FLORIDA ESTATE PLANNING AND PROBATE LAW BLOG

The Florida Estate Planning and Probate Law Blog is focused on recent federal and state case law and planning ideas.

2023 RETIREMENT RELOCATION

♠ Posted by Marc J. Soss
2023 saw one of the biggest retirement relocations in three (3) years About 37% were under 65, including 23% who were under 55. In comparison, 26% of 2022 retirees were under 65. Florida led the nation and attracted 11% of retirees in 2023. South Carolina was a close second with 10% of retirement moves. The Miami-Fort Lauderdale and North Port-Sarasota Bradenton metro areas were the top destinations in Florida, while those moving to South Carolina flocked to Myrtle Beach-Conway-North Myrtle Beach.The other top destinations last year for retirees were Texas with 5.8%, Washington with 5.3%, Tennessee with 3.8% Wisconsin at 3.6%, Oregon with 3.2%, and North Carolina with 3%. In contrast, retirees fled California at the rate of 18.3%, followed by New York with 11.4%. Virginia with 6.5%, Ohio with 4.9% and Pennsylvania with 4,8%.
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2024 MEDICAID INCOME LIMITS

♠ Posted by Marc J. Soss
As of January 1, 2024, the income criteria, maximum amount of assets, and maximum equity in your homestead property has been adjusted: Applicant income limits: Increased to $2,829/month if single and $2742 if you are married. For an individual who is not married, the Applicant can only have $2000 in countable assets. For an Applicant who is married, their Spouse can have additional Asset of $148,620. An Applicant for Florida Medicaid can have up to $713,000 in homestead equity.
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2022 FEDERAL ESTATE AND GIFT TAX EXEMPTION AMOUNTS

♠ Posted by Marc J. Soss in ,,,,,,
Each year, the IRS considers inflationary adjustments to the estate and gift tax exemption amount and gift tax annual exclusion amount. The 2022 adjusted numbers are: 2022 Exemptions and Exclusions: The estate and gift tax exemption amount has increased to $12.06 million per person in 2022 (from $11.7 million per person in 2021) 2022 generation-skipping transfer tax (GST tax): The exemption amount has increased to $12.06 million per person. January 1, 2026: If Congress takes no action between today and December 31, 2025, the exemption amounts will revert to pre-2017 Tax Act levels ($5 million per person, adjusted for inflation) of approximately $6.5 million per person. Gift annual exclusion: Every year an individual is permitted to gift another individual, excluding their spouse, a certain amount without incurring any gift tax liability. Effective on January 1, 2022, the annual exclusion amount increased to $16,000 (up from $15,000). The annual exclusion is a powerful tax-saving tool because the person making the gift can transfer wealth without using any of his or her estate and gift exemption amount and without needing to file a gift tax return. A married couple can make a combined gift of $32,000.
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HOUSE WAYS AND MEANS COMMITTEE TAX PROPOSAL

♠ Posted by Marc J. Soss in ,,,,,,,,,
On September 13, 2021, the Congressional House Ways and Means Committee introduced legislative tax proposals to help fund the House’s proposed $3.5 trillion stimulus package. A brief summary of the trust and estate and retirement asset taxation proposals included within it follow: 1. Trusts and estates with taxable income of over $12,500 (adjusted for inflation) would be taxed at a 39.6% rate, increased from the current 37% rate. 2. Trusts and estates would be taxed on capital gains at a top rate of 25%, increased from the current 20% capital gains tax rate. 3. Trusts and estates with adjusted gross income (“AGI”) over $100,000 would be subject to a 3% surcharge on their income. 4. High-net-worth individuals would be subject to this additional 3% surcharge tax on their income on AGI greater than $5 million (for married filing jointly) or $2.5 million (for single taxpayers or married filing separately). 5. The federal estate tax exemption would return to the 2010 amount of $5 million (increased for inflation each year thereafter) from its current $11.7 million. In contrast, the value reduction for qualified real property used in a family farm would increase from $750,000 to $11,700,000. 6. In contrast with current federal tax law, an intentionally defective grantor trust would be treated as part of the grantor’s taxable estate for estate tax purposes. 7. Valuation discounts for lack of marketability or for minority ownership would not apply to the transfer of non-business assets. Currently, the IRS and courts permit such discounts to the fair market value of property for gift tax purposes. 8. Taxpayers with IRA or 401k (or other employer contribution plan) assets greater than $10,000,000 would no longer be permitted to contribute to their Roth or traditional IRAs, if their AGI exceeds $450,000 (for married filing jointly taxpayers) or $400,000 (for single taxpayers). 9. Employers would have to report to the IRS 401(k) balances that are greater than $2.5 million. 10. Taxpayers with AGI of $400,000 or more (or $450,000 or more in the case of married filing jointly taxpayers) would no longer be able to convert tax-deferred IRA or 401k account balances to Roth IRA accounts. 11. Taxpayers would no longer be able to use IRA assets to invest in private securities offered only to accredited investors.
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METHODS TO PROTECT AN INHERITANCE

