Why Have an Irrevocable Trust?

Wills, revocable trusts, and irrevocable trusts are all estate planning devices. Revocable trusts are a type of trust that can be changed, modified, or revoked at anytime. This type of trust allows you to change your mind with regard to all aspects of the terms of the trust. These trusts are very flexible.

Uses of a revocable trust:

1.  Revocable living trusts avoid probate. The assets in the trust at the time of the death of the individual who made the trust pass directly to the beneficiary. The trust does not have to be probated.

2.  It is private document. Wills need to be probated. This opens up the terms of the will to review by a court. Once the will is filed with the courts it becomes a public document and other individuals can obtain copies of the will. An example is Jacqueline Kennedy Onassis’s will in Manhattan. So many people wanted to see it that it was displayed to the public mounted it under plexiglass. The details of your assets and the individuals who receive your assets remain a private matter.

3.  It establishes a plan that deals with mental disabilities such as Alzheimer’s disease and other mental illnesses that effect seniors. When you place assets in a revocable trust and the person who created the trust becomes disabled, the trustee or alternate trustee supervises the trust and distribution of the assets therein. If you do not have this type of trust or a power of attorney, it becomes necessary for your loved ones or next of kin to bring a guardianship proceeding under article 81 of the New York Mental Hygiene Law to appoint a guardian for you.

Should you have questions regarding revocable trusts contact the trust attorneys at the law office Elliot Schlissel at 1-800-344-6431 or by email.

Nursing Home Expenses & Medicaid

America has a healthcare crisis. President Obama is now battling with Congress to deal with long term issues involving healthcare.

An area of healthcare that is very often overlooked deals with what happens to Americans when they can’t care for themselves.

The best way to maintain a senior is to keep them in their home under circumstances that they are comfortable with. Seniors live longer when they can stay in their home. If they need help beyond what relatives and friends can provide, home healthcare aides can assist them. As individuals age, sometimes their needs exceed those what can be provided for them in their home.

The needs of seniors are often met by assisted living facilities and nursing homes. Assisted living facilities are generally speaking private pay living arrangements. Seniors who do not have problematic medical needs and have the financial ability to sometimes choose to live in these facilities. The cost of assisted living facilities can be anywhere from $3,000 to $7,000 per month in the metropolitan New York area.

Seniors who have greater medical needs often go to rehabilitation facilities or nursing homes. Nursing homes can cost anywhere from $8,000 to $15,000 per month depending on the level of service the senior needs. How does a middle class person go to a nursing home without all of his assets utilized to pay for his or her care?

There is a program that under certain circumstances pay for long term rehabilitation and/or nursing home stays. This program is called Medicaid. The rules and circumstances involving Medicaid are complex and detailed. The most important rule for the public to understand is that there is a 5 year look back concerning the transfer of assets.

If you have assets and you wish to protect them for future generations, it is important that you see an attorney that handles estate work. Planning can be done to insure that if you do end up in a nursing home, all of your assets including your home, stocks, bonds, pensions, 401(k) and savings won’t be utilized to pay for long term nursing care. You cannot wait until you are very elderly and sick to use this type of estate planning. It must be done a minimum of 5 years prior to the need for nursing home or rehabilitation care.

Should you have questions, contact the Law Office of Elliot S. Schlissel. We can provide you with further information concerning Medicaid and estate planning. Contact us at 1-800-344-6431 or email us at schlissel.law@att.net.

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Who Needs a Will? You Do!

Do you have assets? Do you own a house? Have you been married more than once? Do you have children from more than one relationship? Are you concerned about what happens after your death to your spouse and/or your children? Are you single? All of the above individuals need a Will.

Estate contests often develop between children from the first marriage and the second wife. Issues arise when a man or a woman has children from more than one relationship. Sometimes loved ones have financial difficulty and the possibility of receiving assets in an estate brings out the worst in them.

There is a simple way to avoid unnecessary expensive litigation that can last from months or years. Write a Will! A Will states who your loved ones are, what your assets are and who will receive your assets at the time of your death. No one looks forward to dying. The thought of writing a Will is often an issue that individuals seek to put off. However, a Will should be written when you are competent and healthy not right before your death.

