American Bar Association. Section on Real Property, Trusts and Estates Spring Symposia. Non-Tax Estate Planning Considerations Group

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1 American Bar Association Section on Real Property, Trusts and Estates 2012 Spring Symposia Non-Tax Estate Planning Considerations Group Ethical Considerations for Attorneys Who Offer Financial or Insurance Products Thursday, May 3 9:45 a.m. to 11:15 a.m. Presented by: Jay D. Adkisson RISER ADKISSON LLP 100 Bayview Circle, Suite 210 Newport Beach, CA Ph: Fax: jay@risad.com Richard S. LeVine WITHERS BERGMAN LLP 430 Park Avenue, 10th Floor New York, NY Ph: Fax: richard.levine@withers.us.com ( 1 )

2 PRESENTER BIOGRAPHIES Jay Adkisson is a partner of Riser Adkisson LLP. Mr. Adkisson's practice now concentrates in the areas of creditor-debtor law, including asset protection planning, and captive insurance planning. Mr. Adkisson is the author of books on asset protection planning, captive insurance planning, and planning with equity-indexed annuities. Twice an expert witness to the U.S. Senate Finance Committee, Mr. Adkisson is creator of the anti-fraud website Quatloos.com. Mr. Adkisson was previously the Director of Private Client Services for Select Portfolio Management, Inc., a financial advisory firm in Southern California, and previously held FINRA Series 4, 7, 63 and 65 registrations and a life agent's license in California. Mr. Adkisson received his B.A. and J.D. from the University of Oklahoma. Richard LeVine is counsel to Withers Bergman LLP. Mr. LeVine s practice concentrates in the areas of income tax, gift and estate tax, and asset protection planning for domestic and foreign individuals and families, especially with respect to their investments and closely-held businesses. Recent interests include voluntary compliance involving overseas accounts and investments, the use of insurance in estate and gift planning, and pre-immigration / emigration tax planning for individuals taking up or terminating US residence or citizenship. Mr. LeVine has much experience structuring cross-border investments by individuals and closely-held companies, both inbound and outbound, and the interaction of US estate and income tax rules regarding such structures. Mr. LeVine received his B.A. with highest distinction from Northwestern University, his J.D. cum laude from Harvard Law School, and his LL.M. in Taxation from New York University. ( 2 )

3 I. INTRODUCTION The increasing sophistication and complexity of estate and individual tax planning, and concurrent sophistication and complexity of financial and insurance products that integrate into such planning, creates a desire by Clients for "one-stop shopping", i.e., a firm that both takes care of all these estate and tax planning issues as well as sells these financial and insurance products. Of course, there is a substantial incentive for Attorneys to offer financial and insurance products, since the commissions paid and/or "trails" often will substantially outweigh the ordinary fees earned for the legal planning. But where the monetary interests converge, so do the conflicts-of-interest: Is the Attorney implementing a particular type of estate plan to benefit the client or to drive commissions? What if the Attorney could use an estate planning strategy that generates no more fees, but doesn't require any financial or insurance products to implement? Then, there are the myriad questions that arise from so-called "practice groups" of Attorneys and financial planners, some groups being formally organized while others are simply cross-referral networks, and fee sharing or discounts between the participants in those groups. The bottom line is that an attorney probably can sell financial and insurance products and services, and probably can participate in certain "practice groups" arrangements -- but this landscape is chock-full of ethical mines known and unknown that threaten to blow up the Attorney's career. With a few exceptions, the Attorney's most useful tool in avoiding these mines will be the trifecta of (1) written disclosure of potential conflicts, (2) advice to seek independent counsel, and (3) written waiver by the Client. Easily said; but some Attorneys may find it unpalatable to disclose their side-commissions to their clientele. ( 3 )

4 References herein to "Rule" or "Rules" unless otherwise stated refer to the Model Rules of Professional Conduct. Caution, of course, that each state that has adopted the Model Rules has also adopted their own additions and exceptions to the Model Rules, and that specific state variations are not considered herein. References herein to "Financial Advisor" collectively includes a stockbroker, commodities broker, financial planner, life and annuity agent, property/casualty agent, and similar financial and insurance advisors. RULE 1.8 CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction. (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. ( 4 )

5 * * * Official Comment to Rule 1.8 Business Transactions Between Client and Lawyer [1] A lawyer's legal skill and training, together with the relationship of trust and confidence between lawyer and client, create the possibility of overreaching when the lawyer participates in a business, property or financial transaction with a client, for example, a loan or sales transaction or a lawyer investment on behalf of a client. The requirements of paragraph (a) must be met even when the transaction is not closely related to the subject matter of the representation, as when a lawyer drafting a will for a client learns that the client needs money for unrelated expenses and offers to make a loan to the client. The Rule applies to lawyers engaged in the sale of goods or services related to the practice of law, for example, the sale of title insurance or investment services to existing clients of the lawyer's legal practice. See Rule 5.7. {emphasis added} * * * In addition, the Rule does not apply to standard commercial transactions between the lawyer and the client for products or services that the client {emphasis added} generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities' services. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary and impracticable. ( 5 )

