Phinney Estate Law Attorney Jamie Clausen will be teaching a Continuing Legal Education (CLE) class on the topic "Collaborative Law 101" today, October 8, 2014, for the King County Bar Association Solo Small Firm Section.  The CLE is scheduled from noon to 1 pm at the King County Bar Association offices at 1200 5th Ave, Suite 700 Seattle, WA 98101.  The CLE is open and free for all members of the King County Bar Association.  For more information contact the KCBA at (206) 267-7100.   

Wondering what the Supreme Court decision not to take up the marriage equality means?  The short answer is progress and continued confusion.  

The Supreme court was expected this session to take up and rule on challenges to lower court ruling that found state laws that didn't grant marriage equality were unconstitutional.  These rulings rested on a variety of grounds varying from the right of privacy to the best interest of children.  By deciding not to take up the issue, the Supreme Court leaves those ruling intake and spread marriage equality. 

The decision not to make a decision immediately effects five states in which federal appeals courts had already struck now bans on same sex marriage: Virginia, Indiana, Wisconsin, Oklahoma, and Utah.  In the case of Virginia, marriage certificates are being issued now.  In other states it may take up to 30 days for the process to start.

Eventually it will also bring along North Carolina, South Carolina, West Virginia, Colorado, Kansas, and Wyoming as those states are in the same federal circuits.  That means that as soon as someone files suit in those states challenging those state's bans on same sex marriage the courts will be bound by precedent to overturn those bans.  Those suits are expected to be filed within days and be could be decided in the next few months.  That means by that within a year we can expect same sex marriage to be legal in at least 30 states. 

That still leaves 20 states without marriage equality.  Such a patchwork approach leaves many gaps for same sex married couples with regard to rights to custody and the right to divorce as they move from jurisdiction to jurisdiction.  Which is why we still encourage all same sex couples to complete a co-habitation agreement and follow up with step parent adoptions to make their rights portable even if they are legally married.  

It also means that there are now a large number of states were same sex couples are free to marry but are not protected by anti-discrimination statutes so they can still be fired or denied housing or other rights crucial to actually protecting the rights of their families.  

Most Court watchers thought that the Supreme Court would be either granting same sex marriage nationwide or endorsing bans that set the movement back.  Instead it seemingly endorsed the slow patchwork movement toward progress.  As MLK Jr said "The arc of the moral universe is long, but it bends towards justice."  We are now eleven states closer.

If you have questions about how to best protect the rights of your family, please contact for a free consult on estate planning, relationship agreements, step parent, or adult adoption at [email protected] or (206) 459-1908.  

For a helpful map of the impact of today's decision see this helpful map.  

The most important decision new parents must make in creating an Estate Plan or updating an Estate Plan is who they want to take physical custody of their children if they should be temporarily disabled or die. This person can be the same person or a different person than the one who is selected to care for the child’s finances.

To make this choice, it is important to understand the circumstances in which this person would assume this role and what their duties and powers would be. 

In Washington, if there are two biological or adoptive parents who are both willing and able to care for a minor child and both are taking part in raising the child, then if one parent dies the other will have the right to assume full custody of the child, whether the parents are still married or not. If both parents die or are temporarily disabled so that they cannot care for their child, any willing and able adult can come forward and the court must choose between them based on the best interests of the child.

The person who takes physical custody of your child is known as the guardian of the person of your child. They are in charge of choosing where your child lives, health care choices, and education choices. They are also the ones to take over the key intangible parenting responsibilities of providing attention and affection and providing social, ethical, and religious training modeling. 

While parents do not have to name the same person in their wills to serve as guardians it is usually better for all involved if they can come to an agreement so that it isn’t left to fate based on who dies first. You must also decide whether to name a single individual or couple. If you select a couple, the court will decide custody as between them if they should later divorce.

Most important, the person must be willing to accept the appointment and should ideally be willing to be spend some time talking to you about what your expectations are and establishing a strong relationship with your child while you are alive and healthy. Don’t forget that this isn’t a draft. Ask the person you select to make sure they are able and willing to serve in this capacity.

Need some insight on the process of choosing someone?  We're here to help!  You can contact us via email or call 206.459.1908.  

