The Kiley Law Firm Blog

Wrongful Death:

PENDING THE GOVERNOR’S SIGNATURE – both houses of the NYS Legislature have passed a bill which dramatically changes the present Wrongful Death law.  The Grieving Family Act will expand the definition of a family member to include “close family members”, including but not limited to, spouses, domestic partners, children, parents, grandparents, stepparents and siblings.  Furthermore, families of wrongful death victims will now be able to recover non-economic or intangible damages, which might include: Grief and emotional anguish caused by the victim’s death, loss of love, support, protection, and guidance. 

Click Here to Take Action: Concerned citizens can reach out to Governor Hochul with their thoughts and opinions. Visit www.hopefornyfamilies.com and submit your letter to the governor, today.

Medicaid:

N Y State’s attempted implementation of a “lookback” for community Medicaid benefits that was supposed to become effective January 1, 2021, has now been postponed until March 31, 2024, at the earliest.

Matrimonial Law:

New York’s child support formula for determining the appropriate amount of child support to award in any given case requires the court to apply a statutory percentage based on the combined parental income of both parents. As of March 1st, 2022, the income cap has increased to $163,000.  However, consistent with prior precedent, the trial courts have discretion to base child support upon combined parental income in excess of $163,000.

Remedies for Survivors of Sexual Assault:

On May 24th, 2022, New York Governor Kathy Hochul signed the Adult Survivor’s Act into law, establishing a one-year window for survivors to bring claims against abusers without the limits of the statute of limitations.

Increase in the Minimum Wage:

The Minimum Wage Act (Article 19 of the New York State Labor Law) requires that all employees in New York State receive at least $14.20 an hour beginning December 31, 2022. Minimum wage rates differ based on industry and region. On Long Island and in Westchester, the rate went up to $15 per hour.

No More Styrofoam in New York: 

As of January 1, 2022, New York State bans any single-use disposable polystyrene foam food service containers including bowls, cartons, clamshells, cups, lids, plates and trays. Additionally, polystyrene packing peanuts are illegal.

Marijuana Sales

New York legalized recreational use of marijuana to adults over the age of 21 in March 2021; but is still in the process of licensing people to sell it. The cannabis board also advanced proposed regulations for the sale of marijuana, with a focus on public health, product quality and safety and preventing those under 21 from buying cannabis.  Contrary to popular belief, you can’t buy marijuana just anywhere! 

Sport Betting is Legal in New York:

As of January 8, 2022,  the New York gaming commission gave their approval to four operators to start taking online bets from anywhere in the State including from a person’s own living room a bar or from the street.

Landlord-Tenant and Foreclosure Law:

Effective January 15, 2022, Hardship Declarations related to Covid-19 which were previously submitted to the courts will no longer automatically stay eviction proceedings and no new Hardship Declarations may be filed.

Guns:

As of September 1, 2022, New York State made statutory changes in response to the U.S. Supreme Court’s decision declaring New York’s restrictions on carrying concealed weapons unconstitutional.  This law enacted requirements for individuals seeking to obtain concealed carry pistol permits.  These included firearm training, in-person interview, and social media review, among others.  Also, the law outlawed conceal carry in sensitive locations including times square, bars, libraries, schools, government buildings and hospitals.  It also requires permit recertification or renewal every three years 

Robocalls: 

In November 2021, two bills were signed into law addressing robocalls.  The first requires telecommunications providers to block calls from numbers that do not or cannot make outgoing calls. These types of numbers are indicative of ‘spoofing’ schemes in which the true caller identity is masked behind a fake, invalid number.”  The second requires that voice service providers implement the “STIR/SHAKEN” protocols to validate that calls are actually coming from the numbers displayed on the Caller ID.  The STIR/SHAKEN authentication protocol uses cryptography to validate that a call is really from the number it displays, preventing bad actors from illegally “spoofing” phone numbers.

Fake COVID-19 Vaccination Cards:

A bill signed into law on December 23, 2021 makes the falsification of COVID-19 vaccination cards a class A misdemeanor. It also creates a new E felony of third-degree computer tampering for “intentional entering, alteration or destruction of computer material regarding COVID-19 vaccine provisions.”

