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Towards the Consistent and Equitable Treatment of Phantom Income in Determining Domestic Support Obligations

Timothy M. Todd, Phantom Income and Domestic Support Obligations, 67 Buff. L. Rev. 365 (2019), available at SSRN.

Professor Todd’s article addresses an issue at the intersection of divorce/family law, federal income tax law, and, even, trusts and estates law. For me, the article highlights that the ideal situation for spouses in a divorce (if, among other things, money were no object) is for each of them to have their own divorce/family law attorney, tax attorney, and estate planning attorney. That, or have Professor Todd on call.

The issue addressed in the article is how “phantom income” should be treated by courts in determining a domestic support obligation (whether child support or spousal support or a modification to either one, hereinafter “DSO”). “Phantom income” is “amounts that are includible as [gross] income under the federal tax code but that have not resulted in any actual current cash receipt.” (P. 386.) Individuals obligated to make DSO payments “have argued that phantom income should not be included when calculating such obligations because the individual’s ability to pay has not materially changed.” (P. 386.) Because those individuals never received any current cash receipt, they contend that the court should not increase a DSO based on any phantom income.

Professor Todd briefly discusses three types of phantom income: business pass-through income, cancellation of debt (COD) income, and imputed income from below-market loans and original-issue discounts. (Pp. 376-80.) He then reviews eight cases in which state courts addressed how phantom income should be treated in determining DSOs. A Kentucky court concluded that COD income was not “gross income” for child-support purposes. Kelley v. Kelley, No. 2012-CA-002213-MR, 2014 WL 5359745 (Ky. Ct. App. Oct. 3, 2014). (Pp. 380-82.) A Virginia court, however, concluded that COD income is includible in gross income for child-support purposes. Reigler v. Riegler, 90 Va. Cir. 29 (2015). (Pp. 382-83.) The courts in two California cases concluded that COD income is gross income for child-support purposes. In re Marriage of Kirk, 266 Cal. Rptr. 76 (Ct. App. 1990) and Riddle v. Riddle, 23 Cal. Rptr. 3d 273 (Ct. App. 2005). (Pp. 384-86.) In Ohio, COD income is gross income for spousal-support purposes, Poitinger v. Poitinger, 2005-Ohio-2680, and for child-support purposes, Cyr v. Cyr, 2005-Ohio-504; and business pass-through income is gross income for spousal-support and child-support purposes, Marron v. Marron, 2014-Ohio-2121. (Pp. 386-90.) Finally, a Colorado case addressing a tax withholding-type payment was found to be gross income for child-support purposes (though Professor Todd aptly notes that this payment is not phantom income because another payee did receive the cash). In re Marriage of Stress, 939 P.2d 500 (Colo. App. 1997). (Pp. 388-90.)

Professor Todd proposes two solutions regarding the treatment of phantom income in determining DSOs. The first proposal is “to keep the status quo rule that implicitly (and sometimes explicitly) incorporates the tax definition of [gross] income and includes phantom income in support calculations,” and, the second, “ to implement a charging-order-type remedy to balance the concerns of payors and payees vis-à-vis phantom income.” (P. 401.) Professor Todd’s first proposal, which is “the simplest and easiest option,” reflects “the apparently majority rule” as seen from his survey of eight cases (which Professor Todd notes “does not purport to be an exhaustive survey of all related cases”). (P. 401.)

The first proposal, Professor Todd concedes, does not solve two timing asymmetries that he identifies. Category I asymmetries are “situations in which cash was received in the past, but the ‘income’ occurs now; for example, cancellation of debt income,” and Category 2 asymmetries are “situations in which the income occurs now, but cash may (or may not) be received in the future, such as pass-through business income.” (P. 401.) Additionally, this first proposal “does not provide clear answers to issues such as tax exclusions, administrative exclusions, and other issues that are specific to tax policy and administration but have no analog in domestic support contexts.” (P. 402.)

While the administrative exclusions and non-analogous issues are beyond the scope of this jot, I wish to discuss one tax exclusion. Professor Todd notes that gifts are excluded from federal gross income “but represent a true asset (or cash) increase” and represent “additional assets a family could use for consumption but that are outside the definition of [federal] gross income.” (Pp. 402-03.) The first proposal of a “strict incorporation of tax concepts does not solve all the phantom-income issues and related issues”, and, “[f]ortunately, there are cases that recognize that [gross] income for tax purposes and [gross] income for DSO purposes (especially for child support) are not coterminous.” (P. 403.) I think that Professor Todd, to add to his argument, could have noted that Kentucky’s and Virginia’s statutes (as seen in his survey of cases) are broader than the federal tax code because they each define gross income for child-support purposes as including “gifts” and “prizes.” I also wonder whether a discussion of inheritances, which are excluded from federal gross income, would be apt.

Professor Todd’s second proposal, a charging-order-type remedy specific for DSOs, can be tailored to a particular divorcing couple. Pursuant to a charging order, “when cash distributions are made from the entity, the distributions for the debtor-member are paid to the holder of the charging order (the creditor).” (P. 403.) This remedy is “ideal in Category 2 situations–those in which there is the potential for a cash flow in the future” so that the charging order can be applied (in an ideal situation, specifically) “against the source of that potential future cash flow.” (P. 404.) I believe that Professor Todd’s proposed charging-order-type remedy, perhaps, invokes yet another issue—whether DSOs (under governing state law or as contracted between the parties) survive the death of the payor or the payee.

I learned a lot reading Professor Todd’s article. The treatment of phantom income in determining DSOs involves the intersection of divorce/family law, federal income tax law, and trusts and estates law. Drafters would be wise to tailor DSOs not only to governing law but also to the divorcing couple’s specific financial situation, including, among other things, their specific assets, income streams, and possible future receipts of property.

Cite as: Michael Yu, Towards the Consistent and Equitable Treatment of Phantom Income in Determining Domestic Support Obligations, JOTWELL (September 2, 2020) (reviewing Timothy M. Todd, Phantom Income and Domestic Support Obligations, 67 Buff. L. Rev. 365 (2019), available at SSRN), https://trustest.jotwell.com/towards-the-consistent-and-equitable-treatment-of-phantom-income-in-determining-domestic-support-obligations/.

Legacy Control

Andrew Gilden, The Social Afterlife, 33 Harv. J. L. & Tech. 229 (2020), available at SSRN.

The COVID-19 crisis has compelled many of us to move our lives (further) online, creating new social interactions and communities, as well as a larger digital footprint. The pandemic has also forced us to confront the risks and realities of mortality for ourselves and our loved ones.  This highlights an important question: What will happen to our digital legacy after death? Legacy has both economic and noneconomic aspects, and inheritance law has primarily focused on the former. The latter, however, has risen to prominence with the growth of intellectual property rights and social media, both of which often have a stronger cultural or emotional legacy component.  The law as it stands is thus ill-suited to deal with the noneconomic aspects of legacy. In The Social Afterlife, Professor Andrew Gilden tackles this problem with skill and nuance, and his sensible solution is to embrace contextual testation, in which control of each asset is allocated based on the unique socioeconomic context in which it arose. In the process, he provides the reader with an indispensable theoretical roadmap for understanding who might control our legacies.

