New York Estate Planning & Elder Law Blog

Later-Life Marriages and Prenuptial Agreements

Published on: December 8, 2013 | by Ettinger Law Firm

The “Golden Years” – that peaceful time of life after retirement; a time to watch the grandchildren grow up, to take that long-awaited vacation and to….get married? Statistics indicate that both men and women are getting married later in life, and although the rate of marriage and remarriage significantly declines with age, an estimated 500,000 Americans 65 and older get married (or remarried) every year.

While marriage at any age raises a number of legal and financial concerns, individuals 65 and older who marry later in life tend to bring significantly more assets to a marriage than individuals who marry earlier in life. In addition, those entering into in these later-life marriages are more likely to have adult children, and even grandchildren. For these reasons, it is critical that those who rediscover love during their “Golden Years” be mindful that the failure of these types of marriages can create complex estate planning legal issues.

A unique problem for later-life marriages involves potential disputes between a surviving spouse and the adult children from a previous marriage. Most states require that a portion of the deceased spouse’s estate pass to the surviving spouse. This portion is known as the elective share. In New York, that share is equal to 1/3 of the deceased spouse‘s estate. New York, like most states, does not allow the disinheriting of a spouse to his elective share unless the spouse to be disinherited legally consents. Consequently, spouses who want to determine the terms of possession of their assets upon their death should consider creating a prenuptial agreement, one made by the spouses prior to marriage that concerns the ownership of their respective assets in the event of divorce. Without a prenuptial agreement, a “Golden Years” divorce has the potential to lead to a disastrous, and often disheartening, outcome.

Onondaga County Officially Transfers Ownership of Nursing Home to Private Firm

Published on: December 6, 2013 | by Ettinger Law Firm

The changing face of New York nursing home care continued this weekend as another county officially got out of the elder care business. As reported by Syracuse News, the Van Duyn Home and Hospital was transferred by Onondaga County to the “Upstate Services Group” — a private company that owns at least eleven other New York elder care facilities.

This transition was in the works for quite some. The news report explains how the facility has long-been plagued by accusations of poor care on top of acting as a huge financial burden for the county itself. In fact, Van Duyn was under intense scrutiny from federal regulators for its poor caregiving track record. That is on top of more than a dozen private civil lawsuits filed by former residents and their family members against the county alleging negligence.

The financial issue combined with care quality concerns led many to suspect that the 500-bed facility would be shuttered. However, with this transition to private ownership, it appears the the facility is safe–at least for now. Interestingly, one of the main concerns with sales of public facilities to private companies is the risk of a decrease in quality for residents. However, in this case, because of Van Duyn’s poor track record in the past, there were less complaints of that nature.

Huguette Clark Estate Sues New York Hospital for Exploitation

Published on: December 5, 2013 | by Ettinger Law Firm

Just when it seemed that the years-long New York estate battle related to the heiress Huguette Clark was over, another chapter develops. Last week the NY Daily News reported on a lawsuit filed by Clark’s estate against Beth Israel hospital over claims that administrators at the facility exploited the elder Clark for the institution’s own financial gain. This comes on the heels of a final settlement in Clark’s contested Will from 2005.

Exploitation Lawsuit

According to details released in the complaint, the Clark estate is seeking upwards of $100 million from the Beth Israel Medical Center which, the estate claims, was unlawfully taken from Clark by “secluding” the heiress in the hospital for decades in an effort to extract gifts from her (on top of charging rent).

Would Changes to Charitable Tax Deductions Affect American Gifting?

Published on: December 4, 2013 | by Ettinger Law Firm

Many New York residents make charitable giving a part of their estate plan. Whether for estate tax benefits to pass on values and ethics to family members and many other reasons, residents commonly set aside certain assets to go to causes about which they are passionate.

However, according to a new report from a conservative “think tank” if any changes are made to federal rules about charitable tax deductions, then one can expect total giving in the country to decrease by billions each year. Before delving into the details it is critical to point out that the group releasing the study, the American Enterprise Institute (AEI), is known as a long-time opponent of all changes which would increase tax revenues. In addition, this AEI estimate is far higher than that found in similar studies by other groups.

The Charitable Giving Report

New Decision on Valuation of New York LLC for Estate Tax Purposes

Published on: December 2, 2013 | by Ettinger Law Firm

Last month the United States tax court issues a decision in a case which caught the eye of many involved in estate planning matters. The main issues in the case, Tanenblatt v. Commission of Internal Revenue, was the value of a deceased individual’s interest in a limited liability company. As most know, estate taxes are based on the value of the total assets owned by an individual at the time of passing. Consequently, determining the exact value of items like a business interest are critical in determining the tax burden. As you might imagine, there is frequently disagreement between surviving family members and the IRS regarding the overall assessments.

