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Garden City, NY Estate Planning & Complex Litigation Blog

Monday, January 4, 2016

What Is the Spousal Share of an Estate?

There are many reasons why a person might leave a spouse or another loved one out of his or her will. It is possible that the will in question was executed prior to a marriage and was never properly updated. It may also be the case that the husband and wife, though still technically married, are estranged, and do not contribute to one another’s support. An end of life revelation of a past infidelity may anger a spouse enough to rewrite his or her last will and testament. Individuals may make rash decisions to disinherit spouses based on a single argument or misunderstanding. This can be exacerbated by symptoms of dementia. Regardless of the reason, a person who is not named in his or her spouse’s will may petition the court for the spousal share to receive a portion of the estate.

The spousal share of an estate, also called an elective share, is a holdover from the concept of dower in English common law. Traditionally, dower is a portion of a man’s estate guaranteed to a wife when she is widowed to ensure that she does not fall into poverty after her husband dies. The practice continues today without the same restrictions on gender. Every state in America has a provision in its laws to protect an individual whose spouse dies from being left with nothing. Similar provisions for children also exist in some states. Attempts have been made to introduce legislation to protect unmarried romantic partners the same way as married couples, but these attempts have had little success.

The structure of these protections vary from state to state. The value of the estate for the purposes of establishing the spousal share may include the widow’s assets depending on the jurisdiction. Some states provide a widowed spouse a larger share of the deceased’s estate than others, but almost every state prohibits an individual from disinheriting a spouse entirely. The one state that does not permit an elective share to the spouse in a probate case requires that an estate pay a disinherited spouse financial support for up to one year after the death.


Monday, December 28, 2015

"The Baseball Rule" & Sporting Event Injuries

Each year, over 70 million tickets to Major League Baseball games are sold in cities across the country. Fans flock to these games for the live action – the opportunity to see their favorite players in the flesh, enjoy a few hot dogs and belt out the fan favorite “Take Me Out to the Ballgame” with thousands of other die-hards during the seventh inning stretch. Unfortunately, each year some of this “live action” causes injuries to spectators when a foul ball or flying bat (and occasionally, a player trying to get that heroic out) finds its way into the crowded stands. If you’ve witnessed one of these incidents or have been a victim of one, you’ve likely wondered what happens next? Will the team pay for medical care? Does the injured party have a right to sue?

Under “the baseball rule” owners must demonstrate a high degree of care for visitors to their stadiums, taking measures to protect spectators in high-risk areas (such as behind home plate) and areas where spectators can expect to be protected. Under the rule, spectators in the unprotected areas of the stadium should assume the inherent risks of the game that include balls travelling at very high speeds and pieces of equipment that might be propelled into the seating areas.

On the back of nearly every ticket for a professional sporting event, you will find a warning of these inherent risks, and a statement that explains that the team and stadium is not responsible for any injuries resulting from the game. This ticket is seen as a form of an adhesion contract which is a standardized agreement that a party is bound to once they purchase the ticket (even if the ticketholder was unaware of the terms and failed to read them prior to attendance).

In deciding civil suits pertaining to injuries at baseball games and other professional sporting events, the courts have often looked to the baseball rule in making their judgments. It is, however, important to note that not all states adhere to the rule that limits the liability of owners assuming the standard of care to visitors is met.

In one recent case Rountree v. Boise Baseball, LLC, et al., the Idaho Supreme Court balked at the century old baseball rule and ruled that a gentleman who had lost his eye when he was hit with a foul ball at a game of a minor league affiliate of the Chicago Cubs could seek damages from the baseball organization.  

If you’ve been injured at a major sporting event, you may be entitled to seek compensation for your pain and suffering. It’s important that you contact an experienced personal injury attorney who can help you understand the laws in your state, all applicable court rulings and work with you to determine the best strategy for recovery. 


Monday, December 21, 2015

What is a Life Estate?

