Estate planning for unmarried partners

Episode Transcript

Speaker 1 (00:01):
This is the Legal Exchange with Todd Lutsky from the
law firm of Cushing and Dolan and Susan Powers of
the Armstrong Advisory Group. Each week, Todd and Susan will
discuss many topics, including estate planning, how to avoid probate,
and protecting your money from a nursing home. If you
need assistance in any of these areas, or have a
question about another issue that may affect your future, call

(00:21):
eight six six eight four eight five six ninety nine
to make an appointment. That's eight sixty six eight four
eight five six ninety nine. Operators are standing by. Now
Here are your hosts, Todd Lutsky and Susan Powers.

Speaker 2 (00:37):
Welcome into the Legal Exchange with Todd Lutsky. I'm Susan Powers,
a financial advisor with the Armstrong Advisory Group, and I'm
joined by Todd Lutsky, a partner with the law firm
of Cushing and Dolan with a master's in taxation. Welcome Todd.
How are you today?

Speaker 3 (00:52):
I'm never better in you.

Speaker 2 (00:54):
I'm great.

Speaker 4 (00:54):
Thank you.

Speaker 2 (00:55):
What you have for us this week?

Speaker 3 (00:56):
Well, I've got a couple of things.

Speaker 5 (00:57):
I've got a Montana Supreme Court case which is kind
of interesting. Basically, it's going to help us understand when
are you married? Well, it seems like an obvious question,
but when are you common law marriage? How have you
been holding yourself out? What have you been doing? And
then what happens when you die if you are common

(01:18):
law married but leave everything to your kids. Sure, so
you weren't married or were you? So lots to think
about in this and I'm going to explain the tips
and things to think about, obviously from a planning perspective.
Then we head over to Illinois where we have an
appellate court case, and basically we're going to learn about
how do you handle debt when it's on real estate

(01:39):
in estate planning. I mean, real estate is tough enough
to deal with in a state planning. We've talked about
it many times, how to plan for it in a trust,
how to hold it for people, how to pay bills.
But remember when you die, that mortgage is due in
full and you've got to be ready to handle it.
So we're going to talk about how to handle real
estate in your estate plan. And most importantly, folks, it

(02:02):
is the end of the month and I want to
make sure that we when we talk about how to
handle real estate or money or any assets in your
estate that may be Gifting them away is not the
right thing to do. The guide is making the most
of gifting assets. I'm not saying not to gift, but
I'm saying to learn. It's not always the first you
know reaction, because there's income tax issues, there's gift tax

(02:23):
issues right step up in basis issues, loss of control issues.
Do we gift to our children outright or into an
irrevocable gifting trust, which is way better? You know what,
if we're making big gifts, we don't want to give
it away and then make ourselves bankrupt. So we want
to give it away and figure out how we can
continue to control it as the giver and enjoy it

(02:43):
as the giver. Well spousal lifetime access trust would be
the way to go there. All of these things are
in the guide. If you're going to gift, learn how
to gift or not to gift. End of the Month
Folks eight six six eight four eight five nine nine
or Legal Exchange Show dot Com. Making the most of

(03:04):
gifting assets it's going away after this eight six six
eight four eight five six nine nine or Legal Exchange
Show dot com.

Speaker 2 (03:14):
All right, susan common law marriage Montana. I don't think
we've gone to Montana. I don't recall going to Montana.
And he's in this show before.

Speaker 5 (03:21):
When we go to Montana, we go to this top
supreme court. We don't just mess around.

Speaker 6 (03:26):
Go home.

Speaker 5 (03:26):
So Carol and Doug began a relationship in seven when
they were living in California, while in two thousand and
eight they moved to Montana and they began living together
full time. They never married. Twenty eighteen, Carol died unexpectedly
left almost the entire estate to her son sons Alan Jeff,

(03:50):
let's call him aj Alan Jeff. Doug wasn't happy about that, Yeah, Doug,
Doug said, wait a minute, he claimed the elective share
because hey, we were common law married. He said, so
you can't disinherit your spouse. Remember we talked about forced share. Yeah, yeah,
well I don't know that it's exactly if the time

(04:11):
makes the difference.

Speaker 3 (04:12):
But let's keep looking.

Speaker 2 (04:14):
So he's everything sorted in my mind over here for
the soap opera.

Speaker 5 (04:17):
Yeah, he's unhappy about that, so he claims this forced share. Well,
in twenty twenty four, Wow, they have a bench trial
finally to determine declaratory relief under this was he married
or not? Wow?

Speaker 2 (04:30):
That was six years later after she died.

Speaker 3 (04:33):
No I know.

Speaker 5 (04:34):
Testimony was given. Doug said that they agreed to be spouses,
but not Mary because they both have been through bad divorces.
Doug also gave Carol jewelry and recognition of the commitment.
Carol's friends, including an attorney, testified that they all viewed
them as married. Well, AJ the kid said Carol didn't

(04:55):
really share that view at all. In fact, she filed
on her tax return as single, and she told her
medical records all indicated she was single. Well do you well, Aj,
they really are single. You can't. There's not a box
for common law marriage to check. So I'm not sure
that's a super strong argument. And the district court agreed

(05:16):
that wasn't a super strong argument. They ruled that they
were common law married and Doug gets elective share relief. Well,
as you might imagine, that appeal came and they went
all the way up to the Supreme Court. Both the
appellate Court and the Supreme Court affirmed, stating there's a
three part test. One parties have to be competent to marry.

(05:36):
There was no issue here of competency. Two parties mutually
consented to the relationship. Yeah, no issue of noncompetency, confirming
the marriage by cohabitation and public Rebut is number three? Well,
they acted like they were married. They referred to each
other as husband and wife, they were viewed in the

(05:57):
community by their friends as being married, and they lived again.
Pretty sure they're common law marriage. So Doug gets his
elective share. Well, you know, I don't really care who
wins or loses in this, but I think that's the
right result.

Speaker 3 (06:11):
But folks, it's okay to plan.

Speaker 2 (06:13):
It's my lesson, right, especially if you have any kind
I mean, think about how long this took six years
after she died.

Speaker 3 (06:20):
But even that, Susan.

