Author: Rebecca Melone

How Will the New Marijuana Laws Impact Custody Cases?

In 2021 Virginia voted to move up the legalization of recreational use of marijuana to July 01, 2021. As with most new laws there are a lot of questions about how this will impact our day to day lives and, for those with ongoing custody and visitation cases, how this will impact those cases.

Frequently in custody and visitation cases parents will make allegations against each other regarding drug use, alcohol abuse, and several other bad acts. Most drug abuse allegations concern marijuana usage; and, in the past, the court’s response to these allegations was to order one party to undergo a drug test or to order that parents cannot use any illicit drugs during their custodial time. With the legalization of marijuana imminent, how courts address these allegations will be changing. Since recreational marijuana use has never been legal in Virginia before, there is no controlling authority that we can rely on at this stage. Instead, attorneys will likely look to the court’s treatment of alcohol use in similar circumstances.

First, the court will likely look to if the usage negatively impacts normal responsibilities. For example, have there been convictions for driving while under the influence, loss of a job, extraordinary spending on marijuana, or some other factor that has a serious negative impact.

Second, the court will look to see if the usage impacts the care of the children. As with alcohol, the court will likely look to instances when one parent was unable to properly care for the children due to marijuana usage. For example, if a parent was unable to pick the children up from school or an event, unable to transport the children in an instance of a medical emergency, or some accident occurring that should have been avoided.

Finally, the court will look at any instances of the parent driving while intoxicated with the children in the car. This is a big factor for the court and can result in pretty extreme action from the court if the other parent is able to prove that the children were put in harm’s way.

These are just few examples of what the court will look at when allegations of marijuana abuse are presented. It is very likely that the court will hear less allegations of marijuana abuse after it is fully legalized. However, just like with alcohol use, the court may restrict a parent from using marijuana during their custodial time and may order treatment or counseling if use is shown to be excessive or harmful.

Substance abuse is just one factor of what the court will look at when deciding what is in the best interest of the children pursuant to Virginia Code 20-124.3. When going through any custody or visitation case is important to understand all of your rights. The experienced family law attorneys at Melone Hatley, P.C. can help you navigate your rights and obligations during your custody and visitation case. Contact our office to schedule a free initial phone consultation today.

What is “Discovery”?

In any family law case, you have the right to certain information from the other party. Whether it’s a divorce, custody, or child support case, your attorney may talk to you about doing “discovery.”

The most common forms of discovery are interrogatories and requests for production of documents. Interrogatories are written questions to the other side, asking for information such as their employment schedule, custodial obligations, housing arrangement, expenses, and other details that may be important to the case. Requests for production of documents are requests for the other side to produce certain documentation, which can include paystubs, tax returns, copies of text messages, or other items that may be necessary exhibits for trial.

No matter what type of case you are going through, discovery can be the “make or break” piece of the puzzle. If you don’t object properly to overreaching, invasive, or unnecessary questions, you will be obligated to answer them fully. If the information requested is not in your possession, you may be obligated to get it. The responses you provide are sworn to and can be used to challenge your testimony at trial. If you haven’t provided something requested in discovery, you can be subject to sanctions or penalties for failure to comply with the request, and you can be prejudiced or sanctioned at trial and even prevented from introducing evidence as part of your case.

Given the severe penalties at stake, your case can be won or lost well in advance of trial depending on discovery. In addition to the ordinary interrogatories or requests for production, the other side can request admissions from you, asking that you “admit or deny” certain elements of the case. If you miss the deadline to provide responses, the court will deem these requests to be “admitted,” severely prejudicing your case.

In cases where discovery has not been authorized or where it’s been limited, attorneys can use subpoenas or subpoenas duces tecum to request documents that may be necessary to the case. Attorneys can send requests to banks, businesses, or individuals, requiring them to provide documents within a certain time frame. Again, if you do not file a motion to quash the subpoena within the necessary timeframe, you may end up providing more information to the other side than they are entitled to.

No matter what type of case you are going through, it’s essential that you understand and follow the rules and procedures of the court. If you have been served with discovery requests, you have a certain time limit to respond. Missing that deadline can mean penalties to your case and even attorney’s fees for the other side for your noncompliance.

