These achievements have not come effortlessly, and cannot be taken for granted. The current national return to what should be a closed debate on women’s rights to access contraception is one example of how hard-fought battles, whose victories should be assured, can always be restaged by opportunistic politicos. Under the auspices of the Obama administration over the past three years, an impressive amount of civil rights activism has taken place. To illustrate the gains we’ve made in the past few years, we would like to take the opportunity here of focusing on what has been achieved for the LGBT community under President Obama.

From the repeal of “Don’t Ask Don’t Tell”, to less headline-grabbing but no less important policy changes, the current administration is clearly committed to improving the lives of citizens once officially ignored at best, reviled at worst. It matters to people every day that hospital visitation rights for same-sex partners were endorsed last year by the administration. It matters that the Centers for Medicare and Medicaid Services have supported in writing the right of LGBT partners to access Medicaid. Housing rights for LGBT people have been officially protected for the first time, with the issuing of guidelines from the Department of Housing and Urban Development preventing discrimination on the basis of sexual orientation or gender identity, and recognizing that LGT partners are co-heads of households. These guidelines are the start, not the end. Congress needs to be pressured to take this further, by amending the terms of the Fair Housing Act.[1] Violence against queer Americans has been made a federally recognized hate crime. More recently, Obama has announced that the federal government will no longer defend the Defense of Marriage Act, which for so long has been the backbone of national and state discrimination against same-sex couples and their families.[2]

In California, we have seen changes to estate transfers and titling rules (See our article, “Real Estate Titling for Same-Sex Couples”). The state has mandated LGBT diversity awareness training in Area Agencies. We have also been granted the right to marry – twice. While we can and should celebrate the gains of the past few years, it is also clear that there is much work still to do. Instead of bemoaning the pace of change, we could view the progress that has been achieved with with a sense of historical context, with hope for comprehensive change. In the current political climate, with an election year looming, social issues are populist fodder. It is the responsibility of each of us to protect the privileges we have and to extend them to the members of our communities still fighting for the same. Particularly in the area of marriage rights, the country is approaching a crossroads. Each one of us can help to expedite that journey, and to ensure that its destination is welcoming to all of us.

Hillary Clinton offered a remarkable declaration of support for LGBT rights as human rights on International Human Rights Day (6 December) 2011 in Geneva, calling the achievement of these rights “one of the remaining human rights challenges of our time.”[3] The political significance of this affirmation from the current administration of its commitment to the public endorsement of the lives and rights of queers should not be underestimated. In 2009, speaking to the Human Rights Campaign, Obama reaffirmed his commitment to advancing the rights of LGBT Americans, even as he acknowledged that the progress towards this ambitious end has been slower than many would like.[4] He also acknowledged the connection between civil rights for African Americans, and civil rights for LGBT Americans, affirming the connections between social and political justice for all marginalized groups. The Obama administration may not have accomplished as much as we would like in the area of LGBT rights, but this fact should not undermine what has been achieved, and what needs to be protected and advanced in the next presidential term. As Rick Santorum told anti-gay rights supporters in Washington when gay marriage was signed into law there recently, “”There are ebbs and flows in every battle, and this is not the final word.”[5]

The administration has publicly supported international gay rights. It is also engaged in an ongoing dialogue at home about ways of improving the lives of LGBT Americans. Most recently, in February 2012 the Whitehouse Office of Public Engagement announced a series of national conferences aimed at LGBT Americans and their supporters and service providers. Such official endorsement of the lives and rights of LGBT Americans is unprecedented, and needs to be encouraged, supported, and pushed further. As Valerie Jarrett, Senior Advisor to Obama, told attendees at the Equality Illinois Gala this year, “We have not yet reached the day where every LGBT American is treated equally, by law and by those around them. But I believe that for the first time ever, we can see that day on the horizon.”[6] Because of what is in sight for the first time, this upcoming election really matters. It matters for the LGBT community, and it matters for all those who value human and civil rights, who can imagine a better America.

So what can you do? Vote, for one. Join, support, or fill out the online surveys of organizations like Freedom To Marry, Equality California, COLAGE (Children of Lesbians and Gays Everwhere), The Gay Straight Alliance Network, the Human Rights Campaign, or one of the other organizations active in the country and the region. Talk to friends, neighbors and co-workers about these and other issues that matter to you, and about why it is important to vote. National polls are indicating that, for the first time in our history, the majority of Americans support the equal rights of their neighbors. Now is the time to become, or remain, politically active, so that this slim advantage can be extended. Imagine where we could end up if we keep pushing for change.

[1] See Daniel Redman, “Improving LGBT lives, One Law at a Time” Aging Today July/ August 2011.

[2] For a recent analysis of Obama’s legal commitments to LGBT rights, click here.  

[3] http://www.scribd.com/fullscreen/74942691

[4] To see relevant extracts of this speech go to Obama for Gay Rights.

