By:  LINDSEY O’NEILL, ESQ

The Georgia couple who just won the $270 Million lottery seem to be the media favorite right now for the nicest couple to ever win the lottery!  With big lottery jackpots like this, many of us wonder just what it would be like to actually win the lottery….  Since this is a legal website, I started wondering about the legal aspects of winning the lottery.  Actually, there are many legal issues lottery winners must address at one point or another.  Know this – if you win the lottery, it is highly recommended you consult with an attorney prior to claiming the winning ticket so that the various legal issues can be addressed and winning the lottery can be a good thing …. and not turn into nightmare.  Some of the legal issues include the following: 

1.  What about privacy and the identity of lottery winners?  Most winners’ names are published in the media, which can translate into a loss of privacy previously enjoyed.  Some argue that the winners’ names should be published so that the public can be assured the state isn’t just keeping the money.  Others argue that the celebrity created by a lottery winning can have negative consequences on lottery winners in terms of unwanted publicity.  Depending on the circumstances, you may be able to protect your privacy by the way in which you choose to recieve the winnings.  For example, there may be legal entities that can be created to in an effort to help mask your identity and save you from a fifteen-minutes-of-fame-gone-wild situation. 

2.  What about taxes on the winnings?  Lottery winnings are considered taxable income.  Whether received as a lump-sum payment or in multiple annual payments, the winnings are taxed as received.  A trust may be a good option to hold the lottery winnings.  Some of the tax advantages of a trust may include avoiding probate of the lottery proceeds upon death of the winner and minimizing taxes on the estate. 

3.  How must lottery winnings be split if the ticket was purchased jointly or by a pool of individuals?  Many times lottery tickets are purchased with pooled funds from friends or colleagues.  Was there verbal agreement to share the winnings with another person?  Can that agreement be enforced under applicable state laws? (Some states prohibit contracts for gambling.)  If multiple individuals own the winning ticket, a partnership may be a good entity to form to receive the winnings on behalf of all of the partners, rather than one individual receiving the checks. 

4.  Must the winner share the winnings with a spouse or a live-in significant other?  Lottery money may be considered a marital property acquired during the marriage, particularly if the ticket was purchased with marital funds, and may be subject to division upon divorce.   Even if the parties are not married, but are significant-others who live together, share living expenses, and have a regular practice of buying lottery tickets each week, there may be a joint-right to the winnings.  Courts typically focus on the facts and circumstances surrounding the particular situation including the intent and understanding of the parties in order to ascertain the legal rights of the individuals. 

5.  Can the winner(s) gift some of the money to family and/or friends?   A lottery winner can make a gift of some of the lottery winnings up to the annual exclusion limit without incurring gift tax liability.  Making annual gifts in this fashion is a good way to share the winnings with family members and friends while mitigating the tax implications.  Gifts made to another person’s education or medical care may have favorable tax treatment as well.  Finally, gifts to charities can have certain attractive tax advantages for the lottery winner.

When a person wins the lottery, the advice and consultation of an experienced estate planning and tax attorney can be a huge advantage when dealing with the various legal and related issues.  Ideally, a lawyer should be consulted prior to claiming the lottery prize so that the appropriate legal mechanisms can be put in place to minimize the hassles that may otherwise be associated with collecting the winnings.   Use the attorney locator service on LawInfo’s home page to find an attorney in your area:   http://www.lawinfo.com/.

For more information see also:  Estate Planning, Asset Protection Attorneys, Taxation, Partnership, Find a Lawyer
 

  • http://prosperitypartners.com/lottery.html Lottery Winnings

    We work with lottery winners everyday. They utilize our services to advance their winnings. Our legal and practical advice for lottery winners is to do everything they can to remain anonymous, and spend only 10% of each check on luxuries. Anything else could be a gateway to financial turmoil.

  • http://none J. Gaser

    #2) Taxability of lottery winnings- the answer above is, (IMHO) incomplete/inaccurate. If the winner of a lottery has no SSN, then the winnings cannot be “taxable income”. The status of the “taxability” depends upon the tax status (or lack therof) of the “winner”. The answer above assumes that the winner is in a “covered” situation (as 99% of people are such).

