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Adoption

Thursday, December 15, 2011

IRS to Gay Couples: Oops..Sorry About Denying You That Adoption Tax Credit

After my partner gave birth to our wonderful daughter 4 years ago, we immediately began working with a lawyer on the second-parent adoption process. A second-parent adoption is the legal procedure through which the non-birth parent (me) may adopt the child of the biological parent. During the process, our lawyer mentioned that there is a tax credit granted to adopting parents. The one-time tax credit allows adoptive parents to seek “reimbursement” for the money spent on the adoption expenses. Because we are both lawyers, we spent some time researching the adoption credit and decided that it was risky as the IRS sometimes refused the use of the tax credit by same-sex couples when applied toward a second-parent adoption. So, we declined claiming the credit on our return that year.

But, as is true of all things related to same-sex couples right now - things are about to change. The Government Accountability Office criticized the IRS for its failure to properly train staff members on how to handle tax credits and second-parent adoptions. This lead to the unthinkable – the IRS admitted it made a mistake in not giving its auditors proper guidance on this issue.

What was the IRS’s reasoning behind denying the credit? One explanation it gave was that the birth mother does not terminate her parental rights as part of the adoption procedure. While that may be true, it is also irrelevant. There is nothing in the federal tax code that prohibits claiming the adoption credit for adopting a domestic partner’s child.

The IRS did explain that when the taxpayers in question pushed back on the issue, the taxpayers usually won - after spending money and time fighting the IRS. Hopefully, after this, those couples may spend time and money on more importants things: like daycare, diapers and life insurance premiums (until the day when a same-sex couples are granted the same benefits (social security survivor benefits or estate tax free inheritance) as other married automatically get upon marriage.

Of course, this issue would be moot if the nonbiological parent was given the right to be on the birth certificate in the first place. But, that’s a continuing fight for our future rights. As for now, I have one question:

Do we get to amend our 2007 tax return to get this deduction?
 

 

 


Monday, June 06, 2011

What's in a Name, Part 2: Introducing Unique Estate Law

You may have noticed a slight change in my firm name. Unique Family Law is now known as Unique Estate Law.

I have always focused on unique families and continue that passion. My new firm name better explains what I do for your unique family. I focus on estate planning, probate and adoption – building and protecting families.

I am proud to specialize in this important and ever-changing area and my new name reflects that focus.

I want to be sure that you, my clients, know where my expertise lies.

Welcome to Unique Estate Law.


Thursday, November 04, 2010

Minnesota Court: Surrogate Legal Mother But Father Gets Custody

The Minnesota Court of Appeals recently ruled that a woman who entered a surrogacy agreement with two gay men is the legal and biological mother of the child.  But the Court granted sole legal and physical custody to the father whose sperm was used for the pregnancy.

In ruling that the surrogate is the child’s mother, the court relied on the language in Minnesota’s Parentage Act, which states that the parent child relationship “may be established by proof of her having given birth to the child.” While the Act does not allow an egg donor to be deemed the biological or legal parent of the child, it defines egg donor as “[a] type of assisted-reproductive therapy in which eggs are removed from one woman and transplanted into the uterus of another woman who carries and delivers the child.” Because it was undisputed that the surrogate’s egg was fertilized and that she carried the baby and gave birth to her, the surrogate was held to be the biological and legal mother of the child.

But the court also held that the father’s male partner was not the child’s father stating:

“While [the partner] is and will continue to be an important person in the child’s life, he is not a legal or biological parent of [the child] under Minnesota law and is not entitled to custody of the child on the facts of this case.”

The surrogate also attempted to argue that the surrogacy agreement was invalid under Minnesota law. The law is unclear on the status of these agreements because our courts have never ruled on whether or not surrogacy contracts should be honored. The court here did nothing to clarify any confusion surrounding the use of surrogacy agreements as it refused to address the issue.  So, unlike in other states where surrogacy contracts have been deemed valid or void as against public policy, Minnesota continues to fail to provide any direction on the use of these agreements.

So was this a good decision?

That’s difficult to answer. While I am pleased that the court didn’t hesitate to grant sole legal and physical custody of the child to her gay father, it wasn’t a fair fight as the surrogate was clearly unfit to have custody. The surrogate’s own expert witness stated that she was a “mistrustful, immature, narcisstic, and self-indulgent individual”  leading the trial court judge to call into question the surrogate’s “capacity and ability to provide positive guidance” to the child.  Further, it would be “detrimental to the child if [the surrogate] had sole authority over [the child's] upbringing.”