[5] “Washington Governer Signs Gay Marriage Bill”, New York Times Feb 13.

[6] http://www.whitehouse.gov/omb/fedreg_default

Yulissa Zulaica oversees the probate and trust administration side of the practice. In addition to domestic estate and tax planning, she also does our cross border and international estate planning. In 2011 Yuli passed the bar, became a partner and had her second child. Yulissa is a member of the California Bar Association, and the Trusts and Estates Section of the Bar Association of San Francisco. She sits on the board of La Raza Lawyers’ Association of San Francisco and the Bay Area Latino Lawyers Fund, which serve as a resource for and advocates on behalf of the Latino community in the Bay Area. This year’s recent gala raised over $50 000 for scholarships. She is a member of the Latino Community Foundation, and the San Francisco Hispanic Chamber of Commerce. She also works with the Volunteer Legal Services program of the San Francisco Bar Association, a program that provides legal services to low income people and she participates annually in both the AIDS Walk-A-Thon and the Swim-A-Mile Benefit for women with cancer.

Naomi E. Metz is the lead attorney in the Santa Rosa office of DLKLawGroup PC. She founded and facilitates a study group for attorneys and tax professionals that examines the complex interaction between Californian and federal tax and property laws. Naomi will also teach a class on LGBT issues in the law at Empire College of Law in Santa Rosa in the summer of 2012, the first time this class will be offered at Empire College. She serves on the Board of Directors of the National Gay and Lesbian Task Force, the oldest national progressive LGBT advocacy organization. The Task Force works to build the grassroots power of the LGBT community by training activists, equipping state and local organizations to develop broad-based campaigns to advance pro-LGBT legislation and defeat anti-LGBT measures, and to build the organizational capacity of the LGBT movement. Naomi is helping to develop a legacy-giving program for the CERES Community Project, a non-profit organization in Sebastopol, CA that provides free, delicious, and healthy food for people who have cancer.

In 2011, Joseph L. Urbanski became an associate at DLKLawGroup PC, focusing on probate and trust litigation, and business entity formation and disputes. Joe is also integral in the elder law and conservatorship practice at DLKLawGroup PC. He is a member of the Bar Association of San Francisco, Bay Area Lawyers for Individual Freedom, the San Francisco Trial Lawyers Association, and sits on the board of directors for the General Assistance Advocacy Project. GAAP is a legal advocacy non-profit organization providing services in the Tenderloin community.

Anna Zulaica is the senior paralegal at DLKLawGroup, PC. She is also the owner and head chef of Presto! Catering and Food Services, a healthy catering company based in Oakland. She is a co-author of The DASH Diet Cookbook: Quick and Delicious Recipes for Losing Weight, Preventing Diabetes and Lowering Blood Pressure, in which she tested and wrote over 140 recipes.  Anna wrote the recipes in The Antioxidant Counter: A Pocket Guide to the Revolutionary ORAC Scale for Choosing Healthy Foods.  In her spare time, she is a contributing writer for Fit Approach, a health and fitness website that empowers community members to support and encourage each other in creating and maintaining healthy lifestyles. Anna serves on the board of Beyond Hunger, a non-profit organization based in San Rafael that provides support groups and workshops for people struggling with eating disorders and body issues. To order a copy of the DASH Diet Cookbook, go to Amazon.com or to barnesandnoble.com.

Andrea Woodard is the Legal Assistant at DLKLawGroup PC.  In addition to keeping everything in order at the firm, she is also a volunteer at UCSF’s Child Life Services Department.  Andrea is also the lead singer of The Know Nothings, a folk music group that plays around the East Bay and San Francisco.

Additional Highlights at DLK in 2011-12

The folks at DLKLawGroup PC have been working tirelessly this year.  On top of the estate planning, probate, and trust administration practice, we put some of our expertise to work for the communities we serve. We litigated a case in which two long-term partners were being threatened with separation by their families, and prevailed. We intervened in an IRS tax case on behalf of a transgender couple and prevailed. We assisted clients with their parents’ affairs as their parents declined. We helped couples establish pre-nups and pre-domestic partner agreements. We also answered dozens of titling questions, verifying that there are still able and willing buyers in the San Francisco market.

Tax
Deb also got involved in teaching taxpayers and tax preparers how to interpret the new rules for same-sex federal tax filing requirements. In the first half of 2011, she held approximately 30 seminars on income tax filing requirements. After watching her tax preparer colleagues suffer through the tax season and helping so many same-sex couples sort through the complexities of understanding how to file federal returns, Deb started engaging in discussions in Washington DC. She is currently working with Senators Feinstein, Boxer, Cantwell, and Murray, and representatives from the Obama administration, IRS and Treasury. What was a reasonable request for clarity on tax legislation has proven to be yet another huge hurdle in achieving any sort of parity for same-sex couples while DOMA is still in effect. Nonetheless, there are many people who are willing to lend a hand and hopefully we will have further guidance and clarification on some issues form the IRS as the year goes on.

