Love, Death & Divorce: Integrating Trusts & Estates, Matrimonial Law and Financial Planning

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1 Carole M. Bass Partner, Moses & Singer LLP Jeanne Brutman, LUTCF, CFBS, CFS, CLTC, CLU Rebecca A. Provder Partner, Moses & Singer LLP : Integrating Trusts & Estates, Matrimonial Law and Financial Planning

2 1. How Promises in a Divorce Agreement to Spouse #1 May Impact Spouse #2 Child Support & Spousal Maintenance Generally, Spouse #2 does not get a credit for child support or maintenance paid to Spouse #1. In a prenup, can opt out of the general law, i.e. may provide that child support and maintenance will be paid from separate property. Modification Proceedings Spouse #2 may be dragged into a modification proceeding, i.e. involving child support. Financial disclosure may need to be provided by Spouse #2. 2

3 How Promises in a Divorce Agreement to Spouse #1 May Impact Spouse #2 Bad divorce from Spouse #1 may impact prenuptial agreement with Spouse #2. Limitations on estate planning Important to understand whether the estate planning client is under any contractual obligation to make a testamentary disposition. Always request copies of prior prenups, postnups, and divorce agreements because they often contain provisions about death and need to be coordinated with the estate plan. If the estate plan does not conform with contractual obligations, the estate may be subject to a claim by a former spouse or children of a prior marriage. 3

4 2. Custody, Divorce, and Estate Planning Documents Provisions for former spouses in Wills, powers of attorney, and health care proxys are automatically revoked upon divorce. However, these provisions are not automatically revoked upon divorce commencement. Important to remind clients to update their estate planning documents if they are involved in a divorce. Communication between advisors is key, and accountants often have regular contact with clients and can make sure that everyone is on the same page. 4

5 3. The Role of Life Insurance in Divorce Settlements and Prenuptial Agreements Life insurance can secure obligations under a divorce agreement, such as child support, maintenance, and a property distribution. In prenups, life insurance can be a mechanism to secure a death benefit. If there are children from a prior marriage, there are potential benefits of providing Spouse #2 with life insurance rather than leaving Spouse #2 a portion of the estate. Estate Planning & Life Insurance Trusts Can structure life insurance within a trust to mirror obligations under a divorce agreement. For example, a two pot trust can be created with share #1 for children of the first marriage depleting over time in accordance with the terms of the divorce agreement and share #2 for all children gradually increasing. 5

6 4. Can an Irrevocable Trust be up for Grabs in a Divorce Case? Maybe! Answers vary according to state law. While we may know our client lives in NY, we shouldn t assume that the client s children also live in NY. They may live in another state or move to another jurisdiction down the road. Often trust and estate practitioners and other financial advisors tell clients that putting funds in a trust for a child will protect against divorce. In practice, may not be so clear cut. Putting funds in trust for children is more protective than giving it to them outright, but it should not be assumed that the assets will be fully protected in the event of divorce. 6

7 Can an Irrevocable Trust be up for Grabs in a Divorce Case? Third party trusts (set up by parents, grandparents, etc.) Property division In NY, there is equitable distribution of marital property upon divorce. Inheritances and lifetime gifts made to one party are considered separate property, and are not subject to equitable distribution. This is not true in all states. For example, CT is an all property state and separate property can be subject to division upon divorce. If funds are actually distributed from a trust and commingled with marital assets, then they can be up for grabs. Child support & spousal maintenance Income is broadly defined under the applicable statute [DRL 236(5- a)(b)(4) and DRL 240(1-b)(b)(5)]. Trust income may be included in calculating child support and maintenance. In awarding support, the court can take into account historical distributions to the beneficiary from the trust. 7

8 Can an Irrevocable Trust be up for Grabs in a Divorce Case? Third party trust set up by a spouse for someone else (i.e. children) When a trust is formed in advance of a divorce action and both parties are informed about the trust it is difficult to pierce. Under certain circumstances, it is possible to pierce the trust or the non-grantor spouse may receive a greater percentage of non-trust assets. Prenuptial agreements Provide extra protection of trust assets and distributions. Helpful to alleviate or minimize issues that may arise by virtue of a trust beneficiary moving to another jurisdiction. 8

9 Can an Irrevocable Trust be up for Grabs in a Divorce Case? Self-Settled Trusts A self-settled trust is a trust created by a party who is also a beneficiary. Statutes vary by state regarding whether self-settled trusts provide protection from claims of support and/or equitable distribution. 9

