A Major Victory for De Facto Parents Today in Maryland!
Lippman, Semsker & Salb is a law firm providing legal services in the areas most important to families and small business: Wills, Trusts, and Estate Planning + Probate + Employment Law + Family Law + Academic Matters + Business Law.
Since our founding in 1972, Lippman, Semsker & Salb has developed a tradition of excellence in the practice of law. Our Firm provides the legal services that families and smaller businesses need most often. We provide legal services in: Wills, Trusts, Estates & Probate, Small Business Services, Employment Law, Domestic Relations Law, Surrogacy Law, Adoption Law & Family Formation, Academic & Special Education Law.
A Major Victory for De Facto Parents Today in Maryland!
Are you ready for Tax Season? We Are!
What you'll find in this email. . . An update on the DC Estate Tax change. A reminder of your annual retirement contribution limits and other key changes in tax limits. The new MyRA federal retirement program. A New Focus on Arbitration.Scroll to the bottom for links to each of our practice…
DC's Proposed Death with Dignity Act
Patient Protections.Importantly, the bill would permit a physician to supply life-ending medication only in very limited circumstances: Only someone who is suffering a terminally disease and whose death was expected within six months would be eligible to make the request.Timeline Protections. There…
The Fourth Circuit Court of Appeals decided an important class action case today. In a remarkable decision, Judge Gregory chided the district judge for twice denying class certification. Judge Gregory's conclusion warrants reading:
More than seven years have now elapsed since the workers first filed their class certification motion, and the district court twice has refused to certify the class. The nature of the allegations, the evidentiary support buttressing them, and the inherent cohesiveness of the class all demonstrate that the court’s failure to certify was an error. Rule 23 provides wide discretion to district courts, in part, to promote the systemic class action virtues of efficiency and flexibility. The realization of such benefits, however, requires that a district court exercise its judgment in a reasoned and expeditious manner.
The dissent rightly observes that the majority presses forward “[o]n the road to its desired result.” And that result is simple justice. At bottom, the workers seek nothing more than the chance to speak with one voice about the promotions discrimination they allegedly suffered as one class on account of one uniting feature: the color of their skin. The dissent would deny them that chance while leading this Court down a different road – a road that would further weaken the class action as a tool to realize Title VII’s core promise of equality.
We vacate the district court’s decertification of the workers’ promotions class and remand the case to the district court with instructions to certify the class.
The decision is more than 60 pages long --- and the dissent is even longer. Nevertheless, if you wish to read it, you can find it at the attached link.
Today we argued an interesting case in the United States Court of Appeals for the Fourth Circuit.
A man named Joseph P. Amato and the company he runs, JGA Associates, LLC, were hired by Dr. Petr Bocek for assistance acquiring an allergy care practice, Allergy Care Center. Dr. Bocek, who is a skilled physician but not an experienced businessman, relied on Amato to use his experience, judgment, and knowledge for Dr. Bocek’s benefit. But Dr. Bocek did not know that soon after he had engaged Amato, Amato began scheming to make this transaction a financial windfall for himself at Dr. Bock’s great expense.
The key facts are undisputed: After Dr. Bocek hired Amato to assist him, he told Amato about the opportunity to buy ACC from the prior owner's estate. The estate was very anxious to sell because of a punishing tax debt. Dr. Bocek had a poor relationship with ACC's practice manager and did not want to sour the deal, so he asked Amato to keep his involvement secret. Little did he know that Amato would do so --- and end up buying the practice for himself!
This case represents a classic case of double-dealing in violation of the law governing fiduciaries. Amato was plainly Dr. Bocek’s agent under the rules stated in numerous decisions by the Virginia Supreme Court. As a result, he owed a fiduciary duty to Dr. Bocek. Amato breached that duty by secretly using the access and information he got as Dr. Bocek’s agent to serve himself.
A trial was held with the district court serving as the fact finder. (Lawyers who previously handled the case had waived their right to a jury trial.) After the trial, the judge granted judgment to the Defendants. That grant of judgment was clear error because it disregarded the law of fiduciaries.
Of great significance, the grant of judgment for Amato disregarded the decision that the Court of Appeals had provided when this case was previously on appeal!
A decision is expected before year's end. — in Richmond, Virginia.
I had the pleasure today of arguing an appeal in the United States Court of Appeals for the District of Columbia circuit. Appellate work is always interesting and enjoyable, but rarely is it easy, though this argument came closer to "easy" than most.
Our Firm represented two medical records coders in a Fair Labor Standards Act case. We were successful at trial, but the employers appealed. The employers, understandably, wanted a do over. Unfortunately for their appeal, they could point to no error of law at the trial which warranted reversal. As one of the judges on the panel pointed out, it is exceptionally difficult to prevail on appeal based on a disagreement with the jury's findings of fact.
There were two interesting parts in the argument. In one, one of the judges pointed out that determining whether an employee is exempt under the FLSA is a determination to be made by the judge, but in this case the judge left the decision to the jury. That led to an interesting discussion about whether it makes any difference in this case. It does not. There's no question but that the judge would have reached the same result that the jurors reached.
