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The Thursday Report – Right to Die/FL Gun Laws – Dolphin Edition

The Estate Planner’s Guide to the Right to Die

Are We the Gunshine State? Justifiable Use of Force in Florida in Chapter 776 –Or Did They Mean Section 1776?

Phil Rarick’s Informative Client Blog Entries: Autism: What Every Parent Should Know About Special Needs Trusts

LLM Writing Award of the Century

Pre-Nuptial and Post-Nuptial Agreements: An Interview with noted divorce attorney, Ky Koch and Judge George Jirotka – Part 6 of a 7 Part Series

We welcome contributions for future Thursday Report topics. If you are interested in making a contribution as a guest writer, please email Janine Gunyan at Janine@gassmanpa.com.

This report and other Thursday Reports can be found on our website at www.gassmanlaw.com.

LL.M. Writing Award of the Century

The LL.M. Writing Award of the Century is awarded to Nathan A. West, J.D., LL.M.  This award is only awarded by our law firm every 100 years on the second Thursday of September and requires a recent LL.M. in taxation graduate to work on one tedious project for 8 solid weeks before being so glad to get into the workforce.  Nathan is a co-author of our outline on Commercial Annuity Contract Planning that will be presented at the Notre Dame Tax Institute on Wednesday, October 16, 2013.  Click, click, click here to sign up for the Institute and win 2 buckets of Kentucky Fried Chicken delivered to you by a chicken dressed up like Colonel Sanders!

Nathan will be joining the Raleigh, North Carolina office of KPMG in their International Corporate Tax department.  He earned his LL.M. in taxation from Northwestern University School of Law in 2013, a J.D. from Stetson University College of Law in 2012, and a B.S. in Accounting and Sport Management from Florida State University in 2009.  His email address is naw04c@hotmail.com.  He would like to represent people from China who are getting divorced and need a lawyer to help enforce their divorce decree, especially if it involves putting his own money into an account that he can later receive compensation from.

The next time this award will be given will be September 2113!  We will begin taking applications beginning September 2112!  All entries can be sent to agassman@gassmanpa.com.  Maybe Colonel Sanders and J. Edgar Hoover can review the entries for us!

We would also like to say thank you and good luck to another one of our law clerks, Sydney Smith, who is going to be joining renowned tax and estate planning attorney Laird A. Lile, P.A. (or is it Lile A. Laird?) in Naples, Florida this month.  Sydney is a graduate of Stetson College of Law and helped to draft multiple articles during her clerkship at Gassman, Crotty & Denicolo, P.A. (that we were glad to take credit for).  She took a concentration of Elder Law courses while receiving her J.D. at Stetson Law School and will practice in the fields of estate planning, probate administration, and associated fields of interest.  Laird Lile’s email address is LLile@LairdALile.com if you would like to congratulate him on this excellent choice of a new associate and the continuing prosperity of his practice.  Time to hit him up for a donation also!

The Estate Planner’s Guide to the Right to Die

By: Alan S. Gassman, J.D., LL.M., Nathan West, J.D., LL.M. and Sydney Smith, J.D.

Compassionate Killing: An Inevitable Controversy?

Clients who face terminal illnesses are often surprised to discover that it is illegal in most states to assist in expediting the “natural death” process.  A number of physician clients have confided that they had to “commit murder” on their parents to relieve them from a brutally torturous dying process.  Some clients have shot themselves to avoid having to go through the traditional hospitalization dying process.

Some jurisdictions have been progressive enough to allow the prescription of lethal self-administered medications under limited circumstances. This has become a recent topic of political dialogue. Proponents claim that individuals should have the freedom to choose to end their lives without the inevitable pain and suffering associated with terminal and incurable illnesses, while opponents argue that terminally ill individuals may be pressured into choosing this option, due to the high cost of health care. This hotly debated issue, replete with moral controversy, has been supported by a handful of states, which have codified specific regulations for conducting physician assisted suicide. This article discusses these requirements and safeguards of these statutes, while highlighting the differences in American and International Law.

Physician Assisted Suicide and the Freedom of Choice

Currently, physician facilitated suicide is only available in Montana, Washington, Vermont and Oregon.  It is important to note the use of the word facilitated in the above sentence because it denotes something different from both active and passive euthanasia.  While active euthanasia is illegal in all jurisdictions of the United States, passive euthanasia is not.  Passive euthanasia occurs when a physician “omits treatment and permits the patient to succumb to the disease”1, while active euthanasia refers to when a physician takes steps to end the patient’s life.

In contrast to euthanasia, physician facilitated suicide occurs “when a licensed physician supplies lethal medication to a patient so that the patient can use the medication to end his or her own life.”2  For example, in Oregon, doctors may prescribe the medication, but they may not administer the medication to patients to end their own lives.

The Current State of Regulation: Too Far for Some, Not Nearly Far Enough for Others

The Oregon legislature passed the Death with Dignity Act in 1997.  Under this statute, “[a]n adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner”3  In order to meet the statute’s requirements, a person must prove their residency by showing a connection with the state of Oregon.  For example, this can be accomplished by showing proof of:

(1) a state driver’s license;

(2) a state voter’s registration card;

(3) ownership or rental of real estate in the state; or

(4) a recent state income tax return.4

These methods of proving residency consist of only a few of the many ways residency may be shown in Oregon, as it has been held that any connection to the state will be an acceptable form of proof.  This liberal interpretation of the statute seems to create a daunting state concern, due to the ease in mobility of American citizens. As such, it is believed that the existence of such statutes will result in “domestic death tourism,” a term aptly coined by author, Browne C. Lewis.5

As the residency requirements currently stand, there are very limited regulations by the state legislatures. Surprisingly, physicians generally need not have a long standing relationship or even a previously existing relationship with a patient in order to administer the medication.