MediCal
Approximately two years ago, Deb got a call from an elderly lesbian client who had to put her partner of forty years into a nursing home. They were down to their last $106,000 and she asked Deb if she needed to divorce her partner and take her off title to their home to qualify for MediCal. Knowing that there were no clear answers, Deb and two other attorneys in the office called various agencies and representatives and after two days of being on hold, found out that although same-sex couples were essentially being treated the same as heterosexual couples more MediCal purposes, there was no written policy by the Department of Health Care Services and no guarantee of any of the same protections afforded to heterosexual couples. Working with Equality California and others, Deb was involved in helping to get AB 641 passed this year, which clarifies that same-sex legally related couples will not have liens enforced on their homes until the second death and that they may retain a “family allowance” should one of the partners need to enter a nursing home on MediCal. Since the state of California has no surplus funds, this bill is dependent upon the feds paying their fair share, as they already do for heterosexual couples. We are now in the process of following that bill to insure that it keeps moving forward at the federal level. Stay tuned for further updates at www.dlklawgroup.com.

Real Property
For many years, we have gotten calls and even SOSs from clients, real estate agents, and others on how they should take title to real property. Even refinances seem difficult sometimes, especially if the property needs to come out of trust, or financing issues arise and someone has to be added or taken off title to close the escrow. Deb had a real estate license for nearly 20 years and has taught extensively on titling. She has often intervened on behalf of a client who is being told that they must take title a way that does not make sense, or has tax ramifications not being considered. Often, the problem seemed to stem from the titling and escrow companies’ lack of understanding. After 6 years of battling with title officers and companies, Deb has successfully engaged the California Land Title Association and the California Escrow Association. They will be updating their information and educating their members throughout the state.

For years I have been engaged in trying to sort through what rights we have access to, what we don’t, and how we can achieve social and legal equality. Being on the front lines every day, advocating for basic rights for my family, my friends, and my clients, I tend to spend my time either with like-minded people and activists for all types of social justice, or with opponents. I often wonder where the other 20-30% of the population is, those who simply do not harbor bigotry and purportedly support LGBT rights. The other day, I found one of them. Sitting on an airplane with my girlfriend, I struck up a conversation with my seatmate, a good old-fashioned farmer from central Illinois who grows genetically engineered corn and soy for feed and ethanol. He started by asking how long we had been together, and then proceeded to tell me that he and his wife’s best friends were “two gals that are together”. In fact, they were minding the farm while he and his wife went south for vacation. He added that their other good friends are also two gals who are married. I congratulated him as a citizen of Illinois for allowing civil unions as of 2011. We continued to chat about small farming in the Midwest. After sharing a few agricultural insights, much to my surprise he looked us both in the eye and said, “So when are you tying the knot?” That simple question made me think that maybe the national polling might be right, that there is now a majority of Americans, slim as it might be, who truly support the notion of equal rights for the LGBT community. I felt, for the first time, that there really is a sea change occurring in the minds of significant numbers of our fellow Americans. Aluta Continua!

I am often asked by a same-sex couple if they should get married or register as domestic partners. They want to know what the advantages and disadvantages are of being a couple that is legally related under state law and currently ignored for all purposes under federal law. I usually point out that heterosexual couples in their situation would almost never ask a lawyer or a tax person to help them make such a big decision.

Being married or registered is just that. It is a commitment central to most cultures, explored in all types of literature from classic novels to pop magazines, poems, songs and movies, some happy and some sad. But there are legal implications to formalizing that commitment under the auspices of the state. I try to explain that California has embraced the notion of equality and grants us all the same rights and responsibilities of our married heterosexual next-door neighbors. Almost half of our law practice is probate and trust administration, so we see first hand how this change of status can make a difference when a partner becomes ill or passes away.

When it comes to receiving benefits, there are certain things that only a legally related partner may be eligible for, such as California state pensions, the right not to have a mortgage accelerated or called, being exempt from reassessment on real property in California, possibly receiving Social Security benefits in the future, spousal petitions, and the double step up in basis at death at the state level. Intestacy rights also apply, as do the rights to donate organs and control the disposal of the remains of a legally recognized partner.

Often I am told by clients that they have all they need, namely health insurance benefits through an employer simply by having signed an affidavit of domestic partnership at work. It is imperative that people understand that many employers grant certain rights during lifetime that may expire or not be recognized at death, unless a couple is registered with the state or legally married. Questions to ask an employer include:

• Does my partner’s healthcare coverage extend beyond my death? If so, for how long? Under what plan? What is the cost?
• Would my partner be eligible for my pension benefits if I passed while still employed? What if I have retired?

