Saturday, May 11, 2019
Michael A. Sneeringer recently published an Article entitled, The Case for Trusts as an Alternative for Prenuptial Agreements When Religion Intervenes, Probate & Property Magazine, Vol. 33 No. 3, May/June 2019. Provided below is the introduction to the Article.
A funny thing happens on the road to marital bliss. I love you becomes "I love you, but...do you mind signing this...this protects both of us...my parents think it would be a good idea...," etc.
For estate planning attorneys with a client who is single and contemplating marriage, one set of facts causes concern. Clients with religions leanings want to protect their valuable businesses and property interests but also be married in accordance with their particular religion. Entering into a prenuptial agreement may not be allowed as a precursor to marriage and could jeopardize the client's ability to be married in the eyes of his religion. If the client is religious, is there another alternative to prenuptial agreement that would suffice? Is this alternative available in every state?
For estate planning attorneys and their married clients, a typical question at the beginning of the process is whether, upon the surviving spouse's death, assets should remain in trust for the clients' children or be distributed outright and free of trust. The estate planning attorney will often caution the client about leaving assets outright. The estate planning attorney's chief concern is that assets left outright to child or grandchild beneficiaries become susceptible to creditor's claims, including spousal creditors. Sometimes the conversation ends here: clients want their children's inheritance to be left in trust - no further discussion. In other cases, clients circle back to their unmarried child or child with the weakest marriage. ("Her husband's lazy." "All my son's wife does is spend his money.") The client wants the estate planning attorney to draft protective provisions for such child within the client's revocable trusts. Some estate planning attorneys take the client's cue and suggest provisions be placed in a trust to specify that trust distributions are made to a married child or grandchild only if he has entered a prenuptial agreement (or, if the child or grandchild is already married at the time the estate planning document is signed, a postnuptial agreement). Such advise is well-intentioned and might work. But what if the client is religious? Might his religion prevent the use of a prenuptial agreement? If a prenuptial agreement arrangement cannot be made to protect the child or grandchild beneficiary's interest, what is the client to do?
Saturday, April 13, 2019
New Jersey's Democratic governor Phil Murphy signed the Medical Aid in Dying for the Terminally Ill Act on Friday, a law that will allow terminally ill patients to end their life using physician assisted suicide. The law will go into effect the first of August, making New Jersey the 7th state to allow terminally ill patients to humanely choose their own end.
The law will allow patients to obtain and self-administer medication to end their lives, though their attending and consulting physicians must first determine that the patient has a life expectancy of six months or less, has the capacity to make health care decisions and is acting voluntarily.
Though the governor is a lifelong Catholic and stated that he wrestled with the choice of whether to sign it or not, he decided that signing was "the right thing to do." Lawmakers have tried since at least 2012 to advance the legislation. “By signing this bill today, we are providing terminally ill patients and their families with the humanity, dignity, and respect that they so richly deserve at the most difficult times any of us will face.”
See Tal Axelrod, New Jersey Becomes 7th State to Permit Assisted Suicide, The Hill, April 12, 2019; see also Mike Catalini, New Jersey Law Allows Terminally Ill to get Life-Ending Meds, Fox News, April 12, 2019.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Tuesday, March 26, 2019
The New York Bar is holding conference entitled, Unexpected Troubles When a Client Dies: Resolving Issues and Conflicts at the Time of Death, on Monday, April 8, 2019 from 6:00 p.m. to 8:30 p.m. at the New York City Bar in New York City, New York. Provided below is a description of the event.
Trust & estates attorneys, elder law attorneys, and others who counsel older or disabled clients need to be familiar with unexpected problems that can happen when a client dies and family conflicts arise about funeral and other decisions they must make. What must you do and what can you do to enable your clients, their family and friends, to make the best decisions when they don’t all agree? This non-denominational panel discussion will address key legal, ethical, and practical questions, such as:
- Who has decision making authority
- What is the role of the funeral director
- Deaths at home and what needs to be done
- Formalities of making decisions and challenging them
- Decisions concerning autopsy
- Issues that may result from varying religious beliefs
- Mechanisms to avoid or resolve disputes
- Legal documents which could be helpful
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Thursday, March 14, 2019
A Dying Man, a Typo and the Bitter Dispute Pitting 2 Nashville Religious Institutions Against 3 Children
4 non-profits, two of which are Nashville institutions, are fighting against three young children, claiming that they are the righting beneficiaries to land that has belonged in the family for more than 200 years. The acres were deeded to a Blackburn ancestor by President Andrew Jackson, prior to the War of 1812. But the lack of two words in a will of a Blackburn that passed away in 2014 has caused the organizations to believe that they deserve hundreds of acres now worth millions of dollars.