It seems as if the only restrictions on obtaining physician assisted suicide relate to the patient’s physical and mental health conditions. In order to meet the requirements, a patient seeking physician aided suicide must have a terminal disease or incurable disease and their condition must be irreversible. A terminal disease has been defined by the states of Oregon and Washington as a disease which will likely result in death within six months following the diagnosis of the patient.6

Patients must also be able to competently understand the repercussions of their decisions. Under Oregon Statute §127.800(3),patients must have the ability to “make and communicate health care decisions to health care providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available.”7  As such, individuals suffering from depression or other psychiatric or psychological disorders must be deemed competent through counseling before they will be able to receive the medication.8

Most importantly, patients must be given all material facts before distribution of the life-ending medication. This allows patients to make informed decisions after communicating with a physician regarding their diagnosis and prognosis, the potential risks and results of the lethal medication, and any other alternatives that may be used. This informed consent is similar to the consent required from a patient before a physician performs a medical procedure.

In addition to the health and psychiatric related requirements, physicians and patients must comply with strictly implemented administrative procedures, in order to obtain the medication. Under Oregon and Washington law,  in the presence of the patient, “at least two persons must attest that ‘to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request.’”9  One of the witnesses must be a disinterested party, and the doctor who is caring for the patient may not act as a witness. Further, patients residing in long-term care facilities must have a witness designated by the facility. Following this process, the medical records of the patient must be examined by another doctor, and the patient’s diagnosis confirmed.

These comprehensive regulations are strictly enforced and allow the patient an opportunity to make an informed decision after an adequate period of reflection. So long as the statutes are followed, the treating physician is granted statutory immunity from civil or criminal liability.

Physician assisted suicide is not entirely a new concept. European laws, as outlined in the charts following this article, have provided a basis for American law on the topics of physician assisted suicide and euthanasia. The Netherlands, in particular has made the practice of physician assisted suicide available to minors, with parental consent until the age of 16.10 At the age of 16 and 17, parents must be involved within the decision-making process, but parental consent is not needed.

A Breakdown of American and International Law on Physician Assisted Suicide

The following charts highlight applicable statutes and case law in both the United States and European nations.

States Allowing Physician Facilitated Suicide

StateDateWhat is allowed?
OregonNovember 8, 1994Death with Dignity Act – allows a capable adult resident of Oregon, who has been determined to be terminally ill, to voluntarily make a written request for medication, which will be administered by the patient, for the purpose of ending his or her life.  Other requirements and procedures must be followed by both patient, and attending and concurring physician.
WashingtonNovember 4, 2008Death With Dignity Act – allows for a competent adult resident of Washington, who has been determined to be suffering from a terminal illness, to voluntarily make a written request for medication, which will be administered by the patient, to end their life.  Other requirements and procedures must be followed by both patient, and attending and concurring physician.
VermontMay 20, 2013Act Relating to Patient Choice and Control at End of Life – prohibits civil or criminal liability for physicians that prescribe life ending self-administered medication to a terminally ill patient, and  states that a patient who self-administers the medicine for the purpose of ending their life will not be considered exposed to grave physical harm.  This regulation also limits liability for those present when a patient administers the medication.
MontanaDecember 31, 2009Baxter v. Montana – the Supreme Court of Montana ruled that terminally ill and competent patients have a legal right to die with dignity under the Montana Constitution, which allows physicians to prescribe the medication for self-administration. The ruling also protects physicians who prescribe the medication.  A Death with Dignity Act, introduced on January 31, 2013 was tabled by the Judiciary Committee on February 13, 2013.

States Considering Physician Assisted Suicide

StatesBill NumberBill SummaryBill Status
HawaiiHouse Bill 606House Bill 606 allows a terminally ill, competent adult, 50 years of age or older, to obtain the medication.House Bill 606 was referred to the Health, Judicial and Financial Committees on January 22, 2013.
KansasHouse Bill 2068House Bill 2068 mirrors the Oregon and Washington statutes, allowing for a competent adult resident of Kansas diagnosed with a terminal disease to make a written request for the medication.House Bill 2068 was introduced on January 23, 2013 and was referred to the Committee on Health and Human Services on January 24, 2013.
MassachusettsHouse Bill 1998A Death with Dignity Act allows a competent adult resident of Massachusetts, diagnosed with a terminal illness, to make a written request for the medication.House Bill 1998 was introduced on January 22, 2013 and referred to the Judiciary Committee.
NewHampshireHouse Bill 403House Bill 403 establishes a committee who will study the Death with Dignity legislation for individuals suffering from terminal illness/condition.House Bill 403 was approved by the House on February 21, 2013 and was referred to the Health, Education and Human Services Committee, who reported on May 23, 2013 that the Bill should pass.  The House concurred on June 5, 2013.  The Governor vetoed the Bill.
New JerseyAssembly Bill 3328 and Senate Bill 2259Both Bills contain similar language to the laws of Washington and Oregon and provide terminally ill competent residents of New Jersey the right to make written request for the medication.Assembly Bill 3328 and Senate Bill 2259 were introduced on September 27, 2012 in the Assembly, and on October 15, 2012 in the Senate.  The Assembly Health and Senior Services moved for a vote on February 7, 2013, while the Senate referred the bill to the Senate Health, Human Services and Senior Citizens Committee.

