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magnifying glass over book

When most people use the word “property,” they typically mean real estate or land, such as: “She owns 50 acres of property in Harrison County.” But, for estate planners, the word property has a much broader meaning. For estate planners, property is what we lawyers call a “term of art.” A term of art is a word or phrase that has a specialized, specific meaning within a particular field (such as the legal profession). Terms of art are abundant in the law; other legal terms of art you may have heard of include “double jeopardy,” “burden of proof,” and “punitive damages.”

bookcase with ladder

Two Broad Classifications

There are two broad classifications of property—real property and personal property. Real property includes land and whatever is built on the land or attached to it. It includes buildings (like houses and grain silos), fences, tile lines, and mineral rights, for example.

Personal property is best described by what it is NOT. Anything and everything that is not real property, is then personal property. It can be easiest to think of this in terms of movability. Typically real property cannot be picked up and moved. Yes, you could dig up dirt from your plot of land and move it to your neighbor’s plot of land, but you cannot actually “move” the land.  And, sure, you could argue that you could move a shed from one corner of the yard to another, but not easily.

To drive this point home, let’s think about that shed. Let’s say I want to build a shed. The lumber, tools, and paint I brought to the site to build the shed are personal property; the shed itself is real property.

Intangible and Tangible Property

Personal property is broken down into tangible property and intangible property. Tangible personal property has physical substance and can be touched, held, and felt. Examples of tangible personal property are numerous, just a few examples are furniture, vehicles, baseball cards, cars, comic books, jewelry, and art.

Intangible personal property includes assets such as bank accounts, stocks, bonds, insurance policies, and retirement benefit accounts.

Pop Quiz!

Can you classify the following as real property, tangible personal property, or intangible personal property?

Your Twitter account.

This is intangible personal property. Yes, your social media presence and digital accounts are intangible property. (Don’t forget to account for this property in your estate plan!)

Your IRA.

Again, this is intangible property.

Farmland, including its silos and fences.

Real property.

Your comic book collection.

Tangible property!

MacBook Air laptop computer.

Your computer is tangible property. But, it may contain intangible property which could well have monetary value, such as a document containing a recipe you wrote on how to bake a better apple pie, or a software you programmed.

This quiz, and overall discussion about property, sparks a big question…

What Happens to Your Property When You Die?

When you die, what happens to your property depends in large part on whether you have a will (as a part of a complete estate plan) or not. If you have a will, then your property will pass to your beneficiaries just as you intended. An exception: some intangible personal property, such as retirement and bank accounts, have beneficiary designations. Such property will pass to its intended beneficiary without a will. (Don’t forget a beneficiary designation trumps what’s written in a will, if there is any discrepancy between the two.)

If you die without a will, you are leaving it up to the Iowa intestacy laws to decide who will receive your property. Decisions as to who of your heirs at law receive your property will be made without any regard as to what you may have wanted, or may have not wanted, if you would have had a say in the matter. Long story short, it’s a good idea to put an end to the excuses and enlist a qualified estate planner to draft your personalized, quality estate plan.

Whether it’s real or personal, tangible, or intangible, act now to protect and prepare your property for the future. Get an estate plan. You can reach me most easily by email at gordon@gordonfischerlawfirm.com or call my cell, 515-371-6077. Don’t delay—write or call today.

two hands with wedding rings

Asking if your current spouse of many years can disinherit you is a question I hope you never have to ask. But, it’s an interesting query to say the least, and the answer may astound and amaze you.

It’s super uncomfortable, even for an estate planner like me, to think about my wife leaving me out of her estate plan, let alone her passing away. So, I’m going to use a hypothetical example.

Mr and Mrs sign

Scenario: John, Mary, and the Lover

Let’s say John and Mary are legally married. One sad day, Mary has a massive heart attack and dies. John is shocked to discover that Mary had a valid will he knew nothing about. Far worse, Mary specifically disowned John, said John should get absolutely nothing, and instead Mary left her entire estate to her paramour (aka lover); someone John knew nothing about!

Wow, ice cold, Mary, ice cold.

What result? I’ll give you four options, pick which you think is most correct.

  1. The “manstress” gets everything, John gets nothing.
  2. John gets everything; the lover gets nothing.
  3. The lover gets everything, but only after a lengthy, awkward, and hard-fought court battle.
  4. The lover gets some of the estate, but so does John.

Have you picked?

Answer “D” is most correct, at least under Iowa law.

You see, under Iowa law, a spouse cannot completely disinherit another spouse (assuming they have a valid marriage and they are married at the time of the first spouse’s death).

Elective Share Law

Iowa has an “elective share” law. (You can read the specific Iowa Code Section here if you’re curious. The citation is Iowa Code § 633.237).

In Iowa, a surviving spouse chooses between inheritance under a will OR elective share in the deceased spouse’s estate. Until the surviving spouse files an affidavit for claiming elective share, it will be presumed that the surviving spouse will take the inheritance under the will.

In Iowa, the elective share of the surviving spouse comprises of all of the exempt personal property and 1/3 of the value of all real estate, after the debts have been paid off and 1/3 of whatever is remaining of personal property. The surviving spouse may occupy the homestead in lieu of taking the 1/3 share of real estate of the deceased spouse.

So, Can My Spouse, Disinherit Me?

