BBA Offers State House Testimony on Probate and Family Law Legislation and on Right to Counsel

Over the past two weeks, the Legislature has kicked its hearing schedule into high gear, ahead of the traditional August lull.  As a result, we’ve been busy presenting testimony, with simultaneous hearings this week addressing multiple BBA bills.  At one point, we even had witnesses testifying at virtually the same time on two different floors of the State House.

All of the thousands of bills that are filed each two-year session are entitled to a public hearing before the legislative committees to which they are respectively referred for consideration, generally between May of the first year and February of the second year.  This can produce a log-jam, with overlapping hearings—often covering dozens of bills at a time—held at key points in the timeline.

The BBA testified on four bills this week—three of them long-standing priorities, plus one urgent addition to our portfolio—and on a set of bills last week reflecting the Council’s vote last month to join the Right to Counsel Coalition:

On July 23rd, the Judiciary Committee held a hearing to cover all their legislation on probate and family law—nearly 60 in all.  The BBA actually spoke through two witnesses, Brad Bedingfield of Hemenway & Barnes, and Gayle Stone-Turesky of Sugarman Rogers.

  • Brad offered testimony in support of An Act making corrections to the adopted children’s act (S. 872), filed by Senator Cynthia Stone Creem.  This bill would make corrections consistent with the SJC ruling in Bird v. BNY Mellon, 463 Mass. 299 (2012) in order effectively to restore the law of 1958, whereby adopted persons covered by pre-1958 instruments are presumed to be excluded from familial trust terms unless they were adopted by the testator or settlor. 
    • It’s a complicated issue, with a number of twists and turns over the past 60+ years, but you can learn more about it here and read our testimony here.
  • Gayle was speaking as part of a joint bar-association panel, with representatives from the MBA, WBA, and the Academy of Matrimonial Lawyers—as well as an accountant with deep experience in family-law cases, who is uniquely positioned to speak about the uncertainty surrounding alimony guidelines in Massachusetts ever since the federal tax code rendered new alimony awards non-deductible to the payor as of this year.  This, too, is an issue that’s difficult to explain, but you’ll find a primer here.
    • Gayle and others endorsed legislation filed by Rep. Sheila Harrington (H. 3701) to effectively restore the status quo in that area, but also in support of enactment of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), through S. 886 (also filed by Sen. Creem).  Massachusetts is the only state that has not yet joined this interstate compact, by which all other states honor one another’s pre-existing custody orders, even when one of the parties moves across state borders.  (More on that issue here.)

Meanwhile, that same day, the Revenue Committee heard a bill (among nearly a hundred others related to the personal income tax) that also affects trusts-and-estates practitioners.  That bill, An Act to continue tax basis rules for property acquired from decedents (H. 2590), may be the most complex of all of these.  Fortunately, we had George Cushing of McLane Middleton on hand to explain it to the assembled legislators.  The bill, filed by Rep. Alice Hanlon Peisch, would provide for continuation of the “step-up” in the Massachusetts tax basis in property acquired from a decedent, a step-up that was allowed for decades under Massachusetts law, until it unexpectedly fell out of the law in 2010 due to the technical interrelation of various federal and state tax statutes.  (For more, our testimony is here.)

The previous week, Mary Ryan of Nutter McLennen & Fish—past BBA President and long-time champion of access to justice—was our representative before the Judiciary Committee when they held a hearing on property and land issues.  Among the 66 bills on the agenda that day were four that would create a right to counsel for low-income tenants and landlords in eviction cases.  You may recall that the Council voted last month to join the new Right to Counsel Coalition in proposing guidelines to improve on those bills and create a workable framework to establish that right statewide.  Our recent post on this issue is here.

—Michael Avitzur
Government Relations Director
Boston Bar Association