 

                                     Countries allowing Physician Assistance in Suicide
CountryDateWhat is allowed?
Belgium2002Both euthanasia and physician assisted suicide are legal in Belgium. Euthanasia was legalized by the Euthanasia Act of 2002.  Currently the law is only available to competent adults who suffer from unbearable physical or mental pain.
Germany1751Although the act of euthanasia is illegal in Germany, physician assisted suicide is not expressly made illegal.
Luxembourg2008Luxembourg’s law requires consultation among physicians and is only available for patients suffering from incurable conditions.
Netherlands2001The Termination of Life on Request and Assisted Suicide Act allows for both euthanasia and physician assisted suicide so long as the following conditions are met: the patient’s pain is unbearable and there are no signs of improvement; the patient must voluntarily request to end their life; and the patient must be fully aware of their condition and options available to them.

Opening the Dialogue for a Better Solution

Planners and their clients should be aware of physician aided suicide as an option for those suffering from end-stage illnesses. Powers of Attorney and related documents may specifically request and authorize the movement and treatment described above. Clients have the right to know what their rights are and to make intelligent choices for themselves, however, because this right is inherently controversial, it is often ignored. We must open this dialogue and ask ourselves why it is considered inhumane to allow a dog or other pet to suffer without euthanasia, while a different standard applies to our loved ones.  Estate planners and physicians should educate their clients on the issue and allow them to make educated choices regarding their health care plans. 


1Browne C. Lewis, Graceful Exit: Redefining Terminal to Expand the Availability of Physician-Facilitated Suicide, 91 Or. L. Rev. 457, 462 (2012).

2Id. at 463.

3 Or. Rev. Stat. 127.805 § 2.01.

4  Or. Rev. Stat. 127.860 § 3.10.

5 Id. at 479.

6 Or. Rev. Stat. § 127.800(12) (2011); Wash. Rev. Code Ann. § 70.245.010(13) (2011).

 Are We the Gunshine State? Justifiable Use of Force in Florida in Chapter 776 –Or Did They Mean Section 1776?

Florigun

By Sydney Smith, J.D.

Clients who move here from highly regulated weapon states are surprised to learn that thousands of Floridians are carrying guns in their cars, and even on their persons, and that concealed weapons permits can be received based upon 4 hours of classroom and 4 hours of range work.  Sydney Smith, Esq. has done a great job preparing this article for our Thursday Report and your protection.

I. Florida’s Law and the Right to Bear Arms

The U.S. Constitution’s Second Amendment right to bear arms has deeply rooted historical significance in our young nation. According to the Second Amendment, “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

many, this right represents the freedoms gained by our newly founded nation following the Revolutionary War. As such, many states, such as Florida, have adopted similar amendments within their constitutions as an attempt to further solidify this individual right.

However, like most rights, the Second Amendment right is not without its limits and does not give individuals the unbridled ability to carry any type of weapon in any manner for any purpose. Despite the amendment’s language allowing individuals to “bear arms,” state statutes restricting the carrying of concealed weapons have been held constitutional. Further, state statutes may validly restrict the type of weapons owned, so long as the restrictions allow individuals to own weapons “in common use at the time.” U.S. v. Miller, 307 U.S. 174, 181 (1939). This sentiment was reaffirmed, as applied to the ownership of handguns, in the landmark case District of Columbia v. Heller in which Justice Scalia held:

“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications…and the Fourth Amendment applies to modern forms of search…the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Dist. of Columbia v. Heller, 554 U.S. 570, 582 (2008).

Beyond the above national debate of where the right to bear arms should be drawn, the State of Florida, commonly known as the Gunshine State, is recognized for having liberal laws regarding the purchase and use of firearms. The right to bear arms is specifically protected within Florida’s constitution which states, “[t]he right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law” Fla. Const. Art. I, § 8.  In Florida, no permit or registration is required for the purchase of a firearm. However, Florida’s Constitution states that, “[t]here shall be a mandatory period of three days, excluding weekends and legal holidays, between the purchase and delivery at retail of any handgun.” Fla. Const. Art. I,  § 8.

In Florida, it is generally illegal to openly carry a weapon. F.S. §  790.053.  However, a person may openly carry, for legal self defense purposes, a self defense chemical spray, non‑lethal stun gun, dart‑firing stun gun or other non‑lethal electric weapon designed for defensive purposes only. F.S. § 790.053(2). Florida is unusual in that it allows a variety of concealed weapons, not just handguns, to be carried with a license. Unlike the majority of states, which limit concealed weapons permits to handguns, Florida extends these protections to  electronic weapons or devices, tear gas guns, knives, and billie clubs. F.S. § 790.06. Additionally, Florida has codified a few exceptions that allow individuals to carry concealed weapons without possessing a permit.