10 5. Immigration Issues Associated with Prenuptial Agreements and Divorce Prenuptial Agreements Parties may rush to the altar, i.e. due to visa issues. If getting married too quickly for a prenup may get a postnup, but beware it is often difficult to bring parties to the table for a postnup since already married and lose bargaining power. Marriage comes with rights and obligations. Prenups can be helpful to define rights upon a divorce. Prenups can be invalidated in a sham marriage, as void against public policy. Increased exposure to prenup being set aside based on duress when rushing to get married because of immigration issues. 10

11 Immigration Issues Associated with Prenuptial Agreements and Divorce Divorce Green card as a bargaining chip. Trying to use a green card for leverage may backfire. If representing non-citizen, important to retain an immigration lawyer. 11

12 6. Transfer Tax Issues When Your Spouse is not a U.S. Citizen In 2015, annual gifts to a non-citizen spouse are limited to $147,000. Gifts in excess of $147,000 to a non-citizen spouse eat into the donor spouse s estate tax exemption. In contrast, unlimited tax free gifts can be made to a citizen spouse. Estate tax marital deduction is only available for transfers to a non-citizen spouse if the property passes to a Qualified Domestic Trust (QDOT). Can pass assets up to the exemption amount ($5.43 M) to a non-citizen spouse. With a citizen spouse, the estate tax marital deduction is unlimited. 12

13 Transfer Tax Issues When Your Spouse is not a U.S. Citizen There may be less options for structuring a prenuptial agreement if one of the parties is a non-citizen. For example, in some cases, a couple may agree to fund an account during the marriage for the less wealthy spouse or the wealthier spouse may agree to give a fixed sum to the less wealthy spouse after a certain number of years of marriage. This can become problematic if the less wealthy spouse is a non-citizen because of the annual gift tax limitations. On the death side, outright bequests can present an issue due to the restrictions on the marital deduction. 13

14 7. When To Get a Prenup A prenuptial agreement is generally beneficial for the wealthier spouse. Some of the most common reasons people need a prenuptial agreement: Protect children of a prior marriage Family business Family wealth Second marriage (bad experience with prior divorce) Marriage later in life (significant separate property) 14

15 When To Get a Prenup Divorce Statistics: Approximately 82% of all Americans over the age of 25 will marry at least once in their lifetime. U.S. Bureau of the Census See Table 57 available at 40% of all first marriages, 60% percent of all second marriages and 73% percent of all third marriages will ultimately end in divorce. See 15

16 When To Get a Prenup Benefits of Getting a Prenup: As a negotiated contract, a prenup can cover a wide variety of issues, including equitable distribution, spousal support and death benefits. A prenup is very flexible and can be tailored to the couple s individual needs. Prenups can help assets retain their separate property character and avoid or minimize issues of commingling. 16

17 When To Get a Prenup Common misconception: Prenups are unromantic and jinx the marriage. Actually: A prenup helps a couple talk about money issues up front and helps start the marriage with full disclosure and an understanding of the other party s views on money which is one of the most frequent causes of divorce and disputes within a marriage. 17

18 8. Trusts as a Prenup Alternative If a prenup is not possible, a trust may be an alternative. Why might a prenuptial agreement be impracticable or even impossible? One party will not agree. Discomfort with the requisite financial disclosures. Cultural and religious taboos. Social taboos ( jinx ). Additional protection As a contract, a prenup is subject to challenge based on fraud, duress, overreaching and undo influence. 18

19 Trusts as a Prenup Alternative Domestic Asset Protection Trusts (DAPTs): Many U.S. states have statutory prohibitions against selfsettled spendthrift trusts, but an increasing number of states (not New York) have some form of domestic asset protection legislation. For residents of DAPT states, establishing a trust prior to the marriage can be protective. It is unclear for residents of non-dapt states who establish trusts in one of the DAPT states. Statutes vary in terms of protection from claims of spousal maintenance, child support and equitable distribution. They also vary as to whether they offer protection if the trust is created after the marriage is solemnized. 19