6 [2] Paragraph (a)(1) requires that the transaction itself be fair to the client and that its essential terms be communicated to the client, in writing, in a manner that can be reasonably understood. Paragraph (a)(2) requires that the client also be advised, in writing, of the desirability of seeking the advice of independent legal counsel. It also requires that the client be given a reasonable opportunity to obtain such advice. Paragraph (a)(3) requires that the lawyer obtain the client's informed consent, in a writing signed by the client, both to the essential terms of the transaction and to the lawyer's role. When necessary, the lawyer should discuss both the material risks of the proposed transaction, including any risk presented by the lawyer's involvement, and the existence of reasonably available alternatives and should explain why the advice of independent legal counsel is desirable. See Rule 1.0(e) (definition of informed consent). [3] The risk to a client is greatest when the client expects the lawyer to represent the client in the transaction itself or when the lawyer's financial interest otherwise poses a significant risk that the lawyer's representation of the client will be materially limited by the lawyer's financial interest in the transaction. Here the lawyer's role requires that the lawyer must comply, not only with the requirements of paragraph (a), but also with the requirements of Rule 1.7. Under that Rule, the lawyer must disclose the risks associated with the lawyer's dual role as both legal adviser and participant in the transaction, such as the risk that the ( 6 )

7 lawyer will structure the transaction or give legal advice in a way that favors the lawyer's interests at the expense of the client. Moreover, the lawyer must obtain the client's informed consent. In some cases, the lawyer's interest may be such that Rule 1.7 will preclude the lawyer from seeking the client's consent to the transaction. [4] If the client is independently represented in the transaction, paragraph (a)(2) of this Rule is inapplicable, and the paragraph (a)(1) requirement for full disclosure is satisfied either by a written disclosure by the lawyer involved in the transaction or by the client's independent counsel. The fact that the client was independently represented in the transaction is relevant in determining whether the agreement was fair and reasonable to the client as paragraph (a)(1) further requires. Use of Information Related to Representation [5] Use of information relating to the representation to the disadvantage of the client violates the lawyer's duty of loyalty. Paragraph (b) applies when the information is used to benefit either the lawyer or a third person, such as another client or business associate of the lawyer. * * * Paragraph (b) prohibits disadvantageous use of client information unless the client gives informed consent, except as permitted or required by these Rules. See Rules 1.2(d), 1.6, 1.9(c), 3.3, 4.1(b), 8.1 and 8.3. RULE 2.1 ADVISOR ( 7 )

8 In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. Comment to Rule 2.1 Scope of Advice [1] A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. * * * RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER (a) A lawyer or law firm shall not share legal fees with a nonlawyer.... (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services. (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: ( 8 )

9 (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation ; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer. Official Comment to Rule 5.4 [1] The provisions of this Rule express traditional limitations on sharing fees. These limitations are to protect the lawyer's professional independence of judgment. Where someone other than the client pays the lawyer's fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer's obligation to the client. As stated in paragraph (c), such arrangements should not interfere with the lawyer's professional judgment. [2] This Rule also expresses traditional limitations on permitting a third party to direct or regulate the lawyer's professional judgment in rendering legal services to another. See also Rule 1.8(f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer's independent professional judgment and the client gives informed consent). RULE 5.7 RESPONSIBILITIES REGARDING LAW-RELATED SERVICES (a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided: ( 9 )

10 (1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or (2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist. (b) The term "law-related services" denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer. Official Comment to Rule 5.7 [1] When a lawyer performs law-related services or controls an organization that does so, there exists the potential for ethical problems. Principal among these is the possibility that the person for whom the law-related services are performed fails to understand that the services may not carry with them the protections normally afforded as part of the client-lawyer relationship. The recipient of the law-related services may expect, for example, that the protection of client confidences, prohibitions against representation of persons with conflicting interests, and obligations of a lawyer to maintain professional independence apply to the provision of law-related services when that may not be the case. [2] Rule 5.7 applies to the provision of law-related services by a lawyer even when the lawyer does not provide any legal services to the person for whom the law-related ( 10 )

