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Tuesday, August 28, 2007

NJ Laws Email Newsletter E254 - August 28, 2007

NJ Laws Email Newsletter E254
Kenneth Vercammen, Attorney at Law August 28, 2007

In This Issue

1. Estate Planning for Blended Families

2. If arrestee transported to police station, full search permitted

3. Police can pat down suspect if they observe drug transaction.

4. Driver can be guilty of DWI based on cocaine hangover

5. Warrantless protective searches depend on location.


1. Estate Planning for Blended Families

By: Thomas D. Begley, Jr., Esquire

A blended family is a family where parents have children by previous marriages. It can also be a situation where children have children from prior marriages. Death and divorce result in larger numbers of second marriages. Second marriages present certain planning problems that need to be addressed.

(1) Emotional Issues. There are often emotional issues. A recently divorced client may have strained relationships with his or her children, because of the attachments those children have with the previous spouse.

(2) Children from Two Marriages. The stepparent may have a difficult relationship with the natural child of the other spouse. An additional issue is providing for a child of a previous marriage without placing the assets intended to benefit that child under the control of the "other" and biological parent.

Life insurance is a useful tool in dealing with this situation.

(3) Obligation Set Forth in Divorce Decrees, Settlements Agreements and Prenuptial Agreements. A settlement agreement negotiated in connection with a final order of divorce may impose obligations on a divorcing parent, such as establishing and funding trusts and designating beneficiaries to fund those trusts. It is important that the estate planning attorney obtain copies of any such agreements to ensure that the estate plan complies with those agreements.

If there is a prenuptial agreement, after the marriage has lasted for some years, the wealthier spouse often wants to deviate from the prenuptial agreement and give the other spouse a larger, more generous provision than anticipated in the agreement. If there is to be a variation from the prenuptial agreement, this should be documented in the estate plan or it may even require an amendment to the prenuptial agreement. In that event, spouses must obtain separate counsel.

(4) Significant Age Differences. If there is a significant age difference between spouses, certain issues must be addressed. Special rules for computing minimum distributions apply if there is more than a 10 year difference in ages between the spouses.

Additionally, the children of the older spouse may resent having to wait for the death of the younger spouse to receive their inheritance. Again, life insurance is a useful vehicle to solve this problem.

(5) Wealth Disparities Between Spouses. Generally, to achieve maximum federal and state estate tax savings, the estates between spouses are balanced. If one spouse has most of the family assets and the other spouse predeceases, the family will not have taken advantage of the opportunity to fund a credit shelter trust to take advantage of the federal or state estate tax exemption. Normally, the solution would be to have the wealthier spouse transfer assets to the opposite spouse so that the maximum funding could be achieved. This may cause resentment among children of the wealthier spouse.

If the wealthier spouse supports his children in a more lavish manner than the less wealthy spouse, there may be resentment not only from the less wealthy spouse but her children as well. The situation is acerbated if the less wealthy spouse is male. The solution may be a joint revocable trust.

(6) Apportionment of Estate Taxes. A common method to designate payment of estate taxes is through the residuary estate. This could result in certain beneficiaries receiving virtually the entire inheritance and the tax being paid by other beneficiaries. This issue is particularly acute when inheritance passes outside the will through non-probate assets, such as beneficiary designations or jointly-owned property. There are three telltale warning signs:

· large non-probate assets passing to beneficiaries or large specific bequests passing to less than all of the beneficiaries;

· beneficiaries of each spouse's will or trust are not the same; and/or

· beneficiaries of non-testamentary trust assets are not the same.

Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law Seminar and co-author with Kenneth Vercammen, Martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law

2. If arrestee transported to police station, full search permitted
State v. Daniels __ N.J. Super. __ 14-2-7525 5/31/07

Resolving an issue left open in State v. Dangerfield, 171 N.J. 446, 463-64 (2002), the court held that when police effectuate a lawful arrest, even for a minor Penal Code offense, and decide to transport the arrested person to headquarters for processing, a full search of the arrestee is permitted; the police are not limited to a Terry type pat down. Here, defendant was arrested for the petty disorderly persons offense of defiant trespass. As a result, the search of his person prior to being placed in the police car, revealing cocaine, was proper.

3. Police can pat down suspect if they observe drug transaction. State v. O'Neal 190 N.J. 601 (2007)

Based on the observations made by law enforcement officers, there was probable cause to search and arrest O'Neal. The police officer's question to O'Neal that elicited his response without prior Miranda warnings violated Miranda v. Arizona, but was harmless under the circumstances.

4. Driver can be guilty of DWI based on cocaine hangover. State v. Franchetta __ N.J. Super. __ A-1498-06T5 6/28/07

This case presents the novel issue as to whether a "rebound effect" or "hangover effect" from a previous ingestion of cocaine constitutes being "under the influence" of a narcotic drug pursuant to N.J.S.A. 39:4-50. The court held that it does. Although the cocaine ingested by defendant was not pharmacologically active at the time of the incident, the court found that it was the proximate cause of his impaired behavior and that he was therefore "under the influence" of a narcotic drug for purposes of N.J.S.A. 39:4-50.

5. Warrantless protective searches depend on location. State v. Lane 393 N.J. Super. 132 (App. Div. 2007)

Defendant was charged with participating in an armed robbery. The court considered, among other things, the legitimacy of warrantless searches of defendant's backyard and shed that followed both the police interview of defendant in his driveway and defendant's accompanying of all but one police officer to the station house for questioning. The police officer who remained behind at defendant's home, with the aid of a flashlight, looked into defendant's backyard through an open gate in a fence. The officer claimed to have seen a headband worn by one of the robbers. He then entered the yard, picked up the headband, claimed that it was "still warm" -- which to him suggested that it had recently been removed by its wearer - and then conducted a protective sweep of the backyard, which led to the discovery of an automatic rifle in a shed. The trial judge denied the motion to suppress the headband, based on the plain view exception, and denied the motion to suppress the rifle on the protective sweep exception. The court remanded for further proceedings because the trial judge's findings did not fully explain numerous factors applicable to the application of both the plain view exception and the protective sweep exception. And, as a matter of first impression in this state, the court expansively interpreted Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1981), and held that a protective sweep may be validly performed even when an arrest is not performed.

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