When Barry Blackburn, Sr., died at the age of 48 in 2014, his will left all of the land to his son Christopher in a lifetime trust, and then would pass to Christopher's children. If his son predeceased him, the land would go to his sister's three young children, aged 3, 8, and 13. If there were no surviving beneficiaries, the land would be divided equally among the Nashville Christian School, Harpeth Presbyterian Church (which was founded by Gideon Blackburn in 1811), the University of Mississippi law school and Boykin Spaniel Rescue. Christopher died a year after his father without begetting any children.
A Mississippi judged determined that the missing words, "or dies," amounted to a scrivener's error, and that the testator's intent had been to leave the land in the family. Evidence from Blackburn's assistants were introduced, including notes of conversations among them that showed his intent was for the charities to receive the land as a "last resort." The assistants claimed responsibility for the clerical error.
See Anita Wadhwani, A Dying Man, a Typo and the Bitter Dispute Pitting 2 Nashville Religious Institutions Against 3 Children, Tennessean, March 14, 2019.
Special thanks to Turney Berry (Wyatt, Tarrant, & Combs, LLP, Louisville, Kentucky) for bringing this article to my attention.
Wednesday, March 13, 2019
Okinawa, Japan may just have the fountain of youth. People living in Okinawa have especially low rates of obesity and chronic diseases, such as heart disease, diabetes, and cancer, and no place on Earth has a more of a concentration of people 100 or older. The secret? Experts believe it is the local diet.
Luiza Petre, MD, a weight management specialist and assistant clinical professor of cardiology at The Mount Sinai School of Medicine in New York, says that though there are many variables that can contribute to a longer lifespan, "the key is their particularly healthy diet."
The traditional Okinawa diet emphasizes eating plenty of vegetables and seafood and limiting processed foods, and the residents also eat moderate portions at mealtime and treat food as a source of medicine. Okinawans focus on high-fiber carbohydrates such as sweet potatoes, root vegetables, and buckwheat soba, but also include green vegetables, soyfoods, seafood and seaweed, limited amounts of red meat, Shiitake mushrooms, bitter melon, and Jasmine tea. Also, Okinawans tend to enjoy sugary treats only on special occasions, and the majority of their fats come from omega-3 rich fish.
Many Okinawans eat in accordance with a Confucian teaching called hara hachi bu-eating until one is satisfied, not full. They do not weigh or measure their portions, but focus on thoughtfulness. The foods they eat are rich in anti-inflammatory phytochemicals that may help lower the risk for many chronic diseases and even dementia.
See Marygrace Taylor, This Japanese Way of Healthy Eating Might Help You Live to 100, MSN, March 4, 2019.
Friday, March 8, 2019
Yaser Ali and Ahmed Shaikh recently published a book entitled, Estate Planning for the Muslim Client, (1st ed. 2019). Provided below is a summary of the book.
Islamic law provides a non-discretionary system of rules that governs the distribution of a Muslim's estate. Designing an estate plan based upon these rules presents unique challenges and opportunities. As the demand for faith-based planning increases, there is a growing need for culturally competent advisors who understand how these complex rules interplay with state and federal law. This first-of-its-kind practice guide serves as an authoritative resource for practitioners on how to ethically and effectively draft and administer estate plans for Muslim clients seeking to comply with their faith.
Planning a client's estate can involve more than just the transfer of wealth from one generation to the next. To draft a customized plan that achieves a client's unique goals, an estate-planning practitioner must understand the client's values and convictions and, in many cases, his or her religious beliefs. For many clients, passing on these beliefs and traditions is just as important as, if not more important than, the distribution of assets.