II. How to Obtain a Concealed Weapons Permit in Florida

In order to carry a concealed weapon, an individual must apply for a permit through the Department of Agriculture and Consumer Services. In general, in order to obtain a permit, one must be 21 years of age or older, a citizen or a permanent resident alien of the U.S., without physical infirmity, which could prevent the safe handling of a firearm, has not been committed for the abuse of a controlled substance within a three year period preceding application, has not committed a felony, does not chronically use alcohol or other substances to the extent that this use would impair the applicant=s ability to safely operate a firearm, is not adjudicated incapacitated, and has not been issued an injunction that is currently in force and restrains the applicant from committing acts of domestic violence or acts of repeat violence. F.S. § 790.06(2).

Additionally, the applicant must complete a hunter education or hunter safety course approved by the Fish and wildlife Conservation Commission, a National Rifle Association firearms safety or training course, or a firearms safety or training course available to the general public and approved by the National Rifle Association, the Criminal Justice Standards and Training Commission, or the Department of Agriculture and Consumer Services. F.S. § 790.06(2)(h).

This certification will be valid in Florida for up to 7 years. In addition, the applicant must obtain finger prints, a passport sized photograph not older than 30 days, and must complete and notarize a Florida concealed weapons permit application.  If the applicant is a previous military service member and can provide a Department of Defense Form DD-214, with an honorable discharge, showing weapons training, it can be accepted in lieu of safety training.

III. Concealed Weapons Permit Restrictions

However, Florida places restrictions on the places where a concealed weapon may be carried. These locations include, but are not limited to, any police, sheriff, or highway patrol station, detention facility, jail, or prison, any courthouse or courtroom except that a judge may carry and determine who may carry within his or her courtroom, any polling place, any meeting of the governing body of a county, public school district, municipality, special district or meeting of the Legislature or a Legislative Committee, any public or private school, college, or professional athletic event not relating to firearms, any  public or private preschool, elementary, or secondary school, any college or university facility, any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose, and  the inside passenger terminal of an airport. F.S. § 790.06(12).

Unfortunately, the law applying to locations serving alcoholic beverages, is ambiguous and appears to be subject to dispute with regard to restaurants with bars or other places licensed to serve alcohol which serve other purposes, such as casinos and concert arenas. In an informal statement regarding the interpretation of this law, the Florida Department of Agriculture stated that an individual holding a concealed weapons permit may legally enter into a business that serves alcohol, but may not enter into the areas of the business of which the primary purpose is devoted to serving alcohol. For example, this restriction would apply to the bar area of a restaurant.

IV. Possession of Firearm without Concealed Weapons Permit

Under Florida law, an individual may keep a concealed firearm in his “private conveyance” without possessing a concealed weapons permit so long as he is 18 years of age or older and the firearm or other weapon is “securely encased or is otherwise not readily accessible for immediate use.” F.S. § 790.251(5). “Securely encased” means in a glove compartment, whether or not locked, snapped in a holster, in a gun case, whether or not locked, in a zippered gun case, or in a closed box or container which requires a lid or cover to be opened for access. F.S. § 790.001(17).   This statute is commonly misunderstood as requiring an individual to keep the firearm  in a locked container. However, there is no requirement that the container be locked, so long as the firearm is not “readily accessible for immediate use”. “Readily accessible for immediate use” means that “a firearm or other weapon is carried on the person or within such close proximity and in such a manner that it can be retrieved and used as easily and quickly as if carried on the person. F.S. § 790.001(16).

Additionally, Florida specifically exempts certain individuals from the requirement of obtaining a concealed weapons permit. These exceptions apply to persons engaged in fishing, camping, or lawful hunting or returning from a fishing, camping, or lawful hunting expedition, persons firing weapons in a safe and secure indoor range, and persons possessing firearms at their home or place of business. F.S.  § 790.25(3).

V. Florida’s “Stand Your Ground Law” Eliminating the Duty to Retreat

Florida=s Stand Your Ground Law gives individuals the right to use deadly force to defend themselves without any requirement to retreat where the individual reasonably believes that his conduct is necessary to defend himself or another against another=s imminent use of unlawful force.  Under Florida law, an individual who is not engaged in unlawful activity and who is attacked in a place where he or she has a right to be has no duty to retreat and “has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent commission of a forcible felony.” F.S. § 776.013(3).  This right to stand one=s ground is strengthened by the codified presumption under F.S. § 776.013(1) stating that a person is presumed to have a reasonable belief of impending death or great bodily injury where his home or occupied vehicle  is unlawfully entered.

Therefore, under this law, coined the “castle doctrine,” an individual need not retreat from his own home to avoid using deadly force against an assailant.

VII. The Truth About the Saturday Night Special: Do Stricter Gun Laws Affect the Rate of Crime?

Proponents of “right-to-carry” laws often cite to John Lott’s groundbreaking 2000 publication entitled “More Guns, Less Crime: Understanding Crime and Gun Control Laws,” in which he asserts that liberal restrictions on concealed weapons laws lead to lower national crime rates. However, in 2004 the National Research Council of the National Academies published a report reviewing the research of Lott and Mustard and concluded that there was no meaningful link between right-to-carry laws and crime rates, considering that crime rates have generally been dropping for the past two decades.

