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Theories of relativity

In the just-published March/April issue of Family Business Magazine, attorney Joe Goodman explains that because of today's demographic and medical realities -- divorce and remarriage, increased longevity, unmarried and gay couples raising children, in vitro fertilization and gestational surrogacy -- estate planning is more complicated than it used to be.

In my March/April "From the Editor" column, I note that these new realities also complicate the question of who should be considered part of "the family," and thus who is permitted to own or inherit stock in the family business. A panel of family enterprise stakeholders will discuss this topic at our forthcoming Transitions East 2012 conference, which will be held in Orlando, Fla., April 25-27.

Each family must determine its own stock ownership policies by considering the family values and how family units might be formed in the future. It is instructive, however, to consider how others have answered those questions.

With the enactment of the Family Office Rule, which Congress inserted into the Investment Advisers Act of 1940 as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the U.S. Securities and Exchange Commission has considered this question, as well. The Family Office Rule determines whether a family office must register as an investment adviser with the SEC. Family offices that provide investment advice to people not considered as family clients must register.

On a "Frequently Asked Questions" page on the SEC's website, staff of the SEC's Division of Investment Management tell us who they consider to be "family members," for the purpose of determining compliance with the Family Office Rule:

• Same-sex domestic partners and unmarried opposite-sex partners are considered family members. (Presumably, so are lawfully married spouses.)
• However, "in-laws related through the spouse of the common ancestor, or through spouses or spousal equivalents" do not qualify as family members.
• Spouses or descendants of a stepchild whose parent later divorced the family member stepparent are not considered family members under the rule.

Whether or not you agree with the U.S. government on these matters (or if you find the SEC's wording to be so confusing that you don't know whether you agree!), these definitions are a way of opening a discussion on this topic with your family members.

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