♠ Posted by Marc J. Soss in ,,,,
Unfortunately, divorce is a part of society. Many individuals seek legal counsel on how to protect an inheritance they may receive from a parent or family member proactively in the event they become divorced. The following is a brief list of ideas to consider implementing: (i) do not add your spouse’s name to the title of inherited assets; (ii) do not use inherited assets to purchase assets that will be titled with your spouse unless you intend to create a marital asset; (iii) do not use inherited assets to satisfy marital debt or pay marital expenses (home mortgage); and (iv) do not mix marital and inherited asset. It will also be important to maintain good records showing that you alone received the inheritance and the accounts you maintained them in. The records should include who the inheritance was from, documentation of how the inheritance was received (for example, a copy of a will, trust or beneficiary designation), what assets were inherited and the value of the inherited assets, when the inheritance was received, and what you did with the inherited assets after you received them. Another option is to create a Trust to hold title to the asset(s) (cabin, brokerage account, etc..) and maintain them separate from your marital assets.
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Funding Different Types of Long-Term Care

♠ Posted by Marc J. Soss in ,,,,,,,
Even if you are currently in perfect health, there is a significant chance you will eventually require some form of long-term care as you age. While it is common to do some sort of planning for the expenses of retirement, fewer people prepare in advance for long-term care, with the result being that many people end up blindsided by the sheer amount of expenses on a month-to-month basis. The cost of care is only increasing, and current government programs will not cover all facets of long-term care. This is why it is important to begin planning for long-term care as early as possible to ensure you or an aging loved one will receive the best possible care, without having to go into debt or sacrifice your needs. Here are some ways you can begin preparing today. Be prepared to pay for the cost Education is critical when you are planning for long-term care. For instance, how much do you know about the inner workings of Medicare and Medicaid? Contrary to popular belief, Medicare does not actually provide coverage for the ‘care’ part of long-term care. In other words, while it generally will help with critical care hospital visits and prescriptions, Medicare will not cover the cost of a nursing home, senior care facility, or an untrained caregiver over an extended period of time. There are many other circumstances, as well, in which Medicare will not cover the cost of long-term care. By planning and taking action early on—for instance, like signing up for long-term care insurance when you are younger—you can save a large amount of money. Rates increase by 2 percent to 4 percent in your 50s, compared to 6 percent to 8 percent in your 60s. Starting early will allow you to find a reasonable premium that will allow you to rest easy about long-term care decades in advance. One way to pay for long-term care is to sell your home. If you’re considering this option, make sure to either get your home professionally appraised or use an online home-value estimate. You can also sell a life insurance policy for a lump sum of money. Medicaid may cover the costs of doctor visits, as well as in-home or nursing home care services—however, seniors must meet some stringent requirements to qualify, which you can learn more about here. To learn more about your options and how to overcome financial or legal headwinds you may encounter when planning for long-term care, it’s a smart idea to contact an elder law attorney. Marc J. Soss specializes in handling elder law, estate planning, and much more. Know your long-term care options Unless you begin planning now, you run the risk of being blindsided with having a large portion of the cost of long-term care fall directly on your shoulders. Most people drastically underestimate the yearly cost of long-term care. While the specific number varies depending on your location, the quality of the facility, the amenities available, the level of specialization, and so on, expect to pay around $50,000 per year for the most basic level of care. There are several major categories of long-term care, each with their own pros and cons. Home healthcare allows you or your loved one to age in place, staying in your own home, with a skilled aide or nurse coming to provide assistance with basic necessities, like getting dressed and moving around, as well as with more serious medical situations requiring specialized knowledge and experience. This is typically the least-expensive option (the hourly rate increases as the aide’s experience and training becomes more extensive). Next, there are assisted living facilities, which strike the balance between care and independence. Assisted living facilities provide observation, assistance with daily living, and easy access to healthcare professionals and emergency services. Finally, you can also choose skilled nursing homes, which offer continuous care and support for the highest price. Which option is best depends on your needs and abilities. Long-term care shouldn’t be a burden. By planning for the cost in advance, you will help make the decisions surrounding long-term care much easier on your family, should they be necessary. To learn more, contact Ted James at tjames@tedknowsmoney.com.
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Federal Court Affirms Employer Right To Require Employees To Be Vaccinated