However, despite the staunch opposition to “shall-issue” laws, it is hard to ignore the multitude of statistics showing that they directly result in lower crime rates. When Florida passed its “shall-issue” law in 1987, requiring the provision of concealed weapons permits to all qualified citizens, many predicted the rate of gun-related crime to skyrocket. However, just the opposite occurred, as shown by Gary Kleck’s report stating that though 1997, only one permit holder issued out of 350,000 was convicted of homicide. According to a recent 2013 report from ABC, this trend has continued, as gun-related crimes in Florida dropped by 33% from 2007 and 2011 while the number of concealed weapons permits grew during that period by 90%. However, critics assert that the overall drop in Florida’s violent crime rate to 26% renders Florida’s drop in gun-related crime a less convincing statistic.

Phil Rarick’s Informative Client Blog Entries: Autism: What Every Parent Should Know About Special Needs Trusts

Rarick

Parents of children with autism have many daunting tasks.  One task that is often put off until it is too late is making sure you have a back-up plan if you can no longer care for your child.

You are the primary care giver for your child.  If you become disabled or die, do you have a plan?  Do you have instructions to care for your child?  Have you designated persons whom you trust and who could care for your child if you cannot provide such care?

If you have not had time to consider these critical questions, now is the time.  Click, click, click here to read the blog post.

Pre-Nuptial and Post-Nuptial Agreements: An Interview with noted divorce attorney, Ky Koch and Judge George Jirotka – Part 6 of a 7 Part Series

Jirotka Koch

This week we cover the important topics of how much disclosure is enough disclosure, whether both parties need to have lawyers, and questions to ask the lawyer or spouse you are not representing to document appropriate disclosure and circumstances by videotaped interview or written correspondence.

  • Part 1 presented on Thursday, August 8, 2013, the reader was introduced to the present overall status of prenuptial agreement statutory law and case law, and talks about prominent malpractice traps and how to get clients prepared for what they can encounter in the prenuptial agreement universe.  Click, click, click here to be directed to the Thursday Report for August 8, 2013.
  • Part 2 on Thursday, August 15, 2013, discussed the important topics of how much disclosure is enough disclosure and whether or not both parties need to have lawyers.  Click, click, click here to be directed to the Thursday Report for August 15, 2013.
  • Part 3, on Thursday, August 22, 2013, Questions to ask the lawyer or spouse you are not representing to document appropriate disclosure circumstances by video-taped interview or written correspondence. Click, click, click here to be directed to the Thursday Report for August 22, 2013.
  • Part 4 on Thursday, August 29, 2013, discussed Castro v. Castro and Belcher v. Belcher, and what they mean for clients and lawyers who are involved in the pre and post nuptial agreement planning. Click, click, click here to be directed to the Thursday Report for August 29, 2013.
  • Part 5 on Thursday, September 5, 2013, discussed alimony and lawyer fee obligations that may not be waivable in pre-nuptial or post nuptial agreements, and offset clauses and other ways to handle these. Click, click, click here to be directed to the Thursday Report for September 5, 2013.
  • Part 6, Today, September 12, 2013, Bifurcation – whether you can require the validity of the pre-nuptial or post-nuptial agreement be litigated or also before having to also litigate what the result could be if it is or is not enforceable.
  • Part 7, On Thursday, September 19, 2013, How to keep marital and asset information confidential in a divorce scenario, arbitration, and the Roddy v. Roddy case.

The sixth portion of the interview, Judge Jirotka and Ky will discuss an important point – whether you can require that the validity of the pre-nuptial or post-nuptial agreement be litigated before having to also litigate what the result could be if it is enforceable.

Judge Jirotka: Ky, what has been your experience in the following situation: We have a dissolution of marriage with either a postnuptial or a prenuptial agreement, and one party or the other wants to determine the validity of the agreement.  How have you been in terms of deciding whether to in what we largely call bifurcate, or just litigate the whole issue once and for all?  You would litigate the validity of the agreement as part of the dissolution or do sort of a mini trial beforehand?

Ky Koch: A great question – and in my standard prenuptial agreement I have a bifurcation provision that says we the parties agree that if we’re getting divorced there will be a bifurcation first in the discovery.  Discovery will be limited to the issue of an interpretation of the validity of the agreement if somebody challenges it, and second, as to the issue of whether or not it’s enforceable.  My opinion is that most of these should go the way of a bifurcation.

I think there ought to be a bifurcation whether or not that provision’s in the prenup, because it simplifies the issues later to be addressed to the court.  First if the agreement is found to be valid, the divorce could be over with. Second if the prenuptial agreement is found to be valid, but there are holes in it, it limits the number of issues in the divorce.  The third possibility is the prenuptial is invalid and then you go forward with litigating the divorce.  In my opinion it is very wise for courts to bifurcate prenuptial agreements for that reason.

Alan Gassman: Will the bifurcation provision be enforceable?

Ky Koch: Yes, the case law on that subject says that that’s within the sound discretion of the trial court.

Judge Jirotka: That is correct, yes.

Alan Gassman: Well the court should want to keep it simple, right?

Ky Koch: Yes, but that issue comes up a lot.  There are lawyers out there that disagree with me surprisingly, and would prefer to address this all at once for the prenuptial.

Alan Gassman: I can think of 5,000,000 reasons for that.

Judge Jirotka: I would assume that the biggest issue would be if the prenuptial agreement is upheld, then there is very limited discovery going forward as to valuation of assets.

Ky Koch: Assuming that the prenuptial agreement didn’t have any holes in it.  If you have an agreement that’s pretty tight and it’s got all the issues resolved then that’s true, but there are agreements that are drawn with holes in them.  There are agreements that are drawn specifically with holes and that is our agreement is not going to govern the issue of for instance alimony.  Everything else is resolved.  Alimony’s still open and we’ll address that if and when we get divorced.  That happens a lot when drafting prenuptial agreements.