Bottom line, my wonderful wife, Monica, cannot disinherit me so long as we are legally married. Even if she (or her lawyer) writes a will that states I should get not one single penny from her estate no matter what, I would still have the option of choosing an elective share. Obviously, in this case, just like in John and Mary’s situation, the decision will be an exceedingly easy one. The will give me zero, zilch, nada, nothing—of course I am going with the elective share option.

Gordon and Monica wedding day

This is Monica & I on our wedding day!

But you know what? The elective share is a narrow exception that proves the general rule. By that, I mean the following: one of the great reasons to do proper estate planning, is that you can give what you want, to whom you want, how you want, when you want. (And if you do NOT do proper estate planning, well, then, you leave it up to the Iowa Legislature and Iowa Courts to dispose of your property).

Again, it bears repeating: estate planning allows to give what you want, to whom you want, how you want, when you want. On top of accounting for your loved one in you estate plan, you also have the wonderful opportunity to help the cause or causes that you are most passionate about through charitable bequests in your will.

Want more on this subject? Check out this Facebook live video of me explaining this “in person.”

Have more questions about you will and estate planning? Maybe how you and your spouse can achieve your collective and individual goals? How about avoiding conflicts of interest? I offer everyone a free one-hour consultation. You can reach me anytime through email at gordon@gordonfischerlawfirm.com or call my cell at 515-371-6077. I’d truly love to hear from you!

Earlier this month we launched fireworks, grilled burgers, and spent time with loved ones while celebrating the Fourth of July. America’s Independence Day stands as a surrogate of sorts for the ideals that our great nation was built on. The Fourth of July has always been a special holiday for me, and my family, as my parents immigrated to America from Germany just before the Iron Curtain came down.

Along with life, liberty, and the pursuit of happiness, I like to highlight the freedom we have to give charitably to the causes and organizations that are important to us. The most economical, tax-wise philanthropy can involve unique strategies (like “bunching” multiple years’ worth of giving into one year) and gifting non-cash assets (such as appreciated stocks). You can also consider writing charitable bequests to the tax-exempt organizations you support into your estate plan. The bottom line? There are so many different, effective charitable giving tactics you can employ to support your community. In turn, it makes America an even better place to live!

I’ve blogged about many, many tax-wise charitable tools and techniques, but here are just four (in honor of July 4th) you ought to consider (in no particular order):

Charitable Gift Annuities (CGAs)

A charitable gift annuity is a contract. More specifically, it’s a contract between a donor and a charity, whereby the donor transfers cash or property to the charity in exchange for a partial tax deduction and a lifetime stream of annual income from the charity.

Charitable Remainder Trusts (CRTs)

A charitable remainder trust is a very useful type of trust. It’s an an irrevocable trust that generates a potential income stream for you, as the donor to the CRT, or other beneficiaries, with the remainder of the donated assets going to your favorite charity or charities. I break down CRTs here.

Charitable Lead Trusts (CLTs)

A charitable lead trust is perhaps most easily defined as the inverse to the charitable remainder trust (CRT). A charitable lead trust is an irrevocable trust designed to provide financial support to one or more charities for a period of time, with the remaining assets eventually going to family members or other beneficiaries.

Simple Bequests

We may forget with all the fancy tools and techniques that are available, but let’s not forget that a simple bequest, to the charity or charities of your choice, can be incredibly powerful! In fact, even a game changer for many nonprofits. Consider adding your favorite charity to your will. And if you don’t have a will yet, that’s the first step you should take. You can download my EPQ for free to get started on building the estate plan that will help provide for your family AND favorite causes.

green plant growing

Whatever your giving goals and financial situation, I can help you structure your philanthropic gifts, so they provide maximum tax-wise benefits, while also ensuring your charitable intent is both respected and followed. Get smart about giving and contact me at Gordon@gordonfischerlawfirm.com or 515-371-6077. I offer everyone a free one-hour consultation.

book club june

Spread out your beach towel (even if it’s just in your own backyard) and crack open this month’s GoFisch Book Club pick: The Bettencourt Affair, by Tom Sancton.

Bettencourt Affair book cover

The book takes its readers on twists and turns through an all too real French soap opera of the rich, powerful, and famous. Its characters including Liliane Bettencourt, one of the richest women in the world and heiress to the L’Oreal cosmetics fortune; former President of France, Nicolas Sarkozy; an intriguing (or scam) artist; a worried (or jealous) daughter; and a whole slew of lawyers, judges, and other professionals wrapped into the web this story weaves. There’s also some interesting WWII back story that comes into play as well as political payoffs and quid pro quo. It’s a quick read and sumptuous in the surrounding luxury of private jets, islands, and Swiss bank accounts. Yet, entirely sobering when remembering that all this wealth caused the emotional heartache, numerous lawsuits, and ruined careers in its wake.

GoFisch Book Club Flyer

 

Why is this the GoFisch book club pick of the month? Despite its tabloid-esque plot, legal aspects of estate planning are plentiful throughout the life and times of the players with multiple types of trusts, a will that’s being constantly updated, transfer of long-term capital assets, questions of testator incapacitation, multiple conflicts of interest, and impressive charitable giving tools and tactics.

