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Full-Text Articles in Law
Freedom To Give, Devise, And Bequeath, Raymond C. O'Brien
Freedom To Give, Devise, And Bequeath, Raymond C. O'Brien
Scholarly Articles
The ability to freely give, devise, or bequeath property is commonly thwarted by persons granted standing to contest formalities and intentionalities of wills, tortious interference with an expectancy, and expanding concern over intervivos gifts and trusts due to increasing elder financial abuse. Nonetheless, there is an expanding class of older, wealthy, and independent-minded donors who seek an effective means by which they may give their wealth to whomever they wish and bypass expensive legal fees, protracted litigation, loss of privacy, and the emotional drama of court proceedings. This Article offers a suggestion of how to restrict the possibility of contest …
Creating A Trust Through Delegation, Raymond C. O'Brien
Creating A Trust Through Delegation, Raymond C. O'Brien
Scholarly Articles
Aging in America has precipitated increasing use of planning for incapacity devices, which include forms creating powers of attorneys ("POAs'). Simple forms may be found online, or they may become part of a sophisticated estate planning portfolio drafted by professionals. Resultingly, to support portability, enforceability, and protection against financial exploitation of vulnerable adults, the National Conference of Commissioners on Uniform State Laws approved the Uniform Power of Attorney Act in 2006 ("UPOAA "), which has been adopted by more than half of United States jurisdictions. One of the Act's provisions requires an express grant of authority contained within the principal's …
Proposing A Model Antilapse Clause, Raymond C. O'Brien
Proposing A Model Antilapse Clause, Raymond C. O'Brien
Scholarly Articles
The complexity of state antilapse statutes exacerbates the task of many estate planners seeking to give prudent expression to the postmortem wishes of a client. These statutes vary as to which predeceasing beneficiaries they should apply, who should be the substitute takers to benefit instead of these lapsed beneficiaries, and how to treat beneficiaries who are treated as predeceasing because of renunciation agreements, final decrees of divorce, or, when the beneficiary kills, exploits, or abuses the one from whom the beneficiary would take. Within the modern statutory framework, there exists an abundant array of testamentary devices by which a transferor …
Equitable Relief For Erisa Benefit Plan Designation Mistakes, Raymond C. O'Brien
Equitable Relief For Erisa Benefit Plan Designation Mistakes, Raymond C. O'Brien
Scholarly Articles
Since its enactment in 1974, the Employee Retirement Income Security Act (ERISA) and related insurance and disability programs provided retirement security for employees and employers, amassing more than $9 trillion in protected assets. Congress preempted conflicting state laws so as to promote certainty of distribution and ease of administration, two hallmarks of ERISA-governed plans. Nonetheless, since 1974, American society embraced spousal equality, an increased number of marriages end in divorce, and wealth most often passes through nonprobate transfers such as insurance contracts and pension policy plans. To accommodate these societal and wealth changes, states enacted statutes to provide elective share …
Selective Issues In Effective Medicaid Estate Recovery Statutes, Raymond C. O'Brien
Selective Issues In Effective Medicaid Estate Recovery Statutes, Raymond C. O'Brien
Scholarly Articles
Medicaid is a joint federal-state partnership program that provides medical care to the elderly, blind, and disabled poor. Unlike Medicare, Medicaid will pay for long-term care, leading millions of persons in need of such care to “spend-down” income or assets to qualify as sufficiently needy or poor. However, the state can eventually seek recovery of expenditures made through estate recovery programs following the death of both spouses. As it currently stands, states have no choice but to become increasingly vigilant in pursuing private funds in order to pay for Medicaid expenditures. As a result, elderly citizens and their families will …
Integrating Marital Property Into A Spouse’S Elective Share, Raymond C. O'Brien
Integrating Marital Property Into A Spouse’S Elective Share, Raymond C. O'Brien
Scholarly Articles
First, this Article begins with history, as this forms the basis of electiveshare law. It is necessary to begin with the historical basis of a spouse's right to support, and then proceed to examine how and why a spouse obtained a share of the property acquired during marriage. Second, because a spouse's rights at death were often very different from those that a spouse would obtain at divorce, it is necessary to explain the various judicial and statutory models adopted by the states to provide a modicum of protection to a surviving spouse at death. There are many models and …
Integrating Catholic Social Thought In Elder Law And Estate Planning Courses: Reflections On Law, Age And Ethics, Lucia A. Silecchia
Integrating Catholic Social Thought In Elder Law And Estate Planning Courses: Reflections On Law, Age And Ethics, Lucia A. Silecchia
Scholarly Articles
A course in elder law or estate planning encompasses many of the most profound issues that arise in human life: the contemplation of mortality, ambivalent attitudes toward property and its proper distribution, complexities in family relationships, obligations to support loved ones, anticipation of physical or mental challenges, and reflections on one’s desired legacy to loved ones. Although there is much in the Catholic tradition and in the Scriptures themselves that speaks to these questions in an indirect way, this has not often been fully explored because this field may not, on its face, have an obvious connection to religious tradition. …
Analytical Principle: A Guide For Lapse Survivorship, Death Without Issue, And The Rule, Raymond C. O'Brien
Analytical Principle: A Guide For Lapse Survivorship, Death Without Issue, And The Rule, Raymond C. O'Brien
Scholarly Articles
It is the purpose of this article to develop an analytical principle-meaning a logical approach-by which we can predict, explain, and even modify the often absent or bizarre intention of any settlor, donor, or scrivener. This intention includes future interests passing through lapse, express and implied conditions of survivorship, death without issue, and the Rule. These four subjects are treated as constant and yet are among the most complicated non-tax related issues of trusts and estates. Applying an analytical principle to them is meant to offer a concrete basis upon which the scrivener and the settlor can add related issues, …