Article on Dependent Disclaimers, 3 Responses, and the Author’s Counter-Response
Katheleen R. Guzman recently wrote an Article entitled, Dependent Disclaimers, 42 ACTEC Law Journal 159 (2016). Provided below is an abstract of the Article:
The issue, which exists somewhat fitfully, finds most recent expression in the New York state case of In re Friedman. In rejecting the parent/guardian’s understandable attempt to disclaim on behalf of her infant, Friedman surfaces the tensions of wealth transfer tax assessment and avoidance through a stilted “best interests” policy lens as well as a flawed perception of property writ large. This is unfortunate on many levels, particularly as a more careful analysis of such foundation issues can be easily lost in a tax policy haze.
After reviewing extant disclaimer doctrine in Part II, part III employs Friedman and similar cases to assert eh paradoxical debility of joining a capacious view of “property interest” with a straitened one of “best interest” within the dependent disclaimer attempt. Stated differently, for reasons both ranging and slight, most such disclaimers should work. After suggesting possibilities for planning, litigation strategy, and reform in Part IV, Part V concludes.
Jeffrey A. Cooper recently wrote an Article entitled, In Defense of Friedman: A Reply to Professor Guzman, 42 ACTEC Law Journal 227 (2016). Provided below is an abstract of the Article:
In this brief essay, I explore two strong arguments that form the bedrock beneath the Surrogate’s holding in Friedman. Rather than an unprincipled rejection of a well-conceived dependent disclaimer, Freidman can be read as a strong defense of both legislative authority and honoring a testator’s presumed intent. In the balance of this brief essay, I explore those two themes.
Christina Ciaramella D’Elia recently wrote an Article entitled, Dependent Disclaimers — Who Wields the Power?, 42 ACTEC Law Journal 233 (2016). Provided below is an abstract of the Article:
Lengthy opportunities for the confluence of theory and practice tend to escape practitioners on a daily basis. While otherwise immersed in attending to clients and billing hours, this has been a wonderful opportunity to merge the two and meddle in the middle. That being said, while this very specific question of dependent disclaimers is not one confronted on a daily basis, it teases out some central threads of discussion that make up the virtual foundation of estate planning.
Bich-Nga H. Hguyen recently wrote an Article entitled, Commentary on Dependent Disclaimers by Katheleen R. Guzman, 42 ACTEC Law Journal 239 (2016). Provided below is an abstract of the Article:
In Dependent Disclaimers, Katheleen R. Guzman shines a spotlight on the difficulty of attempting to achieve a laudable estate tax savings objective, one that would maximize property passing to a decedent’s family unit, by disclaiming on behalf of a minor heir such child’s potential property interest arising by virtue of the child’s parent’s own disclaimer, both in favor of the decedent’s surviving spouse, in whose hands the property would not be subject to estate tax. Examining In re Friedman, she observes that the necessity of filing a petition seeking court approval for such a disclaimer leaves judges to assess the merits of the proposed action within a legal framework that is currently inadequate to permit making a holistic, non-financial best interests determination for the minor.
Katheleen R. Guzman recently wrote an Article entitled, Defending Dependent Disclaimers, 42 ACTEC Law Journal 245 (2016). Provided below is an abstract of the Article:
I have often wished for the privilege of testing my ideas against the responses of others such that if feels like a true conversation of ideas. Through their candid, careful essays, Jeffery Cooper, Christina D’Elia, and Bich-Nga Nguyen have offered just that. With insight made acute through experience, their observations reveal theoretical and practical perspectives on the dependent disclaimer conundrum in ways that my own limits, suppositions, and biases might otherwise have obscured. I am genuinely grateful for the generosity, and how their work has informed my understanding and appreciation for the complexity of the issue on pragmatic, doctrinal, and philosophical fronts.
Although these scholars raise more nuance than my reactions here capture, a few significant themes emerge that have refined my view of the dependent disclaimer and judicial responses thereto.