Attorneys that handle Wills & Estates prepare Wills. They are generally speaking inexpensive documents to have prepared. They simplify your end of life issues and allow your assets to pass in an orderly manner. Wills cut down on financial disagreements developing among your heirs and loved ones.

If you die without a Will your assets pass to your loved ones through administration proceedings. These proceedings can be time consuming and tedious. More than one person can request to be the Administrator of your estate. This can lead to arguments, bad feelings and increased attorney’s fees.

If you have assets or loved ones, you need a Will! Have it written by an attorney before you are too sick and old to deal with it.

Should you have questions regarding drafting a Will, feel free to call the Law Office of Elliot S. Schlissel to discuss these issues at 1-800-344-6431 or email us at schlissel.law@att.net.

Getting a Common Law Marriage Recognized in New York

Common Law Marriage Versus Regular Marriage

The majority of states have laws establishing that marriages are only recognized when created with a marriage license and an official marriage ceremony. This is very important because many rights are dependant on the existence of a valid marriage. For instance, only a wife is entitled to an equitable share in the couple’s marital property and only a husband in a valid marriage will  inherit from his wife if she dies without a Last Will and Testament. 

Many situations exist, however, where a couple lives as husband and wife without ever formalizing their relationship with a marriage license and ceremony. This is referred to as a “common law marriage.” The parties will only have marital rights if their common law marriage is valid in one of the few states that still recognize common law marriage. Those states include Pennsylvania, Alabama, Colorado, District of Columbia, Georgia (if created before 1/1/97), Iowa, Kansas, Montana, New Hampshire (for probate purposes), Oklahoma, Rhode Island, South Carolina, Texas, Utah, Ohio, and Florida (if created before 1968). 

New York’s Recognition of Out-of-State Common Law Marriages

Even where a couple lives in a state like New York that has abolished common law marriage, if the marriage is valid in a state that does recognizes common law marriage, then New York would recognize the marriage as well,[1] pursuant to the “full faith and credit” clause of the Constitution. 

For instance, if a common law married couple lived in New York, and merely vacationed briefly in a state like Pennsylvania that does recognize common law marriage, New York State courts may very well recognize that marriage as valid.[2] This is because “Pennsylvania [does] not require that the couple reside within its borders for any specified period of time before their marital status will be recognized.”[3] 

Not only that, but “behavior in New York before and after a New York couple’s visit to a jurisdiction that recognizes common-law marriage, like Pennsylvania, may be considered in determining whether the pair entered into a valid common-law marriage while cohabiting, even briefly, in the other jurisdiction.”[4] Evidence of either actual cohabitation in Pennsylvania (like hotel receipts) or the renewal of the private marriage vows in Pennsylvania would still be required.[5] 

Because New York only recognizes a common law marriage where that marriage is valid under the laws of a state that validates common law marriage, it is important to understand what the elements of a common law marriage are in that state. This will determine what one must prove in order to have the marriage recognized in New York. Using our Pennsylvania law example, there is one primary requirement that must be met to validate a common law marriage. 

Common Law Marriage Under Pennsylvania Law

“A common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that.”[6] “Present tense” means that there must be evidence that the couple made a verbal commitment to enter a marriage at the time of that verbal statement. This means that making statements affirming or acknowledging a pre-existing marriage status or verbally expressing the intent to get married in the future do not qualify. 