20 9. Why Every Divorce Client Needs Estate Planning Review and change existing estate planning documents. EPTL (revocation of will and revocable trust provisions, beneficiary designations, fiduciary appointments, etc.) only applies upon divorce, judicial separation or annulment. Guardianship and trusts for children may wish to separate physical custody/guardianship from financial guardianship/trusteeship. Practice Pointer: Once a divorce proceeding is commenced neither party can change beneficiary designations on life insurance policies, change title of joint accounts or take certain other actions without written consent of the other party or order of the court. 20

21 Why Every Divorce Client Needs Estate Planning Death without a Will: Under NY state intestacy law (EPTL 4-1.1), the surviving spouse receives $50,000 + ½ of estate if the decedent has children and 100% of the estate if the decedent has no children. Under EPTL 5-1.2, a surviving spouse is only disqualified for intestacy purposes if: There is a final decree or judgment of divorce, annulment or nullity or dissolving the marriage on the ground of absence. The marriage was void. Final decree or judgment of separation. Abandonment of the deceased spouse by the surviving spouse. Deceased spouse failed or refused to support the deceased spouse. 21

22 Why Every Divorce Client Needs Estate Planning Even if Will is changed, surviving spouse retains right to claim elective share under EPTL A during pendency of divorce proceeding unless: There is a final decree or judgment of divorce, annulment or nullity or dissolving the marriage on the ground of absence. The marriage was void. Final decree or judgment of separation. Abandonment of the deceased spouse by the surviving spouse. Deceased spouse failed or refused to support the deceased spouse. 22

23 10. Beneficiary Designations on Retirement Plans, Bank Accounts and Life Insurance EPTL was revoked in 2008 and replaced by a new, more expansive section Under the prior statute, divorce automatically revoked dispositions to a prior spouse under a Will, but not under nontestamentary documents (except expanded in 2005 to revoke dispositions of securities in TOD form). New EPTL revokes dispositions to a former spouse under a Will as well as Totten trusts, life insurance beneficiary designations, lifetime revocable trusts and joint tenancy with rights of survivorship. The statute also revokes appointment of the former spouse as executor, trustee, guardian, agent or attorney-in-fact. Only applies if the individual is divorced, judicially separated or if the marriage has been annulled. 23

24 Beneficiary Designations on Retirement Plans, Bank Accounts and Life Insurance Retirement Plans: Designations revoked only to the extent permitted by law (federal ERISA law can pre-empt). Under the Uniform Probate Code (UPC) there is an attempt to circumvent by providing that if pre-empted by federal law, the person who receives the property is obligated to return it or is personally liable. Former Spouse s Relatives: EPTL does not apply to disposition or appointment of former spouse s relatives. See, e.g., In re Estate of Lewis, 114 A.D.3d 203 (4 th Dep t 2014). In contrast, the UPC does revoke bequests to relatives of former spouse. 24

25 Beneficiary Designations on Retirement Plans, Bank Accounts and Life Insurance Revocation of Other Appointments: Health Care Proxy Pub. Health Law 2985 Designation of Agent to Control Disposition of Remains Pub. Health Law

26 11. When a Will and a Divorce Agreement (or Prenup) Don t Match Up When a Will and a divorce agreement or prenuptial agreement are in conflict then the spouse or former spouse, as the case may be, has a contract claim against the estate. Always request copies of prior divorce agreements, prenuptial agreements, and other relevant documents because they often contain provisions for dispositions on death and need to be coordinated with the Will. Always ask a client if he/she has a prenuptial agreement or obligations to a prior spouse under a divorce agreement as they may need to be taken into account for estate planning purposes. 26

27 12. Portability and Prenups Portability allows spouses to share their federal estate tax exclusions with one another. This can be a potentially valuable asset to be considered when negotiating a prenuptial agreement. A deceased spouse s unused exclusion amount is referred to as DSUE. A prenuptial agreement can and should include a provision addressing, among other things, whether a portability election is to be made and who is to bear the expense of filing a federal estate tax return that otherwise would not be required. 27

28 Portability and Prenups DSUE is only available if the decedent s executor makes an affirmative election on a timely filed estate tax return. If an executor is appointed for the decedent's estate, then the portability election may be made only by the executor. If there is no court-appointed executor, then any person in actual or constructive possession of any of the decedent's property may file an estate tax return to elect portability. In preparing a marital agreement, it is important to consider that someone other than the surviving spouse may be the executor of the deceased spouse's estate and that the family dynamics may be such that the surviving spouse does not have the information necessary to file an estate tax return to elect portability. Absent a provision in the prenup, the executor of the deceased spouse's estate may have no obligation to (i) file an estate tax return or (ii) make a DSUE election. 28

