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Deterring STOLI: Article Two New Model Life Settlements Acts

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Deterring STOLI: Article Two New Model Life Settlements Acts Deterring STOLI: Article Two New Model Life Settlements Acts This article first appeared in Estate Planning, Julyl 2008, Vol. 35, No. 7 There are strengths (and weaknesses) in both new model acts. Some states will likely choose to take provisions from both in order to effectively eliminate stranger-originated life insurance and perceived abuses in life settlement practices. Authored by Kenneth W. Kingma and Stephan R. Leimberg, Attorneys STOLI is “a practice or a plan to initiate a life The trafficking of life insurance policies by insurance policy for the benefit of a third party STOLI programs is of grave concern to the Kenneth W. Kingma investor who, at the time the life insurance policy life insurance industry and to state insurance 314.480.1631 is originated, has no insurable interest in the regulators, not only for the issues these [email protected] insured.” NCOIL Model Act 1 programs raise but also for their economic effect on the life insurance industry and the insurance- Introduction buying public. The insurable interest requirement for life insurance benefits insurers that base The life settlement business, which involves the premiums on actuarial life expectancies. But sale of life insurance policies prior to maturity, the accuracy of actuarial life expectancies is is thriving. Although records of sales of life frustrated if the policy owner or beneficiary can insurance to settlement companies are not control and “game,” to any meaningful extent, the publicly available, one research firm estimated probability of the insured’s death. that the life settlement insurance industry grew to approximately $6.1 billion in 2006.2 A primary objective in requiring an insurable Unfortunately, the growth of the life settlement interest is economic—to be certain that parties business has been fueled, at least in part, by to a life insurance policy are not likely to stranger-originated life insurance (“SOLI” or adversely affect the odds of an insured’s survival. “STOLI” or “SPIN-LIFE”) programs3 where The insurer’s insistence on an insurable interest brokers or speculators encourage individuals at the inception of the life insurance contract through economic incentives such as “free can be seen as an effort to preserve the integrity insurance,” cruises, cash payments, and the of the risk pool and the avoidance of adverse like to acquire life insurance policies directly selection. That same motivation may also allow or indirectly on their lives, with the intent that an insurer to escape responsibility under a policy the policies be sold over time to investors who at the death of the insured if subsequent facts have no insurable interest in their lives.4 STOLI indicate a lack of insurable interest. 7 programs, however, are fraught with a host of potentially troublesome issues, including The trafficking of life insurance policies by STOLI insurable interest, tax, securities, “wet ink” programs is also of grave concern to members settlement, premium rebate, premium finance, of Congress. Rep. Richard Neal, D-MA, Chairman and usury issues.5 of the Select Revenue Measures Subcommittee of the House Ways and Means Committee, and Life insurance programs that speculate on Rep. Phil English, R-PA, that Subcommittee’s human lives are not new. For over 100 years, top Republican, requested in a letter to Treasury the courts have unraveled such programs.6 Secretary Henry M. Paulson that Treasury assist Those programs and their “too good to be elderly Americans who are the targets of STOLI true” promises are like the fabled vampire programs by issuing a notice or other public Dracula; they die hard but inevitably reappear guidance outlining the potential—and often with different aliases and mutating forms. adverse—tax consequences of participating in a Similarly, STOLI programs are a prime example STOLI transaction.8 of the never-ending quest to do indirectly what centuries of insurable interest law will Deterring STOLI programs not allow directly: speculators purchasing life legislatively insurance on the lives of individuals who are, by blood, business relationship and economically, State insurance regulators have shown their strangers. commitment to deterring STOLI programs by huschblackwell.com Husch Blackwell LLP | 1 providing model legislation that is intended receiving amounts from the policy or policy to be enacted by state legislatures. The first owner in addition to amounts required to model act (the Viatical Settlements Model Act) pay premiums, interest, and service charges was approved by the National Association of under the premium finance agreement; and Life Insurance Commissioners (“NAIC”)9 in ■ 10 Allowing insurers to advise