A life estate is a special designation in probate law referring to a gift to a family member that lasts as long as the life of the recipient. If an individual uses a life estate as part of his or her estate plan, whatever is bequeathed under the life estate will revert back to the residual estate upon the death of the life estate recipient. It is most common in scenarios where an individual starts a new family without children later in life and wants to ensure that the present spouse is taken care of for the remainder of her or his life. The owner of a life estate is called a life tenant. A life estate is often used as an alternative to a trust because it provides the life tenant with more control over the transferred asset.

A life tenant may treat an asset as his or her own. A home may be rented to tenants for income. The life tenant may sell his or her interest in the property to the heirs of the residual estate or to third parties. If the property is sold to a third party, that third party must surrender the property to the residual heirs upon the death of the life tenant.

Though the property belongs to the life tenant, the life tenant has a duty to the residual heirs to keep the property reasonably maintained and in good condition. He or she has an obligation to avoid mortgage arrearages and tax liens while in possession of the property. Exploiting natural resources on the property may be restricted during a life tenancy. A life tenant may not bequeath his or her interest in a life estate through a will because that interest immediately terminates upon the life tenant’s death. Significant changes to the property need to be agreed upon by all parties.

Though there are benefits, there are also drawbacks to establishing a life estate as part of an estate plan. The action could create estate tax issues for the tenant’s estate. In addition, creditors of the tenant may attach liens on the property, creating complicated legal issues for the heirs of the residual estate.


Monday, December 7, 2015

What is the effect of signing a liability waiver before engaging in an activity?

Before engaging in organized physical activities or sports, participants are almost always required to sign a waiver of liability for insurance purposes. Unfortunately, most of these documents use language that is unclear to the layperson. Frequently, people do not read what they sign; others read the words, but do not understand the content. Almost invariably, regardless of comprehension difficulties, individuals sign such waivers since they are a condition of participation. 

The content of liability waivers varies. The most common liability waivers are assumption of risk waivers. These state that the participant understands the inherent risks in the activity. By signing an assumption of risk waiver, for example, the participant acknowledges that he or she cannot sue the organizer of a football game for injuries incurred during the normal course of the game.

Another common liability waiver uses language about negligence or gross negligence. This covers the organizer of the activity for accidents caused by the organizer’s mistakes. A party acts negligently if he or she fails to observe a standard of care that a reasonable person would follow in similar circumstances. An example of negligence would be the failure to properly secure a harness to a person engaging in rock climbing. Waivers of this type are difficult to enforce. If the language of the waiver is difficult to understand, the waiver will usually fail a challenge in court.  

A waiver of gross negligence is unenforceable in most of the states in the U.S. Gross negligence occurs when the organizer fails to observe safety measures that even a careless party would normally follow. If the organizer of a dangerous activity fails to provide any safety equipment at all, this is an example of gross negligence. In spite of the fact that waivers under such circumstances will probably not be enforced, certain companies continue to require that they be signed by participants. 

If a waiver is required to participate in an activity, there is no reason it should not be signed, but there is every reason for the participant to understand what he or she is signing. Individuals should always be aware of the consequences of executing a legal document before signing it. If an injury occurs after a waiver has been signed, only a knowledgeable attorney can advise the client whether the waiver is likely to be enforceable.  


Monday, November 30, 2015

Why Do I Need a Fence if I Have a Pool?

A person who has a pool, trampoline, swing set, or other similar structure in their yard is usually required, by their homeowner’s insurance, if not by law, to also have a fence. This is because these structures are seen by the law as attractive nuisances. This means that a child who sees a such structures, and who may not appreciate the danger they present, is likely to trespass on the property to play in, on, or with them and injure him or herself. The doctrine of attractive nuisance puts an obligation on a homeowner to protect these children who are incapable of protecting themselves. 

The law does not limit liability to instances where the attractive nuisance is a pool or another type of recreational device. Children’s imaginations are vivid enough to turn any sort of dangerous structure or equipment into a playground. Piles of loose lumber and abandoned cars have been found by courts to qualify as attractive nuisances. An attractive nuisance must: 

  • Be an artificial hazard in a place where children are likely to trespass
  • Create unreasonable risk of harm to children incapable of understanding that risk
  • Be a greater risk to potential victims than the utility of the hazard and the burden of its maintenance 

Determining when a child is innocent enough to qualify for protection under the attractive nuisance doctrine is also unclear. A person with diminished mental capacity may be considered a child for these purposes even if he or she is over the age of 18. The determination of who qualifies as a child is made on a case by case basis. 

