Overland Park Attorney

Weekly Blog Digest - Overland Park, KS - Estate Planning

 

In review, here are the five Blog Posts from this past week for your convenience.  I welcome your feed back regarding any of these posts and your input regarding any of these areas of practice which you would like for me to address.

Same-Sex Prenuptial Agreements – in Overland Park, KS

While the urge to “rush to marriage” will probably be inescapable, perhaps some caution is warranted to do a little planning first. What I am talking about is a pre-nuptial agreement.

 The Gift of College Funding – in Overland Park, KS

The Uniform Gifts to Minors Act (UGMA) and the Uniform Transfers to Minors Act (UTMA) are sometimes called the “granddaddies” of college savings accounts. Both allow parents to establish custodial accounts for a minor child, and a grandparent can then make gifts to the account.

 Where, Oh Where Will The Family Home Go?  Especially in Overland Park, KS?

How do children nudge often-reluctant parents toward making sound and fiscally smart decisions about the future of the family home?

 Would You Give Your Employees Skin In The Game?  In Overland Park, KS?

In family businesses, there are two main ways stock gets diluted: it gets passed on to employees or it’s passed down through the generations.  We often see the first situation occur in families when owners give out shares to non-family executives as part of a compensation package.

 Don’t Forget to Plan for Your Pets  Even in Overland Park, KS!

Why do otherwise doting pet parents fail to make such plans? Most people assume they’ll outlive their pets, says Barry Seltzer, a Toronto-based estate lawyer and co-author of Fat Cats & Lucky Dogs: How to Leave (Some of) Your Estate to Your Pet. And death and disability are topics that many people refuse to face.

Same-Sex Prenuptial Agreements - in Overland Park, KS

While the urge to “rush to marriage” will probably be inescapable, perhaps some caution is warranted to do a little planning first. What I am talking about is a pre-nuptial agreement.

Those planning to marry their same-sex partners are coming up against a hurdle known all too well by “late-in-life” marriages – combining two established lives personally, financially and legally. Enter the prenup.

A recent Forbes article titled “Before Marriage, Same Sex Couples Need Prenups,” provided some pithy advice.

The term “late-in-life marriage,” while perhaps not soft on the ego, is a term designed to acknowledge that you are not blushing eighteen-year-olds, with no assets, careers, or names in the world. In fact, most same-sex partners, couples, and married persons will have fully established and separate financial and legal lives, sometimes by design and often by strict necessity. Regardless, marriage in this new, post-DOMA world will mean a collapse of those borders.

Whether heterosexual or homosexual, couples that are comprised of well-established individuals have so much to consider, including retirement accounts and even accrued liabilities. Consequently, marriage may require planning what should be joined and what should remain separate.

The original article illustrates how prenuptial agreements are being deployed today as more and more persons marry “late-in-life” and that same-sex marriages are (now) no exception in this regard.

Either way, “marriage” is and always has been a very legally loaded term. We are still learning what same-sex marriage will mean, and to some extent we are still learning what marriage in this day and age will mean. Regardless, a solid prenuptial agreement is an important consideration. 

Reference: Forbes (June 27, 2013) “Before Marriage, Same Sex Couples Need Prenups”

For more information about this issue in Overland Park, KS, please visit my website.

Weekly Blog Digest - Overland Park, KS - Estate Planning

In review, here are the five Blog Posts from this past week for your convenience.  I welcome your feed back regarding any of these posts and your input regarding any of these areas of practice which you would like for me to address.

“Portability” Does Not Apply To All Wealth Transfers - even in Overland Park, KS

My father is a widower. My mother passed away in 2006. Does the permanent change to "portability" that you have discussed in your columns on estate and gift taxes apply here? And would it affect my father's annual gift-tax exclusion amount this year?

How Does The Supreme Court Ruling On Same-Sex Marriage Affect Estate Planning? Even in Overland Park, KS?

The ruling makes clear that married gay couples living in states that recognize their unions will immediately gain access to more than 1,000 federal benefits, like Social Security and family leave rights. Less certain is how couples living in the remaining 37 states will fare.

Giving Before The End - even in Overland Park, KS

It’s a great idea to try to make a difference for your child while you’re here to see the process unfold – it could be one of your most gratifying life moments. Just take your time, think through your approach carefully and don’t do it alone.

Business Succession – A Double–Edged Sword - even in Overland Park, KS

If you run a family business, you probably already know research indicates family-owned businesses tend to have better long-term financial performance than their counterparts that aren’t run by blood relations. And you’re probably well aware infighting among family members can lead to breakups, selloffs, and bankruptcies …

Planning for Digital Assets Leaves Computer Scientists Scratching Their Heads - even in Overland Park, KS

A number of services can help with digital estate planning by designating password recipients or deleting accounts or files when you die. But communication and privacy laws have yet to catch up with technology.