If you have questions about the discovery process or your case, contact one of our experienced attorneys at Melone Hatley to help you through this process. Contact us for a phone consultation today.

Estate Planning in Divorce

When going through a divorce, there is a lot going on and many people will forget how important it is to update their estate plan. Even a simple divorce can take over a year to finalize and a lot can happen in that year that can jeopardize your final wishes.

It was recently discovered that Larry King had a will that excluded his estranged wife. At the time of his death, Larry King was in the midst of a divorce with his seventh wife. As can be seen in this article, Mr. King drafted a “secret” will that excluded his estranged wife and left everything to his children. Further complicating this process is that two of the children named in his will had already predeceased him. While Mr. King’s estate plan is much more diverse and complicated than most people need, he is still running into some very common issues. Now, Mr. King’s estranged wife is challenging the will and it is likely that this matter will be wrapped up in expensive litigation that could have been easily avoided with an updated estate plan.

When going through divorce, the following will help to avoid these types of issues:

 

  • Find a law firm that specializes in both divorce and estate planning. While you can seek help from two separate law firms, it will be most efficient to have your estate plan handled by the same firm that is handling your divorce.
  • If possible, draft a new health care directive and power attorney prior to filing for divorce. If the divorce has already been filed, try to get this done as soon as you can. Without these documents, your spouse may have control over decisionmaking if something happens to you while your case is pending.
  • You must update your beneficiary designations on all of your accounts. Properly updating your beneficiary designations is part of the estate plan and should be looked at when anything happens in your life.
  • Create a dynamic estate plan. While most people think they only need a will, generally speaking a trust would better achieve the estate plan. A trust is not just for those with a lot of assets, it is for anyone who wants to ensure that their assets are truly protected or for anyone who has children who are still under the age of 18. A trust can be modified after the divorce is finalized or at any point that there is a major life change. Remember that if you pass away while your children are underage, the assets will flow to your ex-spouse, which may have been something that should have been avoided.
  • At the very least, draft an updated simple Will that will last for the duration of the divorce. By drafting the updated will for the divorce, you will ensure that your estate plans are met if something happens during the divorce. Then once the divorce is over, create a more dynamic estate plan.

If you have questions about your estate planning during your divorce or custody case, contact one of our attorneys today to schedule a phone consultation.

When Should I Seek a Protective Order?

In any family law situation, whether it’s a divorce, child custody, or support case, emotions can run high and can even turn violent. Family violence has a broad definition and can include physical violence, emotional abuse, threats, threatening behavior, or harassment. If you find yourself on the receiving end of these acts; there are several things that you should do right away; you can call the police and/or seek a protective order.

First, you should try to document the situation. It may not be possible to actually record the situation but once you feel safe you can memorialize what happened through writing it down or texting friends or family. You should also decide if police intervention is necessary. If you are in fear for your safety, your first call should always be to the police.

Calling the police can be an extreme step in these types of matters as it may end up with one party being arrested and criminally charged.

If the police believe that the incident warrants further intervention, they will usually remove one party from the home and give the victim advice about seeking a protective order, and some will go so far as helping the victim get an emergency protective order. Either way, the police will make an incident report with the date, time, location, and responding officers to the scene. This will create a record that can be used later in your case, if necessary.

If you do not call the police at the time of the incident, and you have a continuing fear of the other party, you can still seek a protective order on your own. You will have to go to your local magistrate and swear to the facts of the situation that lead you to seek the protective order. You must show there is a credible fear and a continuing fear of other party. If you have children, you may want to add your child to your request for a protective order. If the magistrate believes that a credible threat exists, you will be awarded a preliminary protective order which will last until the court is able to have hearing, usually two weeks.

If you are afraid of your spouse, it is best to not wait to seek a protective order. The more time that you let lapse between the incident and seeking the protective order, the less likely it is that you will get the relief that you are seeking.

Frequently, we receive phone calls from people who will discuss what their significant other did a few months ago, or even years ago, and then want to know about seeking a protective order. If you have waited a significant amount of time and have continued living together, the court will not grant your request for a protective order. If there has been a recent incident, you may want to bring up prior incidents in the hearing to show the court the pattern of behavior and risk to your safety. If you move out as a result of a violent incident, you should remain out of the home until your protective order case can be heard. With all protective orders, you can request the court dismiss it in the future if necessary, but it’s hard to get it back once it’s gone.

