Month: December 2013

Family Feud: Children Lose Claim Seeking Partial Ownership of Late Father’s Property

A man’s death without an estate plan triggered a protracted legal squabble between his children and their stepmother over a parcel of property the father and stepmother purchased prior to their marriage. Because the man died without placing his intentions in writing, the Wisconsin courts had to decide the issue of ownership, and concluded in Droukas v. Estate of Felhofer that the property was a marital asset, and belonged 100% to the stepmother. A single document, known as a marital property agreement, potentially could have avoided this entire litigation.

In March 1999, Gregory Felhofer and Mary Lynch purchased an empty lot in Franklin, Wisconsin. The couple began building a home on the property that summer and, in mid-September, with construction underway, the couple married. The city did not issue a certificate of occupancy until January 2000.

Eleven years later, the man died intestate. The home was not included in the man’s estate. Felhofer’s children from a previous marriage contested the probate distribution, arguing that the home was improperly omitted, and that they were entitled to a one-half ownership interest in the property. The wife argued that the home was marital property and automatically became solely hers when her husband died. The children countered that the parcel could not be marital property because the purchase occurred before Gregory and Mary married.

Timeshares and Living Trusts: Funding Issues

The weather this time of year inspires many to contemplate warm, sunny escapes. For some, this involves a timeshare property. While timeshare rights may not be as valuable as outright ownership, it is nevertheless worthwhile to consider your timeshare in planning your estate. If you have a living trust, this means taking the necessary steps to ensure that you’ve properly funded your timeshare holdings into your trust.

For many Wisconsinites who own timeshares, the timeshare property is located outside the state. In these types of situations, using a living trust as part of your estate planning can provide significant benefits. With a properly funded living trust, you may avoid probate on all your funded assets. Without it, your estate must undergo the probate administration process in each state where you own property, which would include Wisconsin, along with the state where your timeshare is located, in addition to any other states where you have assets.

This could place your loved ones in the expensive and time-consuming position of managing probate both in Wisconsin and some distant jurisdiction like Florida, Arizona or Hawaii. While timeshares may have limited value, and sometimes may be dealt with using a summary probate process, the process is still often expensive. Cumulative costs (including attorney’s fees) can total into the thousands of dollars for each probate process.

Domestic Partner Registry Statute: Wisconsin Supreme Court Weighs Future of Law

A four-year-long court dispute over the constitutionality of Wisconsin’s domestic registry statute for same-sex couples arrived at the state’s supreme court in October. During oral arguments in the case of Appling v. Walker, advocates from both sides, along with the court’s justices discussed and weighed the prospects of upholding or striking down the law. Changes to the law could have dramatic ramifications for the way Wisconsin’s same-sex couples engage in estate planning, and may impact other as well, depending on the outcome the court ultimately reaches.

The court case began after the state legislature passed a 2009 law that allowed same-sex couples to register with their counties of residence as domestic partners. By registering, the couples could take family medical leave to tend to their partners, secure visitation rights if their partners were hospitalized and make end-of-life decisions. Julaine Appling, the direct of Wisconsin Family Action, challenged the law, asserting that it violated a 2006 state constitutional amendment prohibiting the government from creating a status for same-sex couples identical or similar to marriage.

Both a Dane County Circuit Judge and the state’s 4th District Court of Appeals ruled the law constitutional, concluding that the status the registry statute created was markedly different from marriage, as it enshrined far fewer rights or responsibilities than the institution of marriage under Wisconsin law. Appling appealed her case to the Supreme Court, again arguing that the law should be struck down entirely. Supporters of the law urged the court to uphold the lower courts and the law as written.

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