Speaker 5 (06:22):
My point is it's okay to plan if you're not
married but have a significant other.

Speaker 2 (06:25):
I think it's more important.

Speaker 5 (06:26):
More point, it's almost like a second marriage.

Speaker 6 (06:28):
Yeah.

Speaker 5 (06:28):
So you know, we say how important it is to
marry as a second marriage, Well, it's equally as important
to marry if you're not actually I'm sorry to plan, yes,
if you're not actually married, right, right, If you're not
actually married, you need to plan right.

Speaker 2 (06:42):
Because not every state is a common law state, so true,
they could be out.

Speaker 5 (06:46):
So if you really loved each other here you would
think that you know what, I'm going to provide and
take care of each other, you know, after death. Will
put this so we have this ability, and I say
it's just okay to plan for your significant other and
then the kids can take what's like later. Now what
about from a tax perspective, Well, yeah, you're not married,
so you know, but you can get all of the

(07:07):
same benefits by doing two single person trusts if you
really wanted to write, let's put this way. If the
amount in each trust, and when I'm talking about Massachusetts
for a moment, is under two million. And by the way,
in Montana, if you live in a state with no
estate tax, it's even better. But I'll just bring it
back to Massachusetts for a minute. Even if you both

(07:27):
did two single trusts and you each had two million
or less in each of your trusts, then on the
first death you die, you're under two million. There's no
estate tax, duo, and the assets can be held for
the benefit of your significant other good and later when
the significant other dies, it won't be included in that
person's estate. Again, you don't get a marital deduction. So

(07:49):
if the amount in the first spouse to die's trust
is more than two million, even though it's held for
the significant other, if you're effectively not married, yeah, you're
not going to get a marrit of de duct and
there'll be some tax due on the first death.

Speaker 2 (08:02):
So what Yeah, a lot of people when they're doing
that kind of planning, though they're not as concerned about taxes,
their primary concern that drove them to meet and plan
is taking care of their partner because they know they
have no standing.

Speaker 5 (08:14):
Typically in this case, maybe these are his kids, not hers, right,
And so now you've got to say, I'm coming to you,
as you said, Susan, not just to take care of
each other, but what do I do? And I want
to make sure that that my significant other doesn't deplete
my assets after I'm gone, and provide for my children,
which can also be done. And remember when I say

(08:36):
do you care for each other? Remember in this case,
and I'll just assume it's a second marriage for now,
what's going to happen is.

Speaker 3 (08:45):
A forced share. Well forced if you don't get.

Speaker 5 (08:50):
That much under the fourth share statue, you could actually
get more if she might have been more.

Speaker 3 (08:56):
Lucky if she died without a will.

Speaker 5 (08:58):
If she died without a will and they went to
the intestate succession statue because they said, you're common law married,
well then at least even if it's a second marriage,
you're going to get half and the kids are going
to get half, you know. And if it was first marriage,
then you'd get it all. I mean, depending on your state,
each state intestate succession statue could be a little different.
I'm speaking more about Massachusetts, but similar idea.

Speaker 2 (09:23):
But if for share, what is that typically percentage wise
like a third.

Speaker 5 (09:26):
Or a quarter, could be every bit of that or less.
Sometimes you only get a life of state interest in
the real estate. You don't even get the right. You
just get a right to live there. You don't get it.

Speaker 2 (09:36):
Not how you'd want things to be, probably definitely not.

Speaker 3 (09:39):
Folks, you do the planning, you put together a trust.

Speaker 5 (09:42):
You could simply put in the language of the trust
something like hold the house in trust for the significant other.
You know, have that person pay the bills, the maintenance,
the upkeep. If they move out or don't pay a bill, well,
then you could have the house. You know, transferred to
the kids, or maybe they died, or they decided they
don't want to live there. Folks, planning so much better

(10:02):
than this than this little disaster. But again, planning doesn't
always include gifting. I'm not going to tell you to
make a gift, but learn whether or not gifting is
right for you and how to do it. Get the
guide eight sixty six eight four eight five six nine
to nine or Legal Exchange show dot com. It is
the end of the month.

Speaker 2 (10:23):
You've been listening to Todd Lutski, a partner with the
law firm of Cushing and Dolan. I'm Susan Powers, a
financial advisor with the Armstrong Advisory Group. We've got much
more to come when we return to the Legal Exchange
with Todd Lutsky.

Speaker 1 (10:37):
Cushing and Dolan want to help you avoid costly mistakes
when it comes to gifting assets to your children. Their
brand new guide, Making the Most of Gifting Assets shares
crucial strategies to help you protect your legacy and your family.
Many people think gifting is always a good thing, but
if it's done the wrong way, they can create real headaches.
Even well intentioned gifts can cause complications if your children

(10:58):
are dealing with financial pressure or legally issues like a divorce.
The guide also explains how a major gift like a
home or vacation property could come with hidden tax consequences
that may impact your entire estate plan. Before you make
any big moves, arm yourself with the facts and this
new guide from Cushing and Dolan. Call eight six six
eight four eight five six ninety nine right now to
get your copy. That's eight sixty six eight four eight

(11:20):
five six nine nine, or request it online at legal
exchainshow dot com. That's Legal exchange show dot com. The
proceeding was paid for in The views expressed are solely
those of Cushing and Dolan. Cushing and Dolan and or
Armstrong Advisory may contact you offering legal investment services. Cushing
and Dolan Armstrong Advisory do not endorse each other and
are not affiliated.

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Speaker 7 (12:37):
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Speaker 1 (13:24):
The proceeding was paid for by Armstrong Advisory Group, a
registered investment advisor. Nothing in the ad or in any
Armstrong guide is specific financial, legal, or tax advice. Consult
your own financial, tax into state planning advisors before making
any investment decisions. Armstrong may contact you to offer investment
advisory services. You're listening to the Legal Exchange with Todd Lunsky,
an expert in elder life planning and taxation. Need help
with your estate plan? Com TOID right now and make

(13:47):
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nine nine. That's eight six six eight four eight five
six ninety nine.

