USA – NEVADA Law and Practice Contributed by: Brian K. Steadman, Alexander LeVeque, Jeffrey Luszeck and Craig Friedel, Solomon Dwiggins Freer & Steadman
10. Charitable Planning 10.1 Charitable Giving
ent intended otherwise or apparent that the parent intended to provide for the child via means outside the will (NRS 133.160). 9.2 Same-Sex Marriage Same-sex marriage has been legal in Nevada since 9 October 2014, when a federal district court judge issued an injunction against Nevada’s same-sex mar - riage ban, following a ruling by the Ninth Circuit Court of Appeals. This was codified into law effective 1 July 2017 via amendment to NRS 122.020 (“two persons, regardless of gender, who are at least 18 years of age, not nearer of kin than second cousins or cousins of the half blood, and not having a spouse living, may be joined in marriage”.). In 2020, Nevada voters also approved a constitutional amendment that specifically recognises marriages between couples regardless of gender, making Nevada the first state to enshrine mar - riage equality in its state constitution. Nevada has also recognised domestic partnerships since 1 October 2009. See NRS Chapter 122A (Nevada Domestic Partnership Act). Nevada law essentially offers domestic partnerships the same state-level rights, responsibilities, obligations, entitlements and benefits of marriage except that there is no require - ment for businesses or governments to provide health benefits to the domestic partners of their employees even if they do so for the spouses of their married employees. Unlike spouses of a marriage, Nevada domestic partners must share a common residence. Otherwise, the requirements for a domestic partner - ship are similar to the requirements of marriage. 9.3 Cohabitation and Unmarried Couples Nevada does not recognise common-law marriage, nor does it grant automatic marital or community property rights to unmarried or cohabitating couples. However, the state has adopted a “community prop - erty by analogy” rule (following California’s Marvin v Marvin ) according to which courts will divide prop - erty between unmarried cohabitants where there is an express or implied agreement to acquire and hold property as if married – pooling funds, holding them - selves out as a couple, and similar conduct can estab - lish an implied agreement even without a signed con - tract. Hay v Hay , 100 Nev. 196, 678 P.2d 672 (1984).
Pursuant to NRS 163.430, Nevada statutes expressly declare that “the policy of the State is to maximise the funds available for charitable purposes by minimising, to the greatest extent practicable, the imposition of federal income and excise taxes upon trust assets otherwise available for charitable purposes”. This declaration is relied upon when questions arise as to the testator/settlor’s intent with charitable giving. In other words, should there be any ambiguity in what a testator/settlor wants to accomplish as it relates to charitable goals, this declaration can be used to maximise charitable giving for income tax and estate planning purposes. 10.2 Common Charitable Structures In Nevada, some of the most commonly used vehicles for charitable planning include: Private Foundations Advantages • complete control over grantmaking, investment decisions, mission, and governance; • immediate tax deduction in the year of contribu - tion, even if grants are made later; • can be structured to exist indefinitely – good for multi-generational giving and long-term missions; and • a way to involve multiple generations in philanthro - py, governance, and strategic thinking. Disadvantages • cost and administrative burden (must file Form 990-PF annually with detailed disclosures; signifi - cant recordkeeping, compliance, legal and financial oversight; high startup and ongoing administrative costs); • must distribute at least 5% of assets annually; • lower tax deduction limits when compared to other methods (eg, cash contributions deductible up to 30% of AGI); • subject to 1.39% excise tax on net investment income; • must publicly disclose donors, salaries, invest - ments, and grantees on IRS filings (Form 990-PF); and
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