Using a fence is a good way to make sure that a child passing by is not intrigued by a potentially dangerous condition. Even if the child is able to see over the fence, he or she will have trouble climbing over it, sufficiently discouraging the trespass in order to avoid liability for injuries sustained. A sign warning individuals of danger may be enough to protect a homeowner from liability, except when a child is unable to read the sign. Regularly inspecting property for potentially dangerous conditions and making sure trespassers stay away from your property are the best ways to avoid liability under the attractive nuisance doctrine.


Monday, November 16, 2015

What Do Insurance Policy Limits Mean for My Case?

An individual who causes a injuries to another person can be held economically responsible for those injuries by a court of law. Anticipating this, the law requires that those participating in potentially dangerous activities, such as driving, carry liability insurance to cover costs in case such an injury occurs. These insurance policies are meant to cover the damages suffered by a potential victim in a personal injury case. There are limits to what these policies cover, though they vary based on how much an insured person is willing to pay as a monthly premium. 

If a person is insured for up to $100,000, that individual’s insurance company will pay out up to $100,000.00 for substantiated damages suffered by the victim. If that victim’s injuries are more substantial, that is, if a jury awards more than $100,000, the balance of the money must be paid by the individual who is at fault instead of by the insurance company. 

An individual without insurance is often referred to as “judgment proof” meaning that, even if a jury awards a verdict against that person, the judgment that results cannot be enforced against him or her. As the saying goes, “you cannot get blood from a stone.” If a plaintiff in a personal injury case attempts to enforce a judgment against a defendant who lacks insurance coverage, the defendant may avoid paying by crying poverty and filing for bankruptcy. Such action may discharge the debts depending on the nature of the injuries and the accident. Similarly, any portion of a judgment owed by an insured individual without personal funds will be nearly impossible to collect. 

As a result, regardless of how much an individual has suffered as a result of the negligence of another, the amount he or she is able to collect is limited to the size of the defendant’s insurance policy. It is impractical to push a case to settle above the policy when it is nearly impossible to collect additional money. This pushes cases in which an individual has suffered catastrophic injuries to settle for substantially less than they might be able to receive if they were to go to trial. Although this seems unfair,  a lawsuit is the only practical way to resolve these disputes when a defendant’s insurance policy limits are too small to cover the plaintiff’s pain and suffering.


Monday, November 2, 2015

Five Common Reasons a Will Might Be Invalid

There are several reasons that a will may prove invalid. It is important for testators to be aware of these pitfalls in order to avoid them.

Improper Execution

The requirements vary from state to state, but most states require a valid will to be witnessed by two people not named in the will. Some jurisdictions require the document to be notarized as well. Although these restrictions may be relaxed if the will is holographic (handwritten), it is best to satisfy these requirements to ensure that the testamentary document will be honored by the probate court.

Lack of Testamentary Capacity

Anyone over the age of 18 is presumed to understand what a will is. At the end of life, individuals are often not in the best state of mind. If court finds that an individual is suffering from dementia, is under the influence of drugs or alcohol, or is incapable of understanding the document being executed for some other reason, the court may invalidate the will on the grounds that the individual does  not have testamentary capacity.

Replacement by a Later Will

Whenever an individual writes a new will, it invalidates all wills made previously. This means that a will might be believed to be valid for months until a more recently executed document surfaces. The newest will always takes precedence, controlling how assets should be distributed.

Lack of Required Content

Every will is required to contain certain provisions to carry out its purpose. These provisions, ensure that the testator understands the reason for executing the document.  Although these provisions vary from state to  state, some are common to all jurisdictions. It should be clear that the document is intended to be a will. The document  should demonstrate an individual’s wishes in regard to what should happen to his or her property after death. A proper will should also include a provision to appoint an executor to act as an agent for the estate and enforce the terms of the will. If the document  lacks any of these provisions, the will may be declared invalid. 