The Article starts by describing four potential models of legacy stewardship. The first is the traditional model of freedom of disposition, in which the decedent controls who gets what. The decedent possesses the best information about their own social life, but such deference also risks too much dead hand control. The second model is family inheritance, in which control flows to the decedent’s family members. These individuals may also have special knowledge about the decedent, but are also tempted to exclude other relevant stakeholders in the decedent’s legacy, as many celebrity estates have. Empowering family members also hazards their exposure to harmful aspects of a decedent’s life hiding in cyberspace. Does a grieving widow want to know about her husband’s AshleyMadison.com account, on which he may have been pursuing affairs with younger women?

Third, the public domain model subjects a decedent’s property to common ownership. This model recognizes that people outside the immediate family may also have a vested interest in the legacy of the decedent, especially in the case of public figures. Yet the public domain, as the name implies, may fail to provide strong privacy protections and risks that the decedent’s assets will simply flow to the most powerful market actor. Finally, there is the consumer contract model, in which various third-party intermediaries, such as Apple, set the ground rules—through their terms of service—for how the assets they host are handled after death. These third parties may be best able to cater to the needs of their users and reduce the transaction costs of legacy stewardship, but some might be suspicious of entrusting them with such important decision-making power, given their incentives to maximize profit.

All of these models exist in some form in the law now, and the Article performs a synthesis of these different approaches through the concept of a Decentered Decedent. This is a contextual model of legacy stewardship, in which postmortem decision-making power is allocated based on the specifics of the socioeconomic context in which the relevant asset exists. Central to this model is the idea that it is important to avoid “context collapse,” or the situation in which the various aspects of an individual’s life collide in ways that destroy carefully constructed social separations created by that individual. For example, someone may wish to keep socializing with family members or coworkers to Facebook while separately participating in kinky sex communities solely on websites devoted to that purpose. The policy aim, then, is to maintain these separations at death as well as in life.

The Decentered Decedent framework provides a robust theoretical defense of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). This Uniform Act, which has been adopted by a majority of states but which has been subject to some criticism, sets up a multi-tiered system of decision-making authority over digital assets. The highest priority goes to any online tools that contain a user’s expressed wishes for posthumous control. An example is the Facebook Legacy Contact tool, in which an individual can designate a person to take over aspects of their Facebook account in the event of their death. A decedent’s express wishes in a will or trust get second priority. Third priority goes to an intermediary’s terms of service, and this is the most controversial provision. The reason why is that it hands control over to the intermediary instead of family members who might otherwise control assets under intestacy statutes. As it better preserves the decedent’s heterogeneous social lives, however, Professor Gilden finds the RUFADAA to be a promising approach. He goes on to suggest several potential legal tweaks as well, such as legislating the substance of online tools, imposing fiduciary duties on intermediaries, or decoupling the economic and noneconomic aspects of an asset when possible.

In many ways, the Decentered Decedent model is a commonsense extension of the nonprobate revolution to digital assets. Just as life insurance companies manage the insurance payout after death outside of probate, perhaps so too should a social media site independently manage the control of a user’s account after death. But what if context collapse is actually a good to be pursued rather than an evil to be avoided? While we are indeed multifaceted beings, it might be beneficial to acknowledge that fact through a full accounting of a person’s life—or multiple lives—after death, especially if that person had a prominent position in society or culture. Even if a person did not, knowing the unfiltered truth about loved ones may help foster a deeper understanding of lifetime behavior or decisions that may have been perplexing or hurtful at the time due to incomplete information. In short, the revelation of secrets at death may have more ambiguous effects, at least for the living. If this is the case, then maybe context collapse is not so injurious after all.

However one might come out on that question, what is not in doubt is that Professor Gilden has deepened our theoretical understanding of legacy and the governance mechanisms we might employ to manage it. That makes The Social Afterlife necessary reading for those interested in how inheritance law, intellectual property law, and Internet law all shape legacy control.

Cite as: Alexander Boni-Saenz, Legacy Control, JOTWELL (July 14, 2020) (reviewing Andrew Gilden, The Social Afterlife, 33 Harv. J. L. & Tech. 229 (2020), available at SSRN), https://trustest.jotwell.com/legacy-control/.

The Rich (Families) Are Different

Allison Anna Tait, The Law of High-Wealth Exceptionalism, 71 Ala. L. Rev. __ (2019), available at SSRN.

In April of 2019 lawyers representing the “Kimberley Rice Kaestner 1992 Family Trust” argued a case against the North Carolina Department of Revenue before the Supreme Court of the United States. A few months later the Court unanimously ruled in favor of the trust in that case. The Court’s decision was a major victory for wealthy families; not so much for ordinary folks who pay state income taxes. You may not have heard of the Kaestner case. No news about it appeared in the New York Times. Ever. But you can and should read Allison Anna Tait’s insightful article, The Law of High-Wealth Exceptionalism. It’s about the Kaestner case. Well, it’s not really about the Kaestner case; actually Tait doesn’t even mention it. But her article is, at least in part, about the category of cases that the Kaestner case belongs to and it is about the state of affairs that brought about the case, and many others like it, and so much more.

In her article, Tait gives us a panoramic perspective—a bird’s eye view—of what she calls “the law of high-wealth exceptionalism.” The law of high-wealth exceptionalism is not any particular law, but rather a collection of favorable laws that, functionally, apply only to high-wealth families. Because, in theory, while anyone could take advantage of a scheme like that which the Kaestner family’s lawyers concocted to externalize the cost of governmental goods and services provided to Kimberley Kaestner by the State of North Carolina, in practice you really need to have a lot of wealth to do so. And as Tait points out, wealthy families “benefit not only from their material resources but also from the fact that most of the population is not familiar with the vast network of laws that govern family wealth and may even be disinterested in [legal] events that are of core concern to the family oligarchs.”

Tait’s larger point is that rich families avail themselves of what she calls “high wealth-exceptionalism,” a phenomenon that she maintains inflicts harm on those of ordinary wealth and is antithetical to democratic governing. More specifically, she shows how wealthy families organize themselves under wealth-management “tools” like family constitutions, private trust companies and private foundations, and take advantage of favorable laws governing trusts and taxation to shift financial risk and tax burdens to those without great wealth. She makes her larger point by breaking down her analysis into three categories: governance, power and privilege.

In the area of governance, high-wealth exceptionalism depends primarily on a concept called the “family constitution.” Tait explains how and why wealthy families cohere under this “widely marketed wealth-preservation tool,” as a way to protect against what is perhaps the family’s biggest fear: generational erosion of family wealth. The family constitution is designed to be the bulwark that gives the lie to the age-old aphorism “from shirtsleeves to shirtsleeves in three generations.” Tait describes how professional wealth managers help families inscribe family constitutions, and the ways in which they unify the family to the common cause of safeguarding family wealth.

Tait further identifies three “critical building blocks” to securing family wealth: private trust companies, family offices and private foundations. Private trust companies are entities that are legally sanctioned to manage family trusts but, unlike ordinary trust companies, they are “exempt from most state regulation.” In return for this light treatment by the state, these companies serve only the wealthy family, “broadly defined.” Private trust companies ensure privacy by evading state reporting requirements thereby keeping most “sensitive financial information” from being revealed to persons outside the family unit. They are also free to invest trust property in investments that might be outside the range of regulated trust companies, such as illiquid assets or stock in a private family business. While taking advantage of trust laws increasingly favorable to the wealthy, these entities also reinforce the sense that the family is a separate sovereign entity, “populated, animated and superintended by the family” itself.

