A new legislative session has begun at the State House for 2019-20—officially the 191st for the General Court of Massachusetts—and with it come about six thousand bills already filed by the 40 elected Senators and 160 elected Representatives from across the Commonwealth. Let’s take a look at legislation the BBA is supporting, starting with three local versions of model laws drafted by the Uniform Law Commission (ULC).
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Although there are certainly instances of Massachusetts leading the nation in advancing public policy, here’s a case of us actually being the only state yet to have enacted a law, some 20+ years after the ULC promulgated it. The UCCJEA is effectively a compact that requires participating states (literally all of the others) to respect pre-existing custody orders from another state when a custodial parent moves there, with limited exceptions.
The main idea is to discourage forum-shipping, promote certainty and quick resolutions, and save costs, by preserving the original state’s exclusive jurisdiction. The Massachusetts version has been modified to address concerns about its potential impact on parents trying to escape domestic violence and has widespread support from the family-law bar. The bill, filed by Sen. Cynthia Stone Creem, has twice now passed the State Senate but without action in the House. This session, Rep. Sheila Harrington has also filed it.
The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA)
Trusts-and-estates practitioners have faced increasing uncertainty in recent years regarding how to handle decedents’ digital assets. That is, what should happen to a person’s e-mail accounts, social-media profiles, on-line banking portfolios, and so forth, after they die—and how should individuals plan for that while still alive? It is currently unclear in Massachusetts and elsewhere how to resolve disputes over access to such assets between the Internet provider and the decedents’ estate. And the issue only grows in importance as our virtual lives expand in scope and content—and as those digital assets grow in value.
RUFADAA aims to provide that much-needed clarity by establishing protocols to govern access. It offers an account-holder the ability to specify, while living, what is to happen after their death, and provides fiduciaries with a means to pursue content access in keeping with an estate plan, while also setting up protocols for cases of intestacy or an absence of instruction from the decedent. Unlike previously-proposed bills, RUFADAA would extend to all digital content and to all types of fiduciaries. It has now been adopted in 41 other states. Here, RUFADAA legislation has been filed by both Sen. Barry Finegold and Rep. Jay Livingstone.
Uniform Trust Decanting Act (UTDA)
Also spearheaded by our Trusts & Estates Section is the BBA’s endorsement of the UTDA, which—like RUFADAA—would impose a legal framework in an area that currently lacks one: decanting, which involves the fiduciary exercise of broad discretionary powers of distribution to create new trusts for one or more beneficiaries of an existing trust. Though the SJC has recognized the potential validity of such actions under common law (in a case in which the BBA submitted an amicus brief), neither the Court nor the Legislature has spelled out what can and can’t be done, and under what circumstances.
Decanting can be a useful strategy for changing the outdated terms of an otherwise-irrevocable trust—for example, to provide for a beneficiary who becomes disabled after the settlor executes the original trust—but it can also defeat a settlor’s intent, so rules are needed to prevent abuse. UTDA, which would create those rules, offers national uniformity, but it’s especially important in the half of the US (including Massachusetts) that now has no decanting statute whatsoever. Sen. Creem has filed a bill to adopt UTDA here.
We continue to support a bill that came tantalizingly close to being sent to the Governor at the end of the last legislative session in July: Rep. Kay Khan’s legislation would ban the use of “conversion therapy” on minors by licensed health care professionals. The practice goes by different names, but it represents an ostensible attempt to alter a person’s sexual orientation and gender identity. A ban would thus protect minors from a practice that medical and child-welfare experts agree does not align with current scientific understanding and is not only ineffective and misleading but downright unsafe.
Other legislation we are advocating for includes bills…:
- Offering alternative, neutral terms—which don’t carry the stigma of, for example, “custody” and “visitation”—that could be used by parents in custody disputes, and thereby promote settlement and reduce conflict and ill will.
- Sen. Creem: https://malegislature.gov/Bills/191/SD510
- Updating and modernizing the law on spousal elective share (which allows a surviving spouse to take more from a decedent’s estate, under certain circumstances, than the will provides), as the SJC has repeatedly asked the Legislature to do (most recently in January).
- Sen. Creem: https://malegislature.gov/Bills/191/SD509
- Redrafting Massachusetts law on operating a motor vehicle while under the influence, to make the notoriously confusing Chapter 90 of the General Laws easier to understand—but without making any substantive changes.
- Addressing a discrepancy in the treatment of adopted children in trusts that has resulted from confusing changes in the relevant statute over time.
- Sen. Creem: https://malegislature.gov/Bills/191/SD442
- Fixing a glitch in the estate tax that results in disparate, unfair treatment, for purposes of tax basis, of property inherited from Massachusetts residents who died in 2010.
- Rep. Alice Peisch: https://malegislature.gov/Bills/191/HD649
- Making technical corrections to the state’s Trademarks Act.
- Sen. Creem: https://malegislature.gov/Bills/191/SD508
- Protecting the interests of property owners from “title piracy,” whereby unrelated third parties scour old records in search of technical defects, in order to find potential claims against current innocent landowners.
- Sen. Creem: https://malegislature.gov/Bills/191/SD1666
We appreciate all of the above sponsors for carrying these measures. We will continue to advocate for them throughout the current session and will of course keep you updated. (To learn more about our process for considering new policy proposals, including how you can propose that we do so take a new position, read: http://www.bostonbar.org/public-policy/public-policy-procedures)
In addition to the specific bills listed above, we are guided by principles, guidelines, and recommendations that have been endorsed by the BBA Council to govern our positions in a variety of areas, such as criminal-justice reform, immigration, wiretap law, and shared parenting.
Much of our work in the State House, however, is focused on one annual bill in particular: the state budget. As always, we are strong supporters of adequate funding for the judiciary, for civil legal aid, and for representation for indigent defendants. Last year, we also extended our support to a new program for re-entry services for people coming out of incarceration. (Read more: http://issuespot.bbablogs.org/2018/07/26/budget-update-governor-signs-fy19-budget)
Finally, our engagement with public policy extends beyond legislative lobbying: We frequently comment on proposed changes to court rules, for instance, and file amicus briefs on matters related to the practice of law or the administration of justice. Though are efforts are mostly focused on the state level, we do take positions on Congressional legislation—including a recent effort [paywall] to prevent forum-shopping in bankruptcy cases—and, under the auspices of the ABA, we make the trek to DC each spring with the BBA President and President-Elect to talk to members of the Massachusetts delegation about BBA/ABA priorities at the federal level. With two newly-elected Representatives to visit for the first time, we are especially looking forward to this year’s visit and will report back in April.
Government Relations Director
Boston Bar Association