Legal News

Attorney Olivia Kay Mote Joins the Firm!

Eustice, Laffey, Sebranek & Auby, S.C. is pleased to announce that Attorney Olivia Kay Mote has joined the firm as an associate. Olivia is a 2016 graduate of the University of Wisconsin Law School.  She will focus her practice on the areas of Estate Planning, Elder Law, Business Law, Family Law, and Employment and Civil Rights Law (including gender identity and sexual orientation matters).

With locations in Sun Prairie and Waunakee, Eustice, Laffey, Sebranek & Auby, S.C. now boasts nine attorneys assisting financial institution, business, and individual clients in a wide variety of legal areas.  To schedule an appointment with Attorney Mote, please call our Sun Prairie office at (608) 837-7386.

Welcome Olivia!

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ELSA Attorneys Organize, Participate in FREE Sun Prairie Legal Clinic

Free Legal Clinic Starts Tuesday

If you live in the Sun Prairie area and have legal questions, there is now another local resource available.  The Sunshine Supper Legal Clinic will open its doors tonight, September 16, 2014, from 5 to 7 p.m. at Sunshine Supper (1632 West Main Street, Sun Prairie), to answer your legal questions free of charge.

ELSA Attorneys will be on hand to answer your questions regarding various fields of law, including employment law, family law, immigration law, and landlord-tenant issues.  Individuals whose questions are not fully resolved will be referred to outside resources, including the State Bar’s Lawyer Referral & Information Service, Community Justice, Inc., Legal Action of Wisconsin or the State Public Defender’s Office.

The clinic is the result of months of hard work by ELSA attorney and shareholder Joshua J. Kindkeppel, as detailed in this article from The Star, as well as ELSA attorneys Kathleen Curran and Kevin Henry, and other local practitioners.

Attorney Kindkeppel practices in the areas of business, real estate, employment, and civil litigation.  He was elected and served as president of the Dane County Bar Association in 2012-13, and collaborated with long-time Madison attorney Joseph Melli to create the Joseph A. Melli Mentorship Program to assist young Dane County attorneys. Kindkeppel is also active in the Sun Prairie Rotary Club, and serves on the planning committee for the Sun Prairie Kindness Retreats.

Attorney Curran practices in the areas of family law, estate planning, civil litigation, employment law, and personal injury.

If you cannot make it to tonight’s clinic, it will return on October 21, 2014, and on the third Tuesday of each following month.

Is Your Office Bracket Pool Legal?

This is one of my favorite days of the year.  In addition to the green beer that is flowing, sports fans (and non-sports fans) get to spend an inordinate amount of time completing NCAA basketball tournament brackets in hopes of besting their friends, colleagues and often complete strangers.  The range of bracket pools varies nearly as much as the participants, from high-stakes pools involving fanatics with big money on the line, to office pools competing purely for bragging rights.

It seems like everyone completes a bracket.  But have you ever wondered if your bracket pool is legal?

According to this article on Forbes.com, free-to-enter pools are generally legal, but pay-to-enter pools are not.  As the article details, pay-to-enter pools may run afoul of at least three federal laws, and may be illegal in some states.  What about Wisconsin?

The answer comes down to whether your bracket entry is a “bet” and your pool is a “lottery.”

By statute, anyone who “makes a bet” is guilty of a Class B misdemeanor.[1]  Wis. Stat. § 945.01(1) defines a “bet” as “a bargain in which the parties agree that, dependent upon chance even though accompanied by some skill, one stands to win or lose something of value specified in the agreement.”  There are several exceptions from this definition (actual business transactions, prizes to actual competitors, etc.), unfortunately, they do not appear to exclude bracket pools.  Thus, the ability to win or lose “something of value” determines whether your bracket entry is a “bet.”  If you can win or lose money, it is a bet.  If it is for office bragging rights, it may not be (a very lawyerly answer, I know).

“A lottery is an enterprise wherein for a consideration the participants are given an opportunity to win a prize, the award of which is determined by chance, even though accompanied by some skill.”  Wis. Stat. § 945.01(5)(a).[2]  There is at least a strong argument that success in bracket pools is determined by chance.  (Do you think Warren Buffet would be putting $1 Billion if the odds for winning were better than 1 in 9 quintillion?  How many times has your friend who picked based on uniform colors won?)  Similar to the “bet” discussion above, if money is required to enter the bracket pool, and if the winner receives a prize (usually money), the bracket pool is a lottery.