In California, same-sex legally related couples should be treated the same as heterosexual married couples unless there is a Defense of Marriage Act (DOMA) preemption. Employers can often find ways to treat same-sex and heterosexual couples equally, or at least more similarly. Examples of this include grossing up a same-sex employee’s salary so that the federal taxes associated with the health care coverage for his or her partner are paid by the employer. This would make the employee’s net pay the same as their heterosexual counterpart. Many benefits that would pay for two lives, such as pensions, may be offered to same-sex couples if the company has an inclusive definition of “spouse”. Checking with an employer in advance and being familiar with or proactive about their policies can translate into real protections for a legally related partner.

As married couples or registered domestic partners, we are finally being treated as families and are no longer “legal strangers” in the eyes of state law. But we also have to deal with the complexity of not being recognized by the federal government and not having access to the more than 1,000 rights which our neighbors take for granted even if they have not accessed or used most of them.

See www.dlklawgroup.com/category/for-lgbt-advisors/ for current information.

For most heterosexual couples, the question of their legal status in California or elsewhere is generally a simple one – they are either married or single.[1] Under the current legal framework in California, the answer is not as clear for same-sex couples, because there are five distinct legal statuses that a same-sex couple may hold. Furthermore, if a heterosexual married couple residing in California purchases real property, it is generally understood among titling professionals that the couple can hold title to the subject property as community property with right of survivorship, community, or separate property, in joint tenancy, or as tenants in common. Unfortunately, it is becoming clear that many professionals who work on titling real property assets for same-sex couples do not understand that the same rules apply to same-sex couples that hold title to property in California, so long as the couple is in a legally recognized relationship, irrespective of its title. This can often lead even the most well-intentioned professionals to incorrectly title real estate and other assets held by same-sex couples.

Status Options for Same-Sex Couples
Under current California law, there are five distinct statuses recognizing legally related same-sex couples, each of which depends in large part on the date and location of the couple’s registration or marriage. These statuses are: Registered Domestic Partners; married; Registered Domestic Partners and married; “married equivalent”; and Registered Domestic Partners and “married equivalent.”

Registered Domestic Partners
One of the most common statuses for Californian same-sex couples is that of Registered Domestic Partners (RDPs). This status applies to any couple who registered with the State of California on or after January 1, 2000 and who did not “opt out” of the RDP status before January 1, 2005 when AB 205, the California Domestic Partners Rights and Responsibilities Act of 2003, became effective, or whose members have not formally dissolved their relationship.

Pursuant to California Family Code Section 299.2, this title also applies to those same-sex couples who entered into a legally recognized relationship in a foreign jurisdiction, whether elsewhere in the United States or in another country, that is “substantially equivalent” to a California domestic partnership.  Such “substantially equivalent” relationships include the marriages, civil unions or comprehensive domestic partnerships provided by state law in some states, such as Massachusetts or New York. However, the limited rights granted to same-sex couples in other states, such as Colorado, Maine, Maryland, or Wisconsin, are not characterized as “substantially equivalent” and, as a result, a couple who has registered in one of those states but has not subsequently registered with the State of California would not be deemed RDPs under California law.

Married
The second status, which applies to those approximately 18,000 same-sex couples that were married in California between June 16 and November 4, 2008, is “married.” As a result of the In re Marriage Cases decision of 2008, where the California Supreme Court recognized the state constitutional right of same-sex couples to marry, this title is also applicable to those same-sex couples who were validly married in a foreign jurisdiction, whether in the United States or in another country, on or before November 4, 2008.

Registered Domestic Partner and Married
The third option, which is quite common for those whose marriages are recognized by the State of California as set forth above, is “RDP and married.” Because California law allowed RDPs to marry without first dissolving the registered domestic partnership, many couples who had previously registered with the State as domestic partners subsequently married and, as a result, now hold both statuses.

“Married Equivalent”
The next status is more difficult to name. SB 54, which went into effect January 1, 2010, said, in part, that couples who have been legally married in a foreign jurisdiction on or after November 5, 2008 are entitled to all the rights, benefits, and obligations of marriage, except they may not use the term “marriage” to describe their relationship. The latter part of this language is what makes this last option difficult to name. If a couple has been legally married outside of California after November 5, 2008, and has not also registered as domestic partners in California, then they cannot be called RDPs, but they are also precluded from being called “married.”  So, you may ask, what are we to call couples that fall in to this category? Although there is no definite answer to this question, “married equivalent” is an accurate description, as is “spouses” or “spouses under the laws of [name of the officiating jurisdiction].”

Registered Domestic Partners and “Married Equivalent”
Finally, it is possible for those “married equivalent” couples to register as domestic partners with the State of California. In that case, both titles would be applicable.

This is complex and can be very confusing, both for professionals working with same-sex couples and, not surprisingly, for same-sex couples themselves.  It is precisely because of this potential confusion that professionals who work on titling real estate and other assets owned by same-sex couples must be particularly intent on making sure that they talk freely with their clients and ask as many questions as necessary to ensure that they have all of the information they need to properly identify the status of the couple on the titling documents.

