Welcome to Pride 2025…Or Stonewall Pt 2
I’ve been writing and speaking on LGBTQ+ rights as they intersect with estate planning and otherwise since the inception of my firm. (It’s related to my lawyer origin story.) In fact, serendipity had our firm launch on the day Illinois passed the Civil Union Act, on June 1, 2011. Then, in 2015, the U.S. Supreme Court ruled for marriage equality in Obergefell v. Hodges. Still, that ruling was a plurality, which means it could be readily overturned if the Court agrees to hear another marriage equality case, that is founded on a different and novel legal argument. Perhaps reading the tea leaves or understanding the direction of the Court, in 2022, former President Biden, signed into law the Respect for Marriage Act. The law undergirded interracial marriage, repealed the infamous DOMA, and required states with mini-DOMAs to respect same-sex marriages if the couple was married in a jurisdiction that provided same-sex marriages. So, same-sex marriage is safe, right? DOMA was signed into law in 1996 by former President Bill Clinton. The law defines marriage as a union between one man and one woman. Technically, same-sex marriage is safe, but the benefits that accompany marriage are still governed by state and federal law and the doctrines supporting states’ rights are more popular now and the Supreme Court has a different composition than it did in 2015. The results: second-parent adoptions for same-sex couples are being sought more now than ever in addition to amended estate plans that protect LGBTQ+ couples regardless of their domicile; and any other protections that can be provided by law. It is unfathomable the reverse course that LGBTQ+ rights are confronting, but the Stonewall Generation doesn’t forget. So, Welcome to Pride 2025. On September 30, 2022, the U.S.’s Financial Crimes Enforcement Network (FinCEN) issued its final rule on Beneficial Ownership Information Reporting Requirements, mandated by the Corporate Transparency Act (CTA). The rule aims to combat money laundering and terrorism by collecting and maintaining Beneficial Ownership Information (BOI) for U.S. businesses. It addresses the use of corporate structures, such as Limited Liability Companies (LLCs) by illicit actors and aligns with international efforts to combat unlawful activities. The rule outlines reporting requirements, including who must report and the violation consequences that are costly (like $500/day!). The current U.S. framework for combating money laundering and terrorism has shortcomings, making it attractive for illicit actors to create hidden shell companies. The final rule requires new covered businesses to submit timely BOI reports to FinCEN within 30 days of establishment. Existing businesses have until January 1, 2025, to submit their initial reports. Accuracy and updated information are emphasized. Reporting companies must include specific information in their initial reports, such as legal name, trade name, address, jurisdiction of formation, and EIN or TIN. They must also provide details of each beneficial owner and company applicant, including full names, dates of birth, addresses, unique identifying numbers, and images of identification documents. Corrected and updated information must be reported later. The final rule defines a “beneficial owner” as an individual who exercises substantial control over the reporting company or who owns at least 25% of the company (ownership interest). Exceptions to the definition include minor children, nominees, intermediaries, custodians, agents, employees, individuals with future inheritance interests, and creditors. If no exceptions apply, beneficial owners can be identified based on substantial control and ownership interests. The rule provides indicators of substantial control and clarifies the definition. Businesses must determine if they are considered reporting companies for purposes of the final FinCEN BOI rule. Domestic reporting companies include corporations, LLCs, or entities created by filing documents with a secretary of state or similar office. Foreign reporting companies are entities formed under foreign law and registered to do business in a state or tribal jurisdiction. The rule does not add exemptions beyond the 23 specified in the CTA. Companies must also determine the extent of their reporting obligations and maintain a record of changes in company applicant information. The definition of a company applicant is limited to one or two persons. Additionally, existing companies are exempt from providing applicant information, but new companies must comply. Complying with the final rule may be challenging, because it involves analyzing multiple individuals with ownership interests and substantial control. FinCEN has not imposed limits on the number of beneficial owners to be reported to create a comprehensive database. Small businesses may benefit from legal counsel to navigate and comply with these measures.