Family violence is very serious and if you have been a victim or have been accused of family violence it is very important to contact one of our experienced attorneys at Melone Hatley to help you through this process. Contact us for a phone consultation today.

Estate Planning During Divorce

When going through a divorce there are many variables that must be addressed; do you stay in the home, do you sell assets, do you purchase assets, are you going to be able to negotiate an agreement or will this matter be hotly contested. One of the more overlooked aspects of the divorce process is preparing your estate for the unknown.

The following are common mistakes made during the divorce process and how to fix them:

 

  • Failing to update, or have in place, a power of attorney and advanced medical directive. If you do not have these documents in place, your spouse can make decisions until you are officially divorced, which may take over a year.
    • During this time, you want to create a power of attorney and assign that role to a trusted family member; a sibling or parent would be best. You will also want to create an advanced medical directive that lays out exactly what you want to happen in case you become ill and are not able to communicate your wishes. Even if you are temporarily unconscious, or under anesthesia, your agent can step in and make decisions on your behalf.
  • You do not have a will or have not updated your will. If you do not have a will, your spouse may get 100% of your estate if something happens to you during your divorce.
    • It is important to update your overall estate plan in order to direct your assets away from your soon to be ex-spouse. You can use beneficiary designations, revocable trust, and other estate planning tools to limit the potential exposure of your estate assets.
    • After the divorce is finalized, it is important to revisit your estate planning to ensure it fits in line with your goals. If you want to leave assets to a minor child, you’ll need to have a structure in place to ensure they receive the benefit you want without the risk of control by your ex-spouse.
  • Failing to update beneficiary designations on bank accounts or life insurance claims.
    • If you have not set your beneficiary designations and something happens to you; the assets will be subject to your estate and your spouse will potentially inherit 100%
    • Beneficiary designations are some of the most important elements of your estate plan, and can make a huge difference in the cost and time involved in probate. Make sure to review your options with a trusted financial advisor and estate planning attorney.

If you haven’t considered the impact of your divorce case on your estate plan, it’s essential to speak with a family and estate attorney who can advise you of your options. Make a plan today by consulting with our office in Reston 703-995-9900 or Virginia Beach 757-296-0580, or schedule a consultation online.

I’ve Been Served With A Protective Order, What Do I Do Now?

Protective Orders can be one of the most alarming and hard to understand aspects of family law. A spouse can get a protective order against you and have you removed from the home within a matter of hours. Then you will have to stay out of the home, having no access to your belongings, until the court is able to have a full hearing, which can take up to two weeks. So, if you find yourself in the position where a protective order has been taken out against you; it is imperative that you do the following:

  • When the police make contact to remove you from the home make sure to grab clothes, cell phone chargers, work items, car keys, and anything else that you may need for the next two weeks. Generally, you will only have a few minutes to grab everything that you need, and you are almost always caught by surprise; so this part can be difficult.
  • Make sure to keep the paperwork that the police give you. This part is important because it will have the relevant court dates.
  • DO NOT contact your spouse under any circumstances; even if your spouse is texting/calling/emailing you, do not respond. Further, do not have anyone you know reach out to your spouse to speak with them. You can get a protective order violation that sticks with you even if the overarching protective order is dismissed. Any violation of a protective order can be a misdemeanor, which carries additional criminal penalties.
  • Frequently a protective order will cover your spouse and not your children. This means that there are no restrictions on you seeing your children, but you will not be able to contact your spouse to coordinate visitation.
  • Generally, if you are served a protective order there will be hearing that will follow. It is imperative that you are able to protect your rights during this hearing—a protective order can last up to two years; during those two years you may have to continue to pay all bills for your spouse as well as support yourself.

Protective orders are very serious and can have a large impact on your rights. If you have been served a protective order, contact one of our attorneys today so that we can discuss how to preserve your rights.

Where is my stimulus payment?

It was recently announced that a third stimulus payment may be on the way. While this money can be very helpful it can also be very confusing if you are separated or going through a divorce.