Property Characterization
Once the actual legal status of clients is determined, the second, and most significant, issue is to ensure that the subject property is characterized properly in the title documents. Because RDPs, married same-sex couples, and “married equivalent” couples are entitled to all of the same rights and subject to all of the same responsibilities as heterosexual married couples under California law, they are subject to California’s community property regime. This means that there is a presumption that if such a couple acquires property during the tenure of their legally recognized relationship, the property is community property. Therefore, just as heterosexual spouses can hold property as community property with right of survivorship, community, or separate property, in joint tenancy, or as tenants in common, so, too, can same-sex couples.

It is especially important that the intended ownership of real property is properly identified on the original title because, although under California law a transfer of real property between RDPs or same-sex spouses does not constitute a change of ownership that would trigger a reassessment, same-sex couples do not enjoy federal recognition. As a result, same-sex couples do not have the option of making unlimited transfers between themselves without the potential of those transfers being characterized as taxable transfers by the IRS. This means that if title is taken incorrectly in the original title and must later be corrected to reflect the intended ownership of the property, there is a chance that this latter “change in ownership” will have negative tax consequences for the affected couple. In addition, at the death of the first partner or spouse, the survivor is entitled to a full step up in the basis of the property for purposes of California law if the property is owned as community property with the right of survivorship or community property, but not for separate property, joint tenancy property, or property held as tenants in common. Improperly titled property may ultimately create a significant capital gains issue for the survivor.

If property is incorrectly titled, it is also possible that the incorrect titling could lead to a situation where, upon the death of one partner or spouse, the survivor could lose control over the decedent’s one-half of the property. When there are hostile family members involved, this could result in the survivor’s being unable to retain ownership of the property.

Although the laws have changed significantly in recent years, and are likely to continue changing in the future, it is imperative to insure that real property assets are titled correctly. The existing legal framework does require that the professionals involved with the transfer and titling of those assets be educated, understand the issues, talk freely with their clients to ensure that they have all of the necessary information to properly title an asset, and know what resources are available for both the professionals and their clients in the event that questions arise that cannot be answered by the titling professional or the client. It is also important for the owners of real property to assert their rights when taking title. Because of the lack of federal recognition for tax purposes, each situation is different and the particular circumstances should be fully considered prior to vesting. Please call the offices should you have questions, and also see “IRS Recognizes Community Property Law in California for Registered Domestic Partners” for more information on this issue.

Ways Forward
In light of the current legal framework and the significant issues associated with titling, we recommend the following language for use in titling documents:

For RDPs:  “Jane Smith and Sally Jones, Registered Domestic Partners, as [community property with right of survivorship/community property/separate property/joint tenants/tenants in common]”

For married same-sex couples:  “Jane Smith and Sally Jones, spouses, as [community property with right of survivorship/community property/separate property/joint tenants/tenants in common]”

For RDPs and married same-sex couples: “Jane Smith and Sally Jones, spouses and Registered Domestic Partners, as [community property with right of survivorship/community property/separate property/joint tenants/tenants in common]”

For “married equivalent” same-sex couples: “Jane Smith and Sally Jones, spouses under the laws of [Name of the jurisdiction], as [community property with right of survivorship/community property/separate property/joint tenants/tenants in common]”

For RDPs and “married equivalent” same-sex couples: “Jane Smith and Sally Jones, spouses under the laws of [Name of the jurisdiction] and Registered Domestic Partners, as [community property with right of survivorship/community property/separate property/joint tenants/tenants in common]”

John is 73 and lives in a retirement home in San Francisco. Although his family lives in the area, John sees them only two or three times a month. To chase away the lonely bug and to see some new faces, John often has dinner at a restaurant, named Lenny’s, near his retirement home. While having dinner at Lenny’s one evening, John met Cassandra, a pretty twenty-something woman, who seemed friendly and intelligent. John and Cassandra struck up a friendship and began to meet at Lenny’s for dinner a couple of times a week. John did not tell his family about Cassandra, as he was concerned that they would not approve of their friendship.

Although John really enjoyed Cassandra’s company, he could not help noticing that unfortunate events always seemed to befall her. For instance, within the first two months of their friendship, Cassandra’s car broke down, her ex-boyfriend stole money from her bank account, her purse was stolen, and she lost her job. Initially, John had to coax Cassandra into borrowing money from him to cover the damages she incurred as a result of her terrible encounters. After a month or two, however, Cassandra began to expect – and even demand – that John give her money. Soon, John no longer wanted to be friends with Cassandra, but he was too afraid to tell her to leave him alone. Finally, after Cassandra successfully demanded that John help her fix her car for the third time, John broke down and told his family about his “friendship” with Cassandra. John’s family immediately reported Cassandra’s behavior to the police and to Adult Protective Services. However, Cassandra seemed to know she had pushed John beyond his limit, and had vanished. Although John’s family is hopeful that the police will find her eventually, it appears that Cassandra may have succeeded in abusing John out of more than $50,000.