ABA to Judges: Obergefell Is Still the Law
FACTS. Judge Vance Day, an Oregon judge, was appointed to the bench in 2011 and, upon appointment agreed to solemnize weddings. Judge Day was re-elected to the bench in 2012. In 2014, Oregon overturned its constitutional ban on same-sex marriages. Shortly thereafter, a judicial clerk and assistant asked Judge Day whether he would perform same-sex marriages because of the judge\’s view that marriage was only to occur between one man and one woman. In response to that question, Judge Day created a screening process whereby if he was asked to perform a marriage, his staff was to try to ascertain whether the couple were a same-sex couple. If the couple were a same-sex couple, then the staff was instructed by Judge Day to tell the couple that the judge had a scheduling conflict. If the couple was straight, then the staff could schedule the ceremony. There was only one incident in which the screening took place and a same-sex couple was identified. And on that occasion, Judge Day had a legitimate conflict. ANALYSIS. Judge Day’s behavior was brought before the Oregon Commission on Judicial Fitness and Disability and he was charged with violating a Judicial Rule of Conduct. Judge Day argued that he had not discriminated against any known parties so he could not be reprimanded. The Commission disagreed, explaining that performance was the low bar for judges and that the additional bar judges must abide by is the appearance of impartiality. Judge Day then contended that because his screening process was internal, the appearance of impartiality was sustained. Wrong. The staff knew what he was doing and so he failed that test. The Formal Opinion explained 2 of the cardinal rules of judges’ conduct are to (1) perform their duties impartially and (2) not promote or appear to promote favoritism for certain classes or segments of society. To follow these rules, judge must not evince bias based on “race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.” And this is an in-exhaustive list. CONCLUSION A judge who performs marriages for opposite-sex couples cannot refuse to perform marriages for same-sex couples. The Formal Opinion even hearkened back to Obergefell v. Hodges, explaining that Obergefell is still the law and the Model Rule of Judicial Conduct requires judges to comply with the law. The Formal Opinion did acknowledge the fact that the Obergefell and infamous Masterpiece Cakeshop decisions considered the issue of deep convictions regarding the concept of marriage. BUT, the Formal Opinion, concluded judges are officers of the law beholden to the model rule. Either marry all or none.
Love Knows No Discrimination… aka Marriage Equality Snakes Pt 3
In the springing steps of new love, newlyweddedness, and newborns, we become absorbed with, like my spouse likes to say, the “bubble and squeak” of it all. And as the bubbles grow fewer and the squeakiness turns to creakiness in the golden and platinum years, we start to plan our farewells and what that should look like in honor of our loving relationships. That planning is sometimes truncated by accelerated medical challenges but more often than not, the planning is executed without much challenge. Loved ones are able to celebrate the dearly departed in dignity and honor and friends and family join in the celebration and do what they can to console and uplift the grieving. That is, this is the farewell achievable for couples who resemble couples of 40 years ago. For LGBTQ couples, who are even lawfully married, post Obergefell, planning farewells is often not that easy. The heartbreaking story of Jack Zawadski and Bob Huskey illuminates this additional post-Obergefell challenge: Jack and Bob were a loving couple of more than half a century. Upon retirement, they moved from Colorado to Mississippi and were married in 2015, shortly after the Obergefell ruling. Before moving to Picayune, Mississippi, Bob was diagnosed with a cardiac condition that worsened to the point that, ultimately, during the last few years of his life, Jack became his caregiver. A year after marrying, the couple acknowledged that Bob’s death was imminent. He was eventually placed in a nursing home near the couple’s community in Picayune. So Jack could focus on his last days with Bob, John, Bob’s nephew and dear friend of the couple, took on the responsibility of searching for a funeral home that could provide services in Picayune. Services in their community meant Bob’s body would not have to be transferred far and the couple’s friends and family could focus on helping each other through the grieving period. Searching online, John found the Brewer Funeral Homes. He contacted the Funeral Home