The first two stimulus payments were paid out based on your 2019 tax returns. And, more importantly, the stimulus money may have been deposited into the same account you used for your 2019 tax return; this can create issues if you or your ex-spouse now control that account. Following are some ways to fix these issues and try to avoid them in the future:

  • File your 2020 taxes as soon as you can. The stimulus payments are based on the most recent tax filings. So, if you are able to file your 2020 taxes prior to the issuance of the next round of stimulus payments it may ensure that your stimulus payment goes to you.
  • If your spouse received the full stimulus payments but will not give you your share, you may have options:
    • If you are not yet divorced, the court can divide those stimulus payments in the final divorce trial or even in a temporary support hearing. While you may have to wait to get your money, you will be able to get it.
    • If you are divorced, you will need to review your divorce order. Most divorce orders contain language about what do about tax issues that occurred during the marriage but arise after the divorce—the stimulus payments could be construed to be one of these issues

Frequently a request for the stimulus money will be enough to get the ball rolling. But, if that does not work, contact us today for a free initial phone consultation. You can schedule a time to speak with an attorney directly on our website at www.melonelawpc.com/contact or call one of our offices 703-995-9900 in Reston or 757-296-0580 in Virginia Beach.

What is “status quo” in custody cases?

Anyone that has gone through a custody or visitation battle in court, or is about to, may have heard the term “status quo.” Status quo, in terms of custody and visitation, means the schedule the parties have been following prior to court. The court will consider what’s normal for the children and parents in setting a visitation schedule. So, if one parent leaves the home without the children, it is unlikely that parent will ultimately get primary physical custody.

Statutory Basis

The courts in Virginia have gone to great lengths to try and dispel the idea that status quo is a factor in determining custody and visitation. In fact, Virginia Code 20-124.3—the best interest of the child standard – does not mention status quo directly. However, it is disingenuous for the courts to claim that status quo does not play a part when so many elements of the Virginia Code 20-124.3 ultimately rely on the pattern the parties have been following prior to litigation.

In order to fully understand how status quo impacts what the court considers to be in the best interest of the child when determining custody and visitation cases, it is important to review all ten factors of Virginia 20-124.3; but the following weigh the most heavily:

 

  • Factor (3): Which deals with the relationship existing between each parent and child strongly relies on status quo. If one parent left the home, and other parent has been taking care of the daily needs of the child; that parent is going to have a different relationship than the parent that left the home. The court will strongly favor keeping the child with the parent who has been handling the day-to-day needs of the child;
  • Factor (5): The role that each parent has played and will play in the future again heavily relies on status quo. In the example where one parent leaves the home, the court is going to consider that parent’s role to have been minimal and, for continuity, work to give the child the same contact with that parent.
  • Factor (7): The ability of each parent to maintain a close relationship with the child also relies heavily on status quo. The court will consider that the parent who does most of the day-to-day care has the closest relationship with the child.

Separation Makes Time-sharing Difficult

Any parent who is going through a separation understands the harsh reality that equally splitting time with a child is difficult; especially when the parents are not getting along. In addition to the relationship factors, there are also financial issues that arise—it is not always possible for the parents to separate and then live close enough to exercise an equal custody arrangement. Transferring the children back and forth during the week may not be possible given the children’s school and extracurricular programs and childcare availability.

Parental Alienation Issues

The most frustrating situation is when one parent takes the children and leaves and then blocks the other parent from having time with the children. In these instances, even though the other parent is blocking access to the children, which would be relevant to Virginia 20-124.3(6), the court may still side with the offending parent based on the status quo. It is important that if you are being alienated from your child that you act quickly and get your custody and visitation case before the court before a new pattern or status quo is established.

Contact Melone Hatley, P.C.

The custody and visitation attorneys at Melone Hatley, P.C. have the experience necessary to help navigate you through all of these situations and ensure the best possible outcome for your matter. For more information about our family law practice, contact our office today at 703.995.9900 in northern Virginia or 757-296-0580 in Virginia Beach or visit our website: www.MeloneLawPC.com. You can also schedule a time for a free consultation with one of our attorneys online at www.melonelawpc.com/contact.