Speaker 2 (13:54):
Welcome back. Into the legal exchange with Todd Letsky. I'm
Susan Powers, a financial advisor with the Armstrong Ofsory Group,
and I'm joined by Todd Leutsky, a partner with a
law firm of Cushing and Dolan with a master's in taxation.
Were where are we headed now?

Speaker 6 (14:09):
Todd?

Speaker 5 (14:09):
How about Illinois?

Speaker 2 (14:11):
Illinois?

Speaker 5 (14:12):
Exciting? Montana was way more exciting, But this one is
exciting too, because you know, we need to figure out
how to deal with real estate, especially.

Speaker 3 (14:20):
Not only from it.

Speaker 5 (14:21):
Yeah, not only just from an estate planning standpoint. You're right, Susan,
but what about you know, if it's encumbered, is there
dead on it?

Speaker 3 (14:29):
You know?

Speaker 5 (14:30):
Well, here's what happened. The facts are Ed created a trust,
his wife, Deborah, and two sons, Kevin and Brent, were beneficiaries.
Now I pause there because I'm not sure if this
is a second marriage or not, because it says, you know,
his two sons, So I'm anyways, let's just assume married

(14:51):
two sons. The trust owned real estate in Saint Clair County.
Well Ed and Deborah also owned this property called Renchalier
Station Road in Saint Clair County, but they own that
property jointly the trust owned the other property in Saint
Clair County. Well Ed took out a mortgage and a

(15:13):
promissory note for eight hundred and sixty two thousand dollars
secured by Renchealier Station property and the trust property. Okay,
life goes On September twenty twenty three, Ed dies, and
of course the bank notifies Debora that she's in default
pay and we're going to foreclose. Well Deborah as successor

(15:38):
trustee on the trust. It's not uncommon. It seems normal
petitions the court to determine if she can use any
of the trust assets to pay off the note. By
the way, the note was on the Renchealier Station Road property. Well,
they petitioned the court so well, Kevin and Brent. The

(15:59):
kids object. So this is why I'm thinking it's a
second marriage. I'm thinking if this is Mom, they're probably not.

Speaker 3 (16:09):
So Deborah.

Speaker 5 (16:11):
They say, wait a minute, we're going to object to that.
We don't want you taken the trust property to pay
off this debt. Deborah is the sole owner of the
property and therefore responsible for the debt. Remember that was
jointly owned. The court agreed, said, Deborah, you're the sole
owner of the property as that property passed to you

(16:32):
by joint tendancy with the right of survivorship outside of probate,
and did so subject to the debt. And Ed never
intended the trust assets to assume the responsibility of paying
for the debt, even though it was secured by the bank.
Probably just threw that on for security. Well, they didn't

(16:55):
like that, so they appealed. The appellate court affirmed dating
that if Ed intended the trust assets to be used
to pay the debt, he could have authorized the use
of the trust assets to pay off the debt, write
it right inside the trust use the money to pay

(17:16):
the debt.

Speaker 3 (17:17):
He didn't.

Speaker 5 (17:18):
Therefore, the jointly owned property passed to Deborah with the debt,
which is normal.

Speaker 3 (17:26):
Right.

Speaker 5 (17:26):
So deb you want to stay living in Renchalle or
Station Road in Saint Clair, you get to pay the debt,
go refinance or whatever you need to do in your name.
I assume they'll let you do that. There's probably plenty
of equity. Well, I don't know if that's the right
result or not the right result. I think it probably

(17:48):
is the right result. And again, it all comes down
to drafting. It all comes down to planning. It all
comes down to thinking about what you do when you're
planning for your assets. Some of that brings me back
to the guide, folks, which is giving away this real
estate would not have been the best option. Now, when
you're thinking about gifting, think about what kind of assets
to gift high basis, low basis assets. There's control issues

(18:12):
when you gift. There's estate tax issues to consider, federal
and state. You know, do I want to give things
away to my kids outright or put it in a trust?
Probably a trust if I want to make bigger gifts
and I want to keep control of what I give
away because I'm not going to give it away without
controlling it. How do I do that? Spousal lifetime access trusts, Folks.

(18:33):
So many ways to think about gifting or maybe not gifting,
depending on your situation. It's the end of the month, folks,
get this guide Making the most of Gifting Assets eight
six six eight four eight five six nine nine or
Legal Exchange Show dot com again end of the month
eight six six eight four eight five six nine nine

(18:57):
or Legal Exchange Show dot com. What can we learn
from this?

Speaker 2 (19:01):
Yeah, a lot of people have mortgages, but they want
to do estate planning.

Speaker 5 (19:05):
Absolutely right, and you should and that is not a deterrent. Please,
that's less than number one. Well, folks, there's always a
need to remember when you're leaving encumbered property to a
family member that the note will be due on death.
So drafting again, how many times have we spoken about drafting?

(19:26):
Drafting language is important. So in your trust, perhaps you
should always important to provide a way to pay it
off if that's what you want it, you know, if
you want that property kept. So example, you could say,
what I want to leave this one particular property to
my one child so that I know that child has
a place to live. That's not uncommon. Maybe the other

(19:46):
kids are fine, they all have houses. You could say
that the debt on the property will be paid off
out of trust assets.

Speaker 3 (19:54):
Very simple that way.

Speaker 5 (19:55):
I know, let's say it's my daughter, she will she
will have a place to live.

Speaker 3 (19:59):
Yep.

Speaker 5 (20:00):
But you could also then say, well, the amount of
the debt could be treated as an advancement. So what
I want to do then is, you know, give the
house there, but allocate that amount of the debt to
the other kids to try and equalize it. And if
that's not enough, maybe You could try to equalize by
giving the kids other money equal to the fair market
value of the house that was given, or give them

(20:22):
other property something.

Speaker 3 (20:24):
But you know what, it's okay if you can't.

Speaker 5 (20:25):
Equalize, if you want that person to have that house,
draft for it and so that it can be done
and your wish will be accomplished. Because here this mortgage
caused all kinds of problems. You could also state that
a child could just you know, have to go out
and refinance it. You're going to get the house, but
you got to go refinance it, and you know that's

(20:47):
that's what you do.

Speaker 3 (20:47):
If you want the house. Now.