  • DMS

    Question…if someone wins the lottery, can they create a LLC or “trust” in a state that does not charge state tax, such as Nevada, and assign percentages of that “trust” to individuals from the inception of the trust without having to pay “gift tax”, considering Nevada does not share personal ownership information on LLC’s, corporations or “trusts” with the IRS, and also considering the lottery winnings are claimed by the trust, not an individual?

  • LDS

    Questions, what is the law regarding a U.S. citizens claiming winning from a lottery in another country, like Cananda?

  • bruce

    how is it any smarter to form a corporation than to form a trust to collect lottery winnings?

  • stephanie

    I was just curious does lottery winnings affect someones government benefist like widows and disability.Someone told me that they put a stop to your lottery winnings and make you pay the money back like ssi or widows benefits.Is this true ?please get back to my email let me know

  • Brandon

    Yes, he or she would still have to pay gift tax.

  • http://www.conartplus.com Ben

    A woman from the US hit the Canadian lottery a few years ago for $5,000,000.00 when told by the crooks in the US that she would have to pay taxes on those winnings, she moved to Canada.

  • http://www.conartplus.com Ben

    No other country in the entire world taxes lottery winnings. Only the crooks in the US. Why should they tax other peoples money when they get a big chunk when tickets are sold initially. Why do the American people sit back and let this corrupt government crap all over them. It seems the American people enjoy being thrown a bone every so often. They get less than have the winnings when they hit the lottery, and pay taxes at the onset of receiving their winnings and every year when they get a check. It is sickening.

  • Allison

    It’s one thing to complain about taxes when you earn the money, it’s another when you just win it. If I were to win the lottery , I will happily give them the taxes owed. I would still be at LEAST a million times richer than I was the day before. And not all states in the US tax lottery winnings.

  • Alan

    Wait. When one plays the lottery, you agree to the terms of the game. It’s just a game with rules. If you don’t like the rules of the game, go play another one. It seems as if you believe you have an innate right to all of the money. Why? The lottery is not created to simply give money away. The whole idea is to generate money for local, state and federal government. That’s the whole point of all lotterys. It’s not a scam. Think about it a little bit more…

  • http://www.conartplus.com Ben

    You two people who commented are just the kind of people I am talking about. You enjoy the Bone that this corrupt government throws you once in a while. They do it so that you don’t complain after they rob you blind. They live the great life at the expense of the dumb American people. And Yes, I do plan on leaving this foul war monger country. Have a S*^y day.

  • Steve James

    Somebody breakdown the following scenario:

    You will 10 million dollars and you take the lump sum.
    -What is likely to remain? Roughly half? 5-6 mil?
    -What tax rate would you pay on this remainder? 35%?
    -Or are taxes taken out immediately, which is part of the reason why you end up with only 5-6 million left?
    -If you give five friends $100,000 each, will you, as a giver, have to pay taxes for giving this money away?
    -Is there a special rate that your friends have to pay on this gift money, or is it just based on what tax bracket this gift pushes them into?

    All fun questions I’ve pondered over the years…
    Thanks

  • jack

    a trust…..but not just any kind of trust.

  • Jules

    If you are a citizen of another country, lets say Canada.. and you win the lotto on the US do you still have to pay the US taxes on the winnings? Even if you dont reside in the states? Also could they just move back to Canada and not pay?

  • Jules

    To be honest i have to agree with you. Yes, we agree to the rules on the ticket when we play, and a huge chunk of that tiket money goes to the government, a smaller to our local schools and a tini tiny goes to the stores. But it is not just in the lotto, americans appear very happy to give their wealth way to just about any institution, regardless of what it uses th $$$ for. Take your Banks, they steal left right and center. So Ben, although i dont like your language, i understand where it comes from. It is very frustraiting to deal with sheep. Woof!

  • http://www.lawinfo.com Lindsey

    Hi Jules. Here is a clip from the U.S. Internal Revenue Service website regarding taxation of lottery (and other type of gambling) winnings for foreign persons:

    “Foreign Persons

    “Payments of gambling winnings to a nonresident alien individual or a foreign entity are not subject to reporting or withholding on Form W-2G. Generally, gambling winnings paid to a foreign person are subject to 30% withholding under sections 1441(a) and 1442(a) and are reportable on Form 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons, and Form 1042-S, Foreign Person’s U.S. Source Income Subject to Withholding. Winnings of a nonresident alien from blackjack, baccarat, craps, roulette, big-6 wheel, or a live dog or horse race in the United States from legal wagers initiated outside the United States in a parimutuel pool are not subject to withholding or reporting. See Pub. 515, Withholding of Tax on Nonresident Aliens and Foreign Entities.”

