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Waiver Of Year’s Support Through Post-Nuptial Agreement

divorce-jpgOriginally posted on BryanCaveFiduciaryLitigation.com.

Divorce should put an early end to the marriage vow of “’til death does us part.” But, when it comes to estate disputes, neither divorce nor death can part the path to the courthouse.  In In re: Estate of Boyd, the husband and wife may have suspected their marriage could end: after 15 years of marriage, they separated, reconciled, and then entered into a post-nuptial agreement.  The agreement provided how assets would be distributed if the parties were married at the time of either’s death and provided for distribution of assets if the parties separated or filed for divorce prior to death.  The latter provision is relevant.

ESTATE PLANNING DURING AND AFTER DIVORCE

 

Divorce decree, gavel and folder shot on warm wooden surface

 

At a minimum, we recommend that our clients review their existing estate planning documents every few years, and also when big life changes are happening.  Going through a divorce is one of those times.  Here are some things to consider when you are considering divorce or separation, and after your divorce is final:

Digital Assets Bill Heading to Florida Senate Floor

January 22, 2016

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We previously told you about the Uniform  Fiduciary Access to Digital Assets Act (“UFADAA”) in our post found here.  Now, Florida may become the 10th state to legislate fiduciary access to digital assets.

The Florida Senate Rules Committee unanimously consented to the bill (SB 494) on Wednesday, making it available to be heard on the Senate floor.

In California, Unambiguous Wills May Now Be Reformed

With drafting assistance from our Washington University School of Law extern, Alexander Fersa.

It seems the California Supreme Court agrees with Cole Porter that “times have changed.”

Abrogating 50 years of binding case law, in In re estate of Duke, the California Supreme Court elected to treat wills the same as trusts are treated under the Uniform Trust Code by allowing courts to look to extrinsic evidence when determining the intent of the testator. The Court concluded that an unambiguous will may be reformed if clear and convincing evidence establishes (1) that the will contains a mistake in the expression of the testator’s intent at the time the will was drafted and (2) the testator’s actual specific intent at the time the will was drafted.

The Court determined that there is no justification for a categorical bar on reformation of unambiguous wills so long as the reformation is supported by

Updates to Florida UTMA and Florida Health Care Surrogate Statutes

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Uniform Transfers to Minors Act

Florida’s Uniform Transfers to Minors Act (“UTMA”), found under Florida Statutes Chapter 710, provides a mechanism for the creation of custodial accounts for gifts, bequests or other transfers to minors, without requiring the presence of an appointed guardian for the minor. Previously, under Florida’s UTMA, minors were defined as persons under the age of 21. The new UTMA statute, effective July 1, 2015, permits custodianships to last until the age of 25. A custodianship under Florida law can be created if the transferor, the custodian or the minor resides in Florida or if the custodial property is situated in Florida.

Health Care Surrogates

A designation of a Health Care Surrogate is a written document appointing someone to make health care decisions for an individual (the “Principal”) or receive health information on such person’s behalf in

Yet One More Word on New York Estate Taxes

Yet One More Word on New York Estate Taxes

August 3, 2015

Authored by: Stacie J. Rottenstreich, Karin Barkhorn and Edward Peck

ThinkstockPhotos-466616312The New York State Department of Taxation and Finance recently issued a Technical Memorandum explaining the 2015 legislative amendments to the major New York State estate tax reform provisions enacted in 2014 and reported on this blog last year. The amendments are all effective retroactive to April 1, 2015.

The amendments made clear that the following tax tables are permanent.

Basic Estate Tax Exclusion Amount increases are to be phased in as follows for New York residents or non-residents owning real property located in New York State during the period listed:

 

 

April 1, 2014 – March 31. 2015: $2,062,500;

April 1, 2015 – March 31, 2016: $3,125,000;

April 1. 2016 – March 31, 2017: $4,187,500;

April 1, 2017 –

Illinois Considers Adoption of Uniform Fiduciary Access to Digital Assets Act

digitalassetsLast year, we told you about the Uniform Law Commission’s approval of the Uniform Fiduciary Access to Digital Assets Act (“UFADAA”), the primary purpose of which is to empower fiduciaries, guardians, and agents with the power to “access, manage, distribute, copy, or delete digital assets and accounts”.

According to the Uniform Law Commission’s website, the UFADAA “is an important update for the Internet age. A generation ago, files were stored in cabinets, photos were stored in albums, and mail was delivered by a human being. Today, we are more likely to use the Internet to communicate and store our information. This act ensures account-holders retain control of their digital property and can plan for its ultimate disposition after their death. Unless the account-holder instructs otherwise,

Last Day to Backdate Illinois Marriages — May 29

ThinkstockPhotos-88063929On Wednesday, the Cook County Clerk issued a statement reminding couples that the last day for same-sex couples in Illinois to backdate marriages to the date of their civil unions will sunset tomorrow, May 29.

Illinois’ gay marriage law took effect on June 1, 2014 and provided for the ability to backdate marriages for a period of one year.

Will New York State Join the List of Directed Trust States?

Will New York State Join the List of Directed Trust States?

May 26, 2015

Authored by: Stacie J. Rottenstreich and Karin Barkhorn

statuteoflibertyThe New York State legislature is considering becoming a directed trust state. In a directed trust, the trustee is allowed to act under the advice or direction of someone else, an advisor or protector, who could make decisions regarding investments, distributions or other trust matters. Earlier this year, the New York State Senate referred a bill to its Judiciary Committee which would expressly allow grantors to establish directed trusts in New York State and sets out general parameters for such trusts.

Proposal to Reform New York State Estate Tax System

Proposal to Reform New York State Estate Tax System

January 26, 2015

Authored by: Stacie J. Rottenstreich and Karin Barkhorn

177572431As reported on this blog last year, New York State modified its estate tax system by gradually increasing the estate tax exemption along with some other changes. The hope and intent were to keep New York State’s estate tax more competitive and in line with other states within the country to prevent a migration of New Yorkers from the state to avoid state estate tax. However, the language in the New York State stature which made these modifications created some significant problems for New Yorkers. The New York State Society of Certified Public Accountants, through its Estate Planning Committee, has proposed some additional reforms to the New York tax law (the “Proposal”) which attempt to eliminate some of the perceived unfairness in current New York law.

As it currently stands, for a New Yorker

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