29 Portability and Prenups DSUE from a prior deceased spouse? DSUE will be lost if he/she remarries and the new spouse predeceases. Potentially giving up a valuable asset. Ensure ability to make lifetime gifts to use DSUE Last Deceased Spouse Rule Remarriage alone does not affect who will be considered the last deceased spouse. A surviving spouse can use the DSUE Amount from his or last deceased spouse while married to a subsequent spouse. The identity of the last deceased spouse is not affected by whether the estate of the last deceased spouse elects portability or whether the last deceased spouse has any DSUE Amount available. 29

30 13. Social Security Benefits & Divorce If a divorced individual was married for 10 or more years, he/she can receive social security benefits based upon the former spouse s employment record (even if the former spouse is remarried), provided: Unmarried; At least 62 years old; Former spouse is entitled to receive social security benefits; and Social security benefit would be less than the benefit he/she would otherwise be entitled to receive. But keep in mind: Benefit is equal to ½ of the former spouse s full social security benefit. After remarriage, benefits based on a former spouse s employment record cannot be claimed unless subsequent marriage ends (by death, divorce, or annulment). 30

31 14. Smart Structuring of Child Support and Childcare can Save Tax Dollars Child Support is tax free to the recipient. Maintenance is typically taxable to the recipient. One spouse may be less financially savvy, and get into trouble with the obligations that arise from having to pay taxes on maintenance. In some cases, may be beneficial in negotiating a divorce agreement to try to obtain a higher amount of child support because tax free. Divorce agreements should include a provision about claiming the children as dependents on their tax returns. Both parents can alternate taking the deduction or one parent can be entitled to claim the deduction every year. Deduction associated with paying for childcare. 31

32 15. Tax Issues that Arise with regard to Spousal Support and Equitable Distribution Tax consequences are taken into account in dividing assets for equitable distribution. Therefore, a dialogue between the matrimonial attorney and accountant is important. Tax refunds and liabilities should be addressed in divorce agreements. Spousal maintenance Tax treatment of maintenance paid during a divorce proceeding varies by court. With post-divorce maintenance, typically it is taxable to the recipient and tax deductible to the payor. Tax consequences of the maintenance payment must be taken into account in order to ensure the recipient is receiving an adequate amount. Less monied spouse may not be involved in handling finances during the marriage, and so it is important to clarify the taxes due on the maintenance payments since there are not withholdings. 32

33 16. What s Mine is Mine (or My Child s) Inheritances, gifts made to one party, and pre-marital assets constitute separate property under NY law. There is a presumption that property is marital property. It is incumbent upon the party claiming separate property to prove that it is separate. Laws regarding the treatment of gifts and inheritances in the event of divorce vary by state. Beware that in some states, like CT, inheritances may be subject to equitable distribution upon divorce. If separate property, such as inheritances and gifts or premarital assets, are mixed with marital assets, they are generally deemed commingled and become subject to equitable distribution. 33

34 What s Mine is Mine (or My Child s) How Prenups can help: In a prenup, the parties can opt out of unfavorable state law. A prenup can provide greater protection for gifts, inheritances and pre-marital assets. For example, a prenup may contain provisions that gifts, inheritances and pre-marital assets will constitute a party s separate property even if they are commingled with marital assets. A prenup can assist in keeping an inheritance within the family and away from in-laws in the event of death. For example, a prenup may provide the parties must leave each other at least the elective share, but in defining the estate carve out inheritances, such as a family business interest. Routine gifts to a spouse may be treated as income for purposes of child support and/or maintenance in a divorce. This can be prevented in a prenuptial agreement. Practice Pointer: As a practical matter, regardless of whether there is a prenup, it is strongly advisable to keep separate property in separate accounts in sole name and to maintain good records. 34

35 What s Mine is Mine (or My Child s) In-law proofing your estate plan: Leave property to children and more remote descendants in trust rather than outright. Lifetime trusts vs. mandatory distributions at fixed ages. Have the prenup talk with your children. 35

36 17. When To Get a Postnup Not enough time to negotiate a prenup. Revisiting the terms of a prenup after the passage of time. Change of circumstances. Fixing commingling defining separate property. Curing financial anxiety. Starting a business. 36

