Right of Survivorship in Real Property

The right of survivorship in real property is perhaps one of the most important estate planning tools.

For many people, the home is not only their most valuable asset, but it is the one asset that they rely on to secure their own future and those of their children. Owning property as joint tenants with right of survivorship, or JTWROS, assures a quick and seamless passage of that property upon the death of one   of the joint tenants, or owners.

There are several ways to own real property and each state has variations of each particular form. The three most common are: tenants in common, joint tenants with right of survivorship and tenants by the entirety, or as spouses.  Each has their own very important distinctions and characteristics.right of survivorship, JTWROS, joint tenants

Tenants in Common – Real property owned as tenants in common, TIC, is owned by each individual property owner is separate shares, i.e. 50% and 50%.  The key attribute of TIC owned real property is that if one owner dies, that owner’s share in the TIC property passes into his or her estate and must pass through probate to be transferred to its successor owner.  Many who own property with another person who is not a member of their family prefer to own real property as TIC so that they can pass on their share to family members upon their death.  The deed to a property owned as TIC will define the owners as, “John Doe and Jane Doe.”  There will be no other description on the deed.

 

Joint Tenants with Right of Survivorship, JTWROS – The most significant and powerful characteristic of owning property with a right of survivorship is that the joint owners both own the entirety of the property at the same time; therefore there is nothing to pas upon the death of one joint owner.  The property does not go through a lengthy and costly probate process.  One catch is that property which passes automatically may not be eligible for more sophisticated tax planning which could save a surviving spouse, for instance, in estate tax upon the death of the second spouse.  For individuals whose assets do not meet the state or federal estate tax limits, JTWROS ownership can be an extremely beneficial and effective means of transferring assets upon death.  The deed to a property owned as JTWROS will define the owners as, “John Doe and Jane Doe as joint tenants with right of survivorship,” or “John Doe and Jane Doe, JTWROS.”

Tenants by the Entirety, as spouses – This type of real property ownership is reserved for legal spouses and possesses the same protections that JTWROS ownership provides, with one distinct benefit.  No creditor of one spouse may attach their interest to the other spouse’s ownership share in the home they own as tenants by the entirety.  This is a critical protection mechanism to honor and provide for spouses owning property together. The deed to a property owned as Tenants by the Entirety will define the owners as, “John Doe and Jane Doe as husband and wife,” or “John Doe and Jane Doe, as spouses.”

It is critical for an attorney to review any existing deed that you may have to ensure exactly what type of real property ownership that you have. Your entire estate plan may be dependent on the characterization of your real property ownership.  For more information about real property ownership, and more, contact Anthony M. Brown at Anthony at timeforfamilies.com or visit www.timeforfamilies.com today or email Anthony at anthony@timeforfamilies.com.

in Estate Planning / Featured Articles / Services  by Anthony Brown 1 comments

Living Wills and Health Care Proxies

Living Wills and Health Care Proxies, sometime know as Medical Powers of Attorney, are vital aspect of an individual’s, couple’s or family’s estate plan. Many overlook these critical documents, but it may be at their own expense.

Why are these documents so important? – No estate plan is complete until it addresses unexpected medical crises which could leave someone alive, but in a compromised mental or physical condition.  Many people feel uncomfortable even thinking about these situations; however, they are exactly the reason why comprehensive estate planning is so important, including Living Wills and Health Care Proxies.

Without Living Wills and Health Care Proxies, a person may not be able to decide for themselves what medical decisions can be made about their condition or who can make them.guardianship, Gay Estate Planning, estate planning for same sex couples, estate planning law firms

What are Living Wills and Health Care Proxies – A Living Will is a witnessed and notarized document that states exactly what medical measures a person wants or does not want if a specifically outlined medical conditions arise.  It is important to note the Living Wills only apply to medical conditions which are terminal, with little or no hope of recovery.  If a doctor or hospital can get you better, they will use everything at their disposal to do so.  Living Wills address those situations where there is no hope for recovery, then you are empowered to decide what treatments a doctor or hospital to perform.

A Health Care Proxy, or Medical Power of Attorney, allows a person you designate to have access to medical records and make specified medical decisions for you. Comprehensive health Care Proxies will also allow the designated person to look into your medical file if needed to make the best decision.  This is accomplished by including a HIPAA (Health Insurance Portability and Accountability Act) waiver which authorizes hospital; and doctors to share your medical information with the proxy you have designated.

Other Considerations – It is also important to discuss with your Health Care proxy what your wishes are as defined in your Living Will.  You should never designate someone without first ensuring that they are capable of and comfortable with carrying out your end of life wishes.

If you do not have a Living Will and are unable to convey your wishes directly, a hospital has an obligation to keep you alive, whether that is your desire or not, unless your closest living legal relative (in most states) authorizes them otherwise.