Where one or both of the parties are unable to testify that words were spoken in the present tense to create a marriage status, Pennsylvania law will create a rebuttable presumption that a common law marriage exists when the party alleging the existence of the common law marriage offers “sufficient proof” that the couple was in (1) Constant Cohabitation and a (2) reputation of marriage “which is not partial or divided but is broad and general”[7] 

Interestingly, in September of 2003, the Commonwealth Court of Pennsylvania in its PNC Bank decision purported to abolish all common law marriage going forward, after the date of that case.[8] However, other Pennsylvania courts may not be bound by its decisions,[9] and the Supreme Court of Pennsylvania declined to abolish common law marriage, deferring that decision to the legislature.[10] 

But even assuming that the PNC Bank decision were binding, many common law marriages will still survive. If the facts that gave rise to the common law marriage took place before September 13, 2003, when PNC Bank was decided, the marriage would still be valid.[11] This means that if the couple made their private statements creating the marriage, cohabited in Pennsylvania, and had the general reputation of being married prior to Sept. 13, 2003, then their common law marriage would still be recognized under Pennsylvania law, even if PNC Bank were held to be binding precedent. 

Conclusion

If a couple has (1) made statements to each other to effect their marriage, (2) has lived together continuously (and at least temporarily on vacation in a state like Pennsylvania that recognizes common law marriage), and (3) has held themselves out and has had the reputation generally of being husband and wife, then New York Courts may indeed recognize their marriage as valid for the purpose of equitable distribution in divorce, a spousal share in an estate, and many other purposes. 

As always, these legal issues are complicated, and it is worth noting that our office has extensive experience in matrimonialand estate law. If you need legal representation in general, or if you find yourself in a situation where you may have legal rights under the theory of common law marriage in the divorce or estate contexts, please do not hesitate to contact our office.

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[1] See, e.g., In re Steiner, 786 N.Y.S. 2d 83, 84 (N.Y. App. Div. 2nd Dept. 2004); Sears v. Sears, 700 N.Y.S. 2d 626, 627 (N.Y. App. Div. 4th Dept. 1999); Lancaster v. 46 NYL Partners, 651 N.Y.S. 2d 440, 443 (N.Y. App. Div. 2nd Dept. 1996); Tornese v. Tornese, 649 N.Y.S. 2d 177, 178 (N.Y. App. Div. 2nd Dept. 1996).

[2]Tornese at 178.

[3]Carpenter v. Carpenter, 617 N.Y.S. 2d 903, 904  (N.Y. App. Div. 2nd Dept. 1996); In re Landolfi, 727 N.Y.S. 2d 470, 472 (N.Y. App. Div. 2nd Dept. 2001).

[4] Carpenter at id.; In re Landolfi at id.

[5]In re Landolfi at id.

[6]Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 (1998).

[7] Id.

[8]PNC Bank Corp. v. Workers’ Compensation Appeal Board, 831 A.2d 1269, 1272 (Commw. Ct. Penn. 2003).

[9]Stackhouse v. Stackhouse, 862 A.2d 102, 104-05 (Pa. Super. Ct. 2004).

[10]Staudenmayer at 1020 (1998).

[11] Id. at 108.

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Cremation or Burial – Autopsy or Not – Who Decides?

Robert Harper, of the NY Trusts & Estates Litigation blog, recently wrote about the law as it relates to the right to decide how human remains are disposed of in New York. The article quoted NY Public Health Law § 4201(2)(a), which identifies an order of priority of who has the right to direct how a deceased person’s remains are disposed of.  An individual may execute a document specifying whom she wishes to decide issues related to how to dispose of her body, but if no such written instrument exists, then the individuals listed in § 4201 determine the order of priority.

Other important issues exist regarding how a loved one’s body is treated after death as well regarding whether a body is autopsied or cremated.

Cremation

With regard to the decision whether bury or cremate an individual’s body, there is an order of priority for how that decision is made, as noted above, and there is an exception to the rule.

1.      If the decedent left a document specifying how her remains should be disposed of (i.e. burial versus cremation), then that document controls. NY Public Health Law § 4201(2)(a)

2.      If no such document existed, but the decedent’s actions or expressed wishes dictated how her body should be handled after death, then those wishes control, even over the objections of family members. Application of Hillard, 91 N.Y.S. 2d 547, 549 (N.Y. Sup. Ct. 1944).