One of the central questions asked throughout the legal battle that ensues throughout the latter half of the 416 pages is: did one man (François-Marie Banier) take advantage of a wealthy old woman or was he simply the supportive friend and recipient of numerous unsolicited gifts. In this course of all of this, multiple other advisors, employees, and politicians get implicated in “l’affaire Bettencourt” as the courts question who did and did not unduly benefit from Bettencourt’s supposed generosity, and who may or may not have had unethical influence over her decisions. The answers to these are answered in part from the decisions of the courts, but

Also, for anyone interested in the legal systems of other countries The Bettencourt Affair offers a sort of crash course on explaining how France’s judiciary operates and how it.

As you’re reading this book consider the estate planning-related questions:

  1. What role did estate planning play in the Bettencourt Affair?
  2. Do you think Liliane Bettencourt;s estate was taken advantage of and if so, by whom?
  3. Do you believe Liliane Bettencourt was of sound mind and body in order to make the financial decisions and gifts she did? What characteristics come into play when proving incapacitation and need for guardianship or conservatorship?
  4. Just for fun…if you had the kind of wealth that the Bettencourts did, what kind of trusts would form and who would the trusts benefit? What organizations would you like to benefit from your tax-wise philanthropic efforts?
  5. What are your thoughts on the French judicial system as exemplified through this book? How does it compare to the U.S. for both the better and the worse?

It’s worth noting here that there almost an endless number of different types of trusts and an adept estate planning attorney can help their clients form a trust that fits with their estate planning, financial, and charitable giving goals.

 

coffee-book-table-word-nerd

It’s also important to remember that trusts are certainly not just for the wealthy. Indeed many regular folks like you and I can stand to benefit from creating different types of trusts. After (or before) you dive into this GoFisch Book Club pick for the month, don’t hesitate to contact Gordon Fischer Law Firm with your trust-related questions or for a consultation if a trust fits your individual needs.

Leave your thoughts on the book in the comments below and let us know if you have any estate planning or nonprofit-related book picks for the upcoming months!

xray-doctor

One of the six main parts of an estate plan that every adult Iowan should have is a health care power of attorney (POA). This legal instrument allows you to designate the person that you want to make health care decisions for you in the chance that you become incapacitated and unable to make such decisions for yourself.

Who can be my Health Care POA Representative?

The person you pick is your agent/representative for purposes of health care decision-making and should be (a) a competent legal adult; (b) someone you trust would make health care decisions that align with your best interests; and (c) someone who agrees to the role. Some people elect to have the same person be their designated proxy for both the health care and financial powers of attorney. Other folks choose two different individuals for these roles.

It is highly advised to name an alternate representative in case the person you appoint becomes unable or unwilling to act on your behalf.

The law does not allow your health care designated agent to be a health care professional providing health care to you on the date you sign the document. It also cannot be any employee of the doctor, nurse, or any hospital or health care facility providing care to you. The only exception is if that employee is a close relative.

What types of Health Care Decisions does a POA Cover?

A health care power of attorney can govern any kind of decision that is related to your health that you allow. You could, for example, limit your representative to certain types of decisions. Or, you could allow your representative to make decisions for any type of health care choice/issue that may arise. This includes decisions to give, withhold, or withdraw informed consent to any medical and surgical treatments. Other decisions could relate to psychiatric treatment, nursing care, hospitalization, treatment in a nursing home, home health care, and organ donation.

 

Assorted pills

When Would I use a Health Care POA?

A health care POA comes into play only when, in the certified and recorded opinion of your attending physician, you are unable to make health care decisions for yourself. Your named agent is then able to make decisions regarding your care, receive access to records, communicate with health care providers, and other important actions that would otherwise be off limits.

What is a Living Will?

The name of this document is bit of a misnomer. Sometimes referred to as an advanced directive, a living will is best thought of as a written declaration that informs health care providers of your desire to NOT have life-sustaining treatment continue if you are diagnosed as terminally ill or injured, are unable to communicate your choices regarding your treatment, and such treatment would simply prolong the inevitable and imminent process of dying. You may consider a living will an important part of the whole that is your health care power of attorney document

Under Iowa’s Living Will Law, a living will does not permit withholding or withdrawing food or water unless they are provided intravenously or by a feeding tube. Additionally, medication or medical procedures necessary to provide comfort or to ease pain are not considered life sustaining, and may not be withheld.

Because of the sensitive nature of the living will, before signing the document make certain the provisions included align with your philosophical and/or religious beliefs and wishes.

Important Definitions

Life-sustaining treatment” is defined as the use of medical machinery such as heart-lung machines, ventilators, tube feeding, and other medical techniques that may sustain and possibly extend your life, but which won’t, by themselves, cure your condition.

Terminal condition,” under Iowa law, is defined as an incurable or irreversible condition that without life sustaining procedures, results in death within a relatively short time or a comatose state from which there can be no recovery, to a reasonable degree of medical certainty.

In all states the determination as to whether you are in such a medical condition is determined by qualified medical professionals—typically your attending physician and at least one other medical doctor who has examined or reviewed your medical situation. The decision must be recorded in your medical records.

 

doctor stethoscope

How do I Make a Living Will?

This is one of the documents I include in the estate planning packages for my clients, if they so elect to have one. The first step, at least when working with GFLF on your estate plan, is filling out my Estate Plan Questionnaire, which is where you can choose “yes” or “no” for creating a living will.