The most noteworthy example of how not having a Living Will can become a nightmare was the Terri Schiavo case in Florida. Ms. Schaivo did not have a Living Will when she suffered a massive heart attack in 1995 and was declared by her doctors to be in a persistent vegetative state.  He husband petitioned the court to have her feeding tube removed and her parents opposed that petition.  In all, the Schiavo case involved 14 appeals and numerous motions, petitions, and hearings in the Florida courts; five suits in federal district court; extensive political intervention at the levels of the Florida state legislature, then-governor Jeb Bush, the U.S. Congress, and President George W. Bush; and four denials of certiorari from the Supreme Court of the United States. (procedural history courtesy of Wikipedia.)  All of this could have been prevented if she had a Living Will.

If you are incapacitated and cannot convey your wishes to a medical facility about your treatment, they will look to your Medical Power of Attorney. If you do not have one, the facility will look to your closest living legal relative for guidance.  This person may or may not be someone you wanting medical decisions for you.  The legal priority that must be followed in most states is a spouse, an adult child, a parent, a sibling, an adult niece or nephew, an aunt or uncle and finally, a first cousin.

Living Wills and Health Care Proxies are foundational elements of a person’s estate plan. These are also often the documents most critical to elderly individuals or those with preexisting medical conditions.

For more information about Living Wills and Health Care Proxies, or other healthcare documentation, contact Anthony M. Brown at Time for Families and speak to a specialist family lawyer to secure you and your family’s future.

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in Estate Planning / Featured Articles / Services  by Anthony Brown 1 comments

Gay Premarital Agreements

Gay Premarital Agreements, or Prenups for gay couples, are now a viable and important option for long and short term couples who plan to marry.

Prior to the Obergefell Supreme Court marriage decision from June of 2015, gay couples could enter into “Domestic Partnership Agreements” which would approximate the benefits of gay Premarital Agreements, but lacked the certainty of enforcement in many courts around the country.

 

Before we discuss what a Premarital Agreement can do for a gay couple, there are limitations to these agreements which must be understood to grasp their scope and importance. First, a Premarital Agreement cannot do the following:

  1. Premarital Agreements cannot be “unconscionable” at the time of drafting or at the time they are enforced.
  2. Provisions in a premarital Agreement concerning child custody, visitation or support are not binding on a court.
  3. Your Premarital Agreement cannot create an incentive to divorce.
  4. Your Premarital Agreement cannot create an incentive toward conduct that it illegal or unfair.

While it may seem obvious, Premarital Agreements cannot anticipate, nor should they, the needs of a child in a married relationship. The best interests of a child are always the primary concern of a court and those needs may change from the time an agreement is executed to when it is subject to enforcement.  Child custody, visitation and support issues must be addressed at the time of the dissolution of the marriage.

lesbian family law

What can a Gay Premarital Agreement do? They can memorialize each spouse’s respective contributions toward the acquisition of major assets (both prior to and after the marriage), such as real property, investments and so forth, and provide a mechanism for division of assets and liabilities in the event of dissolution of the marriage.  This is of particular importance as many gay couples have been together longer than they have been allowed to marry.  Therefore, property may have been acquired by the couple in disproportionate percentages without adequate documentation of contribution.

Premarital Agreements define financial obligations to one another, both during the marriage and after dissolution. While many states, New York included, have a statutory formula which must be incorporated into a Premarital Agreement to protect both parties, the parties may deviate from that formula as long as they are not taking advantage of one another or the law.

Premarital Agreements for gay couples can define what separate property and joint property is for the purposes of distribution upon divorce or separation. For instance, in many states, marital property is defined as anything acquired by either spouse after the marriage.  The agreement will allow the parties to characterize property as they choose, not as the court chooses, and protect that property from unfair distribution.

Premarital Agreements for gay couples, as for non-gay couples, have a few prerequisites. In New York, for instance, a Premarital Agreement must be fair at the time of drafting and at the time of dissolution.  Each party must have independent legal counsel and each party must fully disclose all financial information to the other prior to the execution of the agreement in order for a court to enforce that agreement.

Understanding the limitations and benefits of a Premarital Agreement can be reassuring to a couple looking to marry, but it can also be overwhelming when trying to decide what is best for you. For a reputable and trustworthy attorney in New York who specializes in helping same sex couples have families, call Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, at 212-953-6447 or email questions to Anthony@timeforfamilies.com.

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in Estate Planning / Featured Articles / Legal / Services  by Anthony Brown 5 comments

Are Second Parent Adoptions Necessary With a Surrogate?

Are second parent adoptions necessary when using a surrogate?