Speaker 5 (20:49):
Folks here, remember it was a second marriage, or I
think it was a second marriage. All the more reason
to be doing plan. Never mind the fact that we've
got a plan for real estate anyway, but this really
makes you want to plan. So here you could have
simply given the house to the not to the well.
You could have given the house, you know, to the wife,

(21:11):
and then money to cover the mortgage and allow the
kids to get the other property right away. You could say,
here's the house, or here's here's the house and some money,
and then I give the kids everything else they don't
have to wait. Or you can hold the property and
trust and say, you know what, I'm going to allow
my wife to live in the house, but I wanted

(21:32):
to pay all the bills, maintenance upkeep, which is not
sure you've got a place to live and you just
got to maintain it. That's a pretty nice deal.

Speaker 3 (21:39):
I take it. I take it.

Speaker 5 (21:41):
You know.

Speaker 3 (21:42):
Uh, you know.

Speaker 5 (21:43):
The point is drafting the trust when you're dealing with
real estate is super important to make sure that it
goes the way you want and the debt is handled
the way you want and the people get it that
you want to get it. Because then after the wife
either moves or or pays all the bill, or decides
not to live there, moves out, or fails to pay
a bill, well, then you can have the property revert

(22:05):
back to the children, which they're the ones that we're
doing the objecting here anyway, right, So that's always always important.
Now there's other things you can do, folks. There's so
many options with real estate. But you know one of
them is you might say, you know, if I don't
have a significant other, how do I treat real estate
encumbered or not? I can always put the rite of

(22:26):
first refusal for a child, or I could say the
property is sold unless all the kids want it, and
then the ones who don't want it can buy out
the interest of the ones who do want it. Very important.
And now a last comment about a mortgage and transferring property,
because we said in the beginning of the segment that

(22:46):
we don't want people to think that having a mortgage
is a turren. Yep, it's not. If you take your
house and you put it into a revocable trust, it
is not a triggering event for the du oneslase period.
Don't have to tell the bank put it into an
irrevocable medicaid trust. We're going to reserve a life estate
to prevent them from triggering the duon sale clause.

Speaker 3 (23:09):
As long as you reserve that life estate, it also.

Speaker 5 (23:12):
Won't trigger the du on sale clause with irrevocable trust.
So planning with encumbered property not a deterrent. Still do it. However,
gifting may or may not be right for you, so
please get this guide. It's the end of the month.
Don't make gifts without learning the tax and control implications
eight six six eight four eight five six nine nine

(23:34):
or Legal Exchange show dot Com.

Speaker 2 (23:36):
You've been listening to Todd Letski, a partner with the
law firm of Cushing and Dolan. I'm Susan Powers, a
financial advisor with the Armstrong Advisory Group. Todd will be
answering your listener questions when we return to the legal
exchange with Todd Letsky.

Speaker 1 (23:50):
Cushing and Dolan want to help you avoid costly mistakes
when it comes to gifting assets to your children. They're
brand new guide, Making the Most of Gifting Assets shares
crucial strategies to help you protect your legacy and your family.
Many people think gifting is always a good thing, but
if it's done the wrong way, they can create real headaches.
Even well intentioned gifts can cause complications if your children

(24:11):
are dealing with financial pressure or legal issues like a divorce.
The guide also explains how a major gift like a
home or vacation property could come with hidden tax consequences
that may impact your entire estate plan. Before you make
any big moves, arm yourself with the facts and this
new guide from Cushing and Dolan. Call eight sixty six
eight four eight five six ninety nine right now to
get your copy. That's eight sixty six eight four eight

(24:33):
five six ninety nine, or request it online at legal
exchange show dot com. That's legal exchange show dot com.
The proceeding was paid for in The views expressed are
solely those of Cushing and Dolan. Cushing and Dolan and
or Armstrong Advisory may contact you offering legal investment services.
Cushing and Dolan Armstrong Advisory do not endorse each other
and are not affiliated HI.

Speaker 8 (24:51):
This is chucks outa from the Armstrong Advisory Group. Required
minimum distributions, or rmds, may seem simple, but there's a
lot more to them than just taking money out of
your rmds impact how much you pay in taxes, and
they can push your income into higher brackets, and if
you miss one, the penalties can be steep. They also
affect how much your errors actually get to keep, which
makes timing and strategy crucial. If you have multiple accounts,

(25:14):
it's important to know which ones you can combine and
which ones you can't in order to help you avoid
costly mistakes. Our new guide Understanding rmds shows you how
to navigate the rules, limit your tax burden, and plan
ahead for your legacy. Request your copy today by calling
eight hundred thirty nine three for zero zero one. That's
eight hundred thirty nine three for zero zero one. Or

(25:34):
you can request the guide from our website Armstrong Advisory
dot com.

Speaker 1 (25:38):
The proceeding was paid for by Armstrong Advisory Group, a
registered investment advisor. Nothing in the ad or in any
Armstrong guide is specific financial, legal, or tax advice. Consult
your own financial, tax into state planning advisors before making
any investment decisions. Armstrong may contact you to offer investment
advisory services. The US Virgin Islands aren't just stunning, they're
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(26:21):
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Speaker 9 (26:51):
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Department of Massachusetts. We focus on the people returning from service,
not there's pacific illness or injury.

Speaker 3 (27:01):
Our number one goal is.

Speaker 9 (27:02):
To make sure our veterans have the necessary services they need,
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Speaker 1 (27:22):
You're listening to the Legal Exchange and it's time for
Ask Todd, the segment where Tod will answer your questions
about anything and everything that's included in the estate planning process.
Once again, here's Todd Lutsky and Susan Powers.

Speaker 2 (27:39):
Welcome back, tob We have a few questions from listeners.
First question comes from Robert in Danver's Mass and Robert writes,
my father has been married to his second wife for
over twenty years. She recently went into the nursing home,
and the home they live in was hers originally, but
it is in both of their names now. Her adult
children are trying to get my dad to agree to

(28:00):
move out so they can sell the house, because they
claim the house has been willed to them even though
she is still alive. Does he have to vacate the
house or is he entitled to stay there? Could they
legally force him to leave? How about after she dies
she's still alive.

Speaker 5 (28:16):
Susan, I'm going to need a summary here. This is
not easy to.