3.      If the decedent had no discernable wishes as to how her body should be disposed of, then the statutory order of priority determines which relatives decide how the decedent’s body is disposed of. NY Public Health Law § 4201(2)(a)

However, there is an exception to the order of priority listed in the § 4201. For instance, a surviving spouse and children are high in the order of priority to decide how a body is disposed of us a surviving spouse, but where there is evidence that the decedent was estranged from his or her spouse or children, the courts look beyond those individuals to decide how a decedent’s body should be disposed of. In re Solomon, 766 N.Y.S. 2d 294, 295 (N.Y. Sup. Ct. 2003).

In one relatively recent Nassau County Supreme Court case, a deceased person’s estranged wife and daughter were planning to have him cremated, and his body was already in the custody of a crematorium. Based on testimony that the decedent led a somewhat observant Jewish life, and based on the expert testimony of Rabbi Moshe Weinberger that orthodox Jews consider cremation unacceptable, the court held that evidence of the decedent’s desire to have a traditional Jewish burial overcame the wishes of the surviving spouse and daughter, the provisions of § 4201 notwithstanding. Id.

The Performance of an Autopsy

NY Public Health Law § 4210 gives the medical examiner the power or right to perform an autopsies on, “… the bodies of persons dying from… casualty, … suddenly when in apparent health, … or in any suspicious or unusual manner.” But § 4210-c(1) states that absent some compelling public policy need, “no dissection or autopsy shall be performed over the objection of a surviving relative … that such procedure is contrary to the religious belief of the decedent, or, if there is reason to believe that a dissection or autopsy is contrary to the decedent’s religious beliefs.”

Absent one of the circumstances specified in § 4210, the medical examiner may not do an autopsy on a body without notice to the family of the deceased. Dick v. City of New York, 2002 WL 31844745, *3 (N.Y. Sup. Ct. Oct. 30, 2002). However, “the burden is upon a decedent’s next of kin to convey a religious objection to the medical examiner’s office” were the death occurred in some unusual manner, or upon notice, absent some unusual or suspicious circumstances surrounding the death.” Id.

If an autopsy is performed despite notice that there are religious objections, the hospital may be held liable for civil damages. In Rotholtz v. City of New York, 582 N.Y.S. 2d 366, 367 (N.Y. Sup. Ct. 1992), the decedent’s brother informed a doctor at Lenox Hill Hospital that an autopsy should not be performed on his sister, but the hospital failed to convey this message when it turned the body over to the medical examiner, who performed an autopsy. The court there held that the hospital was responsible because when it failed to inform the medical examiner of the family’s religious objection to the performance of an autopsy, it thereby “caused or procured” the unauthorized autopsy. Id. at 670.

The Appellate Division reinstated a jury’s decision to award a surviving family $75,000 compensatory damages and $1,350,000 in punitive damages when an employee at Riverside Chapels caused the medical examiner’s office to perform an autopsy even though the family had told Riverside employees that they were orthodox Jews and that no autopsy should be performed. Liberman v. Riverside Memorial Chapel, Inc., 650 N.Y.S. 2d 194, 197-99 (N.Y. App. Div. 1996).

Conclusion

The safest way to ensure that one’s wishes regarding how his or her remains are disposed of after death will be honored is by executing a Will which makes those wishes clear. The named Executor will be able to ensure that the appropriate people know of your wishes. And as for family members, even though it is a very difficult time after the loss of a loved one, miscommunications can be avoided more easily if everyone they speak to at the hospital, the nursing home, and the medical examiner’s office (if they are involved) are made aware of your wishes with regard to how the deceased’s body should be treated.

And of course, if you need assistance with any estate planning documents like Living Wills, Powers of Attorney, Wills, or Trusts, our office has extensive experience with these documents. Feel free to contact our office at any time for assistance.

Picture courtesy of the Hoven Funeral Home. 

Update 8/26/09: Indiana Creates Funeral Planning Directive

Who Needs An Estate Planning Attorney? – Video

Our office maintains a very large Wills, Trusts & Estates and general Elder Law practice. See the video above and our New York Wills and Trusts website for more information.

N.Y. Validates License-less Religious Marriages But Not N.J., Unless…

Prof. Howard M. Friedman, at the Religion Clause blog, has posted another very interesting case relating to New York Domestic Relations Law.