11 services are performed and whether the law-related services are performed through a law firm or a separate entity. The Rule identifies the circumstances in which all of the Rules of Professional Conduct apply to the provision of law-related services. Even when those circumstances do not exist, however, the conduct of a lawyer involved in the provision of law-related services is subject to those Rules that apply generally to lawyer conduct, regardless of whether the conduct involves the provision of legal services. See, e.g., Rule 8.4. [3] When law-related services are provided by a lawyer under circumstances that are not distinct from the lawyer's provision of legal services to clients, the lawyer in providing the law-related services must adhere to the requirements of the Rules of Professional Conduct as provided in paragraph (a)(1). Even when the law-related and legal services are provided in circumstances that are distinct from each other, for example through separate entities or different support staff within the law firm, the Rules of Professional Conduct apply to the lawyer as provided in paragraph (a)(2) unless the lawyer takes reasonable measures to assure that the recipient of the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not apply. [4] Law-related services also may be provided through an entity that is distinct from that through which the lawyer provides legal services. If the lawyer individually or with others has control of such an entity's operations, the Rule requires the lawyer to take reasonable measures to assure that each person using the services of the entity knows that the services provided by the entity are not legal services ( 11 )

12 and that the Rules of Professional Conduct that relate to the client-lawyer relationship do not apply. A lawyer's control of an entity extends to the ability to direct its operation. Whether a lawyer has such control will depend upon the circumstances of the particular case. [5] When a client-lawyer relationship exists with a person who is referred by a lawyer to a separate law-related service entity controlled by the lawyer, individually or with others, the lawyer must comply with Rule 1.8(a). [6] In taking the reasonable measures referred to in paragraph (a)(2) to assure that a person using law-related services understands the practical effect or significance of the inapplicability of the Rules of Professional Conduct, the lawyer should communicate to the person receiving the law-related services, in a manner sufficient to assure that the person understands the significance of the fact, that the relationship of the person to the business entity will not be a client-lawyer relationship. The communication should be made before entering into an agreement for provision of or providing law-related services, and preferably should be in writing. [7] The burden is upon the lawyer to show that the lawyer has taken reasonable measures under the circumstances to communicate the desired understanding. For instance, a sophisticated user of law-related services, such as a publicly held corporation, may require a lesser explanation than someone unaccustomed to making distinctions between legal services and law-related services, such as an individual seeking tax advice from a lawyer-accountant or investigative services in connection with a lawsuit. ( 12 )

13 [8] Regardless of the sophistication of potential recipients of law-related services, a lawyer should take special care to keep separate the provision of law-related and legal services in order to minimize the risk that the recipient will assume that the law-related services are legal services. The risk of such confusion is especially acute when the lawyer renders both types of services with respect to the same matter. Under some circumstances the legal and law-related services may be so closely entwined that they cannot be distinguished from each other, and the requirement of disclosure and consultation imposed by paragraph (a)(2) of the Rule cannot be met. In such a case a lawyer will be responsible for assuring that both the lawyer's conduct and, to the extent required by Rule 5.3, that of nonlawyer employees in the distinct entity that the lawyer controls complies in all respects with the Rules of Professional Conduct. [9] A broad range of economic and other interests of clients may be served by lawyers' engaging in the delivery of law-related services. Examples of law-related services include providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical or environmental consulting. [10] When a lawyer is obliged to accord the recipients of such services the protections of those Rules that apply to the client-lawyer relationship, the lawyer must take special care to heed the proscriptions of the Rules addressing conflict of interest (Rules 1.7 through 1.11, especially Rules 1.7(a)(2) and 1.8(a), (b) and (f)), and to scrupulously adhere to the requirements of Rule 1.6 relating to disclosure of confidential information. ( 13 )

14 The promotion of the law-related services must also in all respects comply with Rules 7.1 through 7.3, dealing with advertising and solicitation. In that regard, lawyers should take special care to identify the obligations that may be imposed as a result of a jurisdiction's decisional law. [11] When the full protections of all of the Rules of Professional Conduct do not apply to the provision of law-related services, principles of law external to the Rules, for example, the law of principal and agent, govern the legal duties owed to those receiving the services. Those other legal principles may establish a different degree of protection for the recipient with respect to confidentiality of information, conflicts of interest and permissible business relationships with clients. See also Rule 8.4 (Misconduct). II. OVERARCHING CONCEPTS A. Duty Of Loyalty An Attorney owes a duty of undivided loyalty to the Client. Rule 2.1. B. Duty Of Independence The advice given by an attorney must be independent and untainted by conflict. Rule 5.4. C. Duty Of Candor The advice given by an Attorney should be utterly candid, even if unpleasant to the Client. Rule 2.1. D. Written Waiver Where even the potential for a conflict of interest may exist, the Attorney is required to fully disclose in writing to the Client the potential for conflict and advise the Client to seek independent counsel on the issue, and then procure the Client's written waiver ( 14 )

