Florida Estate Planning and Probate Law Blog focused on recent case law and planning ideas.

REVISED DEATH CERTIFICATES FOR SAME-SEX COUPLES IN FLORIDA

The United States Supreme Court ruling in Obergefell v. Hodges in 2015 has brought many changes, protections and complications for same-sex couples. In 2015, after the historic court ruling, a gay widow asked the state of Florida to correct his deceased spouse’s death certificate to reflect their prior marriage in New York. The state of Florida refused since the couple were not legally married, under Florida law, at his date of death. The widower then sued the state to correct the inaccuracy. On March 23, 2017, a U.S. District Court Judge ruled in his favor and ordered the state to correct his spouse’s death certificate to reflect their marriage. As a result, the state of Florida must now re-issue an accurate death certificate for all individuals who were incorrectly designated unmarried at time of death because their spouses were of the same sex.

WHAT HAPPENS TO YOUR DEBT AT DEATH?

Everyone reads about the huge transfer of wealth occurring from one generation to the next, however, it is estimated that 73% of decedents have outstanding debt at their death. According to Credit.com, the decedents carried an average total balance of $61,554, including mortgage debt, and $12,875, without. Approximately 68% had credit card balances, 37% was mortgage debt, 25% had auto loans (25%), 12% had personal loans, and 6% had student loans. Fortunately, the “[d]ebt belongs to the deceased person or that person’s estate.” Only if the decedents estate has sufficient assets to cover their debts will their creditors be paid. Family members are not personally responsible for the unpaid debt. It is important to discuss with your probate attorney what assets will be exempt from creditor claims upon a decedent’s death.

EVER WONDER WHAT YOUR FICA TAX IS FOR?

FICA taxes, which originate from the Federal Insurance Contributions Act, is a United States federal payroll (or employment) tax imposed on both employees and employers. This payroll tax is withheld from employee paychecks and paid by employees and employers for (1) Social Security (OASDI) and (2) Medicare. The tax helps to fund benefits for retirees, disabled people and children. Your tax contribution helps your parents and grandparents have a secure retirement while securing today and tomorrow for you and your future family. Here is the breakdown of these taxes are paid: The employer and employee each pays 7.65% (Social Security portion is 6.2%, and the Medicare portion is 1.45%). The Social Security portion is capped each year at a set amount; while the Medicare portion is not capped.

HOPING FOR AN INHERITANCE? YOU MAY NOT GET AS MUCH AS YOU EXPECT

Everyone should be grateful to receive an inheritance, and no parent wants to leave their offspring with nothing. But just 21 percent of those who plan to bequeath money to their children tell them how much money they'll get. When kids do find out the size of their inheritance after a loved one passes away, it's often less then expected. It can add an unwanted feeling—disappointment—into an already-volatile emotional stew. More than half of 2,700 adults surveyed for Ameriprise Financial late last year expect to get an inheritance of more than $100,000. Among those who had already received an inheritance, about the same percentage (52 percent) got less than $100,000. The survey focused on Americans between the ages of 25 and 70 with at least $25,000 in assets. Some 83 percent plan to leave money to loved ones. If those heirs have unrealistic expectations, it can lead to family tension later, said Marcy Keckler, vice president for financial advice strategy at Ameriprise. Half of the boomers surveyed plan to leave at least $500,000 to their kids. Forty-seven percent of Gen Xers and 33 percent of millennials wanted to leave that much as well. While the survey found that the majority of those who had already inherited got less than $100,000, perhaps the portfolios of those benefactors hadn't lived through an eight-year bull market. Family conflicts often arise when money mixes with grief. Almost a quarter of those surveyed expect family members will have disagreements after they learn the terms of the will. That proved true for 25 percent of those in the survey who were left money.For parents, sometimes the issue is whether to leave amounts to children that are fair, or that are equal. That can become an issue if one child is wildly successful, while another struggles financially. There's no way to eliminate these conflicts, but you can minimize them, said Eric Reich, a certified financial planner with Reich Asset Management in Marmora, N.J. His clients create what's called an "ethical will," which is a letter, document, or video that explains to kids why their parents divided assets the way they did.Addressing potential conflicts while everyone is still alive is an even better strategy. Reich asks parents to get feedback from their children on what each one really wants from the estate. Usually "it's not money, but items of sentimental and/or intrinsic value," he said. "Most often the things that a particular child values most, the parents had no idea they even wanted to inherit." Jewelry usually causes the most problems, Reich said, especially pieces that have been passed down generations. And siblings can hold grudges for a long time. "I've actually seen two very close siblings who have not spoken for the past 15 years over a piece of furniture, an antique breakfront cabinet valued at $10,000 in an estate valued at $3 million," he said. It may be less anxiety-inducing if parents give children an estimation of what they hope to leave them. "I recommend parents give children some frame of reference," said Keckler. By setting proper expectations, the inheritance will be "less of a source of tension later," she said. Beloved animals may also receive money if an owner dies. Some 5 percent of the people surveyed said they wanted to leave money behind for care of a pet. Whatever the intent, few will match what is perhaps the largest inheritance left to a pet ever: $12 million, from New York hotel heiress Leona Helmsley to her maltese, Trouble. She left her two grandsons out of the will. This article was provided by Bloomberg News.