How Does The Supreme Court Ruling On Same-Sex Marriage Affect Estate Planning? Even in Overland Park, KS?

The ruling makes clear that married gay couples living in states that recognize their unions will immediately gain access to more than 1,000 federal benefits, like Social Security and family leave rights. Less certain is how couples living in the remaining 37 states will fare.

The Supreme Court has been busy this year, dealing with many important topics all around. But few issues have been so drastically altered as that of same-sex marriage.

The Supreme Court, in its last actions of this term, rendered two important decisions on the topic of same-sex marriage. Now it’s time to figure out what these rulings mean moving forward. A recent article in The New York Times, titled “How the Court’s Ruling Will Affect Same-Sex Spouses,” provides a good start.

For those planning for their estates, the important decision was rendered in US v. Windsor, a case many have been following quite intently and for good reason. The case centered on a common conundrum of many in same-sex marriages: married by state law, but strangers by federal law. And of course, the Federal law in issue was The Defense of Marriage Act, or DOMA, as signed into law by President Clinton. DOMA changed the definition of marriage to literally require different gender partners, but this has been struck down.

Consequently, all of the federal benefits ascribed to the term “marriage” will extend to same-sex marriages as well. These include, but are not limited to, social security, estate and gift tax law, and common law spousal provisions. In short, it’s a groundswell and the ground won’t stop moving until we figure out all of the ramifications.

Read the original article for more specifics, but many questions remain. For example, will estate planning be just the same for same-sex marriage now?

Reference: The New York Times (June 26, 2013) “How the Court’s Ruling Will Affect Same-Sex Spouses”

For more information about Same-Sex issues in Overland Park, KS, please visit my website.

Weekly Blog Digest - Overland Park, KS - Estate Planning

Don’t Delay Discussing Your End-Of-Life Wishes

This uncomfortable, ethically questionable, confusing scene over Ms. Bayliss’ end of life did not have to happen the way it did.  If you don’t want to be in that kind of situation, you need to be responsible for deciding what you want and communicating it to those who will have to act on your behalf.

Planning Challenges for a Later-In-Life Marriage

…More than 40% of women and more than half of men over 50 who get divorced end up remarrying, according to Census Bureau data.

For folks like these, all sorts of financial considerations can complicate the question of whether and how to go about remarrying.

Decanting a Bottle of Wine …or an Irrevocable Trust?

"It's like decanting a bottle of wine; you pour the wine into a new bottle to air it out," says Mark Haranzo, a partner at law firm Withers Bergman. In trust terms, you pour the assets of an old trust into a brand-new trust that essentially allows a redo.

High Court Sees an Estate Tax Case Regarding Same-Sex Marriage

In bringing her case to the Supreme Court, Windsor argues that DOMA violates the U.S. Constitution's guarantee of equal protection. DOMA backers say the law is valid.

Tax Pointers for Business Transfers within the Family

Dad wants to eventually sell the family business to his daughter. She has the smarts, drive and desire, and he doesn’t want to work forever. Not only does he want the business to be a success for her; but, part of his retirement income will be dependent on her making the payments for the business.

High Court Sees an Estate Tax Case Regarding Same-Sex Marriage - even in Overland Park, KS

In bringing her case to the Supreme Court, Windsor argues that DOMA violates the U.S. Constitution's guarantee of equal protection. DOMA backers say the law is valid.

Same-sex marriage has been a controversial issue in American politics, and will likely continue to be a hot button for many. But On March 27, the Supreme Court is set to rule in a case that may impact both politics and same-sex estate planning as we know them.

The case going before the Supreme Court is the story of Edith Windsor and Thea Spyer. The subject: the application of the federal estate tax in the context of a “same-sex marriage.” A recent article in Reuters considered the case and its implications. The article titled “Analysis: Death, taxes and Supreme Court's gay marriage case,” notes that the case began when Thea Spyer passed away and left her estate to Edith Windsor, her spouse under Canadian law. However, because the Defense of Marriage Act (DOMA) precludes same-sex marriage, Spyer’s estate was not recognized for purposes of affording the unlimited marital exemption.

This exemption permits a spouse to pass his or her estate to their surviving spouse without federal estate taxation. Because her marital status is not recognized under DOMA, Windsor had to pay the estate tax and her suit is to recover that payment. She is alleging that the basis of the tax, DOMA, is itself unconstitutional.

If the Supreme Court agrees with Windsor, the implications are profound on many levels, to include social and legal. Should DOMA remain the law of the land, then traditional same-sex estate planning will remain unchanged, but no less important.

