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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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