FUTURE LIFE EXPECTANCY DECLINE FOR THOSE RESIDING IN THE UNITED STATES?

While the life expectancy at birth for residents of industrialized nations will continue to increase in the future the same is not expected in the United States. The life expectancy for US residents is expected to be on par with those in Mexico (women) and the Czech Republic (men). In contrast, South Korean women and Hungarian men are projected to make the largest overall gains (with South Koreans second among males). It is anticipated that South Korean women will live to an average of 90 years old by 2030 (the first time a population will break the 90-year barrier). While US residents are anticipated to gain a couple of years of life expectancy between 2010 and 2030, predicted lifespans will remain in the early 80's for women and late 70's for men (83.3 for women and 79.5 for men in 2030, up from 81.2 for women and 76.5 for men in 2010). The reasons for the small growth are the highest infant and maternal mortality rates, the highest obesity rate, and the “largest share of unmet health-care needs due to financial costs.” In December, the U.S. government reported that life expectancy had declined in 2015 for the first time since 1993 as death rates for eight of the 10 leading causes of death, including heart disease, rose.

NEVADA v. DELAWARE FOR ASSET PROTECTION TRUST?

Delaware has promoted itself as the top jurisdiction for creating an asset protection trust. However, a 2014 court decision, Kloiber v. Kloiber, has put the creators of Delaware Asset Protection Trusts on notice of possibly choppy waters ahead. The case involved a Delaware Dynasty Trust (DDT) which had been established for a son, who later became embrioled in a divorce, his son’s spouse, and their descendants. At the time of the divorce, the trust’s assets totaled around $310 million. The settlement forced the trust to be severed, creating a separate trust for the wife which was funded with some of the original trust assets, and rendered the asset protection plan useless when the now ex-wife received assets intended solely for the son, his spouse, and his descendants. Individuals are now considering creating asset protection trusts in Nevada over Delaware because Nevada does not allow for claims from “exception creditors” (claims for alimony and spousal support from an ex-spouse).

INCREASED IRS AUDITS OF THE WEALTHY IN 2017

The IRS is planning to focus its attention in 2017 on the "Rich." That means individuals and companies who are likeliest to hide money or under-report their tax burden. While the IRS launches fewer full-blown audits, the agency is sending out more “mass notices” addressing specific issues (especially large charitable contribution, large losses, mortgage interest deductions, and 529 college savings plans). So-called “hobby losses” are a frequent IRS target. To combat these audits, be prepared to produce extensive records and documentation to substantiate each and every loss and charitable donation.

THE HOLOCAUST EXPROPRIATED ART RECOVERY ACT

The Holocaust Expropriated Art Recovery Act was enacted to help Holocaust heirs recover art stolen from their families during World War II. The Act will finally be put to the test in a New York court, as the heirs of Fritz Grunbaum are looking to claim two valuable drawings by Egon Schiele. The heirs claim that Grunbaum’s collection, which included eighty-one Schieles, was confiscated by the Nazis. Countering that argument, collectors, dealers, and some museums argue that the Nazis did not steal it and that Grunbaum’s sister-in-law sold fifty-three of the Schieles to an art dealer in 1956. Further, the opponents argue that previous courts have found that they were not stolen. Ultimately, the heirs hope the Act will help them prove they are victims of Nazi art looting. (NY Times Feb 27, 2017)