In terms of qualifications, you must be a competent, legal adult who is age 18 or older. The declaration can be signed in the presence of two witnesses (who also must be 18 or older and should not be family members if at all possible) or a notary public. Note that health care employees responsible for your care cannot be the witnesses.

Of course, the declaration for a living will must be signed voluntarily and without coercion.

What do I do Once I Sign a Living Will?

The original living will must be given to your doctor in order for it to be acted upon. Therefore your health care designated agent should have access to the original if the time comes when it is need.

Under Iowa law, it is your responsibility (and therefore your health care proxy if you are unable or incapacitated) to provide your attending physician (the doctor who is primarily responsible for your care and treatment) with the declaration. This attending physician might not be your family doctor, but it’s smart to give a copy of the living will to your family doctor to have on file. In addition, the living will’s existence should be made known to members of your family.

What Happens if I Change my Mind About my Living Will?

A living will is revocable at any time. You may revoke the document easily by notifying your attending physician of your intent to do so. This communication of intent will then be recorded by your attending doctor as a part of your medical record. If this is the case I also recommend contacting your estate planning attorney and health care designated agent to communicate your change. Depending on what is written in your health care POA that document may need revisions or additions, which is something your estate planning attorney can facilitate.

surgeons walking down hallway

What About a Living Will Made in Another State?

This is a good question as each state has its own laws related to living wills and such decisions. A living will made in another state will be valid in Iowa to the extent that the declaration aligns with Iowa laws on the matter.

That being said, it’s best to have a current living will declared in the state you reside in and are most likely to receive care in. So, if you signed a living will while living in Colorado and then move to Iowa, it’s best to sign a new living will that is specific to Iowa’s laws. (Plus, moving across state lines is one of those big life changes that mean you should update your entire estate plan to be sure it’s valid under your new home state’s estate, property, and inheritance laws. So, you may as well update your living will while you’re at it!)

What Happens if I don’t Have a Living Will?

Without a living will stating your directives, others will be forced to decide if life-sustaining procedures will be used for you. (Typically this is a situation one does not want to place on their loved ones.) If you have a health care power of attorney, that representative will make the decisions regarding life sustaining treatments and procedures.

If you also don’t have a health care power of attorney in place, Iowa law states that the attending physicians and the first person available from the following list will make such health care decisions for you  in front of a witness:

  • A guardian, if applicable (Note that a court appointed guardian must obtain court approval before making this decision.)
  • Your spouse.
  • Your adult child (or a majority of your adult children who are available).
  • Your parent or parents.
  • Your adult sibling.

Communication is Key

Just like it’s important to discuss your estate planning decisions with your executor and family, it is equally important to discuss your health care and life-sustaining wishes with the person who will be your agent. You may also plainly state directives on your health care power of attorney form such as “I want all available organs to be donated in the event of my death.”

Review and Get Started

Whew. That was a lot of important information in one blog post. Let’s review how the two different but compatible documents of health care power of attorney and a living will:

  • Your health care power of atttorney gives a proxy your designate and trust the authority to make medical decisions for you if you are unable to make them for yourself.
  • The living will is a document specifically directing your physician that certain life-sustaining procedures should be withdrawn or withheld if you are in a terminal condition and unable to decide for yourself.

You can have a health care power of attorney document without having a living will. And, while not advised to not have a health care power of attorney document in place, you could technically have a living will without a health care power of attorney.

If you don’t have health care power of attorney or a living will in place, there’s no time like the present to make your decisions known and recorded well before the unexpected happens. Fill out my easy Estate Plan Questionnaire to get started. If you have any questions about either of these documents, don’t hesitate to contact me at gordon@gordonfischerlawfirm.com or by phone at 515-371-6077.

Prince 1958-2016

When Prince died in 2016 the world lost an icon and amazing contributor to music and art. Unfortunately, it has come to light that the award-winning artist passed away without an estate plan. Considering all of Prince’s 12 properties, eight vehicles, fine art, unreleased music, and hoarded gold bars, it’s estimated his entire estate could be worth $300 million pre-tax. Prince didn’t have any stocks or bonds but he did have about $6 million spread across four companies. A Minnesota court judge on the issue said without the will the estate’s current status is “personal and corporate mayhem.” Comerica Bank & Trust—the company that took over the Bremer Trust’s duties to administer the “Purple Rain” singer’s estate earlier this year—is still appraising the total value of the estate and itemizing everything Prince owned.

Paisley Park

Prince’s Minneapolis estate, Paisley Park Studios

The situation has created a tragic real world example of the infighting and conflict that can occur if passing away without a will; currently there are six potential heirs to Prince’s fortune including his sister and five other half-siblings.

Now, most Iowans aren’t going to have multiple gold bars sitting around and properties valued at over $25 million total, but that doesn’t make what assets and property you do have any less important. If you don’t have a will, it can cost your family and friends a lot of time, a lot of money, and indeed lots of anxiety and even heartache. Here are four reasons you need a will.

  1. Without a will, probate courts and the Iowa Legislature decide everything about your estate.

If you die without a will, you are leaving it up to the legislature/courts to decide who will receive your property. Or possibly even who will get to raise your children!

  1. Without a will, you cannot choose a guardian for your children.

After Prince died multiple claims were put forth about potential biological and adopted children. Whether or not those claims are true, you likely do know who your children are and if you die without a will, the courts will choose guardians for your children. One of the most important aspects of a will is that it allows you to designate who will be the guardian for your children. This can ensure that your children are cared for by the person that you want, not who the court chooses for you.