LLC Value

The tax court opinion (viewed in full online here) explains how the case involves a family that received a notice of deficiency from the IRS, claiming that an additional $309,000 in federal estate taxes was due. The discord was caused by confusion over the value of the decedent’s interest in a New York LLC (the 37-41 East 18th Street Realty Co.). As the name implies, the LLC’s main asset was a building on 18th Street in New York City. In preparing their tax return, the family essentially determined the value of the building (using an income capitalization approach), added a few smaller assets, applied “net asset value” (discounts for various reasons), multiplied by the individual’s percent interest and determined the value of the share in the LLC — around $1 million.

Congressman on Future of Estate Tax

Published on: November 27, 2013 | by Ettinger Law Firm

At the beginning of 2013, a federal compromise was reached which seemed to put to rest the uncertainty surrounding the estate tax. Based on the January law, the federal estate tax excludes property up to $5.25 million this year, with that figure set in the future and pegged for inflation. The top tax rate for assets over that amount is 40%, representing a slight increase from the previous level of 35%. In addition, the new law keeps transfers between spouses tax-free and makes “portability” permanent. Portability is the tool that allows one spouse to take advantage of the other spouse’s unused exemption.

Importantly for New York residents, all of those details apply only to the federal estate tax. There are still New York inheritance taxes to consider which take effect at a far lower level–$1 million.

The Future

New Tech Tools Changing Elder Care

Published on: November 25, 2013 | by Ettinger Law Firm

The look and feel of elder care in the United States is changing. In the distant past, most care was provided by friends and family members at their own homes. Later, larger facilities (nursing homes) were built to provide more consistent care to all seniors, especially those without options for family support. Now, however, care is shifting back to the home. This change is pushed by many factors, including the rising costs of nursing home care and the preferences of individual seniors to avoid institutionalized living.

More Options Than Ever

One interesting driver of the change are advances in technology which offer increasing support options available to seniors living at home. A Huffington Post story explored the different ways that these tools are helping improve elder care. While some of the most advanced systems are still in the works, many simple tech tools are already being pushed out to greatly improve senior services.

Stepping in to Prevent Elder Self-Neglect

Published on: November 18, 2013 | by Ettinger Law Firm

Elder neglect is a concern for all New York families. When conducting long-term care planning, at the forefront of many minds is ensuring one does not end up in a poor care facility that is prone to abuse and mistreatment. With so many horror stories coming out of some nursing homes, this is a natural concern.

But believe it or not, some elder care advocates suggest that the single most prevalent problem is elder self-neglect. This refers to situations where a senior is in need of extra care for any number of daily tasks and fails to do anything about it. An Examiner story on the subject notes that, when using statistics from the Public Policy Institute of AARP, nearly fifty percent of all reported cases of neglect by be of this variety.

The Causes of Self-Neglect

Does Dementia Affect the Validity of a Will?

Published on: November 14, 2013 | by Ettinger Law Firm

If a family is dragged into a drawn-out court battle over an estate planning issue, chances are it is a “will contest.” This phrase refers colloquially to cases where one party claims that something is wrong with a will and that the legal document should be thrown out. It goes without saying that preventing this very scenario is exactly why you should talk with planning professionals as early as possible. An attorney can explain how alternative tools–like trusts–can be used to almost eliminate the risk of a will contest entirely. Alternatively, the lawyer can explain the common challenges to a will and the way to guard against them.

Guarding Against A Will Contest

Essentially, there are four main ways that a will may be rejected by a court following a challenge:

Many Same-Sex Couples Still Need to Update Plans Post-DOMA

Published on: November 7, 2013 | by Ettinger Law Firm

As we have mentioned many times before, in June of 2013, the Supreme Court’s decision regarding the Defense of Marriage Act (“DOMA”) allowed same sex married couples to receive the same federal benefits as their heterosexual counterparts. This landmark decision will have a significant impact on estate planning for same sex couples who possess significant assets. Luckily, these impacts are extremely positive and will finally provide for the equal treatment that same sex couples deserve. The Supreme Court’s decision in DOMA will have a variety of impacts, including greatly lowering the taxation rate for asset transfers between same sex spouses.

Even though the ruling came down months ago, many New York couples have yet to ensure their estate planning reflects the changes in the law. As a result, it it worth re-visiting the basics and remind same-sex couples to take time to update previous work.

DOMA Law