On September 16, 2014 the Washington State Court of Appeals, Division II issued a new opinion, In re Marriage of Byerley, that addressed the ways courts should determine whether homes lived in by unmarried couples should be treated as quasi-community property.   

By way of background, Washington State has for many years had case law that allowed courts to treat property acquired by unmarried couples who were living in "intimate and committed" relationship as "quasi community property" and divide that property between them when that would be the most equitable outcome.  These laws have applied to both same sex and opposite sex couples, but one of the public policy issues such cases seemed to be aimed at addressing was ways to allow same sex couple, unable to legally marry, to have their property divided at breakup or death in the same way married couples were allowed to do so.  It has been unclear how strong the courts commitment to this case law would be with the legalization of same sex marriage and this case is one of the first in recent years to appear to take a less generous stance on quasi community property.   

In Byerley, the couple were married and seeking a divorce.  One of the disputed assets was a property purchased by the husband, before the marriage but around the time that the couple began living together in an intimate and committed relationship.  The husband signed a purchase and sale agreement in July of 1996, took title in September of 1996, and began living in the house with his then girlfriend, soon to be wife, at that same time.  The house was titled in his name alone and refinanced several times in his name alone.  The couple used joint resources to pay the mortgage and other household expenses.  The trial court found that the property had been acquired during the relationship and was to be treated as quasi-community property.  The appellate court disagreed.  It held that the property was "acquired" for purposes of determining its characterization on the date the purchase and sale agreement was signed, not the date the deed transferred.  Therefore, it was acquired before the couple began living together and was assumed to be separate property absent evidence that the party who owned it as separate property intended to transfer it to the community.   

It is not uncommon now for unmarried couples to live together in homes one of them purchased prior to the relationship.  As joint assets are used to maintain the property and improve it, the nature of the property can become less clear and this can lead to serious problems when the couple splits or one dies.  Couples wishing to avoid such disputes are often best served by setting out how that property should be treated in a co-habitation agreement that states what property will remain separate and what will be treated as community property.  While this most recent case seems to be a bit of a reversal of the trend to find greater and greater rights to quasi-community property, it also shows how contentious and expensive such disputes can become.  

If you are interested in finding out more about how to create a co-habitation agreement with your partner, contact us to schedule a free half hour consultation at (206) 459-1908 or [email protected].

Many Seniors have legitimate and serious concerns about the ways that normal aging and the health crises that become more common with age will impact their ability to live with independence and dignity. Others fear that medical choices made when they can no longer make choices for themselves will result in their either not getting care they need and want or being kept artificially alive while they are suffering or no longer meaningfully alive.

Seniors wanting to tackle these issues need to start by having a working understanding of the kinds of legal documents that can be executed to create a good plan for making health care choices if they become incapacitated or otherwise unable to provide informed consent for health care.

The most basic and most important end of life document is a valid Durable Power of Attorney for Health Care (DPOAH) naming someone as the patient’s Health Care Agent. A Health Care Agent is the person who will make all medical decisions for the patient should they find themselves in a medical crisis and unable to provide informed consent either because they cannot communicate or cannot adequately understand their medical options.

Many people assume that a spouse or adult child is their automatic Health Care Agent. Under Washington State’s default statute for those who do not make their own plan, spouses and registered domestic partners are given priority in decision making, followed by adult children. However, the ultimate decision maker is the patient’s guardian, if one exists, and family disputes can erupt and health care decisions can be delayed if family members or friends attempt to be named guardian when there is a lack of consensus about care. For those who are single and have either multiple children or no children the need to make it clear who has decision making authority is even more important. 

In any case, medical crisis decision making usually goes best when it is clear who the decision maker is and medical providers are confident that disputes about who is in charge are not part of the equation. That clarity is best provided by a DPOAH.

Want to learn more?  Be sure to contact us for a free 1/2 hour consultation.  You can email us at [email protected] or call 206.459.1908.

Aging and Disability Services — the Area Agency on Aging for Seattle-King County wants to get the word out about two programs that help families navigate the elder care maze.

• Senior Information & Assistance (1-888-4ELDERS) is for anyone age 60+ and their family members who needs help identifying resources that meet their needs.
• The King County Caregiver Support Network provides guidance to unpaid primary caregivers of adults of any age who are unable to care for themselves—typically family members or close friends or neighbors.

Leaving things to much younger relatives?  Here is some information to help you understand the terms.  