and entered into a verbal agreement with the owners, Ted and Henrietta Brewer, for their services. The parties agreed to price, logistics of signing the paperwork, transportation of the body, and disposition of remains. The Brewers told John that they just needed the nursing home to contact them when Bob died and everything would be properly handled. The funeral home’s paperwork required the signature of next of kin. Bob died and Jack signed the paperwork as surviving spouse. When the Brewers received the paperwork indicating Jack was next of kin as surviving spouse, that they would be servicing a gay couple, they absolutely refused to provide the agreed upon services. John eventually found services 90 miles away. However, Bob’s body had to be moved from the nursing home before that service was available, so another funeral home was required to be involved to “hold” the body. Furthermore, because everything was last minute and far away, friends from Picayune couldn’t attend the services. Needless to say, this is not what Jack and Bob had wanted. So Jack and John sued the funeral home, alleging Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Breach of Contract, and Negligent Misrepresentation. Unfortunately, Jack died in December of 2017 and a petition was filed to substitute John as a plaintiff. Then Masterpiece Cakeshop was decided… However, another case was decided a few days after Masterpiece Cakeshop that may have truncated its reach and another legislative attempt to undermine the rights of LGBTQ families was recently thwarted. So, more to come. For now, we hope that people realize that estate planning isn’t just about getting valid instruments in order, especially if your family doesn’t resemble the other 80% of American families. This is the third part of a series, Marriage Equality Snakes, examining jurisprudence that undermines the rights of LGBTQ couples to marry and have families. Part 1 ~ Part 2
So Like, What Is It with Using Children? AKA Snakes Pt. 2
Continuing our examination of challenges to marriage equality, let’s consider the D.C. case, Marouf v. Azar, where the issue is whether the federal government, on the basis of religious freedom, violated the Constitution by using taxpayer dollars to fund services that discriminated against lawfully married persons. Two lesbian, married couples, and federal taxpayers have challenged the federal government because part of their tax payments (actually part of all U.S. taxpayers\’ dollars) is used to fund programs that discriminate against them with respect to adoption and foster parenting. Most readers probably know by now, because of recent events, that the federal government provides care to refugee children who reach the U.S. without a parent or legal guardian; the care is provided via the Unaccompanied Refugee Minor Program. The government further provides assistance to children who arrive without a parent or legal guardian and have no legal status through the Unaccompanied Children program. Homeland Security initially seizes children in both programs and transfers them to the Office of Refugee Resettlement program (ORR), which is governed by the U.S. Health and Human Services Department (HHS). ORR then places the children in foster homes or with adoptive parents and provides other care through religious organizations such as the organization at issue in this case, the United States Conference of Catholic Bishops (USCCB). The USCCB openly denounces LGBTQ persons and families because of the organization’s religious doctrine and clearly provides this denunciation in its application for funding from the federal government. Yet, ORR provides grants comprised of taxpayer dollars to the USCCB despite the organization\’s discriminatory policy and, in so doing, violates its parent agency’s – HHS’s – grantmaking rules because HHS follows the law settled by Windsor and Obergefell. One couple, Fatma Marouf and Bryn Esplin, and filed a lawsuit based on these facts after they tried to apply for adoption through USCCB and, during a telephone interview, were denied the opportunity to continue the application process. Fatma and Bryn were told that they were unsuitable because their family did not “mirror the holy family” and thus, were unqualified to foster parent or adopt. In response to this clear discrimination by an organization funded by the federal government, as of February 2018, Fatma and Bryn are seeking redress alleged violations of their rights under the Establishment Clause, the Equal Protection Clause of the Fifth Amendment, and the Substantive Due Process Clause under the Fifth Amendment. Really…what is it with keeping children from being loved by lawfully, married couples?