♠ Posted by Marc J. Soss in ,,,
On June 12, 2021 a federal judge in Houston, Texas issued the first federal court decision addressing whether an employer may require its employees to be vaccinated as a condition of employment. The federal judge ruled that Houston Methodist Hospital (the “hospital”) did not violate the law by requiring, as a matter of policy, that all employees be vaccinated against COVID-19 by June 7, 2021. The court rejected multiple arguments, including that the COVID-19 vaccines currently available “are experimental and dangerous,” the injection requirement violated public policy, employees cannot be required to receive “unapproved” medicines and that “no currently-available vaccines have been fully approved by the Food and Drug Administration,” and that the hospital’s policy was “coercion.” To learn more go to www.fl-estateplanning.com.
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NEW IRS GUIDANCE ON 100% MEAL DEDUCTION

♠ Posted by Marc J. Soss in ,,
On April 8, the IRS released Notice 2021-25, which provided guidance in determining which meals may be fully deductible under the new IRS rules and which are remain subject to the fifty (50%) percent limitation. Under long-standing IRS rules, the deduction for food or beverage expenses is generally limited to fifty (50%) percent of the amount. In order to be deductible as a business meal, the food must not be lavish or extravagant or the taxpayer (or an employee of the taxpayer) must be present at the furnishing of such food or beverages. The Consolidated Appropriations Act of 2021, expanded the deduction of business meals to one hundred (100%) percent, if the food or beverages for the meal are provided by a restaurant. This expanded deduction is only allowable for amounts paid or incurred during the calendar years 2021 and 2022. The term “restaurant” is defined as “a business that prepares and sells food or beverages to retail customers for immediate consumption, regardless of whether the food or beverages are consumed on the business’ premises.” The notice also clarified whether certain employer-provided meals would qualify as restaurants under the regulations.
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THE COST OF LONG-TERM CARE IN 2020

♠ Posted by Marc J. Soss in ,,,,,
The cost of long-term care is a concern for all seniors. The annual cost continues to rise and makes it untenable for most to afford it. It is estimated that an individual turning age 65 has a seventy (70%) percent chance of needing long-term care at some point. The most expensive state for care is Alaska, while the least expensive state is Missouri. The annual Genworth study showed how Florida ranked. 2020 MEDIAN ANNUAL COSTS National Florida Nursing Home, Private Room $105,850 $117,804 Nursing Home, Semi Private $93,075 $104,025 Assisted Living $51,600 $44,400 Home Health Aide, 24/7 $209,664 $196,560 Home Health Aide, 40 hrs $49,920 $46,800 If you have not started already, it is important to plan for these expenses before your entire nest egg is expended.
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2021 Tax Information

♠ Posted by Marc J. Soss in ,,,
Although our 2020, Federal Income Taxes are not due until April 15, 2021, it is important to start planning today for 2021. The following is a list of some important tax thresholds: 2021 Annual Exclusion for Gifts In 2021, the first $15,000 of gifts to any person are excluded from tax. The exclusion is increased to $159,000 for gifts to spouses who are not citizens of the United States. 2021 Federal Income Tax Brackets For Single Individuals 10% Up to $9,950 12% $9,951 to $40,525 22% $40,526 to $86,375 24% $86,376 to $164,925 32% $164,926 to $209,425 35% $209,426 to $523,600 37% $523,601 or more For Married Individuals Filing Joint Returns 10% Up to $19,900 12% $19,901 to $81,050 22% $81,051 to $172,750 24% $172,751 to $329,850 32% $329,851 to $418,850 35% $418,851 to $628,300 37% $628,301 or more 2021 Standard Deduction Single $12,550 Married Filing Jointly $25,100 Head of Household $18,800
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2019 INCREASE IN CHARITABLE GIVING