The second interesting point is related to a complaint made by the employers. The employers were upset that during opening arguments I made reference to what they claimed was the wrong burden of proof applicable in FLSA cases. I said that the employers must prove with clear and convincing evidence that the employees were exempt. The judge explained to the jury that he would later instruct them on the law. But in fact, my statement is not necessarily incorrect. The DC Circuit has never decided what evidentiary proof level is required, and the Court asked what I believed the standard should be. I explained that the district judges have been using a standard that they referred to as "clear and affirmative" evidence, the meaning of which is not clear. However, the first decision in the district introducing that standard relied on Fourth Circuit law, which uses the clear and convincing standard. That means, in effect, that the district courts are using the clear and convincing standard, Which I pointed out to the panel is consistent with the allocation of burdens in FLSA law.
It was a particular pleasure to argue before a panel of stellar judges. Cases on appeal in the United States courts system are heard by three-judge panels. Sitting on our panel was Judge David Sentelle, Judge Cornelia Pillard, and Judge Patricia Millett. This is a very distinguished panel. Judge Sentelle has been on the court since the year I graduated from high school and has handled many very important cases. (Interestingly, one of his less important cases was a case involving a class action claim that we handled, successfully, before him). Judge Pillard and Millett were both appointed in December 2013, so they are recent Obama appointees. Both attended Harvard Law School. Judge Pillard was on the faculty at Georgetown Law School and also served as a Deputy Assistant Attorney General in the very prestigious Office of Legal Counsel (which provides constitutional guidance to the President). Judge Millett worked in the federal government handling appeals and then joined a very large private law firm where she led the group of lawyers who did appellate and Supreme Court work. (She has argued 32 cases in the Supreme Court.) Our prosaic claim seemed not up to the standards that this group of judges is accustomed to!
A decision as expected in several months.
Maryland Reduces Its Estate Tax
An excellent article highlighting employer-employee rulings of last year! Know your rights, workers of America!
By Gene Connors and Amanda Haverstick 2013 left employees as the overall victors on the employment law battlefield, by arming them with a host of new statutory rights and options, primarily at the state and local level. These new, pro-employee laws place added restrictions on employer hiring,...
Wahoo!! Maryland ranks 6th highest in adoption rating for teenagers, with 14.9% of youths adopted in between the ages of 13 and 18!
Today, approximately 102,000 children nationwide are living in foster homes awaiting adoption. Nearly a third of these children, approximately 31,000, are between the ages of 11 and 17 according t...
Here are several tips for coping after a divorce. Great read!
Divorce is already a traumatic experience for most individuals and their families. Dealing with a toxic spouse who has it out for you makes the divorce process even worse by dragging out issues that could easily be resolved with compromise and agreements outside of the courtroom.
Having a well-drafted #EstatePlan will give you peace of mind knowing you and your family are protected and provided for. Here are 10 advantages of having an estate plan!
You might ask yourself, "Do I really need to do an estate plan?" Or, "Why do I need to do an estate plan?" If you fall into one of these categories, then this list is tailor made for you. Below are ten of the top reasons to create an estate plan and the benefits it provides for you and your loved
Philip Seymour Hoffman, Heath Ledger, and numerous other celebrities have died with grossly deficient estate planning in place. This Forbes article is a great tutorial on what recent celebrity deaths teach us about paying attention to how our changing lives affect our estate planning.
By not updating his will to cover all his children, Philip Seymour Hoffman left their grieving mother in a potentially costly conundrum.
The ACLU of Virginia has filed a brief today asking the federal court to find that Virginia's ban against same-sex marriage violates federal Constitutional law. The ACLU filed the lawsuit on August 1 and has filed its motion today to expedite review of the central question in the case. You can see their brief by clicking here: https://acluva.org/wp-content/uploads/2013/09/Brief-in-Support-of-Plaintiffs-motion-for-summary-judgement.pdf
Do you have a Domestic Partnership in Maryland?
Have you prepared an affidavit of domestic partnership?
If not, now's the time!
Many people in Maryland have learned that when domestic partners own real estate together, they can avoid the inheritance tax on the house if one of them dies. This is hugely important, since Maryland's 10% inheritance tax can be a huge burden. Think of the couple with $500,000 in equity in their house --- if one of them dies, the other could face a $25,000 inheritance tax!
But in order to avoid the inheritance tax, the couple must sign an affidavit under penalty of perjury stating that they have established a domestic partnership.
If you do not create the affidavit while alive, you lose the tax exemption because you cannot create the affidavit after death.
If you are in a domestic partnership, now is the time to prepare your affidavit of domestic partnership. (Let us know if we can help.)
A Great New App!
Celebrate Constitution Day with the Library of Congress' new Constitution App.
The app, officially titled The Constitution of the United States of America: Analysis and Interpretation, was released in cooperation with the Senate Committee on Rules and Administration and the Government Printing Office. It includes hundreds of pages of analysis for each of the constitution’s seven articles and 27 amendments, based mostly on Supreme Court decisions and written by Library of Congress experts. The app also has extra sections for acts of Congress and state legislatures that have been held unconstitutional and Supreme Court decisions that were overturned by subsequent decisions.