He reported on the case of Matter of Farraj, decided by the Surrogate’s Court in Kings County last week. In that case, Rabaa M. Hanash, the decedent Daoud Farraj’s wife, petitioned the court for an accounting of her husband’s estate. An adult child of the decedent, Saed Farraj, claimed that Rabaa had no standing to compel the accounting because she was not legally married to the decedent.

He claimed that this was the case because the couple did not obtain a marriage licence and were married in a Muslim ceremony in New Jersey, though they actually lived in New York. And according to New Jersey law (N.J. Stat. § 37:1-10) a marriage is absolutely void  if a the couple fails to obtain a marriage license before the ceremony. He argued, therefore, that Daoud and Rabaa’s marriage was void and that consequently, Rabaa was not a spouse with standing to petition to compel an accounting in her husband’s estate.

The Surrogate held that the validity of the marriage in question is governed by New York law,  and not New Jersey law, because the parties maintained their domicile in New York. Under New York law, marriages performed in religious ceremonies are recognized as valid even if no marriage license is obtained. The marriage between Radaa and Daoud was therefore valid under the governing New York law, so the court held that Radaa had standing to petition for an accounting in her husband’s estate proceeding.

I would like to consider the a slight variation on these facts though, to show that even though New Jersey law invalidates marriage ceremonies performed without a license, a New Jersey court would still validate the marriage in this case.

Normally, a New Jersey court would only have jurisdiction over an estate proceeding in the above-mentioned facts, if the parties’ primary domicile was in NJ. And if they had jurisdiction, they would have invalidated the marriage because the marriage ceremony took place without a license. But let’s say the couple had a vacation home in New Jersey and therefore had to do an ancillary probate proceeding in New Jersey to dispose of the home. In such a case, their domicile would still be in New York, but a New Jersey probate court would still have jurisdiction in the ancillary probate proceeding for the NJ vacation home.

Under those facts, if someone challenged the wife’s standing, a New Jersey court ought to agree that the couple’s marriage was valid under New York law (where the couple were domiciled) and therefore that the wife has standing as a widow of the decedent. It should further consider the couple’s marriage to be valid under New Jersey law, pursuant to the Constitution’s Full Faith and Credit clause (Article IV, Section 1), which obligates states to recognize  the “public acts, records, and judicial rulings” of other states. 

Because the couple was domiciled in New York, even a NJ court would hold that the marriage was valid under New York law, and by extension, under New Jersey law as well pursuant to the “full faith and credit” clause.

The New Jersey Supreme Court held in Heur v. Heur, 704 A 2d 913, 916 (1998), that “full faith and credit need not be accorded a judgment of another jurisdiction when the court issuing the judgment lacked the jurisdictional prerequisite of domicile.” Under our facts, the couple would have met the jurisdictional prerequisite of domicile in New York, and therefore a New Jersey court considering an ancillary probate proceeding  would apply New York law to determine the validity of Radaa and Daoud’s marriage. (Is it relevant that despite the couple’s domicile in New York, no New York court every officially ruled on the validity of their marriage?)

Thus, I think that were a New Jersey court to have jurisdiction over an ancilary probate proceeding under the facts, as suggested above, it would also recognize the validity of the Muslim ceremony, even without the marriage license, to give the decedent’s wife standing to petition for an accounting.

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Power of Attorney Laws Changing in New York

Spurred on by financial abuse of the elderly, New York will change its laws with regard to executing a valid “Power of Attorney” (“POA”) document. The new law will be effective September 1, 2009, although POAs executed before that date in compliance with the old law will still be valid. 

This development makes it especially important to use an attorney who activly practices Wills, Trusts and Estate law and is familiar with these significant changes in the law.