15 before continuing the representation. Rule 1.8(a). Most conflicts in this area can be solved by disclosure and waiver! III. ARRANGEMENTS A. ATTORNEY AS LICENSED AGENT 1. DIFFERENT CLIENTS, DIFFERENT ROLES The situation here is where the Attorney owns another business which performs financial or insurance services for persons who are not legal clients of the Attorney. (a) Chinese Wall Here, the Attorney is required to keep the law practice separate from the other business to the greatest degree possible. (b) Disclosure Requirements The Attorney must make clear to customers of the non-legal business that legal services are not being performed and that legal protections such as attorney-client privilege do not exist for those services. 2. SAME CLIENTS, SAME ROLES The greatest problems occur when the Attorney wears multiple hats, i.e., is both the Client's Attorney and the Client's Financial Advisor. (a) Conflict Of Interest Regard Loyalty (i) Duties Owed To Client The Attorney owes a duty of complete and unfettered loyalty to the Client. (ii) Duties Owed To Company Or Broker ( 15 )

16 The Attorney may also owe certain duties to the Insurance Company or Broker/Dealer. (iii) Disclosure Requirements Rule 1.8(a) requires full written disclosure, advice to seek independent counsel, and procurement of a written waiver from the Client. (iv) Are These Conflicts Non-Waivable? Under Rule 5.7, these conflicts probably are waivable, subject to the disclosure requirements. (b) Conflict of Interest re Client Interest (i) Client's Interest In Reducing Expenses A Client has an interest in reducing the fees and expenses of planning. This can cut two ways: The commissions earned by the Attorney for financial planning may be used to offset commissions, but the Client may end up investing more money than the Client intended. (ii) Planner's Interest In Increasing Commissions (iii) Hidden Compensation: Golf Trips, Etc. (iv) Disclosure Requirements Rule 1.8(a) requires full written disclosure, advice to seek independent counsel, and procurement of a written waiver from the Client. (v) Are These Conflicts Non-Waivable? ( 16 )

17 The Conflicts probably are waivable under Rule 5.7. B. ATTORNEY FEE-SPLITTING WITH NON-ATTORNEY AGENT This area implicates Rule 5.4 which prohibits fee-sharing arrangements with nonlawyers. 1. LEGAL FEES TO NON-ATTORNEY PLANNER The situation here is where the Attorney is sharing legal planning fees with the non-attorney advisor, such as a Financial Advisor who refers the client to the Attorney for planning. The problem is often one of "I split commissions with you on financial products, so you should split commissions back with me on legal fees." (a) Fee-Splitting Not Permitted Rule 5.4(a) prohibits fee-splitting with non-lawyers. This is a disciplinable offense; disbarments have occurred for the violation of this rule. The restrictions of 5.4(a) probably cannot be cured by disclosure to and written waiver by the Client. (b) Expenses to Paid Expert or Consultant An Attorney could pay a Financial Advisor reasonable compensation for bona fide services rendered to assist the Attorney. 2. FINANCIAL/INSURANCE COMMISSIONS TO ATTORNEY Rule 5.4(c) prohibits an Attorney who accepts compensation from a third-party from being directed or controlled by the third-party. (a) Potential For Conflict ( 17 )

18 Where the Financial Advisor is paying commissions to the Attorney, there is a concern that the commissions will impair the independent advice of the attorney. (b) Disclosure Requirements Rule 1.8(a) requires full written disclosure, advice to seek independent counsel, and procurement of a written waiver from the Client. 3. ATTORNEY FEES PAID BY FINANCIAL PLANNER Rule 5.4(c) prohibits an Attorney who accepts compensation from a third-party from being directed or controlled by the third-party. (a) Potential For Conflict (b) Disclosure Requirements Rule 1.8(a) requires full written disclosure, advice to seek independent counsel, and procurement of a written waiver from the Client. (c) Independence Of Lawyer The threat of course is that the Attorney's independence will be jeopardized by the payment of fees by the Financial Planner. (i) Latent Influence Even if the payment the Attorney's fees will not directly influence the Attorney, there is always the potential for latent influence on the Attorney's decision-making, particularly if the Financial Advisor regularly pays the Attorney -- Who is the real "Client"? 4. SET-OFFS ( 18 )

19 The situation here is where the Attorney is owed commissions, and the Financial Planner expects to share in the Attorney's fees, and so there is effectively a "set off" of commissions against fees. (a) Potential For Conflict Although no money (or less money) changes hands, the potential for conflict still exists. (b) Disclosure Requirements Rule 1.8(a) requires full written disclosure, advice to seek independent counsel, and procurement of a written waiver from the Client. (c) Independence of Lawyer C. FORMAL PRACTICE GROUP WITH NON-ATTORNEYS 1. IN-HOUSE ATTORNEY FOR FINANCIAL FIRM (a) Attorney Performing Legal Work For Clients (b) Conflict-Of-Interest Issues (c) Fee Sharing Issues (d) Disclosure Issues Rule 1.8(a) requires full written disclosure, advice to seek independent counsel, and procurement of a written waiver from the Client. 2. HOLISTIC FIRM Some groups have organized themselves as one-stop-shop planning groups that offer all of legal and financial services under one roof. (a) Independence Issues ( 19 )