John’s story is more common than most people would expect. Nearly 85,000 elder financial abuse cases were reported nationwide in 2004.[1] This number is even more staggering considering it is estimated that only 1 in every 25 elder financial abuse case is ever reported.[2] Elder financial abuse typically goes unnoticed or unreported, because the abused elder often does not realize he or she is has been victimized, or because he or she is too afraid and/or embarrassed to admit that she has been victimized.

Elder financial abuse occurs when an individual or entity exploits an elderly individual by preying on the elder’s age-related vulnerabilities, such as impaired mental capacity or loneliness. Elder financial abuse is most commonly committed by a person the elder knows and trusts, such as a family member, friend, caregiver, banker, or nursing home employee.  The abuser commonly manipulates the elder into prematurely selling his or her assets, giving the abuser the elder’s money and assets either through gifts or by supporting them, or changing the elder’s estate plan to leave the elder’s estate to the abuser. Those with such malintent also often withhold the elder’s money for daily necessities and/or alienate the elder from his or her family and loved ones, thereby making the elder dependent upon the abuser. Elder financial abuse may also be committed by businesses and organizations. An example of this form of abuse is a financial institution that targets elders, and intentionally sells them financial products that are unnecessary and often financially detrimental or devastating.

Because elder financial abuse can be difficult to discover and often is not uncovered until well after the acts have been committed, it is important that the friends, family, and professionals who assist elders watch for signs of potential elder abuse. These symptoms and signs of elder financial abuse may include:

• Increased, uncharacteristic withdrawals from the elder’s financial accounts;
• Increased, uncharacteristic use of the elder’s credit card;
• Changes to the designated beneficiaries on the elder’s accounts, particularly to include either a caregiver or new “friend” of the elder;
• Authorization of new signors or authorized users on the elder’s financial accounts;
• Adding a caregiver or new “friend” to the title of the elder’s properties and/or vehicles;
• Recent changes to the elder’s power of attorney, health care documents, will, and/or trust, especially if the documents were changed to include the elder’s caregiver or new “friend”;
• The elder is increasingly introverted or depressed;
• The elder is less willing to discuss matters he or she once discussed regularly and without hesitation;
• The elder’s caregiver or new “friend” restricts the elder’s access to family, friends, and social activities;
• The elder’s caregiver is overly interested in the elder’s finances or estate planning; and
• The elder allows a caregiver or new “friend” to speak on his or her behalf and to handle the elder’s financial affairs.

Sometimes, however, elder abuse can be more subtle. If you or someone you know may be the victim of financial elder abuse, or if you have questions regarding financial elder abuse, please contact our offices.

[1] http://www.ncvc.org/ncvc/main.aspx?dbName=DocumentViewer&DocumentID=32350#6

[2] http://www.ncea.aoa.gov/NCEAroot/main_site/pdf/publication/FinalStatistics050331.pdf

Estate planning can become more complex for U.S. persons who own property outside the U.S. or live outside of the U.S., or for non-resident persons (NRA) who own property in the U.S. Sometimes we have to make sure that the estate plan we establish in the U.S. is valid and recognized in the other country, or we may have to establish a separate plan in that other country and make sure that the two plans do not conflict. In addition, in establishing an estate plan, we must consider the tax implications that the proposed plan may cause and generally we must work with counsel in that country to determine what works best for you. If you are currently in this situation and are in need of assistance or have any questions, please feel free to contact our office and we would be happy to discuss your options with you. 

Estate Planning for Non-Citizen Persons: The Basics
The estate and gift tax rules attributable to non-citizen persons are vastly diverse from those laws applicable to U.S. citizens and/or residents.  For example, federally recognized married persons in the U.S. can take advantage of the marital deduction, during life and at death. Married persons can transfer an unlimited amount of assets between themselves during life or at death without having to pay any estate or gift tax. In the case of a non-citizen spouse, however, the annual exclusion amount is $139,000.  Anything over that would be a taxable gift. In addition, in order to qualify for the marital deduction on transfers to the non-citizen surviving spouse and postpone any applicable estate tax, the assets transferred to the spouse in excess of the exemption amount must be transferred to a qualified domestic trust, or QDOT, which must satisfy very strict requirements. It becomes even more complex when we have same-sex married couples who cannot take advantage of the marital deduction in the U.S.  but may be able to take advantage of a similar law in their home country. Lastly, the estate tax exemption amount available to non-residents is $60,000 on U.S. situated assets, rather than the $5,120,000 available to U.S. citizens or lawful permanent residents on their worldwide assets. In sum, the laws applicable to U.S. citizens and non-residents are clearly distinct and should be considered when establishing an estate plan.   

Estate and Gift Tax Exemptions- 2012
The estate tax exemption is $5,120,000.  The exemption for non-resident noncitizens is $60,000 for all US situs assets. 

The annual gift exclusion remains $13,000.  The annual gift exclusion to noncitizen spouse is $139,000.