The app is now available for iOS and will soon be available for Android. It will be updated several times each year as the court issues new decisions, the printing office said.
Get it here: https://itunes.apple.com/us/app/u.s.-constitution-analysis/id692260032?mt=8
Get U.S. Constitution: Analysis and Interpretation on the App Store. See screenshots and ratings, and read customer reviews.
Lippman, Semsker & Salb is a proud supporter of Adventure Theatre-MTC. Reviewers love AT's current production --- the Cat in the Hat! It is fun and well-worth seeing!
June 21 – September 2, 2013 Based on the book by Dr. Seuss Play Originally Produced by the National Theatre of Great Britain Adapted and Originally Directed by Katie Mitchell Directed by Karin Abromaitis
The implications of the Supreme Court's decisions on gay marriage will not be entirely clear for a long time. There are some meanings that we do already know, though:
· Couples who are married under the law of any state or nation will have their marriages recognized by the federal government. As a result, those couples will be entitled to the benefits that flow to married couples.
· There are several major federal benefits which will very quickly benefit same-sex couples. One such benefit is Social Security spousal and survivors’ benefits.
· Spouses of Federal employees will have access to spousal employment benefits. It is very common for us to see couples in which the federal employee is paying for family health insurance benefits but his or her spouse has to pay $400 or $800 per month for his or her own health insurance. That spouse will be able to be covered immediately.
· Many people will find that their taxes will decrease as a result of being able to file jointly. But more people, sad to say, will find that their taxes will inch up a bit. Therefore, you may want to have your tax advisor attempt to calculate whether your combined tax burden would increase or decrease if you filed in a married category.
But there are some cautions:
First, do not take any precipitous steps. For example, if in you exuberance to gain “free” health insurance coverage through your spouse’s family plan you immediately terminate the coverage under your own plan, you may be horrified to learn that you will not be able to be covered. You may not be able to join your spouse’s plan without a “qualifying event”.
Second, it likely will long be the case that same-sex couples having children will have to continue to use second-parent adoptions to secure sound parental rights. While DC has a law recognizing a same-sex spouse as the parent of a child born to her wife, that merely creates a rebuttable presumption. That presumption, for a heterosexual couple, can be buttressed by a DNA test, but no such option is available for the same-sex couple. As a result, and in view of the still-rocky landscape, same-sex couples will have to continue getting second-parent adoptions.
Third, there will be some drawbacks as well as benefits. For example, the Federal Adoption Tax Credit has been a major boon to gay couples who have used it to finance the cost of second-parent adoptions. I spoke with the IRS manager who wrote the Tax Credit regulations and is the nation’s expert in that rule, and she advised me that the IRS has consistently taken the view that because gay couples cannot be recognized as married under federal law, the exclusion for step-parent adoptions does not apply to gay couples. Of course, with this change in law, it is highly likely that the federal adoption tax credit will no longer be available to a gay married couple in which one spouse seeks to adopt his or her spouse’s (biological) child.
Another drawback will arise in the area of Medicaid planning. This change in law will affect gay couples of all ages (which should be obvious based on the circumstances that gave rise to the lawsuit). One of the most important tasks an older couple can do is to evaluate their preparedness for paying for long-term care. At $100,000 to $150,000 per year for nursing home care, older people must think very carefully about their ability to pay. Often-times, divesting oneself of assets can make one eligible for Medicaid payment of long-term care. Gay couples have long had a bit of a step up in this regard because the spouse of a person needing long-term care has always been considered to be a legal “stranger” to the person needing long-term care. That immediately goes away.
Many of our clients have been asking us for advice in all of these areas already. I think that it is fair to say that it is just too early to give anyone much concrete advice. How the federal government implements these decisions and how states respond to the increasingly positive legal landscape for state recognition of same-sex marriage will have a lengthy and rippling effect. We are counseling people to wait if possible.
But there may be circumstances in which you should not wait. For example, if your spouse passed away and you filed an estate tax return for your spouse’s estate with the result being the payment of state or Federal estate taxes, you may be able to amend that return to claim the marital deduction and recover those estate taxes. As a general rule, amended returns must be filed within three years of filing. If you fear that a deadline of that sort is approaching, or other pressing circumstances exist, you may not want to wait.
By the way, there are several lawyers and law firms which have been serving GLBT families for many years. (I am thinking specifically of Michele Zavos’ firm and Sue Silber’s firm, in addition of course to my own.) Even though many other law firms serve many GLBT clients, I think that the legal landscape for GLBT families remains adequately distinct that GLBT persons should continue to favor firms with a proven record of serving GLBT families. I believe that this dynamic will change at some point, but I don’t think that we are there yet. While this may appear just to be self-interest, it really is based on my honest assessment.
Finally, please remember that this is general information. If you wish to receive advice based on your specific circumstances, talk with a lawyer!
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