APPLICABLE FEDERAL RATES.September 2013

Seminars and Webinars

NEW SEMINAR ANNOUNCEMENT:

Thank you to the Sandspur Chapter of the FICPA for inviting Alan S. Gassman to get the heck out of our way in the office to go talk on the topic of The CPA’s Guide to Florida Creditor Protection Planning – More Services Your Clients Need, and Traps for the Unwary” at 5pm on Monday, October 21, 2013 at TGI Friday’s on Fowler Avenue in Tampa.  For more information please contact Rosa Quintela, CPA at rosa@vantagepointtampa.com.

There are 10 available spots for non-member attendees at $25 each, and each attendee will receive dinner, an enjoyable 50 minute talk, and a copy of Gassman & Markham on Florida & Federal Asset Protection Law, which can alternatively be ordered on Amazon.com (click, click, click, click – the dolphins loved it!).

AVOIDING THE TRAPS IN EMR/TECH CONTRACTS….NOW YOU TELL ME I’M STUCK WITH THIS FOR 5 YEARS!

Date: Thursday, September 12, 2013 | 12:30 p.m.

Presenter: Sandra Greenblatt, Board Certified Health Lawyer

Location: Online webinar.

Additional Information: To register for the Thursday, September 12, 2013, 12:30 p.m. webinar please click, click, click here

BP CALCULATIONS FOR CPAS: TRICKS & TRAPS SEMINAR WITH JOHN GOLDSMITH AND ALAN GASSAMAN

Date: Monday, September 16, 2013 | 6:00 p.m.

Location: Holiday Inn Express, U.S. 19 & Gulf-to-Bay Blvd, Clearwater

Additional Information:  Each attendee will receive written materials and a wine tasting and light hors d’ oeuvres will be served.  To register for the event please click, click, click here.

NIP & TUCK: MAKING THE CALL ON OFFICE-BASED SURGERY

Date: Wednesday, September 18, 2013

Presenter: Cheryl White, RN, BS, MSHL, LHRM, LNCC, MSCC, DFHRMPS and Lester Perling, J.D., MHA, PhD, SOB

Location: Online webinar

Additional Information:  To register for the webinar please click, click, click here.

NORTH SUNCOAST FICPA MONTHLY MEETING

Date: Wednesday, September 18, 2013, 4:30 – 6:30 p.m.

Speakers: Alan Gassman and Christopher Denicolo will speak on The Florida CPA’s Guide to Planning with Physicians and Medical Practices

Location: Chili’s in Port Richey

Additional Information: To attend this seminar please email agassman@gassmanpa.com

WEDU ESTATE PLANNING SEMINAR

Gassman Law Associates meets Big Bird – Sesame Street vs. Wall Street?

Alan Gassman will be speaking on the topic of ASSET PROTECTION – ESSENTIAL KNOWLEDGE AND HOT TOPICS

Date: Thursday, September 19, 2013 | 7:30 am – 11:30 am

Location: WEDU PBS Berman Family Broadcast Center

Additional Information:  If you would like to sign up for this seminar please click, click, click here

THE 444 SHOW – STAND YOUR GROUND LAWS

Date: Thursday, September 26, 2013 | 4:00 p.m. (50 minute webinar)

Location: Online webinar.

Presenters: Kym Rivellini and Denis deVlaming

Additional Information:  This webinar qualifies for 1 hour of continuing education credit and costs $30.00.  To register please visit www.clearwaterbar.org

LUNCH TALK – THE POWER OF POSITION MARKETING FOR ATTORNEYS

Date: Monday, October 7, 2013 | 12:30 p.m.

Location: Online webinar

Presenter: John Graden

Additional Information:To register please visit www.clearwaterbar.org

MEET & GREET COCKTAIL HOUR WITH DR. SRIKUMAR RAO

Noted author and nationally recognized speaker, Dr. Srikumar Rao will be joining us for a cocktail party on Wednesday, October 9, 2013 at 6pm in the evening.  We will begin with light hors d’ oeuvres followed by a talk by Dr. Rao on GOOD THING – BAD THING – WHO KNOWS? CHANGING YOUR IMMEDIATE AND LONG-TERM RESPONSES TO EVENTS AND CHALLENGES.

DATE: Wednesday, October 9, 2013

Location:  Holiday Inn Express, U.S. 19 & Gulf-to-Bay Blvd, Clearwater, Florida

Additional Information:  To register for the event please click, click, click here.

PLANNED GIVING CONSORTIUM LUNCHEON

Kenneth J. Crotty, Esq. and Christopher J. Denicolo, Esq. will be speaking at the Planned Giving Consortium Luncheon on the topic of FLORIDA LAW FOR THE ESTATE AND FINANCIAL PLANNER

Date: Thursday, October 10, 2013 | 12:00 – 1:00 p.m.

Location: Spartan Manor, 6121 Massachusetts Avenue, New Port Richey

Additional Information: For more information or to attend this event please email agassman@gassmanpa.com

INTERACTIVE HALF-DAY WORKSHOP WITH DR. SRIKUMAR RAO

On Saturday, October 12, 2013 we are co-hosting an interactive workshop with Dr. Srikumar Rao on the subject of ENHANCED EFFECTIVENESS AND ENJOYMENT OF YOUR PROFESSIONAL AND PERSONAL LIFE – 5 TOOLS YOU CAN START USING IMMEDIATELY.