    See: http://www.irs.gov/instructions/iw2g/ar02.html

  • A Ruiz

    FYI- you need to be a legal resident to claim a lottery ticket. If you do not have a SSN you cannot claim the price.

  • http://N/A ZAYTIGGY

    i would have done the same the samething but i would always come back to visit

  • Maximus

    If we know that we have won a lottery (considering iam an L-1 Visa holder (with a SSN),can i go to the nearest lottery office (Not the Local gas store) and claim my prize ? Will i get a check at the office immediately or will i be getting a check to my home through postal mail or will the money be credited to my bank account ?

  • Allan

    If a lottery ticket is purchased on behalf of a not-for-profit organization that is a 501c(3), does that organization have to pay taxes on their winnings?

  • Anon

    That isn’t necessarily true. Check your local and state laws before presuming anything. I randomly picked a state and came up with Florida. For example, the Florida lottery is as follows. Federal Withholding Taxes: Appropriate federal income taxes will be withheld from both Cash Option and annual payments at the time payments are made. If a Florida Lottery prizewinner is a U.S. citizen or resident alien with a Social Security number, the Internal Revenue Service requires the Florida Lottery to withhold 25 percent federal withholding tax from prizes greater than $5,000. If the prizewinner is a U.S. citizen or resident alien who does not have a Social Security number, the Florida Lottery is required to withhold 28 percent federal withholding tax from any prize of $600 or more. For nonresident aliens, the Florida Lottery is required to withhold 30 percent federal withholding tax from all prize amounts. The Internal Revenue Service requires the Florida Lottery to report all winnings of $600 or more for U.S. citizens and resident aliens.

    So, like I said check your state laws.

  • Bill Long

    Somewhere in all this is a lesson

    I had a friend in the 1980′s that won, after taxes, close to a million dollars. A lot of us advised him to put the bulk of the money $900,00 in a 30 year 7% US bond. At that time, it was very easy to do at any large bank. Today, some 22 years later, he still would be getting an income of over $60,000 a year. Three years after winning he was broke.

  • Ella

    If a person wins the lottery in a state, like CA, that charges no state tax on lottery winnings, decides to take the annuity payments, then moves to a state, like NY, with income tax on lottery winnings, will the person have to pay NY state income tax ( in the new state of residence) on the subsequent annual payments?

  • http://windows jeff phillips

    can a person win the lottery if that person is a convicted felon?

  • Jewel

    Does a visitor to the USA pay taxes if they win the lottery?

  • Bobbi

    I’m married but don’t want to share my winnings with my husband, can I divorcee him and then collect the money?

  • PP

    I am a resident alien. I am playing the lottery on my home country. If I win, do I need to pay taxes on those winnings in the US?

  • mina

    How does the bilnd trust work? Does the lawyer of the winner take the ticket for validation or the ticket gets turned in and the bank takes care of the rest? And, what will happen if the ticket is lost between lawyer and bank before validation of the lottery office? Thanks

  • Yvonne

    I’ve read, repeatedly, that lottery winners should consult a tax attorney before claiming their winnings. Is yours such a firm? If so, please forward your information to the above email address.

    Thank you.

  • http://www.lawinfo.com Lindsey

    Hi Yvonne. You can find an attorney through LawInfo’s attorney directory at http://www.lawinfo.com. Good luck!