20 Such groups pose significant issues relating to the independent judgment of the attorney. (b) Conflict-Of-Interest Issues These arrangements are fraught with conflict-of-interest issues. (c) Fee Sharing Issues Similarly, the fee sharing within the group may violate Rule 5.4. (d) Disclosure Issues IF these conflicts can be waived, Rule 1.8(a) requires full written disclosure, advice to seek independent counsel, and procurement of a written waiver from the Client. D. INFORMAL PRACTICE GROUP WITH NON-ATTORNEYS The not-formally-affiliated practice group of mixed professionals is probably the most common arrangement. 1. MARKETING AND DISCLOSURE 2. DE FACTO PARTNERSHIP E. RECIPROCAL REFERRAL RELATIONSHIP IV. SUNDRY OTHER DISCUSSION ISSUES A. DUTIES AND RESPONSIBILITIES 1. VETTING OF AGENT 2. VETTING OF COMPANY 3. VETTING OF PRODUCT 4. REVIEW OF STRATEGY 5. REVIEW OF INTEGRATION ( 20 )

21 B. LIABILITY AND INSURANCE 1. PARTY TO WHOM LIABILITY OWED 2. INSURANCE RELATIONSHIPS 3. EXCLUSIONS AND COORDINATION C. PROFESSIONAL DISCIPLINE 1. BAR 2. FINRA 3. STATE SECURITIES REGULATOR 4. STATE INSURANCE REGULATOR ( 21 )

22 PLANNING FOR NONTRADITIONAL FAMILIES Wendy S. Goffe Graham & Dunn PC Pier 70, 2801 Alaskan Way, Suite 300 Seattle, Washington (206) (direct) Wendy Goffe is a shareholder with the law firm of Graham & Dunn PC, Seattle, Washington. She is a Fellow of the American College of Trust and Estate Counsel (ACTEC) and a member of the ACTEC Publications Committee. She has a comprehensive estate planning practice that involves all aspects of estate planning for high net worth individuals and families, advising both individuals and charitable organizations concerning planned giving, probate, and trust administration. Wendy has an extensive and constantly updated analysis of the legal and tax implications of samegender and other non-traditional family relationships, and an active part of her practice involves this work. She is a former Adjunct Instructor at Seattle University Law School. She is currently a member of the YWCA Planned Giving Committee, The Nature Conservancy Planned Giving Committee, The Seattle Foundation Professional Advisory Council, and the Children s Legacy Council of the Children s Hospital Foundation. She is a past member of the ABA Taxation Section Community Property Comment Project, the Executive Committee of the Estate Planning Council of Seattle, the Acquisition Committee of the Tacoma Art Museum, the Executive Committee of the WSBA Real Property, Probate and Trust Section, and the Ethics Committee of Valley Medical Center. She is also a past member of the Board of Directors and Grants Committee of The Women s Endowment Foundation, a supporting foundation of the Jewish Community Endowment Fund, Seattle, Washington. Materials Revised September 2011 i

23 CONTENTS Page I. Introduction...1 II. The Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of A. Estate Taxes....2 B. Gift Taxes...3 C. Generation Skipping Transfer ( GST ) Tax...3 III. Ethical Issues of Joint Representation...3 A. Separate Representation...4 B. Separate Simultaneous Representation...4 C. Joint Representation...5 D. Intermediary Representation...5 E. Documentation of Form of Representation in an Engagement Letter...5 IV. Same-Sex Marriage and The Defense of Marriage Act...6 A. The Defense of Marriage Act....6 B. Civil Union, Domestic Partnership, Designated Beneficiaries and Reciprocal Beneficiaries C. Marriage and Recognition of Marriage...11 D. Common Law Same-Sex Marriage...12 E. Same-Sex Marriage and Legal Relationships in Selected Jurisdictions F. Dissolution of the Same-Sex Marriage...21 V. Income Tax and Other Tax Ramifications of Same-Sex Marriage, Domestic Partnerships and Civil Unions...22 A. Joint Return Filing B. Commuting Community Property to Separate...27 C. State Income Tax Returns...27 D. No Federal Tax Exemptions Upon Separation, Dissolution or Death...28 E. Head-of-Household Status...28 F. Dependency Exemptions G. Obligation of Support H. Adoption Credits...30 I. Taxation of Domestic Partner Benefits...31 VI. Federal Preemption, Federal Benefits and Federal Programs...32 A. Background...32 B. Non-Spouse Rollover Provision for Retirement Plans ii

