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AIDS Testing, Property Division, and Estate Planning
Jan L. Warner & Jan Collins

Question: Without going through the sordid details, I recently discovered that my husband is bisexual and has had several relationships during the time we were living together. Although I have been very concerned about HIV and AIDS, he refused to take the test, and I left him. I want to know if I can force him to take the test.

Answer: Unless you are involved in some sort of litigation with your husband, we know of no way to force him to take the test. But if you are engaged in marital litigation, under the discovery rules in most states, you should be able to ask the family court to require your husband to submit to a physical examination which, under these circumstances, might include an AIDS test. If you are not involved in marital litigation, but decide to bring a civil action against him for intentional infliction of emotional distress, you can ask the civil court for similar relief. Of course, your husband may contest your attempts and try to raise his Fourth Amendment right to be free from unreasonable searches and seizures. The courts, however, have the power to require AIDS testing, depending on the facts of each case. We suggest that you contact a lawyer in your area to get the status of the law in your state.

Question: My wife and I lived together for five years before we married. During this time, she did not work. When I decided to purchase land, I put up all of the money and told the lawyer to put the property in our joint names as a showing of good faith. After our marriage, I needed some money to make other investments, so we both signed a mortgage which I am paying and I took the money and invested it in my name. Now that our marriage is breaking up, my wife claims half of everything. I think this is unreasonable, yet I don't want to get into a long-term court fight that costs more than the assets we are arguing over. How can we avoid going to court on this?

Answer: We're not sure you can avoid court unless you are willing to pay your wife that to which she is entitled. Some courts have ruled that when premarital property is titled in the names of two individuals who then marry, the property is converted to marital property and is subject to being divided according to the law of that state. Marital assets are divided based upon a number of factors, including the value of the contributions made during the marriage. This means that you have tracing and accounting challenges to prove your case. It seems to us, however, that while you may have used premarital money to purchase the property, after the marriage, you and your wife went into debt so you could get your money back and invest it in other assets. For this reason, we think this is a case you should settle; however, this situation could have been avoided if you and your wife had negotiated and signed a co-ownership agreement when the property was purchased.

Question: As a part of our estate planning five years ago, my husband and I were advised that he should transfer a $500,000 policy of insurance on his life to our daughter. Each year, we made gifts of the premium to her so that, on his death, she could pay estate taxes. We did this because I had been ill and there was a fear that I would die before my husband. Shortly after her marriage last year, our daughter was diagnosed with cancer after which he husband left her. She died within three months. We were shocked to find out that her will left everything to her husband, including the policy of insurance on my husbandís life. We have talked to our former son-in-law, but he is not interested in our estate tax problems and does not want to give us back the policy -- even though he can not afford to pay the premiums. He said that he will sell it to us. My husband is no longer insurable. Is there anything we can do?

Answer: Oftentimes life insurance is used to defray or pay estate taxes but, without proper planning, the policy can become a windfall for in-laws Ė or former in-laws -- as you are unfortunately finding out. The purpose of the transfer of your husbandís life insurance policy to your daughter was so that the tax-free proceeds from the policy upon your husband's death could be used to pay estate taxes. Because your husband survived for three years after the transfer, the proceeds will not be included in his estate, but this is little consolation now. If you had used an irrevocable insurance trust, you would probably have been a better vehicle, but it's too late for that now.

Since your former son-in-law can not afford to pay the premiums, you might think about trying to negotiate a purchase of policy from him; however, you should remember that if the policy is owned by your husband at his death, the proceeds may generate an estate tax liability of up to 55, or even 60, percent. At the same time, if you purchase the policy and then predecease your husband, the same thing can happen. Although there may be a moral issue here and although we feel you should consult with a lawyer who can give you a full opinion, we believe that you will have a difficult time legally.

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