♠ Posted by Marc J. Soss in ,,,,,,
Americans gave nearly $450 billion to charity last year, which is one of the highest amounts ever recorded. This number comes as lawmakers have been looking for ways to expand tax breaks for donors amid the coronavirus pandemic. Charitable donations rose 2.4 percent in 2019 according to an annual survey by Giving USA. Individual giving accounted for about 69% of all donations, but the biggest jump came from the generosity of corporations. In 2019, businesses gave about $21 million, an increase of 11.4% from 2018. Also, giving by foundations reached a record high of $75.7 billion. "In March, lawmakers included a measure in the coronavirus economic rescue bill that allows individuals to write off as much as $300 in donations for 2020 even off they don't itemize their taxes."Typically, deductions for charitable donations are only afforded to those who itemize their tax returns or add up all of their individual tax breaks, which is only about 10% of taxpayers.
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2020 RHODE ISLAND SALES TAX ON COMPUTER SOFTWARE AND STREAMING ENTERTAINMENT SERVICES

♠ Posted by Marc J. Soss in ,,,,
On June 24, 2020, the Governor of Rhode Island signed into law S2650 Substitute A, which expands the state’s sales tax base to computer software and specified digital products (streaming entertainment services), including digital audio-visual works, digital audio works, and digital books. The law also clarifies the definition of the “end-user” of a digital product in order to comply with the Streamlined Sales & Use Tax Agreement. The act is immediately effective. The law is designed to avoid sanctions by a state compact working toward sales tax harmonization. The tax is only on sales to end-users and is imposed regardless of whether the right to use the specified digital products is on a permanent or less than permanent basis and whether the purchaser must make continued payments for such right.
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HOME OFFICE DEDUCTION UNDER COVID-19

♠ Posted by Marc J. Soss in ,,,,
The government ordered shut down resulting from the spread of Covid-19 has resulted in an increased number of employee’s working from home. Many of these employee’s have inquired whether they can deduct expenses for their newly created home offices. The general rule is that expenses that otherwise might be deductible are disallowed with respect to a “dwelling unit” used by a taxpayer as a residence. However, expenses are allowed for a home office if “a portion of the dwelling unit” is used regularly and exclusively: (i) as a taxpayer’s principal place for any trade or business; (ii) as a place where patients, clients, or customers regularly meet or deal with a taxpayer in the normal course of business; or (iii) in the case of a separate structure not attached to the residence, in connection with a taxpayers business. Expenses attributable to business use may also be deductible if the use of the home is used regularly though not exclusively (i) for storage of inventory, product samples in a taxpayer’s trade or business or (ii) to provide licensed daycare services. The requirement that there be an “exclusive use” of a portion of the dwelling unit is satisfied only if there is no use of that portion of the dwelling at any time during the year that is not a qualifying business use. Further, incidental or occasional use does not qualify and the burden is on the taxpayer to prove that a portion of the residence has been used on a regular basis for business purposes. However, the Tax Cuts and Jobs Act of 2017 suspended the deduction for miscellaneous itemized deductions that included unreimbursed employee business expenses for tax years 2018 thru 2025. Therefore, employee’s sent home by their employers to work during the pandemic cannot deduct any of their home office expense even if they otherwise would qualify.
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STAFFORD ACT TAX RELIEF

♠ Posted by Marc J. Soss in ,,,,
On February 13, 2020, President Trump invoked the Stafford Act, and opened the door to a range of possibilities in structuring “qualified disaster mitigation” payments to employees under IRC Section 139. These payments are advantageous to both employers and employees and not subject to income taxes or payroll taxes. Yet, an employer is still allowed to claim them as a deduction. Expense reimbursement that can be considered “reasonable and necessary” as a result of the “qualified disaster” cannot simply be income replacement, such as sick, vacation, etc. The expenses you are reimbursing need to be: (i) expenses that are not otherwise covered by insurance; and (ii) “reasonably related” to personal, family, medical or housing expenses related to the “qualified disaster.” There is no stated cap or limit on the amount you can issue as tax-free reimbursement. Further, the IRS has made clear that if the reimbursement amount is “reasonable,” you do not need to require documentation to substantiate the expense from your employees. Examples include: A company sent employees to work from home with a $250 stipend for the equipment they need and a $50/month allowance for internet and phone service; employer is paying for employees’ transportation costs so they can avoid public transit systems; company issues all employees on temporary layoff a $1,000 stipend as housing assistance during that time; and a company is reimbursing hourly employees for up to $100 per day in childcare costs.
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IRS Notice 2020-18 Extends Tax Filing Deadline in 2020