24 C. Defined Benefit Plan Survivor Annuities D. QDROs...34 E. COBRA...35 F. Social Security G. Domestic Partner Employee Benefit Hardship Withdrawals...36 H. Flexible Spending Accounts and Health Savings Accounts...37 I. Family Medical Leave Act (FMLA)...38 VII. Wills, Revocable Trusts, and Nonprobate Transfers...38 A. Wills...39 B. Revocable Trusts...39 C. Beneficiary Designations...39 D. Miscellaneous Considerations and Definitions...40 VIII. Planning for Personal Needs...44 A. Durable Powers of Attorney and Guardianship...45 B. Medical Powers of Attorney C. Health Care Directives...47 D. Mental Health Directives E. Physicians Orders for Life Sustaining Treatment...48 F. Burial, Cremation and Funeral Instructions, and Organ Donation IX. Medicare and Medicaid...50 X. Cohabitation Agreements and Related Arrangements...51 A. Background...51 B. The Law in the Absence of a Written Agreement C. Drafting Cohabitation Agreements...53 XI. Forming a Family, Parenting Arrangements A. Adoption B. De Facto Parentage XII. Methods to Minimize Taxes...59 A. Defining the Rights of Unmarried Partners to Jointly Owned Property...59 B. Adult Adoption C. The Generation-Skipping Transfer Tax...66 D. Partnerships and Limited Liability Companies...68 E. Life Insurance F. Estate Freezes and Planning Under Chapter G. Miscellaneous Strategies To Transfer Wealth Between Partners...86 XIII. Charitable Planning...89 A. Charitable Remainder Trusts iii

25 B. Charitable Lead Trusts...92 C. Charitable Gift Annuities...94 D. Pooled Income Funds...95 E. Gifts of Remainder Interests in Personal Residences and Farms F. Simple Wills and Disclaimer Planning...97 XIV. Estate Planning for the Transgender Client...98 A. Name Change...98 B. Change of Gender Identifier on Various Documents C. Tax Considerations D. Marriage E. Practice Pointers XV. Strategies to Minimize Conflict A. In Terrorem Clauses B. Statement That Omission of a Family Member Is Intentional C. Evidence of the Client s Capacity at the Time of Execution D. Periodic Re-Execution of Estate Planning Documents E. Maintain Standardized Procedures F. Confirm Intent With Respect to Nonprobate Transfers XVI. Conclusion EXHIBIT A: Chart General Rules Property and Income: Community or Separate EXHIBIT B: Drafting for Assisted Conception and Posthumously Conceived Children EXHIBIT C: Bibliography of Internet Resources The information contained in these materials is for educational and instructional use only. No warranty, express or implied, is made as to their use. Any tax advice contained in this outline was not intended or written by the author to be used and it cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer. Any tax advice contained in this outline was not written to support, within the meaning of Treasury Department Circular 230, the promotion or marketing of the transactions or matters addressed by such advice because the author has reason to believe that it may be used or referred to by another person in promoting, marketing or recommending an entity, investment plan or arrangement to one or more taxpayers. Before using any tax advice contained in this outline, a taxpayer should seek advice based on the taxpayer s particular circumstances from an independent tax advisor. Wendy S. Goffe 2011 iv

26 I. Introduction The term non-traditional family is a catch-all phrase that includes unmarried couples, either homosexual or heterosexual, with or without children. It may include a stepfamily, children from the prior marriages or relationships of one or both of the partners, and possibly mutual children of the couple, as well. Sociologists sometimes refer to these new family units as: The unblended family, stepfamilies whose children move in and out of the home following various custody decisions; the nesters, whose children remain in the family home, while the parents move in and out on a schedule; the partially-blended family where blended families may share a duplex so that they aren t actually living in the same household, but connected ones; and the Living Apart Togethers (or L.A.T. s): couples who maintain entirely separate residences. Increasingly, American adults reside in a household as members of an unmarried couple. These couples may be heterosexual or homosexual, or they may not be involved romantically in any way, such as in the case of siblings or close friends. 1 While the topic of plural or polygamous marriage is beyond the scope of this outline, it should be recognized that that many individuals espouse the idea that marriage laws should not only be changed to allow any two adults to marry, but any number of consensual adults, and that many adults live in such arrangements (while not legal), creating challenging property rights, especially in community property states. 2 State and federal laws contain default statutes giving spouses rights, including the right to handle funeral arrangements, rights under intestacy statutes, and Social Security survivor benefits. For the most part, unmarried couples -- unlike their married counterparts -- do not have a set of laws governing the division of property or providing for support payments upon the dissolution of their relationship. Children are particularly vulnerable when unmarried relationships end because of the different application of laws to unmarried couples. In the estate planning realm, unmarried couples cannot take advantage of transfer tax marital deductions under Sections 2056 or 2523 of the Internal Revenue Code of 1986 (referred to herein as the Code or IRC ), or gift splitting under IRC Members of unmarried couples may be subject to gift tax for supporting one another or dividing shared property. Unmarried couples must prepare wills or other estate planning vehicles to assure a distribution of their assets upon death in a manner different from that provided by the intestacy statute of the decedent s 1 See Ralph C. Brashier, Inheritance Law and the Evolving Family (Gender, Family, and the Law Series 2004) for an excellent examination of the historical and evolving concept of family as it relates to U.S. inheritance law. 2 See Diane J. Klein, Plural Marriage and Community Property Law, 41 Golden Gate U.L. Rev. 33 (Fall 2010) for an analysis of the various type of plural arrangements and suggestions for statutory changes to accommodate these arrangements legally and equitably. 1

