Tuesday, December 17, 2013

Digital Estates and Other Interesting Topics in 2013

The December issue of Estate Planning featured a bibliography of "Articles of Interest" in 2013 legal journals.  Here are a few articles from the list that caught my eye.
  • Jamie P. Hopkins, Afterlife In the Cloud: Managing a Digital Estate, 5 Hastings Sci. & Tech L.J. 209 (2013).  From the abstract on SSRN:

    The rapid development of electronic devices and widespread access the internet has ushered in a new age: the digital age. The digital age has changed the manner in which assets are created and transferred. This digitalization of wealth challenges the effectiveness and efficiencies of traditional estate planning mechanisms. Additionally, modified estate planning techniques and the development of digital estate planning services have created serious privacy, security, and efficiency concerns for the transfer and management of digital estates. As such, creative and innovative digital estate planning solutions are required to ensure the privacy, security, and proper disposition of digital estates. However, because the problems facing digital estate planning are complex, a combination of legislative action and improved online service agreements are essential to solving the digital estate dilemma. Until digital asset ownership and transferability questions are resolved, digital estate planning will remain in flux as traditional estate planning appears ill suited for the management and disbursement of digital assets.

  • Jeffrey W. Sheehan, Late Fathers' Later Children: Reconceiving the Limits of Survivor's Benefits In Response to Death-Defying Reproductive Technology, 15 V. J. Ent. & Tech. L. 983 (2013). From the abstract in the Vanderbilt Journal of Entertainment and Technology Law:

    When Congress instructed the Social Security Administration to begin paying a social insurance benefit to “widows and orphans” in the 1930s, it simplified the process of determining an applicant’s relationship to an insured decedent in two significant ways: First, Congress ordered the agency to honor the intestate laws of each state when determining whether an applicant was actually the child of a decedent, and second, it ordered the agency to treat any child who could qualify as an intestate heir as if that child actually depended on the parent financially at the time of the parent’s death. Three-quarters of a century later, advances in reproductive technology make it possible for a child to be born decades after the death of one or both of her genetic parents. As the law begins to explore the rights and responsibilities of the parents who choose postmortem reproduction and the children whose lives come into being through those procedures, the heuristics that facilitated efficiency in the 1930s may yield unintended consequences. This Note explores some of those consequences and suggests minor alterations to the rules governing survivor’s-benefits eligibility intended to preserve the program’s social insurance function as reproductive technology transforms life after death from a hope or a fear into a choice.

  • Hannah Alsgaard, Rural Inheritance: Gender Disparities In Farm Transmission, 88 N.D. L. Rev. 347 (2013). From the abstract on SSRN:

    Farmers are farmers’ sons. Notable in our modern day, heralded by many as a gender-neutral society, it is farmers’ sons, not farmers’ daughters, who become farmers and take over ownership and management of the family farm. It has long been true that agricultural knowledge and land have passed through generations of men. In contrast, daughters, even today, are neither considered to be farmers nor likely to inherit family farmland. This Article begins by chronicling how farmland is inherited (by sons) then discusses why the pattern of excluding women continues. There have been substantial legal changes in the United States impacting land inheritance and ownership, culminating with the Equal Protection Clause’s extension to gender discrimination and the gender-neutral Uniform Probate Code. Social changes have also been tremendous, but even legal and social developments have been unable to correct gender disparity in farm inheritance. After exploring many legal and social factors, I conclude it is grooming – at the familial, governmental, and social levels – that plays the most vital role in training future farmers and mainly accounts for the gender difference in farm inheritance and the farming profession. This Article ultimately proposes girls must be groomed to farm in order to rectify the vast gender disparity in the ownership and management of family farms. A three pronged approach will be needed to remedy the situation, specifically: changing the role of lawyers, educating girls and women, and educating testators. What remains most important is that daughters are given the same opportunity as sons to farm based on merit, rather than being excluded from farm inheritance merely because of their gender.

  • Lynne M. Kohm, Why Marriage is Still the Best Default In Estate Planning Conflicts, 117 Penn St. L. Rev. 1219 (2013). From the abstract on SSRN:

    By analyzing a Tennessee bigamy case, a New York same-sex marriage case, and the growing cultural trend toward cohabitation over marriage, this article discusses how and why marriage is the best estate plan to protect vulnerable parties as they age. The article examines how marriage assists vulnerable parties in avoiding potential conflicts in estate planning and distribution, particularly when those parties have entered into alternative relationships. By focusing on the cases of Witherspoon, in which John Witherspoon entered into a bigamous second marriage, and Windsor, in which Edie Windsor is suing the U.S. government over the lack of federal tax recognition afforded her Canadian same-sex marriage, this article reveals how marriage expansion does not necessarily incentivize marriage, nor does it provide the benefits and protections often sought by those who enter into those marriage-like relationships. By contrasting the protection marriage affords to a vulnerable party in estate distribution and the dilemmas presented by marriage expansion (as illustrated in Witherspoon and Windsor) with the cultural disquiet over the importance of the nature and meaning of marriage, this article illuminates estate distribution conflicts in the context of the paradox of contemporary American socio-legal marriage culture. Despite the pop culture confusion over marriage, this article demonstrates why it is still the best default for estate planning conflicts.

  • Mary H. McNeal, Slow Lawyering: Representing Seniors In Light of Cognitive Changes Accompanying Aging, 117 Penn St. L. Rev. 1081 (2013). From the abstract on SSRN:

    As an increasing number of lawyers represent clients who are elderly, it is imperative that lawyers become more knowledgeable about the aging process and how it impacts our clients. Although it is difficult to generalize, many seniors experience numerous and diverse cognitive changes that accompany the aging process. Existing literature offers various frameworks for addressing capacity issues and techniques for assessing diminished capacity. However, current legal scholarship provides little guidance for lawyers on how to accommodate these changes when they do not rise to the level of diminished capacity or dementia, and when the changes may, in fact, result in increased wisdom and “developmental intelligence.” This article seeks to fill that void. It summarizes selected cognitive developments that impact memory, outlining various types of memory and how they evolve during the aging process. This article also discusses current literature on decision-making capacity and different decision-making models and strategies that seniors may rely upon. The article concludes with recommendations on methods for enhancing communications with aging clients, while simultaneously acknowledging and accommodating cognitive changes and enabling seniors to play a prominent role in the representational process.

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