Estate of Kimberly A. Hicks, Deceased, Key Trust Company of Ohio, N.A., Administrator - Page 19




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          and the elderly, is rapidly growing and changing with a frequency           
          that seems to rival tax law’s.  The policy decisions already made           
          by Congress and the states in that area--acknowledging the use of           
          trusts and asset transfers in preparing to qualify for Medicaid             
          benefits, but limiting them and, in cases like this, subjecting             
          them to state-court review--strongly counsel us to not second-              
          guess those courts in the guise of reallocating settlements years           
          later in estate-tax cases.                                                  
               A second factor making us reluctant to upset the allocation            
          here is that the initial allocation of the settlement was not               
          between taxable and nontaxable amounts.  Unlike Robinson, the               
          allocation here was entirely among various causes of action all             
          of which produced nontaxable transfers to the Hickses.  That                
          reduces the probability that tax avoidance was driving the                  
          allocation--to be sure, there would be foreseeable tax                      
          consequences, but those consequences depended on questions that             
          couldn’t be answered with much certainty:  Would Clyde and                  
          Theresa die before Kimberly?  How much money would the trusts               
          have to spend on her?  Would the Blue Cross/Blue Shield insurance           
          lapse sooner or later or not at all?                                        
               And we finally return to Ohio’s law expressly giving probate           
          courts the authority to review intrafamily allocations of tort              
          settlements when minors are involved.  This reflects the all-too-           
          human likelihood that not all families will respond to the type             







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Last modified: November 10, 2007