The following are some of the changes that attorneys must now consider when drafting and handling executions of General POA documents starting Sept. 1st, pursuant to the new New York General Obligations Law §5-1501:

• The principal’s signature of the POA document must be both notarized and witnessed by two disinterested witnesses.
• The agent must also sign the power of attorney and his/her signature must be notarized (although the signature does not have to take place at the same time as the principal’s signature).
• If a principal intends to give the agent power to make gifts on his behalf to anyone he has not been accustomed to giving to or which exceed $500 per beneficiary per year, he must simultaneously execute a Statutory Major Gifts Rider (“SMGR”).
• The statutory “Caution to the Principal” and “Important Information for the Agent” sections must be included.

These changes were originally set to become effective March 1, 2009, but Gov. Patterson agreed to sign off on an extension to September 1st, 2009 in order to allow attorneys to fully familiarize themselves with these sweeping changes.  So give us a call if you are planning to execute a Will, Power of Attorney, Health Care Proxy, or other estate planning document.

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Estate Administration, Sperm Donation & “Sleazy Labs”?

The New York Law Blog reported on the recent case of  Speranza v Repro Lab Inc., which was decided  by the Appellate Division, First Department, on March 3rd.

In this case, a man, Mark Speranza, deposited several semen samples with Repro Lab in advance of a medical treatment that he had reason to suspect might affect his ability to have children. In his contract with the lab, he directed that in the event of his death, the samples should be destroyed. Unfortunately, he passed away and his parents became the administrators of the estate. They paid the lab’s storage fees and sued to have the Court order the Lab  to release the sperm to them so that they could implant it into a surrogate mother and have a grandchild.

The Court found that such a result would violate NY health law, which mandates extensive testing for sperm that will be implanted in someone other than the regular partner of the sperm donor. Also, the Court found that Mark’s contract with the lab was very clear and that the lab was bound to honor that contract by destroying the sperm.

I am certainly very sympathetic to the parents’ position. Most of us cannot imagine that grief felt by parents who have lost a child. One can also imagine that the parents would want to see some continuity of their child’s life through a grandchild. But such a thing is nevertheless unhealthy on so many levels.

First, as a matter of public policy, it is wrong to make someone into a parent against their express will and without their consent, as  Mark’s parents understandably wished to do.

Second, the result Mark’s parents were suing for violates Mark’s freedom of contract. The fact that his parents had an extremely strong desire for a result different from what their son desired does not give them the right to vitiate the terms of Mark’s contract with Repro Lab.

New York Legal Update commented that it was “sleazy” of the lab to accept the storage fees from the parents while they litigated the matter with them.  They argue that they should have just destroyed the sperm right away upon Mark’s death, as per the contract. I disagree for two reasons.

One, the lab had no way of knowing that Mark’s parents would not be successful in obtaining a court order that Repro turn over the sperm. Once they destroy the sperm it is too late to go back. The lab could have been more concerned about covering its own behind in case the parents won, than about quickly fulfilling their part of the contract with Mark. Thus, I think they could have seen discretion as the better part of valor and decided to sit tight with the sample in storage until the courts settled on an answer to the question.

Second, I doubt that they were cynically pocketing the storage money for profit. Repro was a named party in the law suit and I have no doubt that their legal fees in this matter far exceeded any storage fees they received from Mark’s parents. Thus, the lab probably suffered a major loss, despite receiving the storage fees. So I see the lab’s behavior more as a way of trying to avoid liability than some kind of money-grabbing scheme.

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Elliot Schlissel Interview on NPR Re Brooke Astor

The Brooke Astor Estate is in the news again. Gerry W. Beyer, of the Wills, Trusts and Estates Prof Blog, reported that this coming Monday, March 2, the trial against Mrs. Astor’s son Tony, will begin.

It is alleged that while Tony Marshall was guardian for his mother, he swindled millions of dollars from Mrs. Astor, who was suffering from Alzheimers until her death in August, 2007.  For more information, see The Battle for Mrs. Astor, Vanity Fair, October 2008.

Elliot Schlissel, my employer, was consulted by National Public Radio for the program, All Things Considered on November, 27, 2007 regarding this matter. He can be heard starting at about minute marker 1:50 in this report on NPR.

Picture of Tony Marshall courtesy of CNN