AFRs- 2012

At the beginning of 2011, Congress enacted a provision that allowed for gifts up to $5 million to be transferred tax free during one’s lifetime. This huge wealth transfer opportunity is set to expire at the end of 2012. We have only the rest of this year to use this incredible opportunity to make tax-free gifts beyond the $13k which each of us could gift tax free on an annual basis to as many people as we would like.

Who should consider lifetime gifting?
This opportunity should be seriously considered by people who have accumulated wealth beyond $5 million, or expect to in the future, and don’t expect to use it all during their lifetimes. Assets include all business interests, life insurance, retirement and investment accounts, stock and stock options, real property, etc. Those with low value assets that could appreciate greatly should also pay attention to this window. Non-citizen spouses are subject to different limitations. See our article on “Multi-National Estate Planning”.

Planning for the children
We don’t know what we may consume during our lifetimes. But for many people, gifting now makes sense anyway, for example for those with children and/or grandchildren. Should a child need gifted assets at a later stage to pay for college or other educational opportunities, or to buy a home, or for support, the assets in a gift trust may be used for those purposes. There are real, tangible benefits to making gifts now. For example, a person with small children may fund a gift trust now with $250 000, and invest in the market, or real property, or even closely held businesses. If that trust were to grow to S2 million, all of the growth is outside of the donor’s estate and yet remains available to pay for the child.

Separate property transfers
California is a community property state.  Assets earned while two people are married or in registered domestic partnerships are presumably community property. If members of a couple have disproportionate assets, the one with greater separate property may use this $5.12 million gifting opportunity to transfer his or her separate property to the other. Alternatively, this is a chance to transmute separate property to community property. Community property has a greater tax advantage at death: it gets a double step up in basis. For example, low basis assets (assets that were purchased or received at a substantially lesser value than their current fair market value) are given a new basis at the death of the first owner. Heterosexual married couples get this recognition at both state and federal level. Same-sex legally related couples get this treatment at the state level, but are not given the same tax advantaged treatment by the federal government. Nonetheless, both heterosexual and same-sex legally related couples should be paying special attention to both separate property and jointly held property that is not yet community property for estate planning purposes. This includes a home acquired many years ago as joint tenants. (For additional information for same-sex legally related couples, see “IRS Recognizes Community Property Law in California for Registered Domestic Partners”).

Closely held businesses/ partnerships
Transferring interests in closely held businesses to others who will essentially inherit such assets can be very advantageous. Transferring even small interests now can diminish the valuation by 10 – 49% for estate inclusion and gifting purposes. In essence, transferring 10% of a $1 million entity may be accomplished for much less than the $100 000 valuation. For any transfer greater than $5 000 without an easily ascertainable value (such as cash or publicly traded stocks or funds), a qualified appraisal is necessary. Although a qualified appraisal may add to the cost of transfer, the cost is typically incidental for the overall planning opportunity and ultimate tax savings.

Forgiveness of debt
Many people have loaned sums of money to children, relatives, or friends, to buy real estate, start businesses, or take advantage of investment opportunities. Loans should always be in writing, and with interest rates at an all-time low, agreements may be legally updated or amended to avoid charging higher interest, if that is the intent.

The forgiveness of a debt is essentially a cashless gift, in that the monies have already been moved and only the remaining value of the note is being transferred. This is a great way to irrevocably transfer assets during this short window of opportunity. An appraisal is typically not necessary for this type of transfer.

Irrevocable Life Insurance Trusts (ILIT)
This is another form of gifting that can ultimately provide liquidity if estate taxes may be due at some time in the future. Relatively inexpensive to establish, a separate trust with its own tax identification number is set up and a cash gift is made to the trust. The trust then buys a life insurance policy on someone and continues to pay the premiums. Should that person pass, the life insurance proceeds are not included in the donor’s estate for tax purposes. The proceeds can be used by the beneficiaries for their health, education, maintenance, and support, the IRS standard which is actually quite broad. With proper wording in the trust, this standard can be expanded further.

Any kind of life insurance can be utilized. However, for gifting purposes it is advantageous to set up an ILIT prior to purchasing a life insurance policy.

Grantor Retained Annuity Trusts (GRATS)
Grantor Retained Annuity Trusts are a great vehicle to transfer an appreciating asset. The way a GRAT works is that the grantor transfers a certain asset, usually an appreciating asset such as stock or real estate, to the Trust, but retains an interest income for a certain period of time. The interest income is in the form of an annuity payment which is dependent on the applicable AFR interest rates. The appreciation of the asset stays in the Trust and eventually passes to the grantor’s beneficiaries after a designated period of time pursuant to the terms that the Grantor established. GRATs are especially effective right now because the AFR rates are extremely low, which means that the annuity interest that is required to be retained by the grantor is small allowing more of the assets to pass to the intended beneficiaries.

As you can see, there are a number of opportunities currently available to capitalize on the current tax window.  Please call our offices should you wish to discuss any of these options, or to talk through what the current legislation could mean for your estate.