Undue influence or fraud

A will that was executed under undue influence, coercion or fraud will be invalidated by a court. If a will has been presented to a testator for a signature as if it were any other document, like a power of attorney or a business contract, the court will find that the will was fraudulently obtained and will not honor it. If an individual providing end of life care with exclusive access to the testator threatens to stop care unless a will is modified, that modification is considered to be the result of undue influence and the court will not accept it.


Monday, October 26, 2015

How do I know if I have a slip and fall case?

A person who slips or trips on another person’s property may be entitled to damages for resultant injuries. In order for a slip and fall to be compensable, there must have been an unsafe condition on the property. Unsafe conditions include icy accumulation, wet or slippery floors, badly damaged sidewalks and debris underfoot, among many others.

In addition to the existence of unsafe conditions, in order for the injury to be compensable, the owner must have known that the dangerous condition existed and allowed it to persist.This is the most difficult element for a victim in a slip and fall case to prove. Sometimes, the owner of the property causes the dangerous condition, such as when the floors of a department store are freshly mopped and slippery. At other times, the danger is not caused by the owner, but is obviously apparent, as is the case after a snowstorm. The owner of the property is entitled to a grace period to correct dangerous conditions.  But, while the problem is being fixed, the owner should put up a notice to warn individuals of the possible danger. Yellow boards are commonly used to warn of wet floors, and orange cones are often used to warn of ongoing construction.

If the dangerous condition is obvious enough to a casual observer, it may not be compensable since an individual has a duty to use a reasonable degree of care for his or her own safety. Even if the owner is at fault, if the injury is no more severe than a bruise or a slight sprain, a lawsuit is probably not the best course of action.  Lawsuits are usually reserved for more serious injuries like broken bones or spinal damage.  Only an experienced attorney can advise the individual involved in a slip and fall incident as to whether the case is strong enough to warrant a claim. 


Monday, October 19, 2015

Glossary of Estate Planning Terms

Will - a written document specifying a person’s wishes concerning his or her property distribution upon his or her death.

In order to be enforced by a court of law, a will must be signed in accordance with the applicable wills act.

Testator/Testatrix - the person who signs the will.

Heirs - beneficiaries of an estate.

Executor/Executrix - the individual given authority by the testator to make decisions to put the testator’s written directions into effect.

Once the will is entered into probate, the executor’s signature is equivalent to the testator’s. The executor has a legal duty to the heirs of the estate to act in the best interest of the estate, and may collect a fee for performing such service.

Administrator/Administratrix - the person who assumes the role of the executor when a person dies without a will (intestate).

The Administrator must apply with the local probate office and may be required to provide a bond to be held in escrow as collateral for control over the assets of the estate.

Codicil - an amendment to a will.

In order to be valid, a codicil must comply with all the requirements of the applicable wills act.

Holographic Will- a handwritten will. 

Holographic wills are often exempt from requirements of the applicable wills act.

Bequest - a gift given by the testator to his or her heirs through a will.

Residual Estate - the balance of a testator’s belongings after debts have been paid and specific bequests have been distributed. 

Intestate - not having signed a will before one dies; a person who dies without having signed a will.

Life Estate - a bequest that gives an heir the right to have exclusive use of a property for the remainder of his or her life, but without the power to transfer such property upon the death of that heir.

The property will transfer to the heirs of the residual estate after the death of the beneficiary of the life estate.

Per stirpes - a Latin phrase precisely translated as “by the branch” meaning that, if an heir named in the will dies before the testator, that heir’s share will be divided equally among that beneficiary’s own heirs.

 An alternative to per capita, described below.

Per capita - a Latin phrase precisely translated as “by the head” meaning that, if an heir named in the will dies before the testator, that heir’s share will be divided among the testator’s remaining heirs.

 An alternative to per stirpes, described above.

While it is a good idea to have a basic understanding of fundamental estate planning vocabulary, this cannot serve as a substitute for the services of an experienced attorney.


Monday, October 5, 2015

What are punitive damages?