Mandatory Retirement Plans for Workers in Private Sector Businesses:

As of 2022, private sector businesses in New York must offer a retirement savings plan to their employees.  The new law requires private sector businesses that don’t currently provide their employees with a retirement plan to automatically enroll them in the state’s Secure Choice Savings Plan.

Homeowners’ Insurance and Pets:

A new law now prohibits insurers from refusing to issue or renew, cancel, or charge or impose an increased premium for certain policies based solely on the breed of dog owned.

Consider Funeral Trusts as a Part of Your Estate Planning

If you are 65 or older, blind or disabled, and have the means to set aside some funds, we recommend that you consider setting up a pre-paid funeral trust with a reputable funeral home of your choice.  A funeral trust is an agreement with a funeral home or cemetery who utilizes a pooled income fund to hold assets you set aside to cover future funeral and burial costs.  You can fund the trust with cash, bonds, or life insurance.  The contract allows you to “lock in” future funeral or burial services costs, adjusted to the time when it is expected you will need the trust funds.  It allows you to alleviate any burden on your loved ones to decide upon and fund critical end of life decisions after you have passed, because you will have taken care of all of this already, according to your wishes.    

A funeral trust can be revocable (changed and revoked by the person who sets it up at any time) or irrevocable (generally you can’t get your money out except to pay for funeral services).  Because the funds you set aside go into a pooled income trust, they can accumulate some interest over time.  Another advantage of an irrevocable funeral trust is that it can help one qualify for Medicaid.  As an irrevocable trust, the funds put into it will no longer be deemed in a person’s name and will not create a past asset transfer that violates Medicaid’s “5-year look-back” rule.[1]  An irrevocable funeral trust is still very flexible, however.  An individual (or his/her legally responsible relative following one’s death) may change the choice of funeral home, funeral director, undertaker or cemetery following the execution of a funeral trust, but just may not revoke the agreement entirely.  We also recommend individuals select an independent trustee (other than the funeral home) at the time of setting up a trust to allow for auditing the actual funeral bill for reasonableness and pay any excess to the family, when the time comes. 

Yet another positive about funeral trusts that many people don’t know is that you may also establish a qualifying, irrevocable funeral trust for someone in your “immediate family” and still not create a penalizing asset transfer according to Medicaid eligibility rules.  Immediate family members have been defined to include:  parents, adoptive parents, a spouse, children (minors or adults, including adopted children and stepchildren), and brothers and sisters (including step-siblings and adopted siblings).  The spouse of each of these relatives is also included in this definition, provided the individual is still married to the relative at the time an individual applies for Medicaid.[2]

A few other details about funeral trusts desired to support Medicaid eligibility clarify the legitimate expenses of trust funds as follows:

• Burial space items to include: a casket, urn, mausoleum, vault, headstone, burial containers and headstone engraving, a burial plot or gravesite, the cost of cremation or the opening and closing of a gravesite, and the cost of a perpetual care contract for a gravesite.
• Non-burial space items to include: embalming/cosmetology and burial clothes, funeral transportation (hearse, limousine, out of town shipping), use of funeral home facilities (for services, visitation, or a wake), clergy services, death notices, and flowers.

Items which may not be included in a funeral trust for Medicaid eligibility purposes include: food, lodging or transportation expenses for family, friends or guests.  There is no limit on the cost of the items, but their cost must match the fair market value to qualify.

Kiley, Kiley & Kiley can assist you in your estate planning.  We can help calculate eligibility for Medicaid and suggest ways, like the use of funeral trusts to allocate excess resources, particularly should you wish to legally protect your hard-earned financial nest egg for your family members and retain the option to become Medicaid eligible when the time comes.  Please contact our office to assist you further.

[1] Kiley, Kiley & Kiley can gladly provide more information regarding resource and asset protection planning to also allow Medicaid eligibility.

[2] See N.Y. Social Services Law Section 141(6) and General Business Law Sect. 453 for the laws on funeral trusts. See also http://www.health.ny.gov/health_care/medicaid/publications/pub2011adm.htm for 11 OHIP/ADM-04-Treatment of Irrevocable Pre-Need Funeral Agreements (July 11, 2011) available at for the NYS Dept. of Health directive implementing and the NYS DOH Medicaid Reference Guide [MRG] section on funeral agreements and burial funds, available at http://www.health.ny.gov/health_care/medicaid/reference/mrg/index.htm.