Wills, Trusts & Estates Prof Blog

Equitable Adoption Analyzed

Michael J. Higdon (Lawyering Process Professor, William S. Boyd School of Law, University of Nevada) has recently posted on SSRN his article entitled When Informal Adoption Meets Intestate Succession: The Cultural Myopia of the Equitable Adoption Doctrine.  The article will also appear in a forthcoming issue of the Wake Forest Law Review.

Here is the abstract of his article:

In certain circumstances, the equitable adoption doctrine allows a person to inherit as the child of a testator even when the testator was neither that person's biological or adoptive parent. Although this doctrine, at first blush, might appear to be a move toward a more inclusive system of intestate succession, as many scholars have noted, the restrictive tests that the various courts have designed to determine who qualifies as an equitably adopted child have only served to greatly undermine the utility of the doctrine and, in numerous cases, have led to the denial of rather compelling claims.

While agreeing with those criticisms, this article levels a new, more troubling, criticism against the equitable adoption doctrine. Specifically, the equitable adoption doctrine is both culturally-biased and discriminatory. Indeed, as it currently exists, the doctrine uses formal adoption, as that practice exists within the Eurocentric, nuclear family model, to define what qualifies as a parent-child relationship worthy of legal protection. In so doing, the doctrine effectively ignores the practice of informal adoption, which is much more prevalent in the extended family model found in African American and Hispanic communities. This article, thus, examines both the extended family model and the corresponding role that informal adoption plays within those two communities. Set against that backdrop, it becomes much more evident how the current law of equitable adoption not only is overly restrictive, but has the potential to be particularly punishing to our country's minority ethnic populations. With those concerns in mind, this article then offers two different proposals that would make the law of intestate succession more cognizant and inclusive of informally adopted children.

Mandatory Arbitration Clauses in Trusts and Their Enforceability

Michael P. Bruyere (Attorney at Law, Lord, Bissell & Brook, LLP) and Meghan D. Marino (J.D., 2007, cum laude, University of Georgia) have recently published their article entitled Mandatory Arbitration Provisions: A Powerful Tool to Prevent Contentious and Costly Trust Litigation, But Are They Enforceable?, 42 Real Prop. Prob. & Tr. J. 351 (2007).

Here is the editor’s synopsis of their article:

This article proposes that the inclusion of mandatory arbitration provisions in trust agreements can aid a grantor in effectuating a seamless distribution of wealth by preventing trust disagreements from erupting into costly litigation. The Article examines whether mandatory arbitration clauses in trust agreements are enforceable under current law by providing an overview of the judicial treatment of such provisions in several states that have statutorily addressed alternate dispute resolution in the context of trust agreements. The authors posit that further statutory reform will be necessary to move beyond the perceived obstacles some courts have found in the legal distinction between trusts and contracts.

Equitable deviation available to create special needs trust

Parents created a trust to pay income to son and daughter-in-law, then income to their children until age 35 at which time the trust property would be distributed to them.  The son as trustee petitioned the court to reform the trust to create a special needs trust for his daughter who is disabled and under institutional care paid for by the state.

The court in In re Riddell, 157 P.3d 888 (Wash. Ct. App. 2007), determined that equitable deviation was applicable because of the existence of unanticipated circumstances.  It would be consistent with the settlors’ intention to create a trust for the general support of their grandchildren and not solely for the payment of extraordinary medical bills.  The court also noted that the state encourages the creation of special needs trusts and that the trial court erred in considering the potential loss to the state by the creation of the special needs trust.

England Cracks Down on Inheritance Tax Avoidance

Under English law, gifts made more than seven years before a decedent's death are not subject to the inheritance tax while gifts made within seven years of death may be taxed at rates as high as 40%.

According to Faith Archer & Harry Wallop, Crackdown on 7-year inheritance tax gift rule, Telegraph, Sept. 21, 2007:

The authorities are trawling through financial information such as bank statements and pension plans, to make sure any gifts made during the seven years before the donor's death have been accurately declared. If families fail to complete paperwork accurately they could be fined.