The Snakes Surrounding Marriage Equality, Pt. 1
We would usually post a rainbow or something uplifting for PRIDE, but this month, we\’ll leave rainbows for the parade… Because, ironically, as we celebrate PRIDE 2018, the LGBTQ community is facing an erosion of rights established by long and hard-won battles. So, as I join the community in celebration, I also underscore the “not quite” response I gave to colleagues, who, when Obergefell v. Hodges was decided, quipped that the LGBTQ community\’s issues with respect to discrimination were primarily over. Like so many groups that continue fighting discrimination – explicit and implicit, the LGBTQ community will score one victory against the venomous discrimination snake just to see the head of another emerging from its hole. Furthermore, because several respected institutions that once stood for “justice for all” are now politicized and fractured, I recently shared analyses of the marriage equality jurisprudence post Obergefell to emphasize that discrimination against LGBTQ families and individuals is still rampant: Post Obergefell Challenges: First Amendment Constitutional Claims When I first read the Masterpiece Cakeshop pleadings, the short hairs on the back of my neck stood up. And as I presented this case the morning of June 4, lightning struck those hairs as my concerns, unfortunately were shown to be well-founded. The issue in Masterpiece Cakeshop, Inc. v. Craig and Mullins was whether an exception in Colorado law prohibiting sexual orientation discrimination could be made because of a business owner’s religious beliefs. That discrimination against customers should be illegal is a no-brainer, right? Well… Jack Phillips, owner of Masterpiece Cakeshop, refused to make cakes for LGBT couples because of his religious beliefs. LGBTQ couples filed a complaint against Phillips with the Colorado Civil Rights Commission, arguing that Phillips’s refusal to bake cakes for the LGBTQ community violated Colorado’s state law that prohibits discriminatory action based on sexual orientation. Phillips’s response was audacious: Instead of denying his actions were discriminatory, he asked that his behavior as a business owner in the marketplace be excused because his business was small and too inconsequential for the State to be concerned with. Phillips’ overall contention amounted to a legal, ‘so what?’ The couples disagreed with Phillips’s minimalist argument, responding that (1) the discriminatory action has been illegal since the 1960s; and (2) Phillips’s religious beliefs could not be allowed as a basis to create an exception because the history of intolerance based on religion illuminates the horror such unfettered intolerance has wrought. The Commission found in favor of the couples. Score one for the good guys. Phillips, of course, appealed. On appeal, the couples’ brief explained how debate has continued regarding religious beliefs and discriminatory action but the law was clear: Action such as Phillips’s was illegal in the marketplace. Also, Phillips’s contention the State’s interest was marginal was bunk because Colorado has thousands of LGBTQ residents and families, despite the fact that Colorado has a storied history with respect to its discrimination against the LGBTQ community. Yet, even setting that fact aside for the sake of argument, the additional fact that the commercial marketplace must be open to all, free of discrimination, still remains. Business owners’ religious beliefs should not determine the sales strategy of a for profit, commercial enterprise. To allow such discriminatory action would undo more than 50 years of precedence. The Colorado Appellate Court agreed. Score two for the good guys. However, one could already see the snake tracks of discrimination heading toward LGBTQ rights after the Hobby Lobby decision was announced in light of Windsor. In Burwell v. Hobby Lobby Stores Inc., the U.S. Supreme Court examined 2 for-profit, closely-held corporations’ claims that the Religious Freedom Reformation Act’s mandate to provide healthcare, including access to contraceptives, violated the corporations’ First Amendment and statutory rights to freedom of religion by forcing them to provide health insurance coverage for abortion-inducing drugs and devices, and related education and counseling. The Court, taking a bite at women’s reproductive rights – or more broadly, individual rights – ruled in favor of the corporations. The Roberts Court is becoming known for its narrowly drawn Opinions, such as the Hobby Lobby decision, addressing one part of a case, while ignoring another. So, when deliberating Masterpiece Cakeshop, the Court’s majority, as I feared, slid in discrimination, couched in religious freedom, by focusing not on the Appellate Court\’s review but on the Colorado Commission’s hearing. During the Commission’s hearing, hearing officers deliberated aloud, indicating they held a bias in favor of business persons keeping their religious feelings to themselves when serving the public in commercial settings, comments that the Court reasoned undermined Phillips’s Due Process rights. Remarkable! Phillips admitted he discriminated and so what; hearing officers rebuke this lack of respect for equality that is – or was – the law; and the U.S. Supreme Court glides past the fact that the Appellate Court’s decision was reviewed according to all the facts and law notwithstanding the Commission’s hearing, used the hearing officers’ vocal comments made in a public hearing, comments steeped in a half-century of law, to actually weaken that half-century jurisprudence. The day Masterpiece Cakeshop’s ruling was announced, legal analysts shouted over the airwaves that the decision was not very meaningful because it was decided narrowly. However, Plessy v. Ferguson was also decided on narrow grounds and has yet to be expressly overturned. Also, as Justice Harlan explained in his dissent in Plessy, the U.S. Supreme Court is the final arbiter of American law and its rulings, broad or narrow, affect laws and public policies for decades if not centuries. The majority Opinion also slipped in a state’s rights argument allowing for “outcomes for cases like this” to be decided by other courts, thereby creating a vein through which discriminatory, poisonous actions can run through our country with little impediment or cure. And so marches for equality must continue until celebrations can be fully enjoyed, without fear of snakes paralyzing equality jurisprudence. Snakes, Pt. 2 – About the Children…