  1. Without a will, the probate court will choose your estate’s executor.

If you die without a will, the probate court is forced to name an executor. The executor of your estate handles tasks like paying your creditors and distributing the rest of your assets to your heirs. Of course, if the probate court has to pick who will be your estate’s executor, there is always a possibility that you would not have approved of that person if you had been alive.

If you have a will, it will name an executor who will carry out all of your final wishes, pay your bills, and distribute your assets just as you wanted.

Prince and purple symbol

  1. Without a will, you can’t give your favorite nonprofits gifts from your estate.

Prince was a resident of Minnesota, and each state has different matters regarding intestate succession (dying without a valid will). If you die without a will, your estate assets—your house, savings, life insurance, trusts—will pass to your heirs under Iowa’s statute. But, if you have a will, you can include gifts to your favorite nonprofits and see that they are helped for many years to come. Prince may have wanted to give to charities given his track record while living. He gave to Black Lives Matter, Harlem Children’s Zone, and National Public Radio. Prince was actively engaged with #YesWeCode, an initiative to train black children for good jobs in the tech industry. He gave more than $1.5 million over just two years to Love 4 One Another Charities Tour and supported an environmentalist group working to fight climate change and grown green jobs among other initiatives, Green For All. Regrettably, without an estate plan Prince didn’t have a chance to support these charities through his estate in the event of his death.

s-town theme

Let’s be honest, the topic of estate planning can be a little, well, dry. Every lawyer, financial advisor, real estate agent, and the like will encourage you to have a quality estate plan professionally drafted, but it tends to be one of those things you’ll get to eventually. Life happens, work piles up, your to-do list grows longer and deciding what you want done with your remains after you die seems like a worry for another day. But, once in a great while a story comes up where the topic of estate planning is so necessary and uniquely integrated that it’s hard to ignore—cue the buzz-worthy podcast, S-Town. The podcast broke a record with 10 million downloads in four days, so don’t just take my word for it.

S-Town header

Caution: A few spoilers ahead

If you haven’t listened to S-Town and don’t want to know ANY details of what unfolds, stop reading now. Go listen and then come back to read how S-Town exemplifies some of the key reasons you need a will ASAP.

The highly bingeable story from Serial Productions (masterminded by the producers at This American Life and Serial), takes place in a small town in Alabama. As This American Life producer Brian Reed dives into what appears to be a true crime story, in line with the first season of Serial, the tale takes an unexpected twist following an unanticipated death.

Brian Reed

Brian Reed, S-Town

The person who passed away didn’t have an estate plan. At first this may not seem like a big deal, but without a last will and testament, the individual’s death left a wake of conflict and confusion. Without an estate plan, a mother with dementia is left without defined care and guardianship; 13 dogs are left without a pet trust to declare who will care for them; property is fought over; a felony charge is issued; a religious funeral is held despite the deceased’s atheism; a house and land are sold, likely against the wishes of the individual if they had been alive; an immaculate, amazing garden maze will be destroyed; and because the deceased was “unbanked” there were no cash assets to pay for a funeral and other important costs. This person had verbally told some people what he wanted them to have in terms of property and monetary assets, but there was no written record, and such hearsay doesn’t hold up in a probate court.

S-Town maze

S-Town is not only an example of excellent storytelling, but also a real world example of what can happen when someone dies without putting in place clear directions and wishes for property, cash and non-cash assets, pets, health care, and final disposition. You don’t want your family and friends to fight, press charges, and dig up your property in search of gold when you die. So, there’s no day like today to have your estate plan drawn up.

A good place to start is with my obligation-free Estate Plan Questionnaire.

Already have an estate plan? Good. It’s probably time you reviewed and updated it.

Feel free to contact me any time to discuss further how to start an estate plan. I offer a one-hour free consultation, without any obligation. I can be reached any time at my email, gordon@gordonfischerlawfirm.com, or on my cell, 515-371-6077.

Marriage document

In Iowa, Spouses Can’t Disinherit Spouses

Can Monica, my wife, disinherit me? In a word, no.

Assuming a valid marriage in Iowa, a spouse cannot disinherit a spouse. Even if a spouse wants to do so, even if that’s the spouse’s true intent—nope.

What If…?

What if in a legal will, the first-to-die spouse includes the following clause:

“I acknowledge that I have a spouse, named Gordon Fischer, who is not provided for in this will. It is my specific intention to not provide for my spouse Gordon Fischer under the terms of my will.”

Even with a clear clause like this, I, Gordon, am not disinherited. Why is this so?

Statutory “Forced Share”

Iowa Seal

An Iowa statute allows spouses to take a “forced share” against the will. In short, the surviving spouse has a choice; the spouse can inherit any property bequeathed to him/her under the will, OR the spouse can take a forced share. So, even if a will leaves nothing for the surviving spouse, the surviving spouse can take a forced share against the will.

Under Iowa law (specifically, Iowa Code § 633.238), a surviving spouse that elects against the will is entitled to:

  • One-third of the decedent’s real property;
  • All exempt personal property that the decedent held; and,
  • One-third other personal property of the decedent that is not necessary for payment of debts and other charges.