  • The Ghost of Jack Whittaker

    I’m not a big fan of the comment above that stated ‘you played the game, follow the rules’. That implies that any rule ever made was just fine and dandy, and if you didn’t like them, tough poop. That kind of thinking reminds me of when I humped an M16 around in the Infantry. ‘Just shut up and do what your told’. In real life, people have a right to object and to, especially in matters of politics, to demand change. I agree with the point about why not pay taxes on lottery wins? Why not do it another way? Maybe just take a cut off the top and let the winner have the rest. That way, they state gets their cut of the take. That’s how most, non American lotteries operate. Our lotteries are taxed because that the was the only way proponents could sell it to conservatives in various states. ‘We’ll tax the sucker, then all will be good’. Keep in mind that in the early days of the lottery, most states promoted them as a way to cut down on crime, and to put bookies and the mob out of business. Second, the requirement that winners claim their prize in public sucks big time. Winners should have the option to remain private and to avoid the pitfalls of winning and going public. Too many states use the weird logic that winners must be made public to prove the games are legit. However, in reality they want to use winners in promote lotteries. Some states, like Virginia for one, even refuse to let winners collect in a trust to protest their privacy. Again, the logic is that people will think the lottery is fake unless you tell everyone who one. Someone needs to tell states like Virginia that most states allow trusts, some even will allow you to not even use your name, and they are operating very successfully. Seems like going public is just a way to keep state lottery bureaucats in a cushy job. We all need to pressure or state elected officials to change the state rules about collecting lottery prizes. And soon, so that we don’t have to have more winners ending up like the guy in Florida, who was killed by bad people attracted to him because of his lottery win and publicity.

  • Morris

    Is it true that if you win the lottery and paying child support ,the government takes so much of the wiinnings and give towards the child support?

  • http://www.lawinfo.com Lindsey

    Hi Morris. LawInfo’s Free Legal Resource Center explains how child support enforcement works… and when child support can be garnished from wages/income, or other ways. Check it out: http://resources.lawinfo.com/en/Articles/Family-Child-Support/Federal/child-support-enforcement-options.html.

  • Morris

    I pay child support but still need to know will they take so much of the lottery winnings?

  • Mark

    Yes you can divorce and then collect. However, for the husband to NOT get any money, the divorce has to be finalized prior to the draw date of the winning ticket.

  • Mark

    In your scenerio, you would only see like 4 mil after taxes. The Gov. will take 25% off the initial 10 mil and the rest of your tax liability would be on the 4 mil or so that you will pay I believe is 39.6% tax bracket. So, you would still owe another 14.9% in taxes.

    Any gift over $10,000, you as the giver, would be responsible for paying the taxes. Not really sure of the answer of what your friends taxes would be since it would be case specific.

  • Mark

    I am no expert in this, but from my readings, the lottery will hold winnings in the amount of any back/nonpaid child support that is being reported by the state. Other than that, I can’t say for certain.

  • Mark

    The Lawyer (Executor) of the Trust will have the ticket signed with the information of the Trust in place of the winners signature. Hopefully, the Lawyer is more turstworthy and wouldn’t lose the ticket. However, if it is, the Trust will be the only entity that could claim it.

  • bruce

    The customary approach would be to establish two (2) trusts. The first trust would be, with the grantor’s/winner’s name (e.g., your name) disclosed on the face of the trust agreement. However, when a lottery claim is made by a “blind trustee”, it is not unusual for the lottery commission involved to require the trustee/claimant (who is the “agent” for the “undisclosed/anonymous” actual winner) to provide a copy of the trust agreement “under which” the claim is being made.

    You do not want the “real” winner’s name to show on the trust agreement presented to the lottery commission as documentation with the “blind trustee’s” claim, you can add provisions to the first trust agreement that direct the “blind trustee” to establish a second trust for the sole purpose of pursuing and collecting the lottery prize anonymously. Thus, the second trust agreement identifies the “agent” (usually, the same trustee as under the “first trust”) as the “grantor” and “trustee”, stipulating that the grantor has established the trust for the specific purpose of claiming the prize on behalf of an undisclosed Beneficiary or Beneficiaries (who are identified in the “first trust” but not under the “second/blind trust”).
    Also You just need to add a stipulation/direction that reserves to you, personally, the right to direct when/how/where the funds are to be transferred to your account by the trustee. The actual “account details” need not be spelled out in the trust (but should be spelled out in a separate, written direction from you to the trustee.

    You can name the second trust anything you want to just so it’s not your name. As soon as the winnings are collected, the second trust will distribute the winning to the first trust and the second trust will terminate.

  • Phil

    If a U.S. citizen wins a lottery here in the USA, and takes all the monies lump sum, pays both Federal and State taxes, and then wants to distribute some of the monies out to family and friends, and wants to exceed the current 2010 gift limit of 13K per individual per year:

    Here are some questions.

    1) What are the chances that the Federal or State will know that excess cash has been distributed to individuals, especially if paid out in cash? Do you know of examples of people caught?