The Wait Is Over: All Americans Are Free to Wed
In a plurality Opinion authored by Justice Anthony Kennedy, today, June 26, 2015, the United States Supreme Court ruled in favor of marriage equality for the country. Removing any doubt that states that did not support same-sex marriage would be able to continue to discriminate against LGBTQ couples, in Obergefell v. Hodges, the Court provided that states must (1) recognize same-sex marriages that were lawfully performed, even if outside of their states and (2) states must issue marriage licenses to same-sex couples. Accordingly, if a state did not recognize or did not provide for same-sex marriages before, it must do so now. The Court’s rationale for its ruling considered 4 principles: (1) personal choice; (2) the status of marriage; (3) the protection of children; and (4) the stability of America’s social order. This 27-page Decision downloaded here, followed by 76 pages of dissent, is based on the fundamental right to marry, which is undergirded by the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. The holding is as eloquent as it is just: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” The 62 pages of dissent begins with Chief Justice Roberts, who argues that the acceptance of marriage equality will be much more difficult to achieve because of those who were and are against marriage equality will be chaffed by the fact that their opinions are now irrelevant in the eyes of the law. He analogizes the coming “cloud” over marriage equality to that of the cloud over racial equality. It is a point well taken but, respectfully, the Chief Justice is ignoring the fact that a long-standing responsibility of the Court is to provide equality in the law where inequality exists for those who have been marginalized. The fight for social recognition, of course, is not over. However, being equal with respect to the law does not require social acceptance. Justice Scalia argues that America’s democracy is now in jeopardy. His dissent is not unusual in that he disagrees with the Opinion on the grounds of Constitutional literalism and states’ rights. It is unusual in that he equates the Court with God but then states that the Court, or the 5 activist judges comprising the majority in this Decision, is acting out of hubris. His opinion that 135 years of precedent has been overturned is quite remarkable, itself. Justice Thomas is also in his usual form, reiterating Justice Scalia’s remarks but offering for good measure a nod to the Magna Carta that just celebrated its 800th anniversary and the philosopher John Locke. The final and most brief dissent, authored by Justice Alito, is a rejection of the new norm or “orthodoxy” as J. Alito terms it. Notwithstanding the dissents, as C.J. Roberts stated, the argument – at least legally – is over; and to quote J. Kenned, “It is so ordered.” We do.
Will Marriage Equality Be Recognized Nationally?
The marriage equality march is returning the U.S. Supreme Court again this April and this time, the Court may just determine to end the continued discrimination against same-gender couples in the 14 states that refuse to allow loving, committed couples of the same gender to marry. The plaintiffs who caused the straw on the camel\’s back to break are a lesbian couple from Michigan whose case created yet another division between the 36 who get it and the 14 who don\’t. If you\’re familiar with our marriage equality work, you know we\’ve been watching and participating in the marriage equality march from our firm\’s inception. So, we are pleased that some sources report that Chief Justice Roberts may side with the plaintiffs in this case. Note, C. J. Roberts did not decide on the constitutionality of state bans in Windsor, and left himself room to join or, even pen, the appropriate decision in this case. Why? Because of Loving v. Virginia, which we and other colleagues have long argued is the fundamental legal basis for providing national marriage equality. Other legal analysts also wonder if the Court will revisit the term \”animus\” because the seminal cases involving recognizing individual rights for the LGBTQ community involve a determination of animus on the part of opponents to LGBTQ rights. The Court has allowed extra time for arguments. The decision is likely to be reached at the end of June. We are confident where the socially conservative 3 justices – Thomas, Scalia, and Alito – will stand. We are also confident where the socially liberal justices – Ginsberg, Breyer, and Kagan – will stand. Many also think that Kennedy will side with the liberal 3 but we\’re not so sure given his recent decisions on individual rights involving minorities. Additionally, Sotomayor was the intervenor for Kansas, providing opponents of marriage equality to at least temporarily prevail in upholding Kansas\’s marriage equality ban. Thus, we\’ve got a number of interesting scenarios confronting the question: Roberts votes with Ginsberg, Breyer, and Kagan and Kennedy, who sided with them in Windsor, will create a plurality allowing for marriage equality in America and thus, creating the United States of America once again, at least with this issue; Roberts votes with the liberal 3 but Kennedy and Sotomayor do not, leaving the patchwork and discrimination in place; Roberts votes with the conservative 3 but Kennedy and Sotomayor side with the liberal 3 (see plurality cited in #1); Roberts sides with the conservatives and Kennedy or Sotomayor also side with the conservatives (see patchwork and discrimination in #2). June will be a very interesting month indeed – for the LGBTQ community, for America, and for the Roberts Court legacy.