The bulk of family financial management (and sometimes more personal services) is undertaken by the “family office.” The family office is the locus of general family business. Tait points out that family offices enjoy a special exemption from regulatory requirements otherwise imposed on investment advisors. Exemption from SEC registration means that investments can be made in privacy. Family offices are also exempt from compliance with rules for commercial financial institutions, which gives the family substantially more control over investment decisions. Given these and other advantages of family offices, it is no surprise that family offices are “how the super-rich invest.”

The family foundation is the third “critical building block for high-wealth families.” These entities preserve family wealth by substantially reducing the family’s exposure to the federal transfer taxes while “allowing the foundation to fund administrative activities performed by family members.” Properly managed, the private foundation can hold family wealth for generations, sheltering it from taxation while the family maintains control of that wealth. Private foundations are required to distribute only 5% of their income from investments to charity annually, and those distributions are often made to “family –controlled” donor-advised funds. Importantly, family members receive compensation for services to the foundation and can be reimbursed for expenses incurred for foundation business.

After showing us the tools high-wealth families use to preserve and increase their wealth, Tait moves on, in the section of the paper she calls “the measurement of family power, to their negative consequences to the population at-large. Here Tait explains some of the potential consequences of the preferential legal treatment received by high-wealth families. She maintains, for example, that these include increased systemic risk and exposure of the broader population to financial harms. Further, the privileges of conducting private operations free from regulations also makes the discovery of tax avoidance and evasion more difficult, increasing the tax burdens of others. Here she also looks at “the role that family constitutions and the coterie of family-wealth rules unquestioningly play in entrenching” wealth inequality. In this section she also addresses “costs to the democratic state.” The law of high-wealth exceptionalism, she concludes, “is deeply and essentially patrimonialist,” and thereby at odds with democratic functioning.

Having outlined the problems with high-wealth exceptionalism in such detail, Tait concludes by offering some prescriptive ideas to address the phenomenon and “the plutarchic society it cultivates.” These include retracting high-wealth legal privileges, reforming the transfer taxes, and reframing the rights of citizenship. Tait’s suggestions are good and deserve your attention. But the most refreshing aspect of Tait’s work in this piece consists of the light she shines on laws that far too few, even among those interested in the problems wrought by wealth inequality, give their consideration. Unfortunately, most of the rest of us “remain unaware of the many behind-the-scenes efforts to change family-wealth law, what effects those changes might have on their lives, and what the changes might mean on the larger scale, looking forward.” Tait’s article is a step towards fixing that. The Kaestner case, for example, mentioned at the outset of this review, was not just a boring trust tax case that concerned only the wealthy few. Instead, it was a prime example of high-wealth exceptionalism that affects us all and deserves the nation’s attention.

Cite as: Kent D. Schenkel, The Rich (Families) Are Different, JOTWELL (June 23, 2020) (reviewing Allison Anna Tait, The Law of High-Wealth Exceptionalism, 71 Ala. L. Rev. __ (2019), available at SSRN), https://trustest.jotwell.com/the-rich-families-are-different/.

Can the Wealth Tax Effectively Serve as a Backstop to Estate and Gift Taxes?

Jason Oh & Eric Zolt, Wealth Tax Design: Lessons from Estate Tax Avoidance, available at SSRN.

Wealth tax, sometimes confused with estate tax, does not currently exist in the United States but has been proposed by a few political candidates. A wealth tax, if implemented, would be imposed on the wealthiest households based on all property owned including personal property, business interests and capital property with unrealized appreciation. This tax would be an annual tax, unlike the estate tax which is imposed once on the transfer of a taxpayer’s assets at death. Proponents offer the wealth tax as another source of revenue and weapon against wealth inequality. Opponents claim a wealth tax would inhibit economic growth and job creation. Professors Jason Oh and Eric Zolt address the subject of imposing a wealth tax and explore the ways in which estate tax planning strategies may inform how to structure a wealth tax.

First, Professors Oh and Zolt explore the ways in which charitable contributions–and ultimately charitable deductions–reduce the estate tax liability and could erode a wealth tax base. They explain how, over a representative five-year period, charitable testamentary contribution amounts were ten times greater than the amount of lifetime giving by taxpayers with net estates valued between $50 to $100 million. For taxpayers with net estates valued over $100 million, they contributed 20 times more funds in testamentary charitable contributions than lifetime contributions. These scholars posit a wealth tax would likely cause donors to shift from testamentary charitable bequests to lifetime charitable contributions to avoid or significantly reduce wealth tax liability.

Professors Oh and Zolt explain that if an acceleration of lifetime giving occurs, any potential wealth tax base and aggregate income tax liability will both decrease. Further, the donors may be motivated to make lifetime gifts of income-producing property to charitable organizations to reduce their income tax base. Consequently, the net effect on income tax revenue likely would be negative. While social policy goals generally include charitable giving, they explain how wealthier donors primarily give to charitable organizations in which they may retain the most control. These types are charities tend to be private foundations and donor advised funds, not public charities. They contend transfers to public charities are more desirable because donors have released control of the contributions and facilitate reducing wealth concentration and those organizations generally provide a greater public benefit. Conversely, they argue, contributions to private foundations, donor-advised funds and other organizations that permit donors to retain substantial control as trustees or board members promote wealth concentration.

In order to minimize the impact of the relationship between wealth concentration and private foundations, Professors Oh and Zolt discuss proposals by Emmanuel Saez and Gabriel Zucman. Saez and Zucman have proposed treating transfers to private foundations and donor advised funds as disregarded for the purpose of determining the wealth tax base if the organizations are still under the control of donor’s household. Professors Oh and Zolt recognize that taxpayers and advisors may be clever enough to avoid control without really giving up control and question whether the proposals are politically viable. As such, the professors posit, the charitable contribution deduction may be used to effectively nullify wealth tax liability.

Next, Professors Oh and Zolt discuss valuation challenges suggested by critics of wealth taxes. They examine valuation rules under the estate tax and examine how those may translate to a wealth tax. They discuss the generally accepted practice for estate administrators to understate property value to reduce or eliminate estate tax liability. They further describe different types of assets owned by super-wealthy taxpayers, the challenges associated with determining valuation, and six different valuation discounts that significantly reduce tax liability.
These valuation challenges may carry over to a wealth tax, therefore Professors Oh and Zolt explore the additional administrative challenges complicating a wealth tax. On the positive side, a wealth tax can be imposed annually; imposing it on net estates at $50 million and above would subject few taxpayers to the tax, and the information gathered annually may carry over to estates for determining estate tax liability. Further, they identify two key factors that would determine the impact valuation may have for wealth tax purposes: flexibility of valuation estimates and the levels to which taxpayers may negotiate valuation discounts. To the extent taxpayers may own property such as securities, which have set market values, they may be incentivized to shift wealth to assets in which valuation may be manipulated to reduce tax liability.

Professors Oh and Zolt then evaluate whether it may be politically viable to disallow permissible valuation discounts for estate taxes for use in wealth taxes. Historically, congressional support for valuation discounts has been consistent, despite the revenue loss over the years. Instead, Professors Oh and Zolt propose imposing a penalty regime to discourage overly aggressive valuations and using an arbitrator to bridge the gap between taxpayer and IRS valuations. These measures, they propose, focus on raising revenue and make it easier for taxpayers to comply.

Next, Professors Oh and Zolt discuss grantor retained annuity trusts (GRATs) and other “freezing” technique instruments that maximize valuation rules and actuarial estimates to transfer future property without paying transfer taxes. Consequently, these instruments artificially reduce the estate tax base. They theorize that a wealth tax imposed on these instruments will capture taxation on previously untaxed property because the value of the retained interests would be included in the wealth tax base.