Now what about those trusted friends or colleagues who take time from their busy schedules to run your bracket pool?  These pool administrators may be engaging in “commercial gambling” and guilty of a Class I felony[3] if they do any of the following:

  • For gain, operating a bracket pool;
  • For gain, becoming a custodian (holding) of entry fees or records;
  • For gain, setting up an online pool; or
  • Conducting a lottery where the entry and prize is money.

As you would suspect with laws regulating gambling, it appears that money is the principal issue in determining whether your bracket pool is illegal gambling.

Thus, while money makes many things more exciting, if you are going to engage in a bracket pool, it may be better to put the checkbook away and stick to bragging rights.


[1] The maximum penalty for a Class B misdemeanor is $1,000 and 90 days imprisonment.

[2] As an aside, a lottery does not include bingo or certain raffle contests.  Good job Lutheran churches!

[3] The maximum penalty for a Class I felony is $10,000 and 3 years and 6 months imprisonment. Yikes!

The Wisconsin 2013-2014 Budget Bill May Have Severe Results for Medicaid Recipients

This is a very good article by Carol Wessels, who is an attorney who practices elder law in the Milwaukee area at the firm of Nelson, Irvings & Wessels, S.C.

http://wesselselderlaw.wordpress.com/2013/07/09/will-medicaid-recipients-ever-be-able-to-sell-their-homes-under-wisconsins-new-budget-law/

This article discusses the potential impact of the new real estate notice requirements for recipients of Medicaid. These new notice requirements were part of Wisconsin’s 2013-2014 Budget Bill that was signed into law on June 30, 2013.  This Budget Bill incorporates changes to the Medicaid program, including changes to the rules governing estate recovery, which expand the state’s ability to recover Medicaid costs from the estate of a deceased recipient of Medicaid.  The new real estate notice requirements are part of these changes to the estate recovery rules.  As pointed out in this article, these new rules could have severe effects on recipients of Medicaid and those recipients’ families.

If you or a close family member is a Medicaid recipient, you may want to consult an elder law attorney on what effects these new rules may have on you and what planning options may be available to avoid those effects.

The U.S. Supreme Court’s Decision in U.S. v. Windsor and Its Effect on Estate Planning

On June 26, 2013, the United States Supreme Court issued an opinion, U.S. v. Windsor, in which it struck down a major part of the Defense of Marriage Act (DOMA) as unconstitutional because it denies same sex couples equal protection under the law in violation of the Fifth Amendment.  In that case, Edith Windsor, who was married to her same sex partner in New York, where the couple also resided, and which recognizes full marriage rights for same sex couples, was denied the opportunity to claim the marital exemption from federal estate taxes upon her partner’s death based on the definition of marriage under Section 3 of DOMA.  This Section defines marriage for federal purposes as “only a legal union between one man and one woman.” 1 U.S.C. § 7.  The U.S. Supreme Court, however, in a 5-4 decision determined that Section 3 of DOMA unconstitutionally denied Edith Windsor from taking advantage of the estate tax marital exemption, which would have been available to opposite sex married couples.  This thus violated the Fifth Amendment’s directive for equal protection under the laws by singling out and demeaning a certain class of people – same sex couples.  The Court also indicated that this provision interferes with the states’ power to regulate marriage.  Therefore, the Court struck down this section of DOMA.  Windsor, No. 12-307 (U.S. 2013).  For further information on the Windsor decision, see the article, “Supreme Court strikes down Defense of Marriage Act in estate tax case” at http://www.journalofaccountancy.com/news/20138222.htm.  See also the article, “The Same Sex State Death Tax Trap Post DOMA” at  http://www.forbes.com/sites/ashleaebeling/2013/07/01/the-same-sex-state-death-tax-trap-post-doma/.

The effect of this ruling is that legally married same sex couples can now claim the same federal benefits and marital tax exemptions as opposite sex married couples can.  It remains unclear, however, whether federal benefits will be available to same sex couples who do not live in a state that recognizes same sex marriage.

What this means for estate planning is that the same estate planning tools and techniques utilized in opposite sex couples’ estate plans to minimize the federal estate tax owed may be used in same sex couples’ estate plans in states that allow same sex marriage.  In states that do not recognize same sex marriage, however, these estate planning techniques would not be effective and same sex couples in those states would not be able to avoid estate taxes in that way.

In Wisconsin, though domestic partnerships are recognized between same sex couples, same sex marriage is not.  It is therefore uncertain whether same sex couples would be able to take advantage of the federal estate tax marital exemption, since these couples cannot be legally “married” in Wisconsin.  We are hoping, however, that both the federal and state governments will provide guidance as to these issues and questions in the near future and will establish processes and procedures that will facilitate the implementation of these new policies.