In other words, a surviving spouse can choose (elect) after your death to basically ignore your will or trust that doesn’t provide for said surviving spouse, and take approximately one-third of your estate.

For example, if you left your entire estate to your children and not your spouse, your spouse can say, “You know, I don’t like this at all. I’ll take one-third of my dead spouse’s estate. Thank you!” And, pretty much just like that, boom, the surviving spouse can do so.

Oral Agreement to Disinherit

What if Monica and I talk about this matter and come to an oral agreement. Something like this:

Monica: I want to disinherit you. Should you be the surviving spouse, you should get nothing.

Gordon: Wow. That hurts. But if that’s what you want honey, I agree.

Is this agreement enforceable? No, for several reasons. First, it’s not written and oral agreements are generally unenforceable. Also, it doesn’t and can’t displace the plain language of an Iowa statue which allows a spouse to elect a forced share against the will, and gain one-third of the estate. You can’t orally agree to ignore a statute’s clear intent!

Written Agreement to Disinherit

But what if Monica asked me to agree, in writing, to not take a spousal share? Say, we write up a formal contract stating I’m essentially not getting anything under Monica’s will, no how, no way. I also agree in the contract that under no circumstances will I take a statutory share.

Would such a written contract be enforceable? No.

While Iowans have a great deal of freedom to contract, just like the above oral agreement example, you can’t contract in direct opposition to a clear statute.

Postnuptial Agreements

Also, interestingly, Iowa courts have ruled postnuptial agreements are not enforceable.

Married penguin cake toppers

Postnuptial agreements are written contracts between spouses that are executed after the couple has married (as opposed to the prenuptial agreements you usually hear about). Iowa courts have struck down postnuptial agreements for nearly a century, since 1912 when the Iowa Supreme Court first found postnuptial agreements to be of no validity. In re Kennedy’s Estate, 135 N.W. 53 (Iowa 1912).

But Monica, it’s OK. Very likely you’ll be the surviving spouse anyway.


Beyond just your spouse, it’s important to have an updated estate plan to define all of your beneficiaries and wishes for your estate following your death. Have questions or need more information? Feel free to reach out any time. You can contact me by email at Gordon@gordonfischerlawfirm.com or give me a call at 515-371-6077.

Rotary Logo

I’m proud to be an active Rotarian. I’m also proud to be an Iowa lawyer.

And, I am proud of the singular, perhaps even unique, mission of my law firm. The mission of Gordon Fischer Law Firm is to promote and maximize charitable giving in Iowa.

Iowa City Noon Rotary

To achieve this mission, I help individuals, families, and businesses with estate planning that ranges from simple wills to complex trusts. I assist nonprofits reach their philanthropic goals. I guide donors in increasing their charitable giving.

Naturally, my membership in Rotary and the mission of my law firm intersect perfectly when it comes to supporting the Rotary Foundation. The Rotary Foundation does so much good both here at home and around the world.

As the Rotary Foundation states on its website, the Foundation “taps into a global network of Rotarians who invest their time, money, and expertise into our priorities, such as eradicating polio and promoting peace. The Foundation grants empower Rotarians to approach challenges such as poverty, illiteracy, and malnutrition with sustainable solutions that leave a lasting impact.”

Rotary Club Cover Photo

As a Rotarian, and as a lawyer, I wanted to share some of my expertise to allow Rotarians to give even more generously, so the Rotary Foundation can continue to do, and perhaps even expand, their great work.

TYPES OF CHARITABLE GIVING

It’s easiest to understand charitable giving by looking at it in two broad categories: giving during lifetime (called inter vivos transfers), and giving at death (testamentary transfers). There is a third category which lawyers call “split interest gifts”—tools that can be used during life or by operation of a will (such as, charitable gift annuities and charitable remainder trusts).

Read on to learn more about testamentary gifts made through your estate plan. Then we’ll talk about charitable giving during your lifetime. Finally, we’ll discuss two special philanthropic tools that can both be used during life and at death.

CHARITABLE GIVING THROUGH YOUR ESTATE PLAN

You can help on chalkboard

Estate plan is set of legal documents

An estate plan is simply a set of legal documents to prepare for the event of your death or disability. Note I said “estate plan,” and not “will.” While these terms are often used synonymously, they are not at all the same thing. An estate plan is a set of legal documents, and a will is just one of those documents, albeit an important one.

Six “Must Have” Estate Planning Documents

There are six documents that should be part of most everyone’s estate plan. Plus, you should keep these documents updated and current. Also, don’t forget about assets with beneficiary designations, such as savings and checking accounts, and retirement benefit plans. For many Iowans, that’s enough— keeping six documents and assets with beneficiary designations current.

I’ll just briefly touch on five of the six documents, before we dive into your will and charitable gifting to the Rotary Foundation.

Estate Planning Questionnaire

You should begin with an estate planning questionnaire. (Like this one on my website.) An estate plan questionnaire is an easy way to get all of your information in one place, and it should help you understand and prioritize estate planning goals.

Powers of Attorney

A power of attorney for healthcare designates someone to handle your healthcare decisions for you if you become unable to make those decisions for yourself. This essentially gives another person the power to make medical decisions on your behalf.

The power of attorney for financial matters is similar, only your designated agent has the power to make decisions and act on your behalf regarding your finances. This document gives your agent the authority to pay bills, settle debts, sell property, or anything else that needs to be done if you become incapacitated and unable to do this yourself.