Speaker 2 (28:19):
Fall trying to kick out stepdad.

Speaker 5 (28:21):
So we've got a married couple. Yeah, period, they're married.
That's first and foremost. They've been married for twenty years.
The house is owned now jointly.

Speaker 2 (28:31):
So it doesn't matter that she used to own it alone.

Speaker 5 (28:34):
I don't think any of that makes any difference anymore.
So I'm just trying to cut through those sure, you know,
sort of the cut to the chase here. So this
is owned jointly. They're married, and one is going into
the nursing he's in the nursing home. Now, that keeps
it nice and simple for me. She's in the nursing home.
And I would imagine they're going to try to apply
for medicaid. I know that's not the question here, but

(28:56):
who's paying for the nursing home. But let's assume the
house is going to be protect So first and foremost.

Speaker 2 (29:01):
It'll be because they're married and he's living there right.

Speaker 5 (29:04):
Exactly, and that's why all that matters. And these other
kids need to know that that if this was not
this way, or they weren't married and that was in
her name alone, that house might be taken. There might
be no house to fight over. Yeah, So I think
you sometimes have to bring the family down to earth
and say, let's work with the facts that we have,

(29:28):
because here's where it would be if you didn't get married,
if they weren't married and it was only to her name,
it'd be a lot harder to save this house. Maybe
not impossible, but not a good a good place, because
even if it was in her name alone and they
weren't married. Best they could hope for is the state
would put a lien on it. They'd let her get

(29:49):
on Medicaid, but there'd be a leen and now the
kids are going to have to pay off Allen. So
that's not helpful. Now since they're married, don't transfer the house. Well,
you could transfer the house all to the step dad,
but again, if you want to do that, that will
guarantee protection from the nursing home and no lean no lean,

(30:10):
and then maybe work with your stepdad to put together
an estate plan as to you know, now I might
want to put this house into an irrevocable trust. Since
we have a red flag, we've learned that somebody could
go to a nursing home and take the house. Maybe
now we put together an irrevocable trust estate plan. This
property goes into this trust, we get a five year

(30:33):
clock running, We protect it for the family, and the
family can include all the kids or step kids or
whatever they want. But I would think, you know, rather
than stirring the pot, maybe a family meeting might go
a long way.

Speaker 2 (30:51):
And if they owned it, you know, let's say they
owned it as tenants in common. If they wanted to
sell it, if somehow they had the ability to sell,
or if the stepdad was willing to sell. Now half
of a house worth of dollars is going to be
in the hands of Mom who's in the nursing home.

Speaker 5 (31:10):
That's right now, you have to try to figure out
how to protect the money. Money's a lot harder to
protect sometimes than a house because a house is a
special asset in the medicaid world.

Speaker 2 (31:19):
And if they keep poking stepdad, if they own it jointly,
it's going to go to him alone when she passes.

Speaker 5 (31:26):
That's why I think a family meeting, sit down, lay
out the groundwork, lay out the rules here.

Speaker 3 (31:33):
But can they force him to sell?

Speaker 5 (31:35):
No? No, I mean he's a joint owner with Mom.
You can't force him to sell. But again, anytime you
use the word force with a state planning when people
are alive doesn't end well.

Speaker 2 (31:46):
For the people.

Speaker 5 (31:49):
So keep that in mind, folks. And when you're thinking
about gifting, instead of poking, think about getting this guide.
It's the end of the month. I just don't want
you to make mistakes for gifting. There's tax considerations on
the estate side, on the income side, you know, with
step up in basis? Do we want to give away
high basis assets, low basis assets? Do we want to

(32:10):
give it outright to kids? No trust? Do we want
to make big gifts? And if we do, we want
to make sure we keep control over what we give
away and enjoy it. Maybe spousal lifetime access trust pop up, folks,
so many things to think about before you gift. Call
and get the guide. It's the end of the month
eight six six eight four eight five six nine nine

(32:33):
or Legal Exchange show dot com Making the most of
gifting assets eight six six eight four eight five six
nine nine or Legal Exchange Show dot com todd.

Speaker 2 (32:44):
Our last question comes from Joe and Wooster Mass and
Joe Wrights. Can a state pension be protected from medicaid planning?

Speaker 3 (32:52):
Also?

Speaker 2 (32:52):
Can IRA funds be protected without having to withdraw all
the money from the accounts and pay the taxes. I'd
like to protect my pension and four hundred thousand dollars
IRA for my wife if I go into a nursing home. Wow,
I don't know what other assets are involved here, These
two IRA and income.

Speaker 5 (33:12):
These two are certainly important assets.

Speaker 3 (33:15):
Well.

Speaker 5 (33:15):
First of all, I think we should help people understand
that a pension is not an asset, it's income. The
house is an asset. An ira is an asset. Although
the IRA does generate income, it's also an asset. Okay,
let's take the pension first and foremost. Is there an

(33:37):
actual way to protect a pension. No, But does that
mean we're going to lose the pension? Not always. This
is simply a function of the facts of every case. Again,
nothing you can do to actually protect that. It's just
going to be based on the facts and circumstances of
the case. For example, yeah, explain that. Let's assume that

(34:01):
this is who's the wife's Joe has the pension. Joe
has the pension. Let's say wife is at home, and
let's say she gets one thousand dollars a month in
social security. Okay, Well, when you get sick and go
in the nursing home and it keeps changing every month,
I think it's somewhere around twenty five hundred dollars a
month that the spouse who's at home the community spouse

(34:26):
at home is allowed to keep. I'm just going to
use that as a rough number. Now, folks, it might
be a little higher than that. It does change every November.
So if she now, just for easy numbers, she is
fifteen hundred dollars a month short of something called a
minimum monthly maintenance needs allowance. Okay, heck is that right?

(34:49):
When you get sick and go in a nursing home
as a married couple, they allow the healthy spouse to
keep approximately one hundred and fifty seven thousand dollars of
money and make sure the healthy spouse has at least
twenty five hundred dollars a month of income coming in.

Speaker 2 (35:08):
Okay, So if she has one thousand dollars and let's
say his pension is, you know, three thousand dollars a month,
so she would get to reach into his pension and
take fifteen hundred to make her a hole.