Can You Be Fired For Taking Paternity Leave?

The short answer, unfortunately, is yes. A new ruling out of New York makes it clear that federal protections under Title VII are gender specific and only designed to apply to “a pregnant employee.” In the case of Van Soeren vs. Disney Streaming Service, a male employee of Disney claimed that he was subject to harassment and mistreatment from his co-workers after they found out his wife was pregnant. After taking his approved paternity leave, he was ultimately fired. US District Judge Naomi Reice Buchwald, a Clinton appointee, held that the plaintiff didn’t have standing as discrimination suits under Title VII are designed to protect “pregnant” employees. It does not protect spouses of pregnant parties.  Neither does it protect adoptive parents.

An Unfair System

This ruling not only limits Title VII protections based on gender, but also disqualifies adoptive parents. The ruling highlights the unfair treatment of new parents based on gender or adoptive status. Fathers are currently provided significantly less paternity leave, and are often limited to unpaid leave. According to the Department of Labor, only 13% of men who took paternity leave were offered paid paternity leave and 70% of fathers who took time off, took less than 10 days[1]. Fathers or adoptive parents may be less inclined to take family leave if they know they can be penalized when they return to work.

Hurting Families

During an essential time in a child’s development, limiting time with new parents can be damaging. Time at home is essential for parents to bond with their children as well as for the child’s healthy development. One study found that the fathers who took more than two weeks off for paternity leave were much more engaged with care of the children after nine months[2]. It has also been demonstrated that when fathers are more engaged in the care of their children it leads to improved cognitive and mental health of the child[3].

While companies have made great progress in providing maternity and paternity leave for expecting parents, this is a sign that there is a still a lot of work that needs to be done in our courts and legislative branches to ensure expecting parents enjoy equal rights under the law. Limiting protections under Title VII to “pregnant” employees has an extremely unjust result to fathers and adoptive parents and can negatively impact children.

About Melone Hatley, P.C.

Melone Hatley, P.C. is a general practice law firm with offices in Reston and Virginia Beach. Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients.

We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about our family law practice, contact our office today at 703.995.9900 in northern Virginia or 757-296-0580 in Virginia Beach or visit our website: www.MeloneLawPC.com. You can also schedule a time for a free consultation with one of our attorneys online at www.melonelawpc.com/contact.

 

[1] https://www.dol.gov/sites/dolgov/files/OASP/legacy/files/PaternityBrief.pdf
[2] Nepomnyaschy and Waldfogel (2007) at 442-45
[3] Huerta, et al (2013); Nepomnyaschy and Waldfogel (2007); Anna Sarkadi, et al. 2008. “Fathers Involvement and Children’s Developmental Outcomes: A Systematic Review of Longitudinal Studies.” Acta Pediatrica 97: 153-158; Erini Flouri and Ann Buchanan. 2002. “The Role of Father Involvement in Children’s Later Mental Health.” Journal of Adolescence 26: 63-78.

Wealth Transfer Strategies to Consider in an Election Year

With a push by the Democratic party to return federal estate taxes to their historic norms, taxpayers need to act now before Congress passes legislation that could adversely impact their estates. Currently, the federal estate and gift tax exemption is set at $11.58 million per taxpayer. Assets included in a decedent’s estate that exceed the decedent’s remaining exemption available at death are taxed at a federal rate of 40 percent (with some states adding an additional state estate tax). However, each asset included in the decedent’s estate receives an income tax basis adjustment so that the asset’s basis equals its fair market value on the date of the decedent’s death. Thus, beneficiaries realize capital gain upon the subsequent sale of an asset only to the extent of the asset’s appreciation since the decedent’s death.

 

If the election results in a political party change, it could mean not only lower estate and gift tax exemption amounts, but also the end of the longtime taxpayer benefit of stepped-up basis at death. To avoid the negative impact of these potential changes, there are a few wealth transfer strategies it would be prudent to consider before the year-end.