Further, Professors Oh and Zolt reveal how estate tax avoidance overpredicts wealth tax avoidance. They explain how other scholars use the revenue generated by the estate tax as a measure for whether an estate tax might be successful in raising revenue. They explain these fallacies by revealing how certain techniques used to minimize or avoid estate and gift taxes, by artificially understating the value of transferred interests, will serve to increase the amount of property included in the wealth tax base. As such, a wealth tax could serve as a backstop for the estate and gift tax.

Professors Oh and Zolt also suggest how attribution rules may be useful to discourage related-persons and familial transfers designed to avoid or minimize a wealth tax. For this to work, they propose attributing all family wealth to the wealthiest family members. They acknowledge this proposal has its own set of questions such as determining how the tax burden will be allocated amongst family members and whether private foundations would be jointly and severally liability for a donor’s wealth tax liability. These questions regarding attribution would also apply to self-settled asset protection trusts and whether the tax would be imposed on donor or beneficiaries, who may not be liquid.

Finally, Professors Oh and Zolt propose that valuation, timing and ownership rules should be identical for estate, gift and wealth taxes to minimize opportunities for avoidance and provide consistency between these taxing structures. For example, a married couple with more than $23 million in estate and gift tax exclusions may transfer property by gift to reduce or eliminate their wealth tax liability. By spreading the gifts amongst various family members, the family wealth may divided such that none of the family members will be subject to a wealth tax even when imposed on households of at $50 million and above. If gaps between the tax structures leave opportunities for avoidance, then both revenue raising and reducing wealth inequity goals will be thwarted. Ultimately, Professors Oh and Zolt agree with imposing wealth reducing measures but believe it may be too complicated to implement and too difficult to gain political support.

This is an interesting article that provides information to debate and vet the political and normative viability of a wealth tax. I was particularly fascinated with the comprehensive evaluation of how the wealth tax, if implemented, should be structured in concert with the estate and gift tax. This article is helpful to professors, scholars and politicians to teach, research and continue to debate the issue of wealth taxes.

Phyllis C. Taite, Can the Wealth Tax Effectively Serve as a Backstop to Estate and Gift Taxes?, JOTWELL (May 25, 2020) (reviewing Jason Oh, Eric Zolt, Wealth Tax Design: Lessons from Estate Tax Avoidance, available at SSRN (2020)), http://trustest.jotwell.com/can-the-wealth-tax-effectively-serve-as-a-backstop-to-estate-and-gift-taxes.

End-of-Life Health Care Decision Making: Lessons for Wills, Trusts and Estates Law

Jane B. Baron, Fixed Intentions: Wills, Living Wills, and End-of-Life Decision Making, 87 Tenn. L. Rev. __ (forthcoming, 2020), available at SSRN.

For years, I have tried to understand why my father refuses to execute a will or an advance directive, even though my sisters and I have asked him to please “make plans for the future.” As a not-so-subtle nudge, I have told him stories of siblings torn apart by disagreements over health care decisions when a parent is incompetent and disagreements over property distribution after a parent’s death—family feuds that might have been prevented by an advance directive or a will, respectively. After reading Jane Baron’s article, Fixed Intentions: Wills, Living Wills, and End-of-Life Decision Making, I have a clearer understanding of the reasons that might underlie my father’s reluctance.

In the article, Baron challenges estates law’s fundamental assumptions that: (1) all or most individuals have intentions with regard to the disposition of their property at death, (2) these intentions are fixed, and (3) these intentions should be recorded in a written document. Drawing on studies of end-of-life health care decision making that explain why efforts to increase the use of advance directives have failed, Baron concludes that similar reasons may apply in the property distribution context. Specifically, she argues, if some individuals do not care to make decisions about their medical treatment should they become incompetent, it is likely that some individuals similarly do not care to make decisions about disposition of their property after death.

Baron acknowledges that some individuals do wish to make health care decisions post-competency, as demonstrated by execution of advance directives, but she notes that studies have shown that these intentions are often fluid. Patients change their minds and contradict the preferences they expressed in the advance directive, or the health care proxy challenges the advance directive as inconsistent with the patient’s true preferences. Baron argues that the numerous instances of testators who attempt to change their wills by making handwritten notations on them or by making oral statements that are inconsistent with the dispositions expressed in their wills strongly suggest that the intentions recorded in testamentary instruments are similarly fluid. Intentions may shift depending on a number of factors, including changes in health and relationships with family members, which make wills unreliable indicators of testators’ intentions—at least in some cases.

Baron concedes that decisions about property distributions after death are not the same as those involving end-of-life health care. She recognizes that because wills operate at death, not incompetence, and thus do not affect the testator or have any financial implications for the testator, wills may not be as emotionally challenging as end-of-life health care decisions. She also acknowledges that health care decision making might inherently be more complex due to the number of potential illnesses, medical conditions, and interventions that no individual could foresee.

However, Baron identifies a number of similarities between the two that demonstrate the relevance of the studies on end-of-life health care decision making to estates law. She points out that both wills and advance directives may take effect long after execution during which health status, family circumstances, or relationships may have changed, thereby affecting the individual’s preferences. She also argues that the cognitive biases that limit individuals’ abilities to predict preferences—such as how their wishes might change as they near death or are in an emotional state—apply in both the end-of-life medical treatment and end-of-life property distribution contexts.

These observations are critical to estates law given its central focus on honoring individuals’ fixed intentions, even though only a minority of American adults have a will. As Baron notes, the testator’s intention is the polestar of estates law, including intestacy law which aims to distribute property based on the imputed intentions of the majority of decedents if only they had recorded their intentions. But Baron questions the law’s assumption that most individuals have fixed intentions. In her view, “[t]he literature on end-of-life health care decision making suggests that the group of individuals for whom conventional wills law is inapposite may be larger than has previously been understood.” (P. 25.) She contends that the studies on end-of-life health care decision making “suggest that [individuals’] failure to make wills is not a function of irresponsibility, but of more complex emotions.” (P. 25.) She stresses that “[e]nd-of-life property decisions require people to confront death, family, and property in one simultaneous act,” and thus, “it is not entirely surprising that faced with these potent forces many individuals will not actually want to make final decisions.” (P. 25.)

Baron’s recommendations are wisely modest, raising questions for further study rather than proposing radical reforms without empirical support. Given the lack of empirical evidence about individuals’ reasons for making a will or not making one, or the reasons and frequency with which individuals’ preferences about the wills they made change, Baron calls for research examining individuals’ attitudes and preferences. Under our current fixed-intentions paradigm, the attorney’s role is assumed to be that of a scrivener who records the client’s wishes. But as Baron explains, if research reveals that some individuals do not wish to make specific decisions about how to distribute their property after they die and that testators’ preferences are influenced by their emotional state and the way in which the attorney frames possibilities, it may lead to a reexamination of the law’s assumptions about the role of estates attorneys and how they should counsel clients.

While Baron does not suggest radical changes at this moment, she does ask thought-provoking questions. If the research reveals that some individuals’ intentions with respect to the distribution of their property at death are fluid, should wills law consider a conversational model currently used in the end-of-life health care decision making context, she asks? She does not suggest that the law discard formal wills but rather that it consider giving effect to a testator’s informal statements in cases in which persuasive evidence demonstrates that the testator’s preferences have shifted. In her view, “if, as the studies of end-of-life health care decisions suggest, preferences are unstable and changing, why should the earlier-formed preferences stated in a will control over later-formed preferences not stated in a documentary document? Why not accept alternative ways of expressing end-of-life property decisions?” (P. 48.)