Love & the Law: A Polar Vortex Campfire Tale
Updated May 27, 2023 Amidst Polar Vortex 1 of January 2014, a group of wonderful folks and yours truly sat around a warm office, invited by IntraSpectrum , discussing LGBTQ relationship rights. I introduced them to my series Love & the Law, here, as briefly as I could and we had a great time. So, really, what does all of this mean? Well, my (former) rockstar intern, Emily Welter, boiled down my hefty remarks into a few poignant and fabulous images and take-aways: The equality fight then The equality fight later… and… DOMA … and … WINDSOR and … SCOTUS… and POTUS… OH MY! Much like Dorothy and her gang, our Nation’s lawmakers followed a harrowing yellow brick road to marriage equality for over 50 years. We have come a long way from the 1966 case of Loving v. Virginia and we made positive strides towards that “Emerald City” of equal love. Below are 8 key points to know about the legal changes that took place in 2013 – aka the “Watershed Year” – which have affected Estate Planning for today’s LGBT couples: Several States passed marriage equality laws; SCOTUS (\”Supreme Court of the United States\”) ruled in favor of lesbian surviving spouse, Edith Windsor; SCOTUS ordered the IRS to treat legally married same-sex couples the same as straight married couples; The IRS mandated equal treatment of legally married LGBTQ couples for all tax treatment; The IRS called employers to issue FICA refunds to legally married LGBTQ couples; The IRS called on other agencies to comply with the new IRS rules; USCIS removed its barrier to legally married LGBTQ immigrant spouses; AND, finally Illinois passed same sex marriage(!); SCOTUS ruled in favor of marriage equality in Obergefell v. Hodges; and President Joe Biden signed the Respect for Marriage Act, repealing DOMA and helping ensure marriage equality for all U.S. persons.
Our Readers\’ Top 5 Articles from 2013
Like most, The Shark Free Zone took a little time off to reflect over last year’s work and our readers’ preferences. So before the “reflection” month of January is over, below are the top 5 articles from 2013. Enjoy! NUMBER ONE. The popularity of our top article for 2013 may have had a little to do with its melodramatic title, “Infants, Stairwells, & Burning a Million Dollars.” The premise was less dramatic than the title, but still important: If professionals or smallbiz owners fail to protect their assets by not planning, they might as well set their income and belongings on fire. Of course, we’re not advocating arson, but if someone slips and falls on your property or a toddler visiting with Mom finds his or her way into a non-child-proof cabinet, oh woe… Click here to read the star of The Shark Free Zone for 2013 and feel free to pay it forward. TWO. \”What the Civil Union Means…to Many,\” was a spillover all the way back from 2011, providing useful information on LGBTQ couples considering or entering into Illinois Civil Unions. It\’s continued popularity was likely because it resonated with many concerned about the economic benefits that can be reaped when discrimination ends. It’s a somewhat moot now that Illinois has passed the Religious Freedom and Marriage Fairness Act, providing marriage equality to Illinois LGBTQ couples. However, the article has many relevant points, so you can read it here. Our article on marriage equality in Illinois is forthcoming, so stay tuned! THREE. Smack dab in the middle is our series, whose information, is rising to the top of the news charts as more statistics and reports are being shared daily about the large aging Baby Boomer population. We first mentioned the Baby Boomer issue, or “Silver Tsunami,” a few years ago. It is now abundantly clear to all advisors that almost everyone is or will be affected by the Boomer generation, especially families that are unprepared. Don’t get caught by the Boomer wave. Prepare for the Silver Tsunami by checking out this middle entree. FOUR. Fourth in last year’s popular articles again involved marriage equality, particularly DOMA’s undoing. Our series, “The IRS Takes a Bite Out of DOMA” highlighted the complex estate and financial planning machinations LGBTQ couples had to take before the U.S. Supreme Court’s ruling in U.S. v. Windsor and the subsequent IRS ruling 2013-17 that removed a lot of that complexity for legally married LGBTQ couples, and especially those in \”friendly\” states. Tap here to read the beginning of this important 4-part series. FIVE. Rounding out our top 5 is “The Money Talk.” Recently, a relative became engaged, which will likely happen with many couples next month on Valentine’s Day. As couples take this loving step, it’s critical to know and understand each other’s mindset as it relates to saving, spending, investing, charitable giving, and a host of other related issues. So before you say “yes” or consider putting a ring on it, consider having this conversation. So there you have it: The top interests of 2013 were about love, money, and justice. What else is there to be interested in, except a pair of good looking shoes, right?