Enforcement of the law is not going over well and has been deemed as "squeez[ing] yet more tax out of bereaved families" and "tightening the screws on the taxpayer to feed [the Treasury's] insatiable appetite for cash."

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

Robert H. Sitkoff -- "Chip off the ol' Block"

Our distinguished colleague Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) appears to have received tremendous inspiration from his father, Samuel Sitkoff, a retired trusts and estates attorney.

See Nora Lockwood Tooher, Robert H. Sitkoff: Like father, like son, LawyersUSA, Sept. 24, 2007, which details Prof. Sitkoff's career and how he developed his affinity for trusts and estates law.

Special thanks to Prof. Paul Caron for bringing this article to my attention.

Loopholes in the Estate and Gift Tax System and Possible Solutions

Eric G. Reis (Attorney at Law, Thompson & Knight LLP) has recently published his article entitled Mr. Soros Goes to Washington: The Case for Reform of the Estate and Gift Tax Treatment of Political Contributions, 42 Real Prop. Prob. & Tr. J. 299 (2007).

Here is the editor's synopsis of his article:

This Article recognizes a growing interest in long-term political giving and considers how this trend will expose weaknesses in the current estate and gift tax regime for political contributions. Through an exploration of planning techniques used to exploit gift tax charitable deductions and other gift tax exclusions under prior law, the Article considers how the unlimited gift tax exclusion for political contributions might also be used to circumvent the current estate and gift tax system by facilitating tax-free transfers to members of a donor’s family. The Article then proposes several significant reforms to the system, including the adoption of rules limiting the gift tax exclusion for political contributions and the enactment of an estate tax deduction for bequests to political organizations.

Extrinsic evidence of a promise not to revoke a trust inadmissible where the settlors expressly made the trust revocable

The decedent and his wife created trusts both of which were expressly stated to be revocable.  Each trust named the other spouse as the income beneficiary and when both spouses were dead, the remainders were to be distributed equally to decedent’s three children and wife’s four children.

After wife’s death, the decedent remarried, revoked his trust, and created a new trust the remainder of which passed on his death only to his three children.  The wife’s children sued alleging breach of a contract not to revoke the trusts and fraudulent inducement by the decedent.

The court in Kempton v. Dugan, 224 S.W.3d 83 (Mo. Ct. App. 2007), held that there was no ambiguity in the revocation provision, that extrinsic evidence of an agreement not to revoke therefore was inadmissible, and that the evidence presented on the fraud count was insufficient because it related to a time after the creation of the trusts.

Estate of George Galbraith Revisted

The possibility of significant litigation is brewing in Hawaii involving the testamentary trust of George Galbraith which is set to terminate in 2007. The Bank of Hawaii, the trustee of the George Galbraith Trust Estate, has initiated the process of termination of the trust by petitioning the probate court in Hawaii for instructions as to settlement and distribution.

Galbraith's will took effect in 1904 and disposed of his residuary estate in trust, with a number of fixed annuities to be paid to about 48 individuals, and then to their heirs. The will stated the trust is to continue for the longest duration permitted under Hawaii law. At the end of the permitted period, the remaining trust estate is to be distributed equally to those entitled to the annuities.

The poorly drafted will created much confusion over the ultimate disposition of the trust estate (which is valued in the millions). Over the years, the annuities beneficiaries have increased and live all over the world from Ireland to Australia and Hawaii, while the amount of the annuity payments essentially remained the same since 1905. Some speculators reportedly have been purchasing annuity interests from beneficiaries who may have no idea how much their interest may be worth. The strange thing according to some is that the current "beneficiaries" are not the holders of the annuity but rather the lawyers, trustee, and governments raking in fees and taxes.

For more information, see the unofficial site maintained by Ian Lind for news and background on the Estate of George Galbraith and its coming breakup.