 

Intrafamily Notes and Sales

 

In response to the COVID-19 crisis, the Federal Reserve loweredthe federal interest rates to stimulate the economy. Accordingly, donorsshould consider loaning funds or selling one or more income-producing assets, such as an interest in a family business or a rental property, to a family memberin exchange for a promissory note that charges interest at the applicable federal rate. In this way, a donor can provide a financial resource to a family member on more flexible terms than a commercial loan. If the investment of the loaned funds or income resulting from the sold assets produces a return greater than the applicable interest rate, the donoreffectively transfers wealth to the family members without using the donor’sestate or gift tax exemption.

 

Swap Power for Basis Management

 

Assets such as property or accounts gifted or transferred to an irrevocable trust do not receive a step-up in income taxbasis at the donor’s death. Gifted assets instead retain the donor’s carryover basis, potentially resulting in significant capital gains realization upon the subsequent sale of any appreciated assets. Exercising the swap power allows the donor to exchange one or more low-basis assets in an existing irrevocable trust for one or more high-basis assets currently owned by and includible in the donor’s estate for estate tax purposes. In this way, low-basis assets are positioned to receive a basis adjustment upon the donor’s death, and the capital gains realized upon the sale of any high-basis assets, whether by the trustee of the irrevocable trust or any trust beneficiary who received an asset-in-kind, may be reduced or eliminated.

 

Example: Phoenix purchased real estate in 2005 for $1 million and gifted the property to his irrevocable trust in 2015 when the property had a fair market value of $5 million. Phoenix dies in 2020, and the property has a date-of-death value of $11 million. If the trust sells the property soon after Phoenix’s death for $13 million, the trust would be required to pay capital gains tax on $12 million, the difference between the sale price and the purchase price. Let us say that before Phoenix died, he utilized the swap power in his irrevocable trust and exchanged the real estate in the irrevocable trust for stocks and cash having a value equivalent to the fair market value of the real estate on the date of the swap. At Phoenix’s death, because the property is part of his gross estate, the property receives an adjusted basis of $11 million. If his estate or beneficiaries sell the property for $13 million, they will only pay capital gains tax on $2 million, the difference between the adjusted date-of-death basis and the sale price. Under this scenario, Phoenix’s estate and beneficiaries avoid paying capital gains tax on $10 million by taking advantage of the swap power.

 

Grantor Retained Annuity Trust

 

A grantor retainedannuity trust (GRAT) is an efficient way for a donor to transfer asset appreciation to beneficiaries without using, or using a minimal amount, ofthe donor’s gift tax exemption. After the donor transfers property to the GRAT and until the expirationof the initial term, the trustee of the GRAT (often the donor for the initial term) will pay the donor an annual annuity amount. The annuity amount iscalculated using the applicable federal rate as a specified percentage of the initial fair market value of the property transferred to the GRAT. A Walton or zeroed-out GRAT is intended to result in a remainder interest (the interest that is considered a gift) valued at zero or as close to zero as possible. The donor’s retained interest terminates after the initial term, and any appreciation on the assets in excess of the annuity amountspasses to the beneficiaries. In other words, if the transferred assets appreciate at a rate greater than the historic low applicable federal rate, the GRATwill have succeeded in transferring wealth!

 

Example: Kevin executes a GRAT with a three-year term when the applicable federal rate is 0.8 percent. He funds the trust with $1 million and receives annuity payments of $279,400 at the end of the first year, $335,280 at the end of the second year, and $402,336 at the end of the third year. Assume that during the three-year term, the GRAT invested the $1 million and realized a return on investment of 5 percent, or approximately $95,000. Over the term of the GRAT, Kevin received a total of $1,017,016 in principal and interest payments and also transferred approximately $95,000 to his beneficiaries with minimal or no impact on his gift tax exemption.

 

Installment Sale to an Irrevocable Trust

 

This strategy is similar to the intrafamily sale. However, the income-producing assets are sold to an existingirrevocable trust instead of directly to a family member. In addition to selling the assets, the donor also seeds the irrevocable trust with assets worth at least 10percentof the assets being soldto the trust. The seed money is used to demonstrate to the Internal Revenue Service (IRS) that the trust has assets of its own and that the installment sale is a bona fide sale. Without the seed money, the IRS could recharacterize the transaction as a transfer of the assets with a retained interest instead of a bona fide sale, which would result in the very negative outcome of the entire interest in the assets being includible in the donor’s taxable estate. This strategy not only allowsdonors to pass appreciation to their beneficiaries with limitedestate and gift tax implications, but also gives donors the opportunity to maximize their remaining gift and generation-skipping transfer tax exemptions if the assets sold to the trust warrant a valuation discount.