The IRS Takes a Bite Out of DOMA, Pt 4
Last week’s article was the third in this series covering the court cases and government rulings that have been issued over the last several months. Today’s article, the last in the series, will consider migrating same-sex couples, i.e., couples who move from a state with one set of marriage equality laws to a state with a different set of marriage equality laws. With respect to marriage, all couples fall into 3 basic mindsets: lawfully married, intending to marry, or not reached the fence yet. For the sake of this article, we’ll also put states in 3 basic categories: friendly, unfriendly, and grey, such as Wisconsin. Lawfully married couples who migrate to an unfriendly state, will likely have state income and estate tax issues, presuming the state has an estate tax. If they have or plan to have children, a problem may emerge involving parental recognition and rights. Also, legal problems involving healthcare may arise, such as decision-making authority and visitation rights in medical emergencies. Lawfully married couples residing in friendly states should think long and hard before moving to unfriendly or grey jurisdictions. Married same-sex couples in a grey state should consider the worst-case scenario and take lessons from living somewhere like Alabama. One would think that the easiest advice to give married couples in a friendly state would be, “STAY PUT.” However, tax minimization and relationship recognition aren’t always the most important factors LGBT families face. Still, if all else is equal, they should STAY PUT. If a couple is engaged or intends to wed, they should consider all of the factors. Moving by itself is often a relationship destroyer, regardless of gender makeup. Add to that the stress of relationship recognition issues and stir in income tax burdens for good measure, and the couple may be divorced even before getting married. So great thought should be given to moving, especially if moving soon before or after the wedding. If a couple has yet to seriously consider marriage, they should travel together. If they begin considering marriage, they should move to a friendly state. A friendly hypothetical always helps to illustrate a point: Facts: Chris and Chaz marry in Iowa in 2010, move to Indiana, have a baby girl, Sarah, and Chris is killed in Indiana in 2012. Now Chaz’s attorney must file an estate tax return. Chris was also a transgender. Points to ponder: Was their marriage was valid? Iowa legalized same-sex marriage in 2009; they were married in 2010, so their marriage was lawful. The estate administration lawyer filed estate and income tax returns within 9 months of Chris’s death; can the income tax return be amended now? Yes; the return is inside the statute of limitations. Should the return be amended to reflect the marriage? Good question. It depends on potential advantages and disadvantages. Can the estate tax return, which was filed on June 21, 2012 be amended and should it be? Yes and it depends on a number of factors. Another hypo: If Indiana’s wrongful death statute required payment only to the spouse or children, does Chaz have standing to even claim? No, unless Chaz is willing to renounce their same-sex marriage which would be demeaning and a circumstance no one should have to endure. Also a final wrinkle is the fact that because Chris was the biological parent, Chaz would likely have to apply for guardianship before being able to act on behalf of baby Sarah as an heir. Though Windsor, Perry, and the government\’s guidance substantially increased marriage equality for LGBT couples, the decisions and rulings also resulted in more patches and landmines for migrating LGBT couples to navigate. Biting DOMA was good, but chewing the entire statute up would have been much more satisfying for those who want and deserve complete marriage equality. The IRS Bites DOMA Pt 1 | 2 | 3 | 4