Speaker 5 (35:21):
Exactly right, Susan. You explain that spot on, and that's
what matters here. So when I say facts some circumstances, No,
I can't just protect income, but I can, if the
income is needed to increase the person's minimum monthly maintenance
needs allow them.

Speaker 2 (35:40):
And the flip side of that coin Todd is, if
the wife were in the nursing home, Joe wouldn't have
to give up any of his pension. His pension would
be completely safe. Right, it doesn't matter how much he has.

Speaker 5 (35:52):
Community spouse could keep all their income, so he could
make five thousand a month income, pension, social Security whatever. Yeah,
he's fine.

Speaker 2 (35:58):
And what about the IRA?

Speaker 5 (36:00):
So the IRA is a little harder, right, So the IRA,
you know, if it's his IRA and we want her
to say to keep it, the only way to do
that is, unfortunately, move it, and it would be subject
to estate tax when you go to move it, I
mean out of state tax, income tax. Excuse me, it
would be subject to income tax. So you have to

(36:21):
just play out the string and say how much am
I going to lose in taxes versus you know, I'm
assuming this is last minute planning. Yeah, you know, I'm
going to save in taxes and versus how much does
it cost in the nursing home if I keep paying? So,
I mean the deal there is if I'm going to
lose five hundred thousand dollars in tax and he dies quickly,
I might not want to do that. Otherwise, for advance planning,

(36:45):
you could do a testamentary trust and name the estate
the beneficiary. But that's this I thought was last minute planning.
So folks, lots to think about, but before you make
any any decisions about gifting, call and get the guide.
It's the end of the month eight six six eight four,
eight five six nine nine and learn the most of

(37:06):
making gifts.

Speaker 2 (37:08):
If you have a question you would like to ask Todd,
visit his website Legal Exchange Show dot com and click
on the ask Tod tab. Maybe I'll be able to
read your question on the air, and hopefully his answer
will stop you from becoming one of his next real
life stories. You've been listening to Todd Lutsky, a partner
with the law firm of Cushing and Dolan. I'm Susan Powers,

(37:29):
a financial advisor with the Armstrong Advisory Group. We'll be
back with more after this quick break on the Legal
Exchange with Todd Lutsky.

Speaker 1 (37:37):
Cushing and Dolan want to help you avoid costly mistakes
when it comes to gifting assets to your children. Their
brand new guide, Making the Most of Gifting Assets shares
crucial strategies to help you protect your legacy and your family.
Many people think gifting is always a good thing, but
if it's done the wrong way, they can create real headaches.
Even well intentioned gifts can cause complications if your children

(37:58):
are dealing with financial pressure or legally shoes like a divorce.
The guide also explains how a major gift like a
home or vacation property could come with hidden tax consequences
that may impact your entire estate plan. Before you make
any big moves, arm yourself with the facts and this
new guide from Cushing and Dolan. Call eight sixty six
eight four eight five six ninety nine right now to
get your copy. That's eight sixty six eight four eight

(38:20):
five six nine nine, or request it online at legal
Exchainshow dot com. That's Legal exchange show dot com. The
proceeding was paid for in The views expressed are solely
those of Cushing and Dolan. Cushing and Dolan and or
Armstrong Advisory may contact you offering legal investment services. Cushing
and Dolan Armstrong Advisory do not endorse each other and
are not affiliated. The US Virgin Islands aren't just stunning,
They're thriving and continue to be one of the hottest

(38:42):
spots for vacationers in the Caribbean. New cruise poured upgrades,
better air connections, and a sharper focus on cultural experiences
are putting the islands back on the map For travelers
seeking something special. Saint Thomas is your cruise hub, known
for duty free shopping in the world famous Meghan's Bay.
Saint John is your escape with national parkikes, secluded beaches

(39:03):
and tropical tranquility. Saint Croix brings the history with colonial architecture,
old sugar mills and vibrant coral reefs. Visit one island
or all three and get plenty of pampering, undisturbed nature,
and a vibe like no other, all jammed into one vacation.
With easy travel from New England, no passport required and
no money to exchange. Paradise is closer than you think

(39:26):
this fall. Plan your getaway and fall naturally in rhythm
with the heartbeat of the islands in America's Caribbean. Visit
USVII dot com and book your trip today. That's visit
USVII dot com.

Speaker 7 (39:38):
Hi, this is Mike Armstrong from the Armstrong Advisory Group.
Turning seventy isn't just another birthday. It's when the clock
starts ticking on your retirement withdrawals at age seventy three
or at age seventy five if you were born in
nineteen sixty year later, you need to start withdrawing money
from your IRA. They're called required minimum distributions, and missing
one can mean big penalties. Taking the rmds at the
wrong time can also spike your tax bill. Even the

(39:59):
type of a count matters, since your IRA and four
oh one K follow different rules, which could get confusing fast.
Our new guide is called Understanding Required Minimum Distributions. It
breaks the process down in simple terms so you know
when to start, how much to take, and ways to
manage the tax impact. Request your copy today by calling
eight hundred three nine three four zero zero one. That's

(40:20):
eight hundred three nine three four zero zero one or
Armstrong Advisory dot com.

Speaker 1 (40:25):
The proceeding was paid for by Armstrong Advisory Group, a
registered investment advisor. Nothing in the ad or in any
Armstrong guide is specific financial, legal, or tax advice. Consult
your own financial tax into state planning advisors before making
any investment decisions. Armstrong may contact you to offer investment
advisory services. Your tune to the legal exchange with Todd Lutsky.
If you are a loved one needs a nursing homestay,
call Todd right now at eight sixty six eight four

(40:46):
eight five six ninet nine and let him make sure
your assets are protected. That's eight six six eight four
eight five six nine nine, or visit him online at
Legal Exchange show dot com.

Speaker 2 (40:59):
Welcome back into the Legal Exchange with Todd Lutsky. I'm
Susan Powers, a financial advisor with the Armstrong Advisory Group,
and I'm joined, of course by Todd Lutsky, a partner
with the law firm of Cushing and Dolan with a
master's in taxation. So, Todd, when we talk about giving
assets away, can you explain the difference between giving assets

(41:21):
away from an IRS perspective versus giving them away from
a medicaid perspective? Because how we are here from the government.
We're here to help, but we don't talk.