    2) Are presents such as travel trips (Disney), IPODS, etc. included in the 13K limit? Do you know of examples of people caught in non cash Gift Giving. I am not talking about buying property like houses or automobiles. What if I took my whole family to Hawaii and put them up in suites for 2 months on my charge card?
    Can I buy a house for Mom? At least in my name?

    3) If money is gifted to a foreign resident living abroad, such as the UK, can the USA gift tax be avoided. I am not talking about the taxes the recipient might get from say the UK. Because if the US taxed my original winnings, then taxed my gifts to the UK person, and then the UK taxed gifts from the USA, then I would say the true winner of the lottery was the US and UK governments.

    Now only if I win the lottery

  • phil

    my friend nikki lives in another country and her husband who acquired U.S citizenship won a lottery for $20 million. They are not legally separated and they have children. The man eventually married again without being separated from his wife in the other country. What should she do?

  • Doug

    First of all, lump sum payments are typically around 50% of the jackpot value BEFORE taxes. This is because the lump sum is the cash value of the proceeds from ticket sales that are invested in an annuity which earns a fixed rate of interest over the life, and is paid annually to the winner over a period of between 20 to 30 years (26 years is quite common).

    If the cash value of the jackpot was 6million, you would pay approximately $2.1mm in federal taxes at the current top rate of 35%. If it was after the top tax bracket raises to 39.6% next year, about $2.376mm in federal taxes. Some states tax lottery winnings also, so possibly more gone, leaving you with around $3.5mm from the original $10mm.

    As far as gifts go – the annual exclusion per donor to each recipient in 2010 is actually $13,000 before triggering the gift tax filing requirements (not the $10k mentioned in the first reply). Double this if you are married as each of you can gift one person up to $13,000. Larger gifts wouldn’t necessarily be taxed either because you have a lifetime exclusion amount which offsets larger gifts.

    Also – Your gift wouldn’t push your friends into a higher bracket. A gift is a gift, and not taxable income to the recipient. The gift giver is the one required to pay taxes on it, and gifts of over the annual exclusion to any person must be reported by the donor to the IRS by filing a Form 709. That $100k gift could potentially cost you $55k on top of it in taxes – so keep that in mind!

  • davr

    If I take my ticket to a Lottery office how long does it take for them to process it and how do they make the payment? Can I request an electronic deposit to my bank account, which I have notified of my upcoming unusually large deposit?

    What I.D. do the Lottery people require?

  • http://zip davr

    How much do lawyers charge for this kind of legal help? Just a ballpark figure.

    Do I need to see a tax consultant?

    This is a very helpful site.

    Thank you.

  • Ron

    Call me after the divorce is final Bobbi. We’ll pool our lottery winnings and head to the islands…

  • carolyn

    tell me somthing i work for my money i play lottery with my money i pick the numbers i walk to the store and play when did the goverment give the money the number and become my partner in lottery

  • bill moffatt

    If a person is unemployed and has no income, do they pay ny taxes on $20K?

  • Mark

    I have thought about this and would consult an attorney to see if the following was legal.

    I’d create an LLC. My one and only daughter (a minor) would own 96% of the LLC, but would only have 1 vote towards the management. I would own 1% of the LLC as a separate class but have 96 votes towards the management. My Dad would own 1% and have 1 vote. My in-laws would own 1% and have 1 vote. My brother-in-law would own 1% and have 1 vote. Each would be a separate class of ownership. I would also be the managing member.

    Then, I could distribute the income as I wanted. I believe you can also allocate income for tax purposes separate from the income. Because each ownership is a separate class, income would not have to be proportional to ownership.

    In this way, I could give to my relatives as I desired and they would only have to pay ordinary income tax on these gifts, not gift tax. There would be no estate tax because my daughter already owns everything. Only when she had a child would there be estate tax, upon my daughters death.

    I also might put the each ownership share in a trust (mine, daughter’s, Dad’s, etc.). Further, while my daughter was under 18, I would vote her one share, but even after she was 18, I’d continue to control the LLC until my death.

  • http://www.lawinfo.com Lindsey

    Hi Mark. Looks like you’ve thought about this a lot! :) There is an entity called a “Family Limited Partnership” which is similar to what you’ve described here. Definitely speak to your lawyer to determine the way in which something like this would need to be set up legally, as well as how to comply with all of the applicable tax requirements. Here’s to winning the lottery!

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