applicants in December 2006, and was amended on 6/4/07. premium-financed transactions of possible The second model act (the Life Insurance adverse consequences resulting from Settlements Model Act) was approved by the subsequent settlement of the policy.17 National Conference of Insurance Legislators (“NCOIL”) in November 2007.11 More specifically, the NCOIL model act manages the STOLI process as follows: The NAIC model act moved to end STOLI and strengthen consumer protection in the life ■ It defines the parties typically involved in a settlement area. That act, which the authors life settlement process, including an Owner, have discussed elsewhere,12 addresses the most a Broker and a Provider. An Owner is the obvious and blatant form of STOLI—transactions owner of a life insurance policy.18 A Broker is involving direct policy settlements (i.e., direct a person who, on behalf of an Owner and for sales of life insurance policies specifically a fee, offers or attempts to negotiate a Life “manufactured” for the purpose of allowing Settlement Contract between an Owner and investors to purchase them). The NAIC model a Provider.19 A Provider is a person who enters act establishes a five-year moratorium (with into or effectuates a Life Settlement Contract very broad exceptions13 to assure legitimate (“LSC”) with an Owner.20 non-STOLI transactions would not be within the ■ It thrusts the Commissioner of a state scope of the five-year ban) on the settlement Department of Insurance into the life of policies having STOLI characteristics, and settlement process by (1) requiring the requires life settlement brokers to disclose to licensing of Brokers and Providers, (2) policy owners vital information about settlement requiring the approval of an LSC that will transactions, such as commissions and other govern the transaction between the Owner, purchase offers. The NAIC’s Life Insurance and Broker and Provider, (3) authorizing the Annuities Committee is expected to examine Commissioner to examine the business and proposals to deter STOLI transactions that do affairs of any Broker or Provider and issue not involve a direct settlement but accomplish injunctions and cease and desist orders, and the same result by shifting a beneficial interest in (4) empowering the Commissioner to impose life insurance to investors through a transfer of civil penalties for any violation of the act, an interest in a trust or other vehicle that holds including a Fraudulent Life Settlement Act, the policy. and seek an injunction or restraining order. The NCOIL14 model act serves as an alternative ■ It defines a Fraudulent Life Settlement Act to the NAIC model act. It attempts to bring (“FLSA”), which includes any practice or plan within its scope all manifestations of STOLI, involving STOLI. whether they involve direct settlements of life ■ It treats a person who commits an FSLA as insurance, or indirect sales of life insurance to committing an unfair trade practice and the investors through a sale of an interest in trust crime of insurance fraud (or a limited liability company (“LLC”) or family limited partnership (“FLP”)) or through other Licensing practices.15 The Commonwealth of Kentucky became the first state to adopt the NCOIL The licensing provisions in the NCOIL model model act, but—as noted above—a last-minute act have teeth in that they require Brokers and amendment narrowed its key provision, the Providers to be licensed by the Commissioner definition of STOLI.16 before engaging in a life settlement transaction, and they also permit the Commissioner to This article summarizes the NCOIL model act suspend or revoke those licenses. and provides a broad-brush comparison of the NAIC and NCOIL model acts. Broker and Provider cannot engage in the settlement of a policy in a state without NCOIL model act first having obtained a license from the Commissioner. 21 In general, the NCOIL model act aims to deter STOLI by: When settling a contract, a Broker cannot use a Provider, and vice versa, unless each knows that 22 ■ Defining and prohibiting STOLI transactions; the other is licensed under the act. Thus, each has an affirmative duty to determine whether ■ Requiring life settlement providers to the other is licensed. report data annually to state insurance commissioners, including internal policies Both must apply for a license using forms regarding the life settlement process; prepared by the Commissioner.23 ■ Prohibiting premium financing providers from 1. A life insurance producer desiring to be huschblackwell.com Husch Blackwell LLP | 2 licensed as a Broker in a state must be An LSC must be pre-approved by the licensed as a life insurance producer for at Commissioner before it can be used.29 The least one year in that state or in another Commissioner can disapprove a proposed LSC state. 24 under the following circumstances:
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