Speaker 5 (41:32):
To each other.

Speaker 2 (41:32):
We have very different rules, right right.

Speaker 5 (41:34):
They do not talk to each other all the time,
so they are and the rules are mutually exclusive. And
I think it's important because, like I say, the guide
deals with the making the most of gift tax or
making the most of gifting. But and I've mentioned a
lot of times that there's income and estate tax issues
to deal with, but I haven't really mentioned there's a
medicaid perspective. Yes to deal with, and there is. You

(41:56):
wouldn't think about that, but there actually is. So many
people think, oh, well, if I make a gift of
nineteen thousand dollars a ube, Yeah, that's the freebie. What
so from the estate tax side of the government, right,
we're going to talk about both sides, or the gift
tax side of the government. If you make a gift

(42:21):
of nineteen thousand dollars per year per person, there is
no need to file a gift tax return by the giver,
and there is no reporting whatsoever.

Speaker 2 (42:35):
Okay, it's as you say.

Speaker 5 (42:38):
It's a freebie.

Speaker 3 (42:39):
It really is.

Speaker 5 (42:40):
And you can do that for anybody that's a year, family,
no family, anybody you want write check check check check,
nineteen nineteen nineteen.

Speaker 3 (42:50):
Okay.

Speaker 5 (42:51):
However, when people are faced with nursing home care, maybe
more like the Joe question we had above, where you
could be last minute dealing with with going into a
nursing home, people might say, well, why don't I just
make a bunch of gifts. I've got kids and grandkids
and we can go nineteen times, you know, bang, bang bang,
however many you want to give away. Plus we're married,

(43:13):
I can do it with my spouse so I can
take nineteen times two times. However many kids and grandkids
we have, and I'll make a ton of gifts. Well,
from the irs side of the equation, they'll say that's
perfectly fine. But from the Medicaid side of the equation,
that's a five year waiting period. So they don't care
about the tax side on what's going on there. They're

(43:37):
simply telling you the ramification of that gift is not
a tax issue for them Medicaid. It's a waiting period
issue for them. That is a disqualifying transfer, just the
same as when you take it and put it into
a trust, it's a disqualifying transfer that triggers a five
year look back.

Speaker 2 (43:58):
Okay, so you have to be careful when you do that.
So when I think about the people that listen to
your advice and actually do advance planning, and maybe they've
transferred a chunk of money and assets into their irrevocable trust,
does that mean if they are planning for nursing home protection,
which obviously that's one of their objectives, because they've done

(44:19):
the irvocable trust, does that mean they can't gift anymore?

Speaker 5 (44:24):
When you say they can't gift any more, for the
year or at all.

Speaker 2 (44:28):
Like if you're because they would be they would have
a problem with the nursing home.

Speaker 5 (44:33):
No, no, it doesn't mean they can't gift anymore. It
just means that let's say they put money in in
five years has gone by, well, they still have their exemption.
It depends because remember, any gifts to the Medicaid Trust
are first of all, incomplete gifts, so they are not
considered taxable gifts to begin. Okay, So you could take
a million dollar home and put it into a Medicaid

(44:54):
irrevocable trust, you don't need to file a gift tax return. Okay,
why because we did not make a completed gift all.
So now I've still got my whole thirteen point nine
million dollar gift tax exemption available to me. So if
you're saying, after I've done that, Todd, and I want
to now give things to my children, can I still
do that? Well, sure you can, and you still can
follow the gift tax rules, but if you do, it's

(45:17):
a five year waiting period for Medicaid.

Speaker 3 (45:19):
So you can't really get around that five year waiting.

Speaker 5 (45:22):
Period too too easily. But folks, that's just one aspect
of gifting. When you think about making the most of
gifting assets, which is the guide that we're giving away.
Think about what to give cash high basis assets versus
low basis assets. Think about the income tax issues this
step up in basis issues, the estate tax issues. Am

(45:44):
I saving federal versus only state estate tax? Do I
give it outright to kids? Or set up gifting trusts?
Do I use spousal lifetime access trust so I can
give something away and keep control over it for myself.
So many things to think about in addition to the
simple idea of.

Speaker 3 (46:02):
Whether I should even gift at all. Please get the guide.

Speaker 5 (46:06):
It's the end of the month eight six six eight
four eight five six nine nine or Legal Exchange Show
dot com again eight six six eight four eight five
six nine nine or Legal Exchange Show dot com.

Speaker 2 (46:20):
So when you do your ireevocable trust planning, and let's
say you've done it, you've funded it, and it's been
over five years, so in the eyes of the nursing
home it's no longer yours, but in the eyes of
the irs, it is yours. Because you said it's an
incomplete gift, right, that's.

Speaker 5 (46:38):
Very true, right, very true.

Speaker 2 (46:40):
So if you wanted to make gifts, and you have
money in your irrevocable trust. If you want to make
gift to your kids, yeah, is that where you would
make them from is from the trust.

Speaker 3 (46:52):
Yeah.

Speaker 5 (46:52):
So again this is a great strategy. Now we're thinking
again how medicaid and tax world's irs versus medicaid world
to make them work together. So to go slow, We've
put a bunch of money and maybe a house and
a million dollar portfolio into the trust, and later on

(47:14):
we still have some money outside the estate. We know
we have made no gifts yet, and we have done
nothing to reduce our estate tax. So just because it's
in that trust, Remember I said it's an incomplete gift.
So if our estate is three million and I end
up putting a million dollar home and a million dollar
investment into the trust, I'm still worth as a single

(47:36):
person three million. So I haven't given anything away. So
from a gift tax standpoint, no effect. From an estate
tax standpoint, no effect. But from a nursing home standpoint,
in five years I will have protected what I put
in that trust. Yeah, from the cost of nursing home care. Wow,

(47:57):
this is really working out great, Except Todd, it looks
like in Massachusetts, I can only shelter two million, and
in this example, I'm still worth three. Right, Well, I
do want to give some stuff away now because I can,
and I happen to have a bunch of cash. Maybe
I've got a bunch of CDs that a lot of
people do that with my investment trust, and I'd like

(48:19):
to lower my estate tax from Massachusetts. Can I do that? Yes,
give it from the trust. From an estate tax standpoint,
it will get it out of my estate.