After reading Baron’s compelling article, I was left with one burning question. What might this research on individuals’ intentions with respect to end-of-life property distribution suggest the law do, if anything, to encourage individuals like my father who are likely to refuse to make a will even if the law were to consider informal expressions of their preferences? Is intestacy the only solution for individuals who do not wish to decide who should get what upon their death? Or, should the law consider a conversational model of estate planning that includes the individual and their family members? Would individuals who reject formal wills benefit from a conversation with an estates attorney and family members about their values and goals even if it does not result in a formal will? Some families are attempting to engage in these conversations but are doing so without the benefit of an attorney or the guidance of the law. What is the role of law and attorneys when individuals reject formal wills?

Baron’s article unsettles our assumptions and leaves the reader wanting to know more. That is the measure of excellent legal scholarship. It is a must-read piece for practitioners, teachers, and students alike.

Cite as: Solangel Maldonado, End-of-Life Health Care Decision Making: Lessons for Wills, Trusts and Estates Law, JOTWELL (April 27, 2020) (reviewing Jane B. Baron, Fixed Intentions: Wills, Living Wills, and End-of-Life Decision Making, 87 Tenn. L. Rev. __ (forthcoming, 2020), available at SSRN), https://trustest.jotwell.com/end-of-life-health-care-decision-making-lessons-for-wills-trusts-and-estates-law/.

A Cold Head Is Not Just for Beer Anymore

Thomas E. Simmons, A Trust for Ted’s Head, 88 Miss. L. J. 20 (2019).

Over the past twenty years, a new type of bodily disposition for the deceased has come into vogue. It called cryonics: where the decedent’s body (hereinafter called the “frozen person”) is preserved at low temperature for an indefinite period until medical technology has hopefully advanced enough to revive the frozen person and give him or her renewed life. The chances of revival are estimated to be extremely slim. Nonetheless, there are approximately 250 people currently in cryonic preservation and about a thousand people who have arrangements for cryonic preservation upon their deaths. Four companies currently provide cryonic preservation, and these future frozen people must enter into contracts with these companies to preserve their bodies for an indefinite period of time (well beyond our lifetimes) and to attempt revival when medical technology has sufficiently evolved. But there are serious problems with these contracts.

After explaining the fascinating facts surrounding how the famous baseball player Ted Williams’ head was placed into cryonic suspension, Professor Thomas Simmons points out that breach of a cryonics contract is likely (i.e., mishandling the body, incorrect preservation procedures, mismanagement of the cryonics company, early defrosting, etc.) and that enforcement is problematic. Who would enforce it? The frozen person’s surviving family members (or their descendants)? The frozen person’s estate? Imagine if the cryonics company preserving the body went bankrupt hundreds of years later. Also, Professor Simmons points out that timing is extremely sensitive after death for someone who wants to be cryonically preserved. He explains that a directive in a will for moving the body into cryonic preservation could take many days or even longer to be followed while the body needs to be preserved as quickly as possible. Considering these issues, Professor Simmons proposes that a person planning to be preserved establish a non-charitable purpose trust (a “cryo-trust”) which would be a party to the cryonic contract, have standing to sue on behalf of the frozen person, have financial resources to monitor and enforce the contract, determine when medical technology has advanced sufficiently to attempt resuscitation, possess title to the body, and finally provide financial assistance to the formerly frozen person if resuscitation proves successful.

However, several trust law principles may stand in the way of a cryo-trust. Professor Simmons claims that the Rule Against Perpetuities (RAP), Purpose Trust Rule Against Perpetuities (P-TRAP), and the Beneficiary Principle present challenges to the legal validity of a cryo-trust. Ultimately, Professor Simmons addresses the legal concerns these concepts present (and a way around some of them) and discusses the necessary choice of law and situs selection for a cryo-trust.

But before Professor Simmons lays out his solution to the trust law problems, he briefly describes the interesting history behind human remains directives and how they would be grossly inadequate for this situation. While there are many laws regulating the safety aspects of corpse disposal, the law is quite unclear on how much someone can control the disposition of his or her body after death. In fact, the law is unclear if a corpse is property or “quasi-property.” At Canon Law, a corpse had some traditional burial rights, and courts were reluctant to afford expansive rights beyond that. Even today, the law is unclear about the reach of post-mortem burial directives. However, Professor Simmons proposes that a non-charitable purpose trust is the best way to care for and look after the preserved body, but initially, he must overcome some trust law problems.

First, Professor Simmons discusses how RAP may stand in the way of this proposed cryo-trust. RAP is a centuries-old rule that prohibits the remote vesting of contingent future interests. Essentially, if it is possible that an interest could vest more than twenty-one years past the lifetimes of everyone alive at the time of the interest’s creation, then the interest is void. Certainly, RAP problems could arise from cryo-trust.

Professor Simmons brings up a scenario where the trust would oversee the care for the frozen person and determine when medical technology has advanced enough to attempt resuscitation. If resuscitation failed, the trustee would distribute the remaining trust property in the manner the frozen person provided in the trust terms. However, it is uncertain whether the interest in the frozen person’s beneficiaries would vest at the creation of the trust and thus it would be void under RAP because there is no way to be certain that the attempted resuscitation would occur within the time limit. However, Professor Simmons proposes to structure the trust so that the remaining money goes back to the estate of the frozen person if resuscitation fails. That way, the trust is already vested in the lifetime of the frozen person, thereby avoiding the RAP challenge. Of course, Professor Simmons thinks it would be better to simply select one of the many jurisdictions that have abolished RAP.

Second, Professor Simmons discusses how P-TRAP may present another challenge to a cryo-trust. This rule is concerned about remote trust termination and not remote vesting, which RAP prohibits. Specifically, the non-charitable purpose trust must terminate within the RAP perpetuities period. Clearly, a cryo-trust would last longer than the perpetuities period. The only real solution Professor Simmons gives is to select a jurisdiction that has abolished this rule.

Finally, Professor Simmons analyses the Beneficiary Principle considering cryo-trusts. The Beneficiary Principle requires that a trust have an ascertainable beneficiary because these beneficiaries have standing to correct the trustee if the trustee deviates from the standards of care and loyalty. Because the beneficiary of a cryo-trust is not ascertainable (a frozen person considered as being dead), it would violate the Beneficiary Principle. Professor Simmons proposes that a cryo-trust appoint an “enforcer” to keep the trustee accountable. The enforcer would be a fiduciary to make certain that the trustee carries out all fiduciary duties. However, the trust’s jurisdiction must allow this enforcer role, which is why Professor Simmons believes that situs selection is the most important element for a cryo-trust.

Professor Simmons claims that situs selection is essential because two of the three trust law challenges to cryo-trusts are resolved by situs rules alone. Equally as important are the situs choice of law rules. Choice of law rules must be considered to see if rules favorable to a cryo-trust apply. The location of property owned by a trust is key in choice of law rules—the state where the body is located is likely to dictate the applicable trust laws.

Ultimately, Professor Simmons asserts that a favorable jurisdiction to a cryo-trust would have RAP abolished, have P-TRAP abolished, have the Beneficiary Principle abolished, and allow a purpose trust to hold title to property. Professor Simmons concluded that the Cayman Islands and South Dakota are the best jurisdictions for a cryo-trust as they have already fulfilled the above conditions and give favorable tax treatment to trusts as an added bonus.

