[WSBAPT] pension fund

[Kerry Richards]

Mike:
The Deadman's Statute is going to present a proof problem. Of course, if you can obtain IRA account records covering the period of the CIR and then you have others without interest who can testify about the five (5) points of Nash to establish a CIR, then the case law regarding the earnings and accumulations during coverture could then fall into place so as to recognize the surviving person's interest in the IRA and its earnings. You may need an accountant to make the calculations on what interest is attributable to which deposits, but Ben Hawes does that all the time. I do not think it matters who earned more, or who spent more. The basic community property presumption is all earnings and acquisitions is community in character, even during a CIR. Finally, there is a recent case out of the Court of Appeals that refers to all of this as "community-like property" and rejects the "quasi-community property" nomenclature.
Yours Truly,

Kerry A. Richards, Attorney
[cid:image001.png at 01D31B65.31A26710]
The Law Offices of Michael W. Bugni & Associates, PLLC
11300 Roosevelt Way NE, Suite 300, Seattle, WA 98125
EMAIL: krichards at lawgate.net
TEL: 206-365-5500
WEB: www.lawgate.net<http://www.lawgate.net/>






From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Mike Winslow
Sent: Thursday, July 25, 2019 1:42 PM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] pension fund

In our case, we have a party that is the recipient of the separate property, which party would object to separate sourced assets or assets subject to ERISA being characterized as Community Like Property.

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com

This message is from an attorney, so it's confidential. If you are not the intended recipient, it's too late to stop reading this message, but you may not use it for any improper purpose. Huge Disclaimer available upon request.

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Diane J. Kiepe
Sent: Thursday, July 25, 2019 1:17 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] pension fund

Generally ERISA does not apply to Traditional IRAs (compared with SEP IRAS, SIMPLE IRAS and Rollovers from other qualified plans)401, 403 and other tax qualified plans).  The claim based on CIR will be very difficult with a traditional IRA.  Contractually speaking most IRAs define Spouse very clearly and will not deviate.  Equity or finding a different contract exists to these assets in favor of the wife is a challenge to be sure but likely your client's only basis.  Interesting question.  I would be curious to know how it plays out if you were inclined to share.

"Most individuals create and maintain IRAs for their personal benefit. They contribute up to the maximum amount in any given tax year. The contribution to a traditional IRA may or may not be fully deductible depending on the contributor's income and whether or not he is covered by an employer-sponsored retirement plan.
Since these plans are initiated and governed by the individual and not his employer, these traditional and Roth IRAs are not ERISA qualified. Roth IRAs provide individuals with the opportunity to contribute post-tax income to an account which will allow tax-free withdrawal as soon as the account holder reaches the age of 59 1/2."
Best,


Diane J. Kiepe

Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300






From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Mike Winslow
Sent: Wednesday, July 24, 2019 8:31 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] pension fund

Testator dies leaving his IRA to a trust created under his LWT.
Testator was married at time of death, but only for couple years. However, Testator lived with spouse for 10 years before the marriage. Facts for claim of Committed Intimate Relationship are that both worked during marriage, although decedent was the high income earner. Shared a residence together, with mortgage payments made by Testator from his income. Unclear if couple shared other expenses. But assume that there is some basis for claim of CIR and thus a quasi-Community Property claim for period of living together and CP during marriage.

How does federal law regarding IRAs affect claim of surviving spouse to Quasi Community Property?
Spouse wants half of pension (both contributions and growth from contributions) for period of CIR.

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com<mailto:Mike at winslegal.com>

This message is from an attorney, so it's confidential. If you are not the intended recipient, it's too late to stop reading this message, but you may not use it for any improper purpose. Huge Disclaimer available upon request.

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