Disposition of Personal Property

Another useful document is the disposition of personal property. This is where you get to be specific about items you want people to have, say, your eldest daughter getting your wedding ring, or your nephew getting your baseball card collection.

Disposition of Final Remains

Yet another helpful document is the disposition of final remains, where you get to tell your loved ones exactly how you want your body to be treated after you pass away. This could include details on burial or cremation, and what type of service(s) you want.

Where there’s a Will, There’s A Way to Help Rotary Foundation

Now let’s get to the will. With your will, you’ll be answering four major questions:

  1. Who do you want to have your stuff? A will provides orderly distribution of your property at death per your wishes. Your property includes both tangible and intangible things. (An example of tangible items would be your coin collection. An example of an intangible asset would be stocks.)
  1. Who do you want to be in charge of carrying out your wishes as expressed in the will? The “executor” is the person who will be responsible for making sure the will is carried out as written.
  1. Who do you want to take care of your kids? If you have minor children (i.e., kids under age 18), you’ll want to designate a legal guardian(s) who will take care of your children until they are adults.
  1. What charities do you want to support with your estate assets? Which of your favorite causes do you want to support at death, like the Rotary Foundation?

Four Types of Bequests

Charitable gifts in a will are called “bequests.” Generally speaking, there are four types of bequests.

  1. Pecuniary Bequest: A gift of a fixed or stated sum of money designated in a donor’s will. An example: “I give the sum of $10,000 (ten thousand dollars) to Rotary Foundation.”
  1. Specific Bequest: A gift of a designated or specific item in the will. The item will most likely be sold by the organization and the proceeds would benefit that nonprofit. An example: “I give my Grant Wood painting to Rotary Foundation.”
  1. Residuary Bequest: In legal terms, a “residue” of the estate is what is left of the estate after payment of debts, funeral expenses, executors’ fees, taxes, legal, and other expenses incurred in the administration of the estate, and after any gifts of specific assets or specific sums of cash. The estate residue would include all property, both personal and real estate. A residuary clause is a provision in a will that passes the residue of an estate to beneficiaries identified in the will. An example: “I give all of the residue of my estate to the Rotary Foundation.”
  1. Contingent Bequest: A gift in a will made on the condition of a certain event that might or might not happen. A contingent bequest is specific and fails if the condition is not made. An example: “I give the sum of $10,000 (ten thousand dollars) to my niece, Jane Smith, if still living. If my niece fails to survive me, I give the sum of $10,000 (ten thousand dollars) to the Rotary Foundation.”

Which type of bequest to the Rotary Foundation should you choose? It really depends on your personal circumstances. Consult your individual estate planner for specific advice.

CHARITABLE GIVING DURING LIFETIME

It’s been said, “you should be giving while you are living, so you’re knowing where it’s going.” Many Rotarians have intentions to donate eventually to the Rotary Foundation, often, as we’ve been discussing, at death through their estate plan. But why not give now? You can have more say about your gifts while you are still alive, and also feel the joy that comes with helping the cause you care about most. There are also lots of good tax reasons for giving now rather than later.

Imagine Rotarian Jill Donor, wanting to help her favorite nonprofit. When asked for a charitable gift to the Rotary Foundation, Donor agrees and immediately reaches for her checkbook, or goes online to donate with a debit/credit card.

It’s noble for Donor to give. However, consider this question: should Donor give cash? Or, does Donor own other non-cash assets which might be more tax-savvy? Can Donor be even more generous in support of her favorite cause, while lowering her out-of-pocket costs for charitable gifts?

Also, keep in mind that cash is only a small sliver of Donor’s overall assets and net worth. Even putting aside tax benefits, couldn’t Donor give more to the Rotary Foundation by looking at her much more robust non-cash assets? Let’s explore some non-cash gift options.

Giving quote

Appreciated, Long Term, Publicly Traded Stock

All sorts of non-cash assets can be used for charitable gifts to the Rotary Foundation, but for several reasons, appreciated, long-term, publicly traded stock is a wise choice. It’s convenient to give, you can save money on capital gains taxes you would have paid had you sold the stock, and it’s easy to value.

Endow Iowa Tax Credit

 

All Iowans should be aware of the Endow Iowa Tax Credit. Endow Iowa allows donors who give qualifying charitable gifts to receive a whopping 25% state tax credit. I have some illustrations showing what great tax savings can be realized by use of the Endow Iowa Tax Credit.

IRA Charitable Rollover

The federal law known as the IRA Charitable Rollover allows individuals aged 70½ and older to donate up to $100,000, tax free, from their IRAs directly to Rotary Foundation. There are two threshold requirements. First, you must be age 70½ or older. Second, the retirement plan account must be an IRA. Want more details? This blog post digs in.

Retirement Benefit Plans

For those not yet 70 ½ and/or who don’t have an IRA, but another type of retirement plan, think about this. Sometimes owners’ retirement benefit plans must make what are called Required Minimum Distributions, or RMDs. Since you must withdraw RMDs, anyway, why not give the money to a worthy charity like Rotary Foundation?