I commend Prof. Simmons for identifying this fascinating issue and for his scholarly and practical analysis. His article is an entertaining read and provides considerable (frozen) food for thought.

[Special thanks for the outstanding assistance of R. William Whitmer, J.D. Candidate May 2021, Texas Tech University School of Law, in preparing this review.]

Cite as: Gerry W. Beyer, A Cold Head Is Not Just for Beer Anymore, JOTWELL (March 31, 2020) (reviewing Thomas E. Simmons, A Trust for Ted’s Head, 88 Miss. L. J. 20 (2019)), https://trustest.jotwell.com/a-cold-head-is-not-just-for-beer-anymore/.

Deconstructing Foundational Principles of Trusts and Estates Law

Naomi R. Cahn, Dismantling the Trusts and Estates Canon, 2019 Wis. L. Rev. 165 (2019).

All areas of the law have certain foundational principles or beliefs that are widely shared. These underlying assumptions often go unchallenged. In the trusts and estates field, these principles include: (1) giving a certain amount of ongoing control to the transferor, or in the case of a decedent, to the “dead hand,” (2) respect for formality, (3) the importance of the traditional, legally-recognized family, and (4) the “wealth” narrative that focuses on the transmission of conventional forms of wealth.

In her thought-provoking article, Professor Naomi Cahn challenges these underlying principles. She, correctly, I believe, identifies the wealth narrative as the “strand…that structures the rest of the field.” For example, she notes that dead-hand control is only important when a decedent dies with wealth to be transferred, and she analyzes how wealth helps transfer privilege and maintain the status quo. Professor Cahn also looks at who has wealth and recognizes that the sociodemographic diversity of who has wealth impacts this area of law. She seeks to get her readers to challenge the foundational principles of the field by considering new perspectives from race, gender, class, and sexual orientation.

Part I of the article celebrates societal changes that are impacting core principles of trusts and estates law. Professor Cahn focuses on three key changes. First, there have been changes to our view of property. At a basic level, the definition of “property” has changed greatly since early in our country’s history when enslaved blacks were legally classified as immovable property. Similarly, restrictions on non-citizens owning certain property have been eliminated over time, and the right of women to own property has changed, as has the value of certain types of property.

Second, while the U.S. generally lauds dead-hand control (including freedom of testation), that control is often limited when it clashes with dominant notions of inheritance. Professor Cahn commends the changes occurring to those notions.  For example, after the Civil War, anti-miscegenation statutes prevented African Americans from inheriting from white spouses. Similarly, dower and curtesy limited the testation rights of husbands and wives, and other limitations existed on what property testators could leave to married women. In addition, undue influence was often used to overturn bequests to same-sex partners. Professor Cahn also identifies some issues with formal will requirements, including the fact that women tend to use precatory language while formal wills use the more directive language that men use.

Third, the definition of family continues to evolve. Historically, slave children inherited their status as slaves from their mothers, and nonmarital children could not inherit from their fathers. Today, LGBTQ jurisprudence has begun to question the primacy of bloodlines as the basis for defining families. These changes are altering core principles of trusts and estates law, such as the basic notions of dead-hand control and the primacy of the bloodline.

In Part II, Professor Cahn applies a class lens to trusts and estates law. She notes that more than half of the population do not write wills, yet we use the preferences of people who die testate to make recommendations for intestacy schemes. People who die testate tend to be older, wealthier, and white. This means that the assumptions that we derive from examining how they dispose of their property really just tell us about the preferences of people in that demographic, yet their preferences have an outsized impact on intestacy laws. This creates a potential for bias because we rely upon the preferences of people who, as a group, are more likely to leave wills.

Professor Cahn proceeds to spell out the difference between income and wealth. She notes that income and wealth vary among different races, age groups, and genders. For example, she notes that African Americans in the 50 to 65-year-old age group have about 10 percent of the wealth of whites in that age group. Similarly, Professor Cahn focuses on age and notes that women over age 65 have incomes 25 percent lower than men of the same age, and women in this age group are 80 percent more likely than men to experience poverty. She also notes that women have different amounts of wealth than men in our country. Though the data varies, one report estimates that women control approximately one-fifth of U.S. wealth.

Professor Cahn additionally focuses on the impact of wealth on children and notes that intergenerational wealth accounts for over half of the net worth of American families. Inherited wealth impacts credit, which in turn impacts employment, housing options, access to financial products, and interest rates for borrowing money. In effect, these patterns perpetuate racial inequalities across generations.

In Part III of her article, Professor Cahn notes that focusing on the wealth narrative allows us to see the impact of trusts and estates doctrine on people of varying socioeconomic levels. It also demonstrates the need to change the doctrine to address actual preferences, and it illustrates the benefits of considering alternate experiences and perspectives.

Professor Cahn examines the wealth narrative in two contexts. First, she questions the notion that everybody needs a will. She concludes that it may not hold true for people who prefer that survivors do what they think is best or for families in which it would disrupt family harmony for the person to make such decisions in a will. Second, she considers intestacy and notes that the rules should expand to include civil unions, domestic partners, and stepchildren, in order to reflect the reality of many modern families.

Professor Cahn ends by noting that this approach is likely to lead to challenges of other doctrines as well, such as revocation upon divorce statutes, which are not useful to low-income, unmarried people. She also notes that critically reexamining the trusts and estates canon is only one way to look at issues of social inequality. Larger scale reforms could include changes to labor market policies, universal access to health insurance, free early childhood education, retraining opportunities, and minimum incomes.

Overall, Professor Cahn has written thought-provoking article. By looking at the trusts and estates canon with a critical eye, she is helping us to reform our laws in light of modern realities.

Cite as: Sergio Pareja, Deconstructing Foundational Principles of Trusts and Estates Law, JOTWELL (February 28, 2020) (reviewing Naomi R. Cahn, Dismantling the Trusts and Estates Canon, 2019 Wis. L. Rev. 165 (2019)), https://trustest.jotwell.com/deconstructing-foundational-principles-of-trusts-and-estates-law/.

Of Trusts, Grammar, and Gender

Deborah Gordon, Engendering Trust, 213 Wisc. L. Rev. 213 (2019), available at SSRN.

In her new piece, Engendering Trust, Deborah Gordon takes on the relationship between women, wealth, inheritance, and the trust form. This intricate relationship is a long-standing one—a vintage marriage, so to speak—defined by gendered asymmetries, assumptions, and characterizations that are all grounded in historical norms. The landscape that gives life to this relationship between women and the trust form is replete with overt female archetypes, such as evil stepmothers, acquisitive mistresses, and vulnerable widows, and the linguistic coin of the realm is a highly gendered grammar that reveals these and other idioms of financial authority, avarice, and inexperience.

Based on a study of 540 cases involving trust law disputes, Gordon seeks to unearth how courts speak about and incorporate gender in their writing and “where cases show trust law clinging to its gendered past, both in language and effect.” (P. 223.) More specifically, she looks at three “key trust characteristics” in the opinions order to parse the role of gender and its effects. First, Gordon looks at trustee identity and finds that not only do men create marital trusts more frequently than women, but men also name someone other than the surviving spouse as trustee more often than women do. Women, by this measure, have still not gained full access to the world of trusteeship, a world in which—in years gone by—“[a]lmost every well-to-do-man was a trustee.” Pursuing this line of inquiry, it would also be interesting to know who courts choose as trustees in cases requiring the court to appoint one.

