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1 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships ABA Fall 2010 Joint CLE Meeting Section of Taxation and Trust and Estate Law Division of Section of Real Property, Trust and Estate Law September 24, 2010 Toronto, Canada Linda L. Kotis Matthew J. MacLean David G. Keyko Richard S. Franklin 1 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

2 Overview Fiduciary Identification of Beneficiaries and Attendant Responsibilities Spouse or Adopted Person as Direct Beneficiary by Status, or as an Indirect Beneficiary by Beneficiary s State Law Obligations Defining Spouse and Determining Status of Adopted Persons for Inheritance Special Concerns for Fiduciaries Involving Same-Sex Relationships, Multi-Jurisdictional Issues (DOMA, Full Faith and Credit, Marriage Restraint, Divorce) Special Concerns for Fiduciaries Involving Adult Adoption (Marriage Substitute or Adult Child ) Mitigation of Litigation Risks for Fiduciaries 2 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

3 Identification of Beneficiaries and Responsibilities 3 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

4 Direct Benefits Status as beneficiary s spouse, child or descendant determines direct benefits Income or principal to my child and his or her spouse My child may appoint his or her trust among spouse, descendants and spouses of descendants To my descendants, per stirpes To my heirs-at-law Trustee s action based on beneficiary status change due to marriage, death, divorce can cause liability 4 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

5 Indirect Benefits Status as beneficiary s spouse, child or descendant determines indirect benefits State law support obligations Spendthrift trusts Consider of other resources 5 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

6 State Law Obligations Doctrine of Necessaries Common law required husband to provide wife with food, clothing, shelter District of Columbia now applies equally to spouses and domestic partners and creates liabilities Virginia applies doctrine equally to spouses but creates no liabilities Maryland Equal Rights Act overturned doctrine Nonsupport of Spouse Maryland and Virginia make nonsupport a misdemeanor Virginia imposes duty of husband to support wife and statutory liability for emergency medical care Incapacitated Adult Child Maryland and Virginia require parent to support mentally or physically disabled child after majority District of Columbia requires payment of hospitalization for mentally ill adult child 6 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

7 Spendthrift Trusts Spendthrift trust provision may not protect trust assets from claims by spouse or child Public policy favors support of dependents UTC Section 504(c) provides that court may order distribution from a spendthrift trust to satisfy a court order against beneficiary for support or maintenance of beneficiary s child, spouse, or former spouse 7 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

8 Consideration of Other Resources General Rule: Trustee should consider other resources but has some discretion in the matter General presumption that Trustee is to take into account parental duty to support minor beneficiary under local law Likely presumption that a Trustee should consider a spouse s obligation to support trust beneficiary s spouse 8 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

9 Defining Spouse and Determining Status of Adopted Persons for Inheritance 9 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

10 Defining Spouse Some trust instruments define spouse as lawfully married to beneficiary or who was lawfully married at time of beneficiary s death When no definition, Trustee must reference applicable law Does applicable law permit a particular marriage Does law recognize a marriage lawfully performed in another jurisdiction 10 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

11 Determining Status of Adopted Persons States vary on permitting adult adoption and imposing restrictions UTC and common law jurisdictions define child for purposes of trusts to include adopted child Some jurisdictions prohibit inheritance by adult adoptee if no prior relationship during minority Trust can limit descendants to biological children or child adopted by certain age, or law in effect at time trust created 11 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

12 Special Concerns for Fiduciaries Involving Same-Sex Relationships 12 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

13 Jurisdictions Allowing Same-Sex Unions States Connecticut, District of Columbia, Iowa, Massachusetts, New Hampshire and Vermont issue marriage licenses to same-sex couples New York recognizes marriages validly performed (and possibly Maryland) Foreign Countries The Netherlands, Argentina, Belgium, Canada, Spain, South Africa permit same-sex marriage Over 20 other nations recognize some form of same-sex partnership 13 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

14 Defense of Marriage Act U.S. Constitution, Article IV, 1 Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Defense of Marriage Act, 1 U.S.C. 7 and 28 U.S.C. 1738C States need not recognize same-sex marriages in other states 14 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