To learn more about NorCal FPA, click here.

The guide—called “Navigating the System: A Know-Your-Rights Guide for Lesbian, Gay, Bisexual, and Transgender Elders in California”—is designed as a resource to empower and help protect California’s LGBT elders who often are targets of discrimination due to their sexual orientation or gender identity.

The 61-page guide, published by the National Center for Lesbian Rights, Lavender Seniors of the East Bay, Transgender Law Center, Openhouse, and Planning for Elders in the Central City, offers a wide range of resources for the state’s LGBT elders and equips them with the tools they need to:

• Know California’s anti-discrimination laws
• Find LGBT-friendly housing and service providers
• Effectively address discrimination or mistreatment
• Understand how relationship recognition laws affect benefits
• Navigate the unique challenges that confront transgender elders
• Understand how to protect their families and choices with life-planning documents 
• Identify available benefits, particularly for people with disabilities

Advocates and LGBT elder community members put together this publication because they saw a need for a California-specific and comprehensive resource that they could turn to for help explaining information about laws and services, said NCLR Elder Law Fellow Daniel Redman.

“The result is a publication that all LGBT elders—including those who are among the most marginalized in our aging community—can use to better understand their rights, to assert those rights in a variety of elder care contexts, and to more easily navigate the complex systems that they face everyday,” said Redman, who co-authored the guide. “We have a responsibility to care for aging members of our community, ensuring that they have access to resources and services that will allow them to live with dignity and respect, completely free of discrimination and mistreatment.”

A recent survey found that the majority of LGBT elders feared they would face discrimination if they were open about their identity in long-term care facilities, with more than half believing that staff or other residents would abuse or neglect them.

LGBT people—and elders in particular—are also more likely to struggle financially than their straight peers, with same-sex elder male couples more likely to live in poverty, and same-sex elder female couples twice as likely. In fact, a San Francisco study found that almost 62 percent of gay men and lesbians aged 60 and older earned less than $39,000, including over 42 percent who earned less than $26,000. Transgender elders, in particular—because of ongoing and systemic discrimination—experience poverty at extraordinary rates.

“LGBT older adults face unique challenges as they age due to a legacy of discrimination and marginalization,” said Openhouse Executive Director Seth Kilbourn.  “ ‘Navigating the System’ and the agencies that collaborated to write it provide critical information and resources that empower LGBT seniors and their support networks to manage these challenges.”

“Many seniors and their families are in great need of assistance with navigating the difficult and confusing system of government social services especially during this time of so many budget cuts. Lavender Seniors is pleased that NCLR is addressing this issue with ‘Navigating the System,’ ” said Lavender Seniors of the East Bay Director Dan Ashbrook.

Said Transgender Law Center Executive Director Masen Davis: “This is an extraordinary resource for transgender seniors and their families who often face barriers to accessing quality services and care. This guide will help seniors live with the dignity and respect we all deserve.”

Added Planning for Elders Interim Executive Director James Chionsini: “This LGBT guide is a wonderful development. We work with many LGBT seniors who are looking for something just like this.”

Download “Navigating the System: A Know-Your-Rights Guide for Lesbian, Gay, Bisexual, and Transgender Elders in California.”

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The National Center for Lesbian Rights is a national legal organization committed to advancing the human and civil rights of the lesbian, gay, bisexual, and transgender community through litigation, public policy advocacy, and public education. www.NCLRights.orgFor 17 years, Lavender Seniors has been improving the lives of LGBT elders by delivering volunteer driven services, outreach, and advocacy. Programs are designed to foster a sense of belonging for all LGBT elders in particular those who are isolated, copying with chronic conditions, or loss. Education for service providers and government officials is also a regular part of Lavender Seniors’ services.  A critical aspect of this work is ensuring that LGBT elders are well-prepared to lead healthy independent lives by addressing discriminatory policies and procedures among health and human services and government institutions. www.LavenderSeniors.org

Transgender Law Center champions the ideal that everyone should be treated fairly and equally. Unfortunately, people who don’t fit narrow gender stereotypes face discrimination that undermines our common human dignity. By working for and with transgender people and our allies to change laws, policies and attitudes, the Transgender Law Center makes it possible for us all to be who we are and live safe and fulfilling lives. For more information visit www.TransgenderLawCenter.org

Openhouse enables San Francisco Bay Area LGBT seniors to overcome the unique challenges they face as they age by providing housing, direct services and community programs.  www.Openhouse-sf.org 

Planning for Elders in the Central City works to improve the quality of life of seniors, adults with disabilities, and their caregivers in San Francisco and beyond. Planning for Elders, a community non-profit founded in 1991, works to fulfill its mission through advocacy, organizing, education and training for San Francisco’s seniors, persons with disabilities, and their caregivers. www.PlanningforElders.org

**To download a pdf copy of the publication, please click here: LGBT_ElderLawPublication(Final).