♠ Posted by Marc J. Soss in ,,,,
IRS Notice 2020-18 has postponed this year's tax filing deadline to July 15, 2020. It is important to note that it extends only income tax and self-employment filings and payments and does not extend the time to file or pay employment taxes, estate taxes, gift taxes, excise taxes, information returns or any other federal tax or user fee filings. Taxpayers have until July 15, 2020, to pay income taxes without incurring penalties or interest, with no limit as to the amount of tax that may be deferred (previous IRS guidance, Notice 2020-17 limited the amount of tax that could be deferred). These postponements do not require a taxpayer to file an extension. However, if taxpayers are unable to file by July 15 they should request an extension. The IRS is encouraging taxpayers who are due a refund to go ahead and file. Refunds should arrive within 21 days of filing according to IRS.gov. The extension to July 15, 2020, also applies to Federal estimated income tax payments applied to the 2020 tax year (including payments of tax on self-employment income) normally due on April 15, 2020. However, the Notice does not provide guidance as to the June 15, 2020, estimated tax payment date. The time to respond to IRS notices also has not been extended. Taxpayers should review all tax notices and comply with the deadlines specified in the notice. Failure to do so could waive important rights such as the right to a collection due process proceeding.
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THE 2017 TAX ACTS IMPLICATIONS IN 2020

♠ Posted by Marc J. Soss in ,,,,,
The 2017 Tax Act made significant changes to itemized deduction planning. The two (2) biggest changes for 2020 involved: 1. Much higher standard deduction (adjusted for inflation annually).For 2020: $24,800 for married couples filing jointly (plus $1,300 for each spouse attaining age 65: max $27,400)), $12,400 for unmarried individuals/married filing separately (plus $1,650 if attaining age 65 ($1,300 if married filing separately: max $14,050 if single (max $13,700 if married filing separately)), and $18,650 for head of household (plus $1,650 if attaining age 65: max $20,300). 2. The Itemized Deduction computation now has an important and costly limitation. State and local taxes that are deductible in a year are limited to $10,000 (not adjusted for inflation) ($5,000 if married filing separately). These state and local taxes (“SALT”) are primarily property taxes, state income taxes (so could time property tax and estimated state income tax payments if total annual SALT fluctuates above and below $10,000, maybe because of buying or selling a home), and, for some states (such as Arizona), vehicle license tags tax portion. Itemized deductions for most taxpayers (who still can benefit from itemizing) often consist primarily of mortgage interest (but for new mortgages, limited to interest on $750,000 of the principal balance of primary residence only; $375,000 if married filing separately), charitable contributions and $10,000 of state and local tax. So many have a greater standard deduction, and will no longer itemize. Bunching of charitable contributions and large uninsured medical expenses (to the extent they would exceed 10% of adjusted gross income into one year could yield a benefit if that would push itemized deductions over the standard deduction for a year. Changing the date of a mortgage payment at year-end could move another month’s interest into a “bunching year.” With the standard deduction at a new high (in 2020 as high as $27,500), the itemized deduction may offer no benefit when it had in the past. Also for many more potential or actual homeowners who now don’t itemize, there is no tax subsidy in homeownership. For many others who do, property taxes may now not be subsidized in whole or in part. Old rules scheduled to return: But don’t completely forget the old rules. In 2026 the standard deduction rules will revert to what they were before the 2017 Tax Act. For example, among other things, the standard deduction for married couples could be around $14,500 (estimated for inflation adjustments), and itemized deductions will have no SALT limitation and will include miscellaneous itemized deductions and phaseouts of deductions for higher-income taxpayers nixed by the 2017 Tax Act.
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POTENTIAL CHANGES FOR NONSPOUSE DESIGNATED IRA AND RETIREMENT PLAN BENEFICIARIES ON THE HORIZON