27 resident state. In addition, unmarried couples, especially same-sex couples, often experience legal difficulties when arranging funerals for deceased partners. As with estate planning for any individual or couple, the issues may be divided into five categories: (i) practices to ensure that property is distributed appropriately; (ii) methods to minimize transfer taxes; (iii) charitable gift planning; (iv) planning for personal needs such as appointment of financial and healthcare decision-makers, funeral arrangements, guardianship and custody of minors; and (v) strategies to minimize conflict. Each of these topics will be dealt with below. This paper will begin with an examination of the current state of the law with respect to same-sex marriage, and a discussion of ethical issues in connection with the representation of unmarried couples. Estate planning for the non-traditional family is only a special application of general estate planning principles and practices. However, unmarried couples often require a more individualized and resourceful approach to their estate planning. There are also a number of techniques only available to unmarried unrelated adults, and those opportunities will also be discussed. The purpose of this paper is not to provide a detailed analysis of particular technical aspects of estate planning. Instead, it focuses on various estate planning tools and the objectives that they accomplish, with an emphasis on their use in connection with planning for the client in a non-traditional family. II. The Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 On December 16, 2010, Congress passed the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, Pub.L. No , 123 Stat. 444, which was signed into law by President Obama on December 17, 2010 (the Act ). The Act significantly changes the federal estate tax, which impacts estate planning for many unmarried clients. A. Estate Taxes. Before the Act, the federal estate tax was gradually reduced over several years and then eliminated for decedents dying in Prior law provided that the estate tax, with a maximum tax rate of 55% and a $1 million applicable exclusion amount, would be reinstated after The Act reinstates the estate tax for decedents dying during 2010, but at a significantly higher applicable exclusion amount of $5 million, and a lower maximum tax rate of 35%, than under prior law. This estate tax regime continues for decedents dying in 2011 and This new regime is itself temporary and is scheduled to sunset on December 31, 2012, with the prior estate tax regime (a 55% maximum estate tax rate and a $1 million applicable exclusion amount), scheduled to be reinstated. 2

28 The Act also eliminates the modified carryover basis rules for 2010 and replaces them with the stepped-up basis rules that had applied before Property with a stepped-up basis generally receives a basis equal to the property s fair market value on the date of the decedent s death. Under the modified carryover basis rules that applied during 2010 before the Act, executors could increase the basis of estate property only by a total of $1.3 million (plus an additional $3 million for assets passing to a surviving spouse), with other estate property taking a carryover basis equal to the lesser of the decedent s basis or the property s fair market value on the decedent s death. B. Gift Taxes. For gifts made in 2011 and 2012, the Act limits the maximum gift tax rate to 35% and increases the applicable exclusion amount from $1 to $5 million. This change provides an opportunity to move significant amounts of wealth free of estate and gift taxes during these 2 years. The annual gift tax exclusion continues to be $13,000 per donee. C. Generation Skipping Transfer ( GST ) Tax. The Act provides a $5 million GST exemption amount for 2010 (equal to the applicable exclusion amount for estate tax purposes) with a GST tax rate of zero percent for For transfers made after 2010, the GST tax rate would be equal to the highest estate and gift tax rate in effect for the year (35% for 2011 and 2012). The Act also extends certain technical provisions under prior law affecting the GST tax. III. Ethical Issues of Joint Representation Like married couples, non-married couples tend to seek estate planning together. So long as the estate planning process is limited to planning for the care of their children and the disposition of assets upon death, and planning for incapacity, the interests of the two parties are not likely to conflict. However, the process often extends to consideration of current ownership and transfer of assets, which are areas in which each party may have potentially adverse interests. Lawyers and clients are relatively free to define the nature of their legal representation: (i) individual representation; (ii) separate simultaneous representation of both members of a couple; (iii) joint representation; or (iv) intermediary representation. 3 When determining the appropriate type of representation, state ethics laws concerning conflicts of interest with current 3 For a thorough analysis of the various forms of representation, see Jennifer Tulin McGrath, The Ethical Responsibilities of Estate Planning Attorneys in the Representation of Non-Traditional Couples, 27 Seattle U.L. Rev. 75 (2003). 3