Establishing parental rights when someone has their family with the help of a surrogate (typically gay men looking to start a family or women who cannot carry for medical reasons) is a tricky area of the law and varies greatly state to state. Prior to the Supreme Court’s June decision in Obergefell vs. Hodges granting marriage equality to same-sex couples, second parent adoptions on the part of the non biological parent were almost always required once a couple started a family via surrogacy. Post-Obergefell, second parent adoptions are still the only method for securing unassailable rights between your child and the nonbiological parent. Click here for a video on the ABCs of surrogacy.surrogacy

Types of Surrogacy

There are two types of surrogacy: traditional and gestational. Traditional surrogacy is when the surrogate mother is also the egg donor and the child is biologically related to her. With a gestational surrogacy, a fertilized egg is implanted into the womb of the surrogate and she is not biologically related to the child. Most surrogates today are gestational surrogates. The establishment of parental rights may be executed, in some cases, by a pre or post birth order in the state where the surrogate lives, but more often by second or step parent adoption in the intended parents’ home state.

Second Parent Adoptions

If your partner had a child with a surrogate before you were married or in a relationship, second parent adoptions are required to obtain legal parental status of that child. If the surrogate is named on the birth certificate of the child, they may need to sign a “consent to adoption” form. If you are just beginning the surrogacy process as a couple, throughout the proceedings, the nonbiological parent may be able to obtain either a pre-birth or post-birth parentage order. Some states do not allow for parentage orders, in which case a second parent adoption would be necessary in the intended parents’ home state to legally obtain those parental rights.

Variations State to State

Keep in mind that laws surrounding surrogacy vary greatly state to state, and surrogacy is even illegal in 5 states, including New York. If you’re a New York resident with your heart set on surrogacy, you will need to find a surrogate mother in a state in which it is legal.

Canadian Surrogacy

Many couples are now looking to our neighbors to the north for surrogacy services.  The main difference in the laws regarding surrogacy in Canada is that surrogacy is NOT compensated.  Surrogates are reimbursed for their costs, which include such items as lost wages, bed rest, family care, health costs, maternity clothing and other pregnancy related costs.  All provinces except Quebec allow for enforcement of these altruistic surrogacy agreements.Canada

The critical consideration is parental establishment after the child is born.  In some provinces there is an administrative method of securing parental rights for the non-genetically related parent.  While this may be appropriate in Canada, it does not establish legally recognized rights in the U.S.  Most provinces will also offer a court declaration of parentage.  This is the very least in protection for the non-genetically related parent.

Intended parents should also consider a step or second parent adoption back in the U.S in their home state to secure parental rights for the non-genetically related parent.  Adoption orders receive full faith and credit automatically in the U.S. and around the world.  Parentage orders may or may not be recognized in countries which have not legalized surrogacy.  Also, in the States, with an adoption order, there is no questions as to the rights of a parent created through adoption.  Not all states have parental declaration orders and enforcing them may prove extremely costly.

If you and your partner are considering getting an out of state/country surrogate, it’s vital to get professional legal assistance to make sure your parental rights are recognized across all state and international borders.

Anthony M. Brown, head of Family and Estates division of Albert W. Chianese & Associations, is here to help you and your family grow and to make sure all of your parental rights are legally protected. If you have any questions pertaining to legal issues of your parentage, call 212-953-6447 or email and I will do my best to help your family!

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in Featured Articles / Second Parent Adoption / Services / Surrogacy  by Anthony Brown 0 comments

New Social App Helps Lesbians Find Sperm Donors

Mombian.com, Friday April 1, 2011

Lesbians seeking to get pregnant now have a new tool at their disposal: Dōnr, a new app for mobile devices that lets women check out the credentials of potential sperm donors. Like Grindr, the social app that helps gay men find potential mates nearby, Dōnr lets lesbians access profiles of men in close proximity to see if they might be suitable candidates for providing genetic material.

“Lesbians have long used cutting-edge science to create their families,” said Elizabeth Bean, the CEO of Dōnr, Inc., herself the mother of twins. “It’s time that the search for sperm donors catches up with the rest of the family creation process and takes advantage of modern technologies.”

After their phone alerts them to the presence of a potential donor, lesbians can use the app’s extensive profile information to check out details such as education, hobbies, health, and whether the man wants contact with the child. They can then connect with the man to talk in person.

Bean says her company will soon be coming out with several related apps: Bāstr, which allows lesbians to find the nearest LGBT-friendly fertility clinic, and Lawyr, which helps them find an attorney to do the legal paperwork necessary to protect their families.

in Anonymous/Known Donation / IVF / Parenting / Resources / Services  by Anthony Brown 0 comments

Top ten questions to ask before signing up with an IVF clinic, law office, or agency as a surrogate

issue1Attorney Theresa M. Erickson recommends:

1. Contact a Reproductive Lawyer or IVF Clinic for recommendations – the lawyers and the doctors are the licensed professionals in this field, as are the psychologists, and they can often give good advice on where to begin your journey. You might also find a lawyer you want to work with when it becomes time to sign and review agreements with Intended Parents.