 

Example: Scooby owns 100 percentof a family business worth $100 million. He gifts $80,000 to his irrevocable trust as seed money. The trustee of the irrevocable trust purchases a $1 million dollar interest in the family business from Scooby for $800,000 in return for an installment note with interest calculated using the applicable federal rate. It can be argued that the trustee paid $800,000 for a $1 million interest because the interest is a minority interest in a family business and therefore only worth $800,000. A discount is justified because a minority interest does not give the owner much, if any, control over the family business, and a prudent investor would not pay full price for the minority interest. Under this scenario, Scooby has removed $200,000 from his taxable gross estate while only using $80,000 of his federal estate and gift tax exemption.

 

Spousal Lifetime Access Trust

 

With the threat of a lowered estate and gift tax exemption amount, a spousal lifetime access trust (SLAT) allows donorsto lock in the current, historic high exemption amounts to avoid adverse estate tax consequences at death. The donor transfers an amount up to the donor’s available gift tax exemption into the SLAT. Because the gift tax exemption is used, the value of the SLAT’s assets is excluded from the gross estates of both the donor and the donor’s spouse. An independent trustee administers the SLAT for the benefit of the donor’s beneficiaries. In addition to the donor’s spouse, the beneficiaries can be any person or entity including children, friends, and charities.The donor’s spouse may also execute a similar but not identical SLAT for the donor’s benefit. The SLAT allows the appreciation of the assets to escape federal estate taxation and,inmost cases, the assets in the SLAT are generally protected against credit claims.Because the SLAT provides protection against both federal estate taxation and creditor claims, it is a powerful wealth transfer vehicle that can be used to transfer wealth to multiple generations of beneficiaries.

 

Example: Karen and Chad are married, and they are concerned about a potential decrease in the estate and gift tax exemption amount in the upcoming years. Karen executes a SLAT and funds it with $11.58 million in assets. Karen’s SLAT names Chad and their three children as beneficiaries and designates their friend Gus as a trustee. Chad creates and funds a similar trust with $11.58 million that names Karen, their three children, and his nephew as beneficiaries and designates Friendly Bank as a corporate trustee (among other differences between the trust structures). Karen and Chad pass away in the same year when the estate and gift tax exemption is only $6.58 million per person. Even though they have gifted more than the $6.58 million exemption in place at their deaths, the IRS has taken the position that it will not punish taxpayers with a clawback provision that pulls transferred assets back into the taxpayer’s taxable estate. As a result, Karen and Chad have saved $2 million each in estate taxes assuming a 40 percent estate tax rate at the time of their deaths.

 

 

Irrevocable Life Insurance Trust

 

An existing insurance policy can be transferred into an irrevocable life insurance trust (ILIT), or the trustee of the ILIT can purchase an insurance policy in the name of the trust. The donorcan make gifts to the ILIT that qualify for the annual gift tax exclusion,and the trustee will use those gifts to pay the policy premiums. Since the insurance policy is held by the ILIT, the premium payments and the full death benefit are not included in the donor’staxable estate. Furthermore, the insurance proceeds at the donor’sdeath will be exempt from income taxes.

 

When Should I Talk to an Estate Planner?

 

If any of the strategies discussed above interest you, or you feel that potential changes in legislation will negatively impact your wealth, we strongly encourage you to schedule a meeting with us at your earliest convenience and definitely before the end of the year. We can review your estate plan and recommend changes and improvements to protect you from potential future changes in legislation.

About Melone Hatley

Melone Hatley is a general practice law firm with offices in Reston and Virginia Beach. Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients.

 

We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about CPS investigations and our family law practice, contact our office today at 703.995.9900 in northern Virginia or 757-296-0580 in Virginia Beach or visit our website: www.MeloneLawPC.com. You can also schedule a time for a free consultation with one of our attorneys online at www.melonelawpc.com/contact.

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