Punitive damages are a special class of damages paid by a defendant in a lawsuit.  They are not designed to compensate the injured party for any damages suffered, but instead to punish the defendant for some egregious action and to discourage others from enaging in that specific behavior.  Punitive damages are reserved for special cases where a defendant’s behavior is extraordinarily bad. 

In order for a case to be considered for punitive damages, the defendant had to have acted willfully. For example, if a company decided to take a product to market, knowing that it had a dangerous defect, it could be held accountable for punitive damages.. It does not make sense to allow punitive damages in a case where only negligent behavior is alleged because, presumably, a negligent action was an accident and there is little need for deterrence.

When a court decides on a punitive damage award, it will consider how bad the conduct in question really was, as well as the wealth of the defendant.  After all, being forced to pay $10,000.00 is a much greater punishment for a person earning $50,000 a year than someone earning $50,000,000 a year.  Even though their purpose is not to compensate a plaintiff for injuries, usually punitive damages are paid to the plaintiff, leaving him or her in a much better position than he or she was in before a lawsuit was filed. 

The United States is one of the few countries in the world that permits punitive damages.  They are also common in China, Australia, and New Zealand.  In parts of the United Kingdom, they are available in very limited circumstances.  In Japan and most of Europe, it is nearly impossible to get a punitive damage award.


Monday, September 28, 2015

Avoiding Common Mistakes in Estate Planning

Estate planning is designed to fulfill the wishes of a person after his or her death. Problems can easily arise, however, if the estate plan contains unanswered questions that can no longer be resolved after the person's demise. This can, and frequently does, lead to costly litigation counter-productive to the goals of the estate. It is important that will be written in language that is clear and that the document has been well proofread because something as simple as a misplaced comma can significantly alter its meaning.

Planning for every possible contingency is a significant part of estate planning. Tragic scenarios in which an estate planner’s loved ones predecease him or her, though uncomfortable, must be considered during the preparation of a will to avoid otherwise unforeseen conflicts. 

Even trained professionals can make significant mistakes if they are not well versed in estate planning. An attorney who practices general law, while perfectly capable of preparing simple wills, may not understand the intricacies of trusts and guardianships. A great many attorneys, not aware of the tax consequences of bequests involving IRAs, may leave heirs with unnecessary financial obligations. If an attorney is not knowledgeable enough to ask the proper questions, he or she will be unable to prepare an estate plan that functions efficiently and ensures the proper distribution of the estate's assets.

In spite of the wealth of an individual, the estate may be cash deficient if that wealth is tied up in assets at the time of the individual's death. Problems can also result if an estate planner has distributed assets into joint bank accounts or accounts with pay on death provisions. If the executor of the estate does not have access to funds to pay the estate's bills or taxes, the heirs of the estate may run into trouble.

Even if estate planning is handled well from a logistical point of view, lack of communication with loved ones can interfere with a will's desired execution. A tragedy that incapacitates the testator can occur suddenly, so it is imperative that a savvy estate planner confers with loved ones as soon as possible, making them aware of any future obligations, such as life insurance premiums that must be paid and informing them of the location of any probate documents and inventories of assets. Such conversations ensure that the individual's wishes will be carried out without complications or delay in the event of an unexpected incapacity.

In addition to communicating logistical information, it is also essential to schedule a personal conversation with loved ones that makes clear any sentimental bequests or large gifts that require explanation. This avoids the shock or discomfort that may arise after one's death during which a well-thought-out decision is questioned as impulsive or irrational. Such direct communication of one's plans avoids unnecessary envy, arguments or rivalry among family and friends.

Consulting with attorneys who specialize in estate planning is the cornerstone of creating a plan to ensure that one's desires are carried out and that all the bases are covered. Estate planning attorneys serve as invaluable repositories of all information necessary to strategizing a plan that not only meets one's personal needs and desires, but is legally binding.


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Lawrence M. Gordon, Attorney at Law, P.C. has offices in Garden City, NY and assists clients throughout Long Island, including: the north shore of Long Island, The Town Of Oyster Bay, The Town Of North Hempstead, The Town Of Hempstead, The Town Of Huntington, Nassau & Suffolk Counties & throughout the Five Boroughs of The City Of New York.



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