The second factor that Gordon studies is trust privacy, that is to say the ability of trust settlors to obscure information from other parties, even beneficiaries. Financial privacy has long been a feature of trusts and has, historically, been so strong that trust documents have been kept secret from beneficiaries themselves. Even now, in South Dakota, trust companies market the fact that state law does not require trustees to notify beneficiaries of their trust interests either as minors or once they reach the age of eighteen. Gordon contends that settlor privacy comes at a price: a lack of transparency that may have gendered results in that the trust’s opacity allows “the private mechanisms of dominance to continue unchecked and unexposed.” Left to flourish in the secretive microclimate of the family trust, gender-based inequalities within the family may tend to persist. Or, returning to the roster of female stereotypes, trust privacy might help reinforce stereotypes about unwitting wives and scheming mistresses. One wealth manager based in the Cayman Islands—a jurisdiction in which privacy is paramount—has observed: “Each client will have at least one trust—maybe four—…and they’re all designed to do different things. Right down to a wife’s structure and a girlfriend’s structure.” Privacy hides family secrets as well as family forms of discrimination and financial manipulation.

Lastly, Gordon looks into trust duration and the possible gendered implications of allowing dynasty trusts through the elimination of the rule against perpetuities. In a new world of trust competition, in which jurisdictions compete for perpetual trust business, Gordon suggests that women might be at a disadvantage. Perpetual trusts, she remarks, have the potential to enshrine the wishes, desires, and biases of the original trust settlor for generations. This possibility is already on the minds of wealth managers, and one family office advisor warns of the perils of wealth structures that are “Monuments to the Founder.” As the family office advisor states: “A key characteristic of the Monument to the Founder is an unwillingness to have to deal with the ‘messiness’ of divergent voices and opinions.” These founders, at least historically, have been “patriarchs” (in telling industry terminology) and their perpetual trusts serve to preserve their patrimonies over multiple lifespans, protecting principal from spouses seeking distributions at divorce and from other such unwanted creditors. From this perspective—women, as spouses, daughters, or “mistresses”—are ancillary to the heroic, male project of legacy creation and preservation.

As Gordon demonstrates through these analyses, the trust form is a gendered wealth transfer vehicle, drenched in the realities of historical practice, industry standards, and cultural narratives. The grammar of the trust continues to be a masculine one and the discourses that circulate in trust law promote a version of femininity grounded in sexualized forms of either vulnerability or avariciousness. Implicit in this inquiry is how these gendered discourses interrelate with gendered economies. The gendering of inheritance practices, and the tools of inheritance like the trust, compound the negative outcomes of gendered labor and income earnings, which lead to gendered wealth gaps.

Ultimately, Gordon tells us that a necessary response is to disrupt these discourses and reimagine the relationship between gender and the trust. Trust law, and those who trade in it, need to reimagine its grammar and reform its embedded assumptions in order to adapt to social change in gender presentation, marriage rules, and family formation. Consequently, Gordon asks us to think about disrupting the myriad of ways in which gender disadvantages women in trust law. This might mean reviewing and revising the ways in which women are portrayed in judicial domains, being attentive to the ways that estate planning practices characterize and authorize women, and generally working to close the gender gaps that the trust form creates.

While working in these ways to “engender” economic and identity justice, however, another front to explore would be the “de-gendering” of the trust. From this perspective, instantiating gender justice would mean creating equity by promoting trust laws and trust grammar that are non-binary and troubling gender itself.

Cite as: Allison Anna Tait, Of Trusts, Grammar, and Gender, JOTWELL (January 30, 2020) (reviewing Deborah Gordon, Engendering Trust, 213 Wisc. L. Rev. 213 (2019), available at SSRN), https://trustest.jotwell.com/of-trusts-grammar-and-gender/.

Fits, Starts, and Finishes

David Horton, Wills Without Signatures, 99 B.U. L. Rev. 1623 (2019).

Intents and acts are different things. Intent without act rings hollow or benign, and acts without intent can be perplexing or seem cavalier. But add one to the other—animate the intent through act, i.e. externalize what lives in the mind of one into the world of all—and powerful legalities result. Accidents turn into assaults; manslaughter into murder. Such casual communications as drafts or unsent texts could even become a last will and testament, accepted into probate as dispositive acts. This last context frames the inquiry that Professor David Horton explores with mastery in Wills Without Signatures.

It might seem that the unsigned will is too narrow an issue to warrant consideration. “No such thing,” one might say. “No signature, no intent; no intent, no will.” But with both precision and sweep, Professor Horton deconstructs that claim to build all sorts of bridges between small views and big pictures and much in between. The task is neither light nor insignificant. Old rules die hard. But with the continued relaxation of formalism and formalities, the constant expansion of technology, and the increasingly casual and tech-dependent ways in which people behave, unsigned (at least in the traditional sense) documents might indeed reflect the genuine last wishes of their makers. If so, and if “testamentary freedom” deserves the veneration that law and society claim for it, what can or must be extrapolated about intent/signature interplays demands analytic care.

Orthodox wills law is clear. Mirroring the equation above, valid wills require the confluence of testamentary intent plus formalities (legal acts). This duality makes particular sense within wills law, where the probate context itself generally ensures that the best evidence of the alleged testator’s alleged intent died when she did. By demanding some variation of the (hand)writing, witness, and signature trio, law seeks assurance that testamentary intent as claimed is likely true, and that the proffered document indeed represents the decedent’s near sacred desires. So viewed, the intent actuates the conduct, just as the conduct reveals the intent. But Professor Horton invites the deeper questions that such a calculation makes. In approaching the validity of the unsigned will, he at times sidles (and at other times, squares) up to far larger issues of the tricky interplay between intent, act, and proof—as well as intent, assent, and consent—including the slippery quality found in their testamentary form. Moreover, he does so with range, tying past to present practice and theory in a way that reveals a workable future path.

Wills Without Signatures begins on 17th century ground, when the pre-Statute of Frauds life for a decedent bequeathing chattels sometimes permitted their deathtime transfer even when no signature was affixed to a writing (or indeed, through no writing at all). By so situating matters within ecclesiastical English law and its colonial counterpart, Professor Horton reveals that notwithstanding the relentless formalism of the later Wills Act, the possibility of an unsigned will is actually less “new” than it seems. He continues by tracing the Australian and American experience with the “harmless error” doctrine, through which even wildly non-compliant documents might be accepted as wills given enough clarity and surety that their makers so intended them. Here is where things get even more interesting, at least where signatures are concerned.

What does a signature add? What does its absence remove? As earlier described, formalists would respond “everything.” But Professor Horton is dissatisfied with both that conclusion and the tepid underperformance of harmless error as its corrective, at least as often applied. For example, to demand “clear and convincing” evidence that a particular decedent intended a particular document to constitute her particular, capital “w” Will would render “blazingly idiosyncratic” any attempt to locate intent (or assent) within—and therefore qualify any “mere” draft, physical/digital file or correspondence awaiting some future finalized product as—having met the standard. Instead, he threads back to then extends a “momentum theory” that he’d sourced to earlier cases and related fields. Thereunder, an unsigned (and given the usual order of things, also likely unwitnessed) document could qualify as a valid will nevertheless whenever facts revealed “formidably” the likelihood that the testator had materially assented to its terms through readiness to soon sign either it or its polished iteration. This, to Professor Horton, could rescue all manner of unexecuted drafts, instructions, or texts—even those that the testator may not yet have read—from testamentary oblivion, as well as encourage a more sympathetic, intent-furthering cast to the problems lurking within digital wills. His theory is imaginative but careful; practical, grounded, but inspired. Moreover, it undertakes to self-limit so as to protect against some “anything goes” view of the will.