Date: Saturday, October 12, 2013 | 1:00 – 6:00 pm with an optional 7:00 – 8:00 p.m. question and answer session.

Location: Holiday Inn Express, U.S. 19 & Gulf-to-Bay Blvd, Clearwater, Florida

Additional Information:  To register for the event please click, click, click here.

NOTRE DAME TAX INSTITUTE

Jerry Hesch and Alan Gassman will be speaking on the topic of INTERESTING INTEREST QUESTIONS, PLANNING WITH LOW INTEREST LOANS, PRIVATE ANNUITIES, DEFECTIVE GRANTOR TRUSTS, AND PRIVATE AND COMMERCIAL ANNUITIES

Date: Wednesday, October 16 through Friday, October 18, 2013

Location: Notre Dame College, South Bend, Indiana

Additional Information: Professor Jerry Hesch’s Notre Dame Tax Institute will once again emphasize the importance of income tax planning and implications in addition to estate, estate tax, and related concepts.  Also Paul and attorney Barry will be discussing stepped-up basis tools and techniques, including our JEST Trust.

We welcome questions, comments and suggestions for the presentation that we are assisting Jerry in preparing and presenting.

SANDSPUR CHAPTER OF THE FICPA MONTHLY MEETING

Alan Gassman will be speaking to the Tampa Chapter of the FICPA on Monday, October 21, 2013.  The topic is “The CPA’s Guide to Florida Creditor Protection Planning – More Services Your Clients Need, and Traps for the Unwary.”

Date:  Monday, October 21, 2013

Location: TGI Friday’s on Fowler Avenue in Tampa

Additional Information: To attend this event please email agassman@gassmanpa.com

PINELLAS COUNTY ESTATE PLANNING COUNCIL HALF-DAY SEMINAR

Alan Gassman will be speaking on the topic of HOT TOPICS FOR ESTATE PLANNERS, including same sex marriage, estate tax planning software (with all attendees to receive a free beta version of our new software), and other important topics.

Sandra Diamond will speak on the new Florida laws that impact estate planning, amending of decanting existing irrevocable trusts, and other recent Florida law developments.

Barry Flagg will speak on insurance and estate planning.

Sean Casey of Fifth-Third Bank will give an economic update.

Date: Wednesday, October 23, 2013 | 8:00 am – 12:00 p.m. (60 MINUTE PRESENTATION)

Location: TBD

Additional Information: To attend the meeting or to receive information on joining the Council  please click, click, click here or email agassman@gassmanpa.com

2013 MOTE VASCULAR SURGERY FELLOWS – FACTS OF LIFE TALK SEMINAR FOR FIRST YEAR SURGEONS

Alan Gassman will be speaking on the topic of ESTATE, MEDICAL PRACTICE, RETIREMENT, TAX, INSURANCE, AND BUY/SELL PLANNING – THE EARLIER YOU START THE SOONER YOU WILL BE SECURE

Date: October 25 – 27, 2013 | Times TBD

Location: TBD

Additional Information: Please contact agassman@gassmanpa.com for additional information.

DECODING HEALTHCARE SEMINAR

Alan Gassman will be moderating the Decoding Healthcare Seminar hosted by Fifth Third Bank.

Speakers will include John Harding, President and CEO of Adventist Healthcare Systems, Stephen Klasko, Dean and President of USF Health College of Medicine, David Lewis, CEO of United Healthcare of Florida, Nancy Templin, CFO of All Children’s Hospital and a mystery speaker (other than Colonel Sanders) to be identified.

We sincerely thank Fifth-Third Bank, President Brian Lamb, Ryan Sloan and the Tampa Bay Business Journal for hosting this important public “town hall” discussion that will hopefully lead to improvement of our healthcare systems in the Tampa Bay area.

Date: Tuesday, October 29, 2013

Location: Grand Hyatt, 2900 Bayport Drive, Tampa, Florida

Additional Information: For more information on this event please email agassman@gassmanpa.com

NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION (ICLE) HEALTH LAW SYMPOSIUM – AN ALL DAY SEMINAR

Alan Gassman will be speaking on the topic of “WHAT HEALTH LAWYERS NEED TO KNOW ABOUT FLORIDA LAW”

Date: Friday, November 1, 2013 | 9am – 5pm (Mr. Gassman speaks from 1:10 pm until 2:10 p.m.)

Location: Seton Hall Law School, Newark, New Jersey

Additional Information: Seton Hall University in South Orange, New Jersey was founded in 1856, and they have remodeled since.  Today, Seton Hall has over 10,000 students in its undergraduate, graduate and law school programs and is in close proximity to several Kentucky Fried Chicken locations.

NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION (ICLE)_SPECIAL 3 HOUR SESSION

Alan Gassman will be speaking on the topic of “WHAT NEW JERSEY LAWYERS NEED TO KNOW ABOUT FLORIDA LAW” – A 3 HOUR OVERVIEW BY ALAN S. GASSMAN

Date: Saturday, November 2, 2013

Location: Wilshire Grand Hotel, West Orange, New Jersey | 9am – 12pm

Additional Information: Please tell all of your friends, neighbors and enemies in New Jersey to come out to support this important presentation for the New Jersey Bar Association.  We will include discussions of airboats, how to get an alligator off of your driveway, how to peel a navel orange and what collard greens and grits are. For additional information please email agassman@gassmanpa.com

SALT LAKE CITY ESTATE PLANNING COUNCIL’S FALL ONE DAY “TAX AND DEDUCTIBILITY OF YOUR SKI TRIP” INSTITUTE

Alan Gassman will be speaking on the topic of “PRACTICAL ESTATE PLANNING, WITH A $5.25 MILLION EXEMPTION AMOUNT”

Date: Thursday, November 7, 2013

Location: Hilton Downtown Salt Lake City, Utah

Additional Information:  Please support this one day annual seminar conveniently located near skiing and tourism opportunities.  If you would like to attend this event or receive the materials please email agassman@gassmanpa.com

THE FLORIDA BAR – REPRESENTING THE PHYSICIAN

Date: Friday, January 17, 2013

Location:  The Peabody Hotel, Orlando, Florida

Additional Information: The annual Florida Bar conference entitled Representing the Physician is designed especially for health care, tax, and business lawyers, CPAs and physician office managers and physicians to cover practical legal, medical law, and tax planning matters that affect physicians and physician practices.

This year our 1 day seminar will be held in the Peabody Hotel near Walt Disney World, which is world famous for its daily “march of the ducks” through the lobby (wear easy to clean shoes) and maybe we will have peking duck for dinner.

A dinner for the Executive Committee of the Health Law Section of The Florida Bar and our speakers will be held on Thursday, January 16, 2013, whether formally or informally.  Anyone who would like to attend (dutch treat or bring wooden shoes) will be welcomed.  Your tax deductible hotel room to start a fantastic week near Disney, Universal, Sea World and most importantly Gatorland can include a room at the fantastic Peabody Hotel for a discounted rate per night, single occupancy.

1st ANNUAL ESTATE PLANNER’S DAY AT AVE MARIA SCHOOL OF LAW

Speakers: Speakers will include Professor Jerry Hesch, Jonathan Gopman, Alan Gassman and others.

Date: April 25, 2014

Location: Ave Maria School of Law, Naples, Florida

Sponsors: Ave Maria School of Law, Collier County Estate Planning Council and more to be announced.

Additional Information: For more information on this event please contact agassman@gassmanpa.com.

NOTABLE SEMINARS PRESENTED BY OTHERS:

MEDITATION, Science, Spirituality, Sustainability – An Experimental Workshop by the Bridge and Maulik K. Trivedi, M.D.

On Saturday, September 28, 2013 from 10 am to 1pm the Bridge, a not-for-profit organization that promotes exocentric living, social justice and personal development is providing a 3 hour workshop on Meditation.  The session will be administered by integral psychiatrist and Yogi, Dr. Maulik K. Trivedi and will be accompanied by accomplished sitar player, Douglas Werner.

Date: Saturday, September 28, 2013 | 10am – 1pm

Location: Carrollwood Cultural Center, 4537 Lowell Road, Tampa

Additional Details: The cost for attending this workshop is $45 and you can register by click, click, clicking here.  or call 813-416-3069 for more information.

THIRD ANNUAL FEDERAL TAX INSTITUTE OF NEW ENGLAND

Date: September 27, 2013

Location: Hartford Marriot Farmington Hotel, Farmington, Connecticut

Sponsor: Connecticut Bar Institute

Additional Information: Chairman Frank Berall will be using part of an earlier Thursday Report article on same-sex planning in his presentation. You can also catch an early dose of Jerry Hesch’s talk on Income Tax Ideas for Estate Planning here before the Notre Dame Tax Institute in October, and Bruce Stone will be speaking on Assisted Reproductive Technology Children.  For more information or to register please visit the Institute’s site here.

48th ANNUAL HECKERLING INSTITUTE ON ESTATE PLANNING SEMINAR

Date: January 13 – 17, 2014

Location:  Orlando World Center Marriott, Orlando, Florida

Sponsor: University of Miami School of Law

Additional Information: For more information please visit: http://www.law.miami.edu/heckerling/

16th ANNUAL ALL CHILDREN’S HOSPITAL ESTATE, TAX, LEGAL & FINANCIAL PLANNING SEMINAR

Date: Wednesday, February 12, 2014

Location: All Children’s Hospital Education and Conference Center, St. Petersburg, Florida with remote location live interactive viewings in Tampa, Sarasota, New Port Richey, Lakeland, and Bangkok, Thailand

Sponsor: All Children’s Hospital

THE UNIVERSITY OF FLORIDA TAX INSTITUTE

Date: February 19 – 21, 2014

Location: Grand Hyatt, Tampa, Florida

Sponsor:  UF Law alumni and UF Graduate Tax Program

Additional Information:  Here is what UF is saying about the program on its website: “The UF Tax Institute will provide tax practitioners and other leading tax, business and estate planning professionals with a program that covers the most current issues and planning ideas with a practical, informative, state-of-the-art approach.  The Institute’s schedule will devote separate days or half days to individual income tax issues, entity tax issues and estate planning issues.  Speakers and presentations will be announced as the program date nears to ensure coverage of the most timely and significant topics.  UF Law alumni have formed the Florida Tax Education Foundation, Inc., a nonprofit corporation, to organize the conference.”

Thank you to our law clerks that assisted us in preparing this report.

 

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