federal response, sentencing reform is again reemerging as a major initiative. Congress and the several states are poised to immediately accomplish major reform of the United States criminal sentencing structure. Proposals that would, among other initiatives, drastically reduce criminal sentences, restore rehabilitative programs to inmates, generate sentencing parity, normalize probation for low-level offenses, and shrink the overall prison footprint are ambling through various legislative processes throughout the country. Though groundbreaking and certainly welcome, these reforms largely ignore the special needs of the imprisoned elderly. One of the most foreseeable, yet ironically ignored, consequences of 1980's and 1990's harsh sentencing laws, is the dramatic upsurge in prison population through the predictable process of human aging. Coined the prison “silver tsunami” phenomenon, surging numbers of elderly inmates raises significant moral, health, and fiscal implications deserving keen scrutiny. It is imperative, then, that any overhaul of criminal sentencing focuses on how to meaningfully address the graying of America's prisons.