USA – NEW YORK Law and Practice Contributed by: John M Teitler, Nancy A Murphy and Constance E Shields, Teitler & Teitler LLP
tions for the power of attorney to go into effect, it is far more common to use the durable power of attorney to avoid disputes that may arise as to the effectiveness of a “springing” power of attorney. • Health care proxy and living will – a health care proxy is a legal document that provides for an appointment of a health care agent to make health care decision on your behalf and does not go into effect until you are unable to make your own health care decisions. The living will is a legal document expressing your wishes that no extraordinary measures, such as life support or a feeding tube, be used in the event of an incurable condition and death is imminent. New York and many other states have enacted laws that encourage physi - cians and hospitals to follow the wishes of a termi - nally ill patient who has signed a living will. The above tools should minimise having to petition the court to appoint a guardian in the event of a party’s incapacity. 8.4 Elder Law There is no applicable information in this jurisdiction. 9. Planning for Non-Traditional Families 9.1 Children Generally, a non-marital child is the child of his or her mother, and a non-marital child is the child of his or her father if a court during the father’s lifetime makes an order of filiation or the father has signed an instru - ment acknowledging paternity. A non-marital child may also be deemed a child of the father if parentage is shown by clear and convincing evidence, such as openly acknowledging the child as his own. New York recently legalised gestational surrogacy agreements in which the surrogate has not contrib - uted the egg used in conception. A child born under such a surrogacy agreement, assuming it complies with New York law, is a child of each intended par - ent. To ensure a surrogacy agreement is lawful in New York, several requirements must be met by the sur - rogate or intended parent, including United States citizenship or lawful permanent residence status and New York residence. In addition, if the proposed surro -
gate has a spouse, such spouse may have to provide informed consent. Traditional surrogacy agreements (ie, the surrogate contributes the egg) remain unenforceable in New York. Notwithstanding the rules under the law regarding the definition of a child, a testator may exclude any child from taking any share of the testator’s estate. 9.2 Same-Sex Marriage New York and the federal government recognise same-sex marriage. 9.3 Cohabitation and Unmarried Couples Under federal and New York laws, unmarried couples, including co-habiting couples, are treated as two dis - tinct individuals and their couple status is irrelevant for purposes of taxes and estate rights. They each have to file individual income tax returns and each is responsible for reporting their respective income and paying the associated taxes thereon. There is no joint tax filing for unmarried couples and in general there is no tax benefit to unmarried couples under federal or New York law. Gifts between married couples are not subject to tax so long as the recipient spouse is a US citizen. However, gifts between unmarried couples (in excess of the annual gift tax exclusion, which is currently USD19,000) are taxable gifts and will use an individu - al’s lifetime gift tax exemption. There is no estate tax on assets passing to a US citizen surviving spouse of a married couple. There is no such exemption for assets passing to the survivor of a non-married cou - ple. The US estate and lifetime gift tax exemptions are unified so any gift exemption used during lifetime reduces the amount of the estate tax exemption avail - able at death. Unlike for married couples, there is no concept of “portability” for an unmarried couple. For example, if the first partner of the unmarried couple to pass away has a taxable estate of USD10 million, none of the USD5 million exemption can be trans - ferred to the surviving partner and the exemption is lost. As a further example, if the first partner of the unmarried couple to pass away has a taxable estate of USD30 million, estate taxes will be paid on USD15
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