For those who don’t yet have to make RMDs, remember that after age 59 ½, generally you can make withdrawals from your retirement benefit plan without any tax penalty. If indeed there’s no penalty, and you make a charitable gift from your retirement benefit plan, you can presumably take an income tax charitable deduction. This should therefore be a “wash” for tax purposes.

Also, keep in mind: you can make a very meaningful gift simply by naming the Rotary Foundation as beneficiary of an IRA, 401(k), 403(b), or other retirement plan. Giving retirement assets in this way is quite easy. Simply contact the institution holding your retirement plan, request a change of beneficiary form, fill the form out completely and correctly, and return the form. Typically naming a beneficiary in this way does not require drafting or amending a will or trust.

“SPLIT INTEREST” GIFTS

A “split interest” gift is when a donor makes a gift to a qualified charity, like the Rotary Foundation, but retains the right to a portion of the gift. Typically, the gift is divided into lifetime income and asset value at death. The majority of donors retain income during their lifetime.

There are two split interest gifts which might be greatly helpful to donors wanting to support the Rotary Foundation. Let’s discuss each briefly.

Charitable Gift Annuity

A Charitable Gift Annuity (CGA) is a contract. It’s a contract that combines the benefits of an immediate income tax deduction and a lifetime income stream. Also, your future taxable estate will be reduced for the remainder value of the property transferred to charity.

A CGA is an arrangement in which you make a gift of cash, or other property, in exchange for a guaranteed income annuity for life. This is similar to buying an annuity in the commercial marketplace, except that you can claim an immediate charitable tax deduction for the excess of the value of the property over the value of the annuity, based on IRS tables. The charity must receive at least 10% of the initial net value of the property transferred in order for you to claim a charitable deduction for a portion of the purchase price.

There’s much more to say about CGAs. I wrote an article detailing more specifics, as well as their benefit, check it out here.

Charitable Remainder Trust

A charitable remainder trust (CRT) provides a unique opportunity for donors to retain lifetime income from property while obtaining a current income tax deduction (or estate tax deduction) for the remainder interest which will pass to charity.

Charitable remainder trusts are often appealing to donors with appreciated assets, producing little or no income, such as real estate or securities. This is because the assets can be sold without capital gains tax and invested to provide a higher income stream.

A CRT separates the current interest and future interests in property and disposes of each differently. Income from trust assets is paid to at least one non-charitable beneficiary (often, the grantor or the grantor’s family) for a certain period. The payments can be made for the non-charitable beneficiary’s lifetime (or joint lives for multiple beneficiaries), or over a fixed period of up to 20 years. When the non-charitable beneficiary’s interest ends, the trust assets pass irrevocably to a charity. I’m doing a deep dive into CRTs with a three-part series, you can read the first post, here.

SUM IT ALL UP

Iowa City Noon Rotary

What all this means is that you, dedicated Rotarian, have a treasure chest of choices when it comes to making charitable gifts that can have an impact. Charitable giving can, and should, be a mutual positive situation that benefits the Rotary Foundation as well as the donor. Of course, this is just the tip of the iceberg. I would love to start a conversation with you about your estate planning and charitable giving goals. Feel free to reach out at any time; you can find me by email at Gordon@gordonfischerlawfirm.com or by phone at 515-371-6077. Or just grab me at Rotary Lunch!


Gordon Fischer has been an active and accomplished Iowa lawyer for more than 20 years. Gordon received his law degree, summa cum laude, from Southern Illinois University. After law school, Gordon clerked for the Iowa Court of Appeals. He then joined the Des Moines firm of Bradshaw, Fowler, Proctor & Fairgrave, P.C. He became a partner and gained a reputation for skilled and conscientious litigation in all areas of law, with a focus on employment. In 2013, Gordon left the firm to become Vice President of Gift Planning Strategies for the Community Foundation of Greater Des Moines, where he helped donors plan and achieve their philanthropic goals. In 2014, he received the Chartered Advisor in Philanthropy designation from The American College of Financial Services.   

Gordon serves his community and his profession in a variety of ways, on boards and commissions and as a mentor and hands-on volunteer, and through his involvement as a Rotarian. At Gordon Fischer Law Firm, P.C., he blends his legal expertise and commitment to the charitable sector and those who support its work.

Your Farmland and the Future White Paper

I had the chance to write an article pertinent to modern Iowa farmers in a new white paper published by Peoples Company entitled, Your Farmland and the Future: Setting Goals, Taking Action. My piece is focused on the basics of wills, trusts, estates, and estate planning for farmers, farm families, and farm businesses. Peoples Company President, Steve Bruere wrote a great introduction that sums up the need for the paper:

With approximately 30 million crop acres in Iowa, farmland represents over $234 billion of asset value in Iowa alone. According to the latest land tenure study at Iowa State University, 55 percent of Iowa farmland is owned by someone age 65 or older. Using conservative estimates, nearly 50 percent of Iowa farmland could transfer in some form or fashion over the next 20 years. These statistics are similar throughout most of the major agricultural areas in the United States. The future of farmland ownership and agriculture as a whole will look dramatically different than it does today as this wealth transfer occurs. Keeping land in families and local communities is the ideal result, and the only way for this to happen is proper planning.

Regardless if you are a farmer or not, the majority of the estate planning basics apply to ALL Iowans. Scroll to page 26 of this PDF to read the article in full.  Also, scroll to page 32 for a great guide to “Write Your Own Farm Legacy Letter.”