♠ Posted by Marc J. Soss in ,,,,,,,
Important legislation is working its way through Congress. The Setting Every Community Up for Retirement Enhancement Act (“SECURE Act”) as passed by the House of Representatives on May 23, 2019, and would impact how and when an IRA or retirement account beneficiary would be forced to receive distributions from an inherited account. The biggest change under the SECURE Act would be the replacement of the 5-year distribution rule for inherited IRAs with a 10-year rule. It would also eliminate “stretch IRAs.” If signed into law, the Act would impact plan participants and IRA owners who die after January 1, 2020, with limited exceptions. Under current tax law contributions to an IRA and retirement plan are not taxed until distributed after retirement (distribution must begin not later than age 70.5). Until distribution the investments grow tax free and create an incentive for a retiree to withdraw from their IRAs as a last resort to avoid taxation, loss of tax shelter, and potential method to pass an inheritance on to beneficiaries. Under the SECURE Act, all IRA and retirement plan distributions would need to be completed within a ten (10) year period beginning in the year following the year the participant or IRA owner died. The ten (10) year period would replace the current five (5) year default period and would apply regardless of whether the plan participant or IRA owner died before or after reaching their required minimum distribution date (RMD). The change would apply to distributions to a non-spouse beneficiary from retirement plans and IRAs (including Roth IRAs) made after the death of the plan participant or IRA owner who dies after December 31, 2019. Limited exceptions apply for: (i) a new class of individuals called “eligible designated beneficiaries” (surviving spouse, minor child, disabled individual or individual that is not more than 10 years younger than the deceased participant); (ii) collectively bargained plans; (iii) certain governmental plans; and (iv) existing annuity contracts. The minor child exception will cease once the minor child reaches the age of majority. Thereafter, the remainder of the distributions to that individual must be completed within ten (10) years after that date. A “disabled individual” includes an individual unable to engage in any substantial gainful activity due to a medically determinable physical or mental impairment. The determination as to the existence of an eligible designated beneficiary will be made upon the death of the plan participant or IRA owner. For most inherited IRA beneficiaries, the 10-year rule will provide far more flexibility for timing distributions than the existing 5-year rule. However, those desiring to utilize their retirement account as a wealth transfer vehicle could be adversely impacted.
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DEDUCTIBILITY OF FUTURE ALIMONY PAYMENTS

♠ Posted by Marc J. Soss in ,,,,
Prior to the Tax Cuts & Jobs Act of 2017 ("ACT"), a divorced spouse could deduct any alimony payments made to his former spouse. The former spouse had to claim the alimony received as income. The ACT eliminated this tax deduction effective January 1, 2019. The implementation of this change remained unclear for agreements executed prior to December 31, 2018, but modified after that date. On July 22, 2019, the IRS issued an article clarifying the treatment of payments pursuant to a modified agreement. The article explained that "the new law applied to a modified agreement if the modified agreement 1) changed the terms of the alimony or separate maintenance payments and 2) stated that the alimony or separate payments are not deductible by the payer spouse or includable in the income of the receiving spouse." As a result, modified agreements that do not change or modify the terms of the payments and require them to be non-deductible remain subject to the old law.
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FLORIDA RANKED 46TH IN 2019 LAWSUIT CLIMATE SURVEY

♠ Posted by Marc J. Soss in ,,,
Florida’s lawsuit climate ranked 46th out of 50 in a new national survey released on September 18, 2019, by the U.S. Chamber Institute for Legal Reform (ILR). The city of Miami ranked among the ten worst jurisdictions in the nation. The 2019 Lawsuit Climate Survey was conducted by The Harris Poll on behalf of the U.S. Chamber Institute for Legal Reform. The poor perception of Florida’s legal climate is critical because 89 percent of survey participants—an all-time high—said a state’s lawsuit environment is likely to impact their company’s decisions about where to locate or do business. The survey comes at the same time the Florida legislature has made strides toward improving the lawsuit climate. Last April, the Florida legislature passed legal reform bills aimed at curbing rampant insurance fraud. In May, the state Supreme Court finally adopted a rule to keep junk science out of Florida courtrooms—already law in 40 other states and in federal courts.
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CALIFORNIA LEGISLATION TO PREVENT EXPOLOITATION OF THE ELDERLY

♠ Posted by Marc J. Soss in ,,,
Exploitation of the elderly is a serious problem in our country. Many incidents involve caregivers that take advantage of the vulnerability of the individuals they are caring for. The California Legislature has closed loopholes in its Probate Code that allows abusive caregivers to marry their way into a dependent adult’s wealth. Assembly Bill 328, signed by California Governor Newsom on June 26, 2019, and effective on January 1, 2020, creates a presumption of undue influence that applies in two scenarios. California law previously presumed that a dependent adult who signs an instrument benefiting a “care custodian” (i.e., a caregiver who provides health or social services to a dependent adult) does so as a result of fraud or undue influence such that the instrument is presumptively invalid. However, the law exempted spouses, domestic partners, and cohabitants who receive gifts from dependent adults. The exclusion permitted an opportunistic care custodian to marry a dependent adult so as to avoid the presumption of invalidity. Assembly Bill 328 amends section 21611 of the California Statutes so that care custodians who marry dependent adults cannot make “omitted spouse” claims if the dependent adult dies less than six months after the marriage occurred. Legislation of this nature is needed in all US states and territories. Talk to your state representatives to promote it.
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