37 18. Prenups, Divorces, and Business Owners In NY, there is a equitable distribution of marital property upon divorce. Equitable distribution does not necessarily mean equal. Usually, there is not an equal division of the value of businesses in the event of a divorce. The business owner is typically entitled to more than 50% of its value, but the actual allocation is dependent upon the facts and circumstances of each case. Accountants can provide integral assistance in arriving at the value of a business for equitable distribution purposes. In a prenuptial agreement, the parties can contract how to divide businesses started during the marriage and how to handle the appreciation of any pre-marital businesses. 37

38 19. Why Your Matrimonial Lawyer, Estate Lawyer, Financial Planner and Accountant Need to Talk To Each Other Everything is connected so it s important to make sure a client s issues are considered from all perspectives matrimonial, estate planning, tax and financial planning. Documents prepared in one setting can impact the others, so important to have all advisors involved. 38

39 20. Offshore Accounts and Divorce There is broad disclosure in divorce cases. Generally, parties need to complete sworn statements of their net worth on which all assets, wherever located, and liabilities are to be included. Assets are required to be listed on the net worth statement whether held by a party or held in the name of a nominee. Tax return is one of the most important documents in a divorce case to help figure out the extent of the assets. If there are foreign assets, disclosure on FBAR forms becomes informative in the event of a divorce. People don t always report their offshore accounts. However, in a divorce scenario if one spouse finds out that the tax return is not accurate he/she may try to use it to his/her advantage. If this may be an issue, should educate clients about amending returns and/or the voluntarily offshore disclosure program. 39

40 21. Tax Deductions for Estate Planning and Life Insurance in Divorce There are situations where life insurance premiums are deductible and death benefits can be received income tax free: In a retirement plan as long as the table costs are taken as imputed income to receive the death benefit tax free. As a group benefit from an employer (death benefit not exceeding $50,000). For the premium payer as part of a divorce settlement. 40

41 22. Divorce, Prenups, and Social Media In prenups, there is a trend to include social media clauses. Traditional non-disclosure clauses are being expanded to include restrictions on what can be posted to Facebook, Twitter, Instagram and other social media outlets. Social media can play a role in a divorce proceeding. For example, in a child support or maintenance proceeding, if a party is claiming an inability to pay, postings on Facebook about vacations and on LinkedIn about employment success can be utilized. Likewise, in a custody case, Facebook messages and Instagram pictures can be offered as evidence. 41

42 23. Educating the Less Wealthy Spouse After a Divorce We are frequently confronted by one spouse having more knowledge and control over the finances than the other party. At times, the less wealthy spouse is left entirely in the dark, having no experience will managing money, bill payment, maintaining a budget, etc. Efforts should be made to involve and educate the less wealthy spouse to prevent or minimize a disparity, and put him/her in a better position if confronted with a divorce scenario. Divorce and new financial responsibilities that go with it can be daunting. It is important to help connect the less wealthy spouse with good advisors in order to help ease the transition. 42

43 24. How To Protect Children From a Prior Marriage in Your Prenuptial Agreement Divorce Provisions: Can limit amount that will pass to new spouse to protect children of prior marriage. Can opt out of equitable distribution Death Provisions: Limit amount that must pass to new spouse or future children. Provide for disposition to new spouse in trust to insure property passes to children upon spouse s later death. Opt out of elective share. 43

44 Questions? Contact: Carole M. Bass, Esq. Rebecca A. Provder, Esq. Moses & Singer LLP Moses & Singer LLP (212) (212) Jeanne Brutman, LUTCF, CFBS, CFS, CLTC, CLU (212) (office) (917) (mobile) Disclaimer Viewing this PowerPoint or contacting Moses & Singer LLP does not create an attorney-client relationship. This PowerPoint is intended as a general comment on certain recent developments in the law. It does not contain a complete legal analysis or constitute an opinion of Moses & Singer LLP or any member of the firm on the legal issues herein described. This PowerPoint contains timely information that may eventually be modified or rendered incorrect by future legislative or judicial developments. It is recommended that readers not rely on this general guide in structuring or analyzing individual transactions or matters but that professional advice be sought in connection with any such transaction or matter. Attorney Advertising It is possible that under the laws, rules or regulations of certain jurisdictions, this may be construed as an advertisement or solicitation. Copyright 2013 Moses & Singer LLP All Rights Reserved 44

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