Generation Skipping Transfer: A transfer of property, whether during life or at death and whether outright or in trust, to an individual (eg, a grandchild) who is two or more generations younger than the donor.

Generation Skipping Transfer TAx ("GST TAX")
A tax levied on all generation skipping transfers to the extent that the cumulative value of all such transfers exceeds the generation skipping transfer tax exemption amount, currently $5.4 million.  Decedent's generation skipping transfer tax information is reported on Schedule R: Generation-Skipping Transfer Tax of decedent's federal estate tax return (Form 706).

Generation Skipping Trust
Any trust having a beneficiary who is two or more generations younger than the trustor.

Want to learn more?  Be sure to contact us for a free 1/2 hour consultation.  You can email us at [email protected] or call 206.459.1908.

The legal criteria in Washington requires that an agent must be at least 18 years old and not be the patient’s doctor or other employee of their medical provider unless they are also an immediate family member. Otherwise, anyone who is willing can serve. 

 In naming a Health Care Agent, it is usually easiest to name one agent to serve at a time, with at least one successor, or back-up person, in case the first person is not available when needed.  However, there may be good reasons for selecting more than one person to serve at a time as well, such as a desire to include all of the patient’s children. 

 If the patient chooses more than one person they will need to include how they want decisions to be made (i.e., all must agree versus majority rule). It is also possible to include a request that the primary agent consult with others, be it family members or a close friend with greater medical knowledge, while still leaving only one final decision maker.

If the best agent lives far away, it is possible to name someone the patient trusts who lives nearby to serve as a temporary agent until your choice agent is able to come to the treatment facility, if the person the patient most trusts to make the ultimate decisions lives far away.

If there are no good choices among family members or friends, there are professional fiduciaries who can serve as agents.

An attorney familiar with disability planning can help the patient to think through the pros and cons of various arrangements and think creatively about solutions to potential problems that might arise.

Want to learn more?  Be sure to contact us for a free 1/2 hour consultation.  You can email us at [email protected] or call 206.459.1908.

Making the decision to have a child is momentous. 
 It is to decide forever to have your heart go walking around outside your body.
Elizabeth Stone

Estate planning is the process of deciding and documenting what should happen if you or your partner becomes disabled or dies. Everyone can benefit from proper estate planning regardless of their assets or family situation but it is perhaps most important for people with minor children. 

For those who do not engage in any advance planning or who fail to document their plan into binding legal documents, the State of Washington has developed a default system for determining who can make health care choices if they become disabled and who would receive your assets if they die. While this default system may not match your actual desires and may lead to areas of uncertainty that can cause conflict and/or waste resources, these default rules do exist and work for most people.

However, there is no default rules regarding the care of minor children if both their parents die or become disabled. Instead, the children can be placed into foster care until one or more willing adults volunteer to become their legal guardian. The court then engages in a lengthy and often expensive investigation of these individuals before appointing one. If no qualified adult comes forward, the child remains in state care until they reach 18. If more than one adult comes forward, the custody battle can make the process even more expensive and delayed. Once the court has appointed an individual, any assets for the child’s care are controlled by the court and court reserves the right to second guess and control all decisions about investments and expenditures. This court oversight can be very expensive and may result in insufficient assets being left over to provide for the child’s care and higher education.

Because of the importance of estate planning for parents, our firm dedicates at least 25% of its practice to pro bono service for low income families with terminal illnesses and free community education for families.   

Want to learn more?  Be sure to contact us for a free 1/2 hour consultation.  You can email us at [email protected] or call 206.459.1908.

Jamie has been working with the Program for Early Parent Support (PEPS) by serving as a free speaker for PEPS groups interested in Estate Planning since 2008.  Since that time she has done dozens of PEPS presentations for groups with kids ranging from 5 weeks old to 8 years old. Her goal with these presentations is help parents understand what they need to do to protect each other and their child in case of a death or health care crisis and have the tools to get started on making these decisions and selecting a team to put them in place. Jamie started volunteering with PEPS as part of Phinney Estate Law's commitment to providing free community education and has found that working with parents in planning is one of her favorite parts of her practice.  

If your PEPS group or other parenting support group is interested in having Jamie come and speak, contact us at [email protected] or call (206) 459-1908.