USA – TEXAS Law and Practice Contributed by: Perrin Clark, Ytterberg Deery Knull LLP
9.2 Same-Sex Marriage Same-sex marriages are recognised by both Texas laws and the US federal government.
Posthumously Conceived/Born Children Under the Texas Estates Code “no right of inherit - ance accrues to any person unless the person is born before, or is in gestation at, the time of the intestate’s death and survives for at least 120 hours. A person is: (1) considered to be in gestation at the time of the intestate’s death if insemination or implantation occurs at or before the time of the intestate’s death; and (2) presumed to be in gestation at the time of the intestate’s death if the person is born before the 301st day after the date of the intestate’s death”. Rights of inheritance can be changed by the terms of a will or trust; so, the testator or grantor should carefully con - sider whether or not to deliberately include posthu - mously conceived children, with the understanding that this could create various practical and theoreti - cal problems unless thoughtfully and carefully done. Assisted Reproduction: Donor Gametes and Surrogacy In Texas assisted reproduction is legal and a well- established service. This includes the use of donor gametes (eggs and sperm). It also includes traditional surrogacy in which the gestational mother utilises her own egg. And it includes gestational surrogacy in which a woman agrees to carry to gestation a child to whom she is not genetically related. Gamete donation can be coupled with both traditional and gestational surrogacy in appropriate circumstances. The donation of gametes should be done pursuant to egg dona - tion agreements and sperm donation agreements that address the parties’ legal rights. Traditional surrogacy is not specifically provided for under Texas law and, though it should be done pursuant to a surrogacy agreement, the rights of the gestational mother can - not be severed in advance of the birth. The rights of the gestational mother can only be severed after birth and this is done in a proceeding similar to an adoption proceeding. This creates significant uncertainty and makes traditional surrogacy a less attractive method. Contrastingly, the Texas Family Code specifically pro - vides for gestational surrogacy and gestational sur - rogacy agreements, which are subject to review and validation by the court, which then may issue an order determining the parental rights of the parties, either in advance of or after the birth. If done in advance of the birth, this is known as a pre-birth order.
10. Charitable Planning 10.1 Charitable Giving
Charitable giving is highly incentivised under the US tax code. Charitable gifts during life and at death are not subject to US transfer tax. Further, lifetime charitable gifts can qualify the donor for substantial tax deductions equivalent to the value of the prop - erty given, subject to certain limitations. The value of cash gifts to public charities is deductible up to 60% of the donor’s adjusted gross income (AGI). The fair market value of marketable securities, real estate, and closely held assets is deductible up to 30% of the donor’s AGI. If making gifts to a foundation, these lim - its are reduced to 30% of AGI for cash gifts and 20% of AGI for gifts of marketable securities, real estate, and closely held assets; provided, the deduction with respect to gifts of real estate and closely held assets is further limited to the donor’s cost basis, rather than fair market value. These thresholds apply in the aggre - gate, meaning that the value of gifts that are more restricted counts towards the applicable thresholds with respect to gifts that are less restricted. 10.2 Common Charitable Structures Numerous strategies exist and are frequently used with respect to charitable planning and gifts, includ - ing, without limitation: • foundations (both operating and non-operating); • supporting organisations; • donor advised funds; • public charities; • social welfare organisations; • charitable lead trusts; • charitable remainder trusts; and • purpose trusts. Which strategy is most appropriate for a specific client is highly dependent on the client’s charitable intent and individual facts and circumstances.
700 CHAMBERS.COM
Powered by FlippingBook