How do the men feel about the decision? Should their attorney appeal the decision? The father who was granted sole physical and legal custody may be satisfied with the decision and decide against rolling the dice with our conservative Supreme Court.  But, his partner can’t be as happy with the outcome as he has no legal relationship to the child.  If anything happens to the father, his partner has no current legal right even to visitation with the child.

It’s difficult to determine whether this decision is a victory.  What’s not difficult to see is that it did nothing to provide direction for the future use of surrogacy contracts. If you plan to use a surrogate, please contact an attorney to be sure of your rights.


Wednesday, October 27, 2010

What If You Die Without a Will?

My prior posts have explained the probate process and why you need a will. This post will address what may happen if you don’t have a will.  If you do not have a will, your possessions will be distributed by the court, in a probate proceeding, according to the Minnesota law governing intestate succession.

Under current Minnesota law, if you die without a will, your property will go to your closest relatives.  For those in “traditional” relationships (legally married with no prior children), their entire estate will go to their spouse.  But, if you have a blended family – children that are not also your spouse’s – your property will be divided between your spouse and those “other” children.  If you do not have a spouse or children, then your stuff will be distributed in the following order: grandchildren; parents; siblings; and then to distant relatives.

What does all this mean for a nontraditional family?

Let’s look at a hypothetical.

You and your unmarried partner have lived together for 5 years in a home that is in your name alone.  Your parents died a few years ago and have one brother with whom you haven’t spoken in 10  years. Your partner gives birth to a son (your first) but you die before the completion of the second parent adoption process. You have no will.??

Here is how intestate succession will work in this case. Because the adoption of your partner’s son was not finalized prior to death, he is not your son in the eyes of the law.  Therefore, the court will look to see if you have parents to take the estate.  You do not have any living parents so the court will look to the nearest generation to your parents and pay the estate to your brother.

What will happen here? ?Your entire estate will go to your brother.  This means that:

  • Your partner has no right to remain in the home owned only in your name
  • Your partner will not inherit anything from you
  • The child you were trying to adopt will not inherit anything from you
  • Your nontraditional family may be put in a position of fighting for the most basic possession in your home (i.e. proving she is entitled to keep your furniture, car and other personal possessions)

But that’s not all.

Your partner may not even know that the property has been given to your brother because your unmarried partner is not entitled to receive notice of the probate proceeding involving your estate.  Please take care of those you love by drafting an estate plan with an attorney who understands the unique legal needs of nontraditional families.


Thursday, August 19, 2010

Welcome To Unique Family Law

Welcome to Unique Family Law and thanks for reading my first blog post.  This post is a brief introduction to my firm and an explanation of what you can expect from this blog.  I represent unique families, from GLBT families to unmarried couples to blended families.  We each have unique needs that the traditional legal system was not designed to protect.

The legal landscape is fast-changing with regard to the laws that affect unmarried, GLBT or blended families from the legalization of gay marriage in Iowa to Minnesota’s innovative Transfer on Death Deed or Hennepin County’s newly established Co-Parent Court for unmarried parents.  Through this blog, I plan to cover new advancements as well as established law that touch on the lives of unique families by addressing such questions as:

Why do I need a will?

Is a trust really necessary?

Why do I need to have a HIPAA waiver if I have a health care directive?

What’s so bad about probate anyway?


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From within Hennepin County Unique Estate Law represents estate planning and elder law clients throughout Minnesota, including Minneapolis, Edina, Bloomington, St. Louis Park, Minnetonka, Plymouth, Wayzata, Maple Grove, St. Paul, and Brooklyn Park. The Minnesota law firm of Unique Estate Law focuses on all aspects of estate planning, including specialized wills, trusts, powers of attorney and medical directives for married couples, young families, blended families, single parents, gay families and those going through a divorce. Unique Estate Law also handles probate administration, asset protection, Medical Assistance planning, elder law, business succession planning, adoptions and cabin planning.



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| Phone: 952-955-7623
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| Phone: 952-955-7623
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| Phone: 952-955-7623

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