2. What if the lawyer or clinic has their own agency for matching surrogates with parents? Well, I myself own an agency, so I can speak clearly to the potential conflicts of interest that can arise between you and the agency or the clinic; however, here are a few things to remember:

a. Doctors and lawyers are licensed professionals who have licenses that they have worked hard to obtain and maintain. At least in my office, surrogates always get their own attorneys, their own psychologist, and their own support separate from me. But remember, doctors are not lawyers just as lawyers are not doctors – it is that simple.

b. If an IVF physician has an agency, how is their money held for their surrogates? It is unlikely that they are licensed and bonded escrow holders, and they are not attorneys whose clients are protected by the state bar’s client security fund, so ask that question. Physicians do not have the same protections as the attorney’s trust account does.

c. With an IVF Physician, what happens at 12 weeks when you are released to your OB physician? Do they have the staff to do that, and who is that? How does the clinic still handle and facilitate your arrangement, if at all? Make sure you are being supported all the way to the end, not just until the pregnancy reaches the first trimester.

d. Now, as for your health and physical well being, the other issue that some have is the conflict of interest that a doctor has with his patient, the surrogate, and his patient, the Intended Parents. Again, as it has to do with your health and well-being, make certain that you get independent legal representation and ask questions. It is your body and your health, so you must be diligent in making certain that you are being protected too. Many, many IVF Physicians are wonderful, caring doctors, but you must ask questions to ensure you are being protected. Also, ask what their success rates are and how long they have been practicing IVF?

3. Agencies – yes, they are unregulated, unlicensed, etc. – but, speak with them too – better yet, meet with them in their office and meet the staff. Some are very reputable. Ask a reproductive lawyer or IVF clinic for recommendations. Then, call and interview them. Ask them the following:

a. Are they a match making service only, or do they provide support throughout the entire process through delivery and beyond?

b. How are their surrogates and donors funds held? Make certain that they are held by an escrow company or by an attorney.

c. What type of support do they provide? Get specifics. What type of staff do they have and how many people are there for you in the office?

d. Do they have parents waiting? If not, how long will you have to wait? Remember, promises of being matched immediately are empty, as each case if different. Also, ask how many matches they do per year and per month.

e. How long have they been in business? Can you speak with other surrogates?

f. Agencies are not medical providers, but the reputable ones know what they are doing and are instrumental in helping you select a physician, psychologist, etc., as well as helping you get answers when the medical aspect is unclear. Don’t think that you will be left with inadequate medical care if you go through an agency.

g. Reputable agencies are insured against Errors & Omissions Insurance. Ask if they carry it.

h. Does the agency have surrogate support group meetings and/or annual parties? These are always alot of fun, and there are usually prizes for the winners of contests. This is also a great way to meet other women like yourself who are going through many of the same things.

in Issue Forum / IVF / Services / Surrogacy  by Anthony Brown 0 comments

Where to start /contd (Amy and Maria’s Blog)

AmyandOttavioOur Story

After we decided to begin our family , we asked our OB at the time. ( not recommending her, she is not gay friendly) for a referral. She suggested we call Long Island IVF (LIVF) DR. Brenner in Hempstead. This was a horrible experience and a waste of money.  Not only because they do not have experience handling same sex couples but also we felt they were just making a paycheck. They were very careless with our procedure.

Now just to clarify the procedure we did was I carried Maria’s eggs and we used a unknown sperm donor.  There is no classification yet although we are both fertile we have to go through the IVF cycle to have a child this way. They call Maria a Known Donor because she gave up her eggs and I became a Gestational Carrier because I carried a forgein embryo. Until NY State laws change this is what it is……

Also very important to remember before you get to this point you must have a sperm donor picked and ready to ship. ( I will discuss donor banks later) !

This is how LIVF’s procedure goes. First you have to get interviewed by their Social worker Aviva who is eccentric and negative. Because they don’t know how to classify “this type of relationship”, this becomes a gestational carrier and a known donor cycle. They made us both take the MMPI ($900) which is a psychological test to make sure you are sane and able to be a mother . You then have to go see their attorney who explains the laws in the state of NY ($675). You then interview with doctor Brenner and get all the details and cost summary.

The nurses discuss payment breakdown, the start date and the medication schedule. At this point payment must be made and you are ready to begin the cycle.

I am not aware of any insurance companies who cover IVF cycles unless you are truly infertile. So you must have money saved because this can become very costly. We spent between $50,000 – $100,000 that is all inclusive and two cycles.

in IVF / Services  by Anthony Brown 0 comments