Estate Planning for the Muslim Client provides insights, information, and practical planning solutions for clients who wish to adhere to a set of classical religious obligations while recognizing the practicalities of daily life in America. The authors highlight various planning opportunities and identify the most common issues that arise when planning for a Muslim client. Topics include:
- Meeting the Muslim client and understanding the pillars of their faith
- Ethical, legal, and public policy issues
- Estate planning during life
- Planning for incapacity and death
- Disposition of property at death
- Drafting estate planning documents, with sample forms
- Planning for individuals and assets abroad, and more
Monday, March 4, 2019
J. Sam Rodgers recently publish a Note entitled, Do You Tru$t Your Children: A Parent's Final Dilemma, 28 Cornell J.L. & Pub. Pol'y 93-125 (2018). Provided below is an abstract of the Note.
If you knew you would inherit millions of dollars as long as you married someone Jewish, would you scour the Synagogue next Friday night?
This was the situation Daniel Shapira faced. Daniel was a twenty-one-year-old undergraduate at Youngstown State University when his father, Mr. Shapira, died. Mr. Shapira conditioned a portion of his large fortune to Daniel: the document read either be “married at the time of my death to a Jewish girl whose both parents were Jewish . . .” or the inheritance will go to “the State of Israel.” In the United States, unlike in other countries, a decedent has almost full control over the distribution of his assets upon death. Mr. Shapira used his power to incentivize his son to adhere to family values and marry within the Jewish faith.
Many parents view the distribution of their assets at death as the final impact they have on their children. Historically, most parents took this opportunity to provide future financial security for their heirs. Today, parents are confronting a recently developed fear of their children inheriting too much. This fear leads to a controlling dynamic between parents’ fortunes and their children’s lives. Scholars relate the situation to the “carrot and the stick” analogy, by which parents incentivize their children—many times adult children—to make wise choices by dangling a “carrot” in front of their children, then string them along like a masterful puppeteer.
Courtesy of American inheritance law, children can be disinherited by their parents. The harsh consequences of complete disinheritance have led to the development of conditional bequests—parents will give inheritances to their children so long as their children behave properly. The most prevalent form of a conditioned inheritance is the “incentive trust.” An incentive trust allows parents to condition distributions of trust property. These conditions are “as unlimited as our imagination,” so long as they do not contradict public policy or call for beneficiaries to break the law. Theoretically, this solves a “parent’s final dilemma”—whether to pass wealth on to children and possibly stunt motivation and character, or leave children less inheritance, but instead, helpful principles and inspiration. Incentive trusts allow parents to do both by separating the benefits of bequeathing property to children from the risks of bequeathing too much property. This is done by passing fortunes only after children align their lives with criteria enumerated in the trust.
However, incentive trusts are not a perfect solution and should be used with caution in estate planning. Incentive trust shortcomings are fourfold. First, incentive trusts are inflexible, making them difficult to draft and leaving them exposed to litigation. Second, the law confers a public policy limitation that produces inconsistent enforcement of incentive trusts. Third, incentive trusts promote idolizing money, thus potentially diluting the initial incentivized behavior. Fourth, rewarding children with money often has a negative impact on their motivation.
Part I of this Note discusses both the development of the law regarding inheritance and the growing attraction to incentive trusts. Part II details the four traps of incentive trusts—inflexibility, public policy limitations, unintended consequences, decreased motivation—and opens the door for a new solution to a parent’s final dilemma. Part III examines four principles for crafting a better solution to the parent’s final dilemma by looking at those who have successfully inspired children without incentive trusts. Part IV proposes the new solution, termed a Hidden Bonus Trust, that avoids the identified traps of incentive trusts and incorporates the lessons from experts.
Monday, February 18, 2019
140,000 people that die per year in the United Kingdom choose to be buried, and with a country that is so weathered with a finite amount of land, the cemeteries are getting crowded. Many towns are cramming, meaning that they are removing benches and trees to make room for more burial plots, as well as reclaiming, there a grave is reopened to bury a person on top of the previous resident - "like a bunkbed." But this may not be enough.