29 clients should be considered. ABA 2007 Model Rule of Professional Conduct [ RPC ] 1.7(b) provides, in part, that: Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; the representation is not prohibited by law; the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and each affected client gives informed consent, confirmed in writing. A state s rules of professional conduct concerning confidentiality affect the extent to which the lawyer for joint clients may disclose to one client relevant information that was communicated to the lawyer by the other client. The fact that the goals of the clients are not identical does not necessarily create a conflict that precludes the lawyer from representing both members of the couple. It is important to note that federal and state marital privileges, which generally bar a spouse from testifying as to any communications between spouses without the consent of the other spouse, do not apply to unmarried couples. 4 A. Separate Representation. Separate representation by different attorneys presents serious limitations on either attorney s abilities to plan for a couple. Neither attorney has access to full and complete information for both parties. Thus, effective gift and tax planning is difficult, if not impossible. However, this may be the only model of representation available if clients are unwilling to share confidences with each other and where separate representation of both individuals is not possible because the attorney determines that the parties are directly adverse. B. Separate Simultaneous Representation. Separate simultaneous representation of both individuals by one attorney is possible if the attorney determines that the clients will not be adversely affected by joint representation and they consent. However, it is likely that rather than enhance an attorney s ability to represent both clients, the risks of breaching the confidentiality of either client under separate 4 See, e.g., Wash. Rev. Code ["RCW"] (1). 4

30 simultaneous representation may hinder the attorney from representing either client effectively. C. Joint Representation. By far the most common form of representation is joint representation. RPC 1.7 requires an attorney to determine whether the interests of both parties may be met with this type of representation, and the attorney must believe that the potentially conflicting interests of the parties are subordinate to their common objectives. 5 As with married couples, while the interests of the two partners may not be adverse, the partners may not be in total agreement as to whether specific assets are separate property or community property. They may choose to make different beneficiary designations, before and after the death of the surviving partner. With this model of representation, the clients must consent to the sharing of information between them and the attorney, which substantially eliminates the risk that the attorney will violate the duty of confidentiality under RPC 1.6 by revealing confidences of one member of the couple to the other. 6 D. Intermediary Representation. Under certain circumstances, RPC 1.7 permits an attorney to represent two clients simultaneously, as the intermediary, if the attorney reasonably believes that this form of representation will benefit both clients, and will not materially prejudice either client. 7 However, the nature of the relationship is not as an advocate for either party. It is unclear whether representation as an intermediary may be provided within the scope of RPC 1.7 in the estate planning context; between two unmarried adults, it may be difficult to distinguish business planning from estate planning. Representation in this capacity is barred where litigation is a possibility or where negotiations are likely to be hostile. E. Documentation of Form of Representation in an Engagement Letter. Ideally, at the initial meeting with a client, the lawyer should describe the various models of representation available and determine what type of representation will best serve the client. An agreement as to the type of representation to be used should be memorialized in writing in the form of an engagement letter. A client s expectations of confidentiality, and any agreement or understanding concerning the lawyer s ability to disclose, should also be defined in the engagement letter. The letter should be signed by the attorney and countersigned by the client or clients. 5 McGrath, supra note 3, at Id. at Id. at

31 In the absence of a shared understanding of the lawyer s relationship with the clients, the lawyer should presume joint representation, and that all confidences will be shared. 8 IV. Same-Sex Marriage and The Defense of Marriage Act A. The Defense of Marriage Act. 1. Federal Legislation. The federal Defense of Marriage Act [ DOMA ], 9 specifically defines marriage as a legal union between one man and one woman as husband and wife. It further provides that a state shall not be required to give effect to any public act or judicial proceeding of any other state respecting marriage between persons of the same sex if the state has determined that it will not recognize same-sex marriages. 2. State Legislation. To date, at least 41 states have adopted statutory versions of the DOMA, or have legislation banning same-sex marriage predating the federal DOMA, and most have constitutional provisions defining marriage. 10 Washington was the 36 th state to adopt the DOMA in 1998, when it passed legislation defining marriage as a civil contract between a male and a female. 11 In 2000, California passed Proposition 22, adopting DOMA. 12 Illinois passed a statutory version of the DOMA in Challenges to DOMA. 8 See American College of Trust and Estate Counsel, Commentaries on the Model Rules of Professional Conduct 76 (4th ed. 2006); Report of the Special Study Committee on Professional Responsibility: Comments and Recommendations on the Lawyer s Duties in Representing Husband and Wife, 28 Real Prop. Prob. & Tr. J. 765, 771 (1994). 9 Pub. L. No , 110 Stat (1996) (codified at 1 U.S.C. 7 and 28 U.S.C. 1738C). 10 National Conference of State Legislatures, Same-Sex Marriage, Civil Union and Domestic Partnerships, (updated July 14, 2011). 11 RCW (1). 12 Codified at Cal. Fam. Code Ill. Comp. Stat. 5/ See (last visited July 23, 2011) for a history of analysis of the Illinois civil union, including a discussion regarding the over 600 rights and responsibilities allowed to same-sex couples in an Illinois civil union. 6