15 Recent Court Developments Massachusetts v. United States (D. Mass. Jul. 8, 2010) DOMA unconstitutionally denies federal benefits (joint federal-state programs) to lawfully married same-sex couples Perry v. Schwarzenegger (N.D. Cal. Aug. 4, 2010) Proposition 8 (California constitutional amendment) banning same-sex marriage violates Equal Protection and Due Process clauses 15 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

16 Multi-Jurisdictional Issues in Defining Marriage Problems in Trust Provisions Recognizing Same-Sex Unions Hypothetical: Virginia trust provides for distribution to same-sex spouse of beneficiary Problems in Trust Provisions Restricting Same-Sex Unions Hypothetical 1: District of Columbia trust prohibits distribution to same-sex spouse of beneficiary Hypothetical 2: District of Columbia trust prohibits distribution to beneficiary who enters into same-sex marriage 16 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

17 Definition of Marriage, Revisited Hypothetical: Trust in District of Columbia, beneficiary in Virginia, same-sex marriage in Iowa Court s jurisdiction over same-sex dissolution when marriage or civil union not permitted there Dickerson v. Thompson (New York 2010) In the Matter of Marriage of J.B. and H.B. (Texas 2009) O Darling v. O Darling (Oklahoma 2007) 17 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

18 Special Concerns for Fiduciaries Involving Adult Adoption (marriage substitute or adult child ) 18 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

19 Adult Adoption Duke Litigation Issue: Is adult adopted the child of Doris Duke for the purposes of two trusts one created under NY law and the other NJ law? NY Permitted adult adoption at the time the trust was created and the trust gave Doris Duke the power of appointment. If no child, then other relatives would receive the trust proceeds. NJ No law permitting adult adoption at the time the trust was created and no power of appointment. If no child, then charity to receive the trust proceeds. 19 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

20 Adult Adoption Duke Litigation Resolution NY The judge initiated settlement negotiations, appointing a mediator. The result was a comprehensive settlement and no decisions were issued on the interpretation of the NY trust. NJ The parties cross moved for summary judgment and the NJ Superior Court granted judgment for the charity. The NJ intermediate appellate court affirmed without an opinion and the NJ Supreme Court declined to review the decision. 20 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

21 Adult Adoption Watson Litigation Maine adoption where adoptee could be older than adopter. Adoptee must live in Maine. Issue Was adult adopted a grandchild under three trusts? Phase 1 Litigation in Maine to have adoption voided as a fraud. (Corporate fiduciary did not participate). Phase 2 Litigation in Connecticut to interpret trust language. (Corporate fiduciary participates). 21 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

22 Adult Adoption Watson Litigation Phase I in Maine Maine Issues Did adoptee live in Maine? Was adoption against public policy? Was court misled? Maine Results No default for failure to answer. Adoption valid based on undisputed facts. 22 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

23 Adult Adoption Watson Litigation Phase II in Connecticut Connecticut law provides that [t]he words grandchild and grandchildren when used in any will or trust instrument shall include legally adopted persons unless such document clearly includes a contrary intention. The trustees treated adopted minors as grandchildren. One of the trusts explicitly included adoptees. The need to give full faith and credit to the Maine adoption. The admissibility of extrinsic facts to interpret the trust language. 23 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

24 Planning Considerations and Mitigation of Risks 24 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

25 Mitigation of Litigation Risks Address issues prior to creating trusts Define terms when drafting trust instrument and applicable law Send trust accountings to spouses and partners to limit timeframes for beneficiary claims Change place of administration and/or governing law of trust 25 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

26 Mitigation of Litigation Risks Negotiate nonjudicial settlement agreement regarding construction issues UTC allows waiver of breach of trust Seek court authority to construe instrument, make distributions 26 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

27 Disclaimer These materials have been prepared for informational purposes only with no warranty as to accuracy or applicability to a particular set of circumstances. The materials are not intended and should not be considered to be legal advice and do not create an attorney-client relationship with any reader of the information. Readers should not act upon any content without obtaining legal advice from legal counsel in the relevant jurisdiction. 27 Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues Presented by Beneficiary Relationships

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