Reference: Reuters (March 12, 2013) “Analysis: Death, taxes and Supreme Court's gay marriage case”

For more information about inheritance planning, as it relates to same-sex couples, please refer to my website.

Weekly Blog Digest - Overland Park, KS - Estate Planning

Inherited Stock and Cost Basis

I just inherited some stock from my uncle, and I know that he bought the stock for more than the present cost. Should I find the original cost, or do I use the cost as of the date I inherited the stock?

Necessary Planning for Children Adopted by Same-Sex Couples

… Financial and estate planning is especially important for LGBT parents who adopt ….

Estate Planning for Blended Families – What You Need to Know

With more than 50 percent of first marriages failing and 75 percent of the partners remarrying, “blended” families — which include children from earlier unions — have become the norm.

Family Wealth: A Blessing or Curse? You Decide

The blessings of wealth can be yours, but they are not delivered on a silver platter. Counter intuitive as it may seem, you must work for them. But your hard work will yield ample rewards.

The Gun Trust: Your Estate Planning “Weapon”

The national trend is driven by the National Firearms Act (NFA), which regulates the transfer or sale of certain guns and other weapons, in part by requiring a sheriff or police chief to approve the transfer with an authorized signature. However, NFA Gun Trusts allow firearm enthusiasts and gun collectors to legally bypass the law enforcement signature requirements and transfer ownership of their weapons without a local police chief or sheriff approval. It also bypasses the need for fingerprints.

Necessary Planning for Children Adopted by Same-Sex Couples - in Overland Park, KS

… Financial and estate planning is especially important for LGBT parents who adopt ….

Having or adopting a child changes everything. Those words really hit home when same-sex couples seek adoption in a mix of state and federal laws.

With state laws varied on the matter and federal laws as yet unchanged, same-sex adoption is far from settled.

In the meantime, same-sex couples need to define their “families” from the laws as they are. The Wall Street Journal recently provided some insight in an article titled “For Same-Sex Couples, the Finances Get Even More Complicated.” Essentially, fundamental financial and estate planning is not optional for same-sex couples.

According to the article, some 2 million to 2.8 million children are being reared in same-sex households. Now, more than ever, same-sex couples must ensure that their wills, trusts, powers of attorney and health care directives are ship-shape. In the context of adoption, this means making proper provision for the guardians of an adopted minor child. And there is a lot of need.

The lesson: same-sex couples seeking to adopt a child need to make sure all of their financial and legal plans are in place. For many, this may mean a commitment to life insurance or to a carefully-drafted estate plan.  Seek appropriate counsel for assistance in this important matter.

Reference: The Wall Street Journal (February 24, 2013) “For Same-Sex Couples, the Finances Get Even More Complicated”

For more information about Same-Sex issues in Overland Park, KS, please visit my website.

Estate Planning Challenges for Same-Sex Couples in Overland Park, KS

With DOMA [The Defense of Marriage Act] on the books state laws allowing same-sex marriage are of limited use. For example, a same-sex couple who gets married in New York or Massachusetts (which have no residency requirements) may find their new marriage disregarded by another state they live in or move to or might receive an inheritance from.

All the votes are in and counted – they have been for some time – but for all the media’s talk and declarations that it was just a status quo election at the federal level, gay marriage advocates see something entirely new across the states. As you likely know, three new states approved same sex marriage: Maine, Maryland, and Washington. What does that mean for same-sex partners and their potential estate plans?

With the three newest states to uphold same-sex marriage, that makes an official total of nine states plus the District of Columbia, plus an assortment of 12 other states with various forms of “civil unions” and “domestic partnerships.” It’s a good sign for advocates, but all the same it’s important to remain in perspective, as put by Forbes staffer Deborah Jacobs not too long after the election: “Gay Marriage Scores Victories In All Four States That Considered It, But Tough Road Lies Ahead.”

For planners, being able to take care of one another and your family, either with legal rights or transfers of assets, is a matter of balancing the right legal appointments, documents, and tax codes. But same-sex couples occupy a strange place that requires a steady hand: states vary greatly even when they permit same-sex marriage, the institution that opens up so many planning avenues, and yet the federal government doesn’t recognize any of them.

In the short term, there may be a huge development as we watch the Supreme Court take on the Defense of Marriage Act (DOMA); but regardless of the outcome, same-sex couples still face unique and complex estate planning challenges.

Reference: Forbes (November 7, 2012) “Gay Marriage Scores Victories In All Four States That Considered It, But Tough Road Lies Ahead”

For mor information on Gay Marriage/Same-Sex Marriage, please visit my website.