Concern might remain over the elasticity of such terms as “formidable, material, ready, and ‘soon’” in imputing final assent to some technically inchoate plan. That said, such imprecision is not new, and as the reality of “circumstantial evidence” reflects, may be unavoidable whenever law peers into affairs of the mind. It would seem peculiar were law quite willing to punish crimes or deter torts based on indirect evidence of intent, yet ignore its fair appearance for death-time gifts, where the decedent to whom it is posthumously assigned will not suffer any negative consequences of finding it anyway. If intent matters (and it does) but accidents and other things happen (which they do), the safer bet for the fairness of probate is to meet testamentary intent where it surfaces, even if in non-traditional ways. Indeed, there must have been at least some intent in play, or there would not even be any testament-like (albeit unsigned) iteration to begin with and with which to later work.

I spent a good part of one 6-year-old summer trying to climb my grandmother’s maple tree. I tried jumping, running starts, ropes, stacked bricks—small solutions that offered no foothold. Later that fall, my mother encouraged me to try again. This time, I pushed off from her shoulders while pulling up into the lowest fork. I kept climbing, pulling down increasingly smaller branches along the way. I’d been looking at problems in the unyielding trunk: bark, roughness, and sap. I’d pictured the payoff as equally limited: the chance to sit in the tree. But as I cleared that initial hurdle, the view changed. And I remember thinking that the higher I could go, the farther I could see, and the more I could, by looking down toward the trunk then up toward the sky, somewhat picture time. In a way, this is what Professor Horton offers to those for whom intent really matters, and it is more than merely the possibility that an “unsigned will” is not, in fact, an oxymoron. He has given us shoulders, perspectives, possibilities, context, more questions worth asking, empathy, and a longer, broader view.

Cite as: Katheleen Guzman, Fits, Starts, and Finishes, JOTWELL (December 17, 2019) (reviewing David Horton, Wills Without Signatures, 99 B.U. L. Rev. 1623 (2019)), https://trustest.jotwell.com/fits-starts-and-finishes/.

Why You Should Flip Out and Over to a Single-Member LLC

F. Philip Manns, Jr. and Timothy M. Todd, The Tax Lifecycle of a Single-Member LLC, 36 Va. Tax Rev. 323 (2017).

All professional estate planners are familiar with the family limited partnership (FLP) as a gift and estate tax vehicle to create fractional discounts for federal gift tax purposes and to reduce the decedent’s gross estate for federal estate tax purposes. The main thesis of Professors Manns and Todd‘s piece is that a single-member LLC (SMLLC) is “the ideal initial entity in a gifting strategy.” (P. 325.) They contrast the SMLLC with the FLP, which “the literature continues to describe and analyze,” despite the fact that “the actual state law entity now is often an MMLLC [multi-member LLC].” (P. 344.) The professors discuss how an SMLLC “can be used to blunt the negative effects” (P. 325) (arguably, more successfully than an FLP) as to Internal Revenue Code sections 2512, 1015, and 2036, in part because of a Tax Court case, Pierre v. Commissioner.

In Pierre, the Tax Court held that, although an SMLLC may be disregarded under the check-the-box regulations for federal income tax purposes, those regulations do not provide for the LLC to be disregarded for federal gift tax purposes when a donor transfers an ownership interest in an LLC. (P. 344.) Professors Manns and Todd skillfully argue that, based on Pierre, a taxpayer can take advantage of the differing treatments of an SMLLC for federal income tax and federal gift tax purposes in the following situations (I do not cover in this jot all that the professors wrote).

First, as to section 2512 concerns about valuing gifts, SMLLCs offer advantages as a “first step in making gifts of entity interests.” (P. 349.) At the initial creation of a partnership (as opposed to an SMLLC), wealth disappears because the “aggregate value of those partnership interests almost always is less than the total value of the assets transferred to, and now owned by, the partnership, because minority ownership interests in entities are disadvantaged compared to direct ownership of assets.” (Pp. 348-49.) Professors Manns and Todd write that wealth disappearance is “permitted, or rather does not occur, when there is a ‘bona fide sale for an adequate and full consideration in money or money’s worth.'” (citing sections 2035(d), 2036(a), 2037(a), 2038(a)(1), and 2043(a)) (P. 349.) In transactions with donative intent (such as those among family members), the “bona fide sale” exception can apply “when the purpose for creating the entity is either (1) a business purpose or (2) a legitimate and substantial (or sometimes actual) nontax purpose.” (P. 349.) The professors note that a SMLLC created to hold investment assets [prior to making gifts of entity interests] “more easily can fit within the second (legitimate and substantial nontax purpose) prong than an MMLLC can.” (P. 349.)

Second, as to section 1015 concerns about a lifetime transfer of property with a built-in loss (which creates an adjusted gain basis and an adjusted loss basis for the donee), the Pierre case, per Professors Manns and Todd, makes section 1015 inapplicable as to an SMLLC. (P. 339.) Under Pierre, the SMLLC is disregarded when an LLC owner transfers an LLC interest such that, for federal income tax purposes, the owner transfers a proportionate share of LLC assets and not an LLC entity interest. (Id.) Accordingly, the value of the proportionate share of the LLC assets does not have a minority interest discount, which would exist if there had been a transfer of an LLC entity interest. Consequently, a taxpayer initially creating an SMLLC never, under section 1015, encounters the complicated situation of a partner having, as to her partnership interest, both an outside basis and an inside basis. (P. 340.)

Third, as to section 2036 concerns about a clawback into the decedent’s gross estate of the value of all property transferred previously to the SMLLC, Professors Manns and Todd point to Estate of Mirowski v. Commissioner. In that case, the Tax Court did not require that the gross estate include property previously transferred to the SMLLC (which transfers reflected valuation discounts allowed). The professors summarized the Mirowski case’s “roadmap for securing valuation discounts when an SMLLC is the starting vehicle for gifting entity interests”: (1) create the SMLLC for “legitimate, actual, significant non tax reasons,” (2) require in the operating agreement capital accounts under the applicable Treasury Regulations, (3) deny in the operating agreement the SMLLC creator from having the discretion to determine distribution amounts, and (4) avoid the negating factors from Estate of Purdue v. Commissioner (such as taxpayer on both sides of the transaction, taxpayer’s dependence on partnership distributions, and taxpayer’s failure to transfer property to the partnership, among other factors). (Pp. 368-69.)

Professors Manns and Todd’s piece is thought-provoking. The literature focuses on the FLP as a federal gift and estate tax vehicle. The professors have successfully posited the SMLLC as “the ideal initial entity in a gifting strategy” (P. 369) to preserve valuation discounts and to preclude gross estate inclusion of property initially transferred to the SMLLC.

Cite as: Michael Yu, Why You Should Flip Out and Over to a Single-Member LLC, JOTWELL (September 13, 2019) (reviewing F. Philip Manns, Jr. and Timothy M. Todd, The Tax Lifecycle of a Single-Member LLC, 36 Va. Tax Rev. 323 (2017)), https://trustest.jotwell.com/why-you-should-flip-out-and-over-to-a-single-member-llc/.