Speaker 2 (48:33):
So would you still be limited to giving the nineteen
thousand only?

Speaker 5 (48:36):
Absolutely not. I have a thirteen point nine million dollar
exemption fifteen million come January one, twenty twenty six, and
so I can absolutely I am not limited. I can
give you know, say I wanted to give a million
dollars five hundred thousand of cash, sure right to my kids.
Can do it right from the trust.

Speaker 2 (48:56):
But that's way over the nineteen grand.

Speaker 5 (48:58):
Right, So I'll file a gift tax return. I won't
pay any gift tax because I'll eat into my one
thirteen point nine million dollar gift tax exemption.

Speaker 3 (49:09):
And now I've reduced my.

Speaker 5 (49:10):
Estate tax without creating a five year waiting period for
the nursing.

Speaker 2 (49:16):
Home because you've done it through your trust.

Speaker 1 (49:19):
Right.

Speaker 5 (49:20):
Compare and contrast if instead you say, well, Todd, I
got this five hundred thousand dollars CD sitting in my name.
I'll give that away. That's a five year waiting period.
You will get it out of your estate. You will
have the same estate tax benefit that I just described
with the gift from the trust, but you'll have a

(49:41):
five year waiting period for nursing home care. Not helpful, okay.
And finally, the type of asset we picked, Susan was cash.
Why Why Because it allows us to give away high
basis assets with no built in gain. Fucking that in,
We're not trapping any capital gains tax liability.

Speaker 2 (50:04):
If you gave away your house, Yeah, I.

Speaker 5 (50:06):
Would think twice about that. Yeah, that's a very big asset.
And it's also, you know, one that probably carries with
it a lot of built in gain, and so I
would think twice about even making that gift.

Speaker 2 (50:19):
I'd probably a lot to consider when you're when you're
wanting to gift, the right way, the right fashion, the
right type of.

Speaker 5 (50:26):
So many things to think about, And I think this
question that you asked, Susan really explored all of those.
Call and get the guide eight six six eight four
eight five six nine nine or Legal Exchange show dot com.
It's the end of the month. The guide's going away.
Learn whether gifting is right for you.

Speaker 2 (50:44):
Todd Lutsky from the law firm of Cushing in Dolan,
thank you so much.

Speaker 5 (50:48):
Thank you, Susan. Always a pleasure.

Speaker 2 (50:49):
I'm Susan Powers, a financial advisor with the Armstrong Advisory Group.
We thank you for joining us today and we'll be
back again next week on the Legal Exchange with Todd Lutsky.

Speaker 1 (51:00):
Crushing and Dolan want to help you avoid costly mistakes
when it comes to gifting assets to your children. Their
brand new guide Making the Most of Gifting Assets shares
crucial strategies to help you protect your legacy and your family.
Many people think gifting is always a good thing, but
if it's done the wrong way, they can create real headaches.
Even well intentioned gifts can cause complications if your children

(51:20):
are dealing with financial pressure or legal issues like a divorce.
The guide also explains how a major gift like a
home or vacation property could come with hidden tax consequences
that may impact your entire estate. Plan before you make
any big moves. Arm yourself with the facts and this
new guide from Cushing and Dolan. Call eight six six
eight four eight five six ninety nine right now to
get your copy. That's eight sixty six eight four eight

(51:42):
five six nine nine, or request it online at legal
exchainshow dot com. That's legal exchange show dot com. The
proceeding is paid for in The views expressed are solely
those of Cushing and Dolan. Cushing and Dolan and or
Armstrong Advisory may contact you offering legal investment services. Cushing
and Dolan Armstrong Advisory do not endorse each other and
are not affiliated HI.

Speaker 8 (52:00):
This is Chuck's outa from the Armstrong Advisory Group. Required
minimum distributions, or rmds may seem simple, but there's a
lot more to them than just taking money out of
your IRA. Rmds impact how much you pay in taxes,
and they can push your income into higher brackets, and
if you miss one, the penalties can be steep. They
also affect how much your errors actually get to keep,
which makes timing and strategy crucial. If you have multiple accounts,

(52:23):
it's important to know which ones you can combine and
which ones you can't.

Speaker 5 (52:26):
In order to.

Speaker 8 (52:27):
Help you avoid costly mistakes, our new guide Understanding RMDS
shows you how to navigate the rules, limit your tax burden,
and plan ahead for your legacy. Request your copy today
by calling eight hundred thirtey nine three for zero zero one.
That's eight hundred thirty nine three for zero zero one,
or you can request the guide from our website Armstrong
Advisory dot com.

Speaker 1 (52:47):
The proceeding was paid for by Armstrong Advisory Group, a
registered investment advisor. Nothing in the ad or in any
Armstrong guide is specific financial, legal or tax advice. Consult
your own financial tax into state planning advisors before making
any investment decisions. Armstrong may contact you to offer investment
advisory serve.

Speaker 4 (53:01):
Mark Vonner is the CEO of Veterans Development Corporation.

Speaker 5 (53:04):
His dedication to.

Speaker 4 (53:05):
Serving our veterans has made an incredible impact on his
family and employees, and he is so proud to be
the presenting sponsor of the DAV five K Boston.

Speaker 6 (53:15):
This is Brittany Vonner. I'm a registered nurse who is
now working as an assistant project manager at Veterans Development Corporation.
Working with my father, Mark has been an incredibly rewarding experience.
Our company is dedicated to serving via hospitals and veteran communities.
We don't just build facilities, we build environments that support healing, resilience,
and family. We are so proud to see our work

(53:37):
directly impact the lives of veterans and the professionals who
care for them. This rich history is why we care
so much about supporting great organizations such as the Disabled
American Veterans Department of Massachusetts and the work they do
to care for our veterans.

Speaker 4 (53:50):
Join Veterans Development Corporation in thanking our great American heroes.
Please visit DAV five k dot Boston to show your
support today