A BBC study in 2013 found that a quarter of England’s local authorities that oversee the majority of cemeteries expected those they managed to be full by 2023. Two London boroughs are no longer providing burials within their boroughs. Burials have increased in price by 70% from 2008 to 2018, and for numerous people have become unaffordable. In Highgate Cemetery in London, the most expensive (and private) cemetery in the country, it costs £19,940 just for the right to dig a grave and another £2,035 for it to be machine-dug.
As many of the living rarely think about cemeteries and their own mortality these problems have escalated to this point. This lack of burial space requires weighing the rights of the dead, as well as those that they leave behind, and asking how far society should go to accommodate the people who still want to be buried. Many religions such as Islam and Judaism strictly forbid cremation so burial is a must.
A solution may be found in grave reuse, where the grave is reopened like reclamation but the remains are redistributed. This is possible only after several decades have passed and the deceased has thoroughly decomposed. But many municipal and private cemeteries do not allow the practice, London does.
See Daniel Cohen, Britain’s Burial Crisis – and How to Solve it, Financial Times, February 8, 2019.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Saturday, January 5, 2019
Islam Abdel Magid recently published an Article entitled, Gender Equality: Islamic Law and Legal Validity, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.
The regularly heated debate on personal status issues, especially for its connection, with a broader discussion about Shari’a or Islamic law, and its relation to positive laws and legal practice usually run in a vicious cycle between two conflicting tendencies, the first sees Shari’a as a major impediment to modernizing family laws, according to the stander of gender equality, while the other rejects the reform of these laws under any consideration except in the context of maintaining the legal and moral particularism, which is reflected in the principles of Shari’a, or at least its peremptory provisions. Certainly, the committee of “Individual Freedoms and Equality Report ”(IFER), sponsored by the Republic of Tunisia President, where is charged with examining the legal reforms related to the most controversial issue, the equality of inheritance between women and men opens a broad horizon for readdressing the issue of gender equality in Arab countries, particular Tunisia and Egypt. Indeed, the conflicting two tendencies on the content and the border of legal reforms, ignore together the importance of social facts in determining the validity of laws, in favor of focusing on the one hand, stander of natural rights and the insistence on the relationship between ethics and Islamic law, from another hand. This trend in western academic circles represented by e.g. Wael Hallaq and Talal Asad. On the contrary, I attempt to reconsider the relationship between the Islamic Law and the legal positivism i.e. the thesis that law existence and content reflect in one way or another the social facts. And discuss the evolution of the contemporary Arab laws between attempts to revive Islamic law and receive Western/European laws. Finally, defend the basic hypothesis in this paper; that the validity of the laws, regardless of their moral sources, are linked to their suitability to the degree of development of social facts, noting that this relationship between laws and facts is not a compatible, but rather a matter of dialectic and emancipation.
Tuesday, December 25, 2018
In a recent case in the European Court of Human Rights, the court found that Greece should not have allowed the two sisters a deceased Muslim man apply Sharia law to contesting the validity of their brothers will.
In Molla Sali v Greece, a Grand Chamber judgment held that Greece had violated Article 14 of the European Convention on Human Rights, which prohibits religious discrimination, when the country applied Sharia law to the inheritance of a wife's estate. The husband had a will written up and notarized 5 years before his death, bequeathing his wife all of his property. However, his two sisters contested the will. They claimed that their brother was part of the Thrace Muslim community and that any question of inheritance should be governed by Sharia law instead of Greek Civil Code. Under Sharia law, there is no testacy - inheritance is simply provided by intestacy rules, and wills are only meant to compliment those rules. Under the intestacy guidelines, the sisters were entitled to three-quarters of their brother's estate because they were close relatives.
After several layers of appeals, the European Court found for the wife, stating that she had been discriminated against because of her husband's religion. Because the husband went to a notary and had a will drawn up and publicly notarized, he was subjecting himself to the Greek Civil Code, just like a non-Muslim Greek national. "The fact is that if her husband, the testator, had not been of Muslim faith, Ms Molla Sali would have inherited the whole estate."
See Howard Friedman, European Court: Greece Should not Have Applied Sharia Law in Will Contest, Religion Clause Blog Spot, December 21, 2018; see also Molla Sali v Greece.
Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.