Advice on Getting Published

Leah M. Christensen (Assistant Professor, University of St. Thomas School of Law) and Julie A. Oseid (Assistant Professor, University of St. Thomas School of Law) have recently posted their article on SSRN entitled Navigating the Law Review Article Selection Process: An Empirical Study of Those With All the Power - Student Editors.

Here is an abstract of their article:

Anyone who enters the legal academy knows the pressure for new law professors to publish or perish. The use of student editors as the "gatekeepers" of legal scholarship is a distinctive feature of the legal academy. Yet, even with student editors holding the keys to academic success, few empirical studies have explored what factors student editors consider most important when making article selection decisions. The study reported in this Article attempts to shed light on this process and provide suggestions for new law professors as they navigate the law review article submission process. The present study examines how law review editors at all levels of the law school "tier" system (e.g., Top 15, Top 25, Top 50, Top 100, Third Tier, Fourth Tier and Specialty Journals) weigh the importance of author credentials, topic, format, and timing of an article submission in making their selection decisions. Although most editors consider each of these factors, the data also suggests that the higher-ranked journals rely more heavily on author credentials than lower-ranked journals. Editors at higher-tiered law schools were highly influenced by where an author has previously published. Further, while not a single editor at a Top 15 school considered an author's practice experience in making a publication decision, a majority of the editors at lower-tiered journals rated practice experience as an important factor in article selection. In addition, the study participants almost unanimously agreed that they were influenced by the topic of an article yet there were important differences among the law schools concerning the actual topics about which they would be most or least likely to publish. In addition to describing the survey results in more detail, this article will offer specific commentary from the student editors about their process of selecting law review articles.

Great or Grand – Is There a Right Answer?

What do you call your grandparents’ siblings? Are they your "grand" or "great" aunts and uncles?  While there seems to be no general consensus on this issue, several sources indicate that today using either of these terms is correct.

According to http://www.bicknell.net/books/pc1981/p_family.htm, for example, while "grand" is still the proper way to refer to one’s grandparents' siblings, over the years this term has been replaced with a more general "great" and now both terms can be used in the same manner. See also http://en.wikipedia.org/wiki/Family. The Minnesota Genealogical Society also lists these terms interchangeably on its consanguinity chart at http://mngs.org/tools.shtml.  Meanwhile, other sources, such as http://www.genealogy.com/askr031303.html maintain that "grand" is the only correct way to refer to one’s grandparents’ siblings.

"Money for Nothing" Published

Edward Ugel has recently published his book entitled Money for Nothing.  This book describes a topic often discussed on this blog of how lottery winners are unable to cope with their new found wealth.

Here is an excerpt from the author's description of his book:

* * * Edward Ugel tells the story of America’s addiction to the lottery from an astonishing angle.

At age twenty-six, Ed found himself broke, knee-deep in debt, and moving back into his parents’ basement. It all changed, however, when he serendipitously landed a job as a salesman for a company that offered up-front cash to lottery winners in exchange for their prize money, often paid in agonizingly small annual payments, some lasting up to twenty-five years. For the better part of the ensuing decade, Ed spent his time closing deals with lottery winners, making a lucrative and legitimate—if sometimes not-so-nice—living by playing to their weaknesses…weaknesses he knew all too well.

Ed met hundreds of lottery winners and saw up-close the often hilarious, sometime sad outcome when great wealth is dropped on ordinary people. Once lottery winners realized their “dream-come-true” multimillion jackpots were not all that they were cracked up to be, Ed's job was to sell them the cash they wanted—and often needed. * * * As Ed learned, few of them had the financial savvy to keep up with the lottery-winner lifestyle. In fact, some just wanted their old lives back. * * *

Ed Ugel takes readers inside the captivating world of lottery winners and shows us how lotteries and gambling have become deeply inscribed in every aspect of American life shaping our image of success and good fortune.

Texas Permits Marriages to be Voided Even After Death

The 2007 Texas Legislature added Probate Code § 47A to authorize a court, under certain circumstances, to deem a decedent’s current marriage void for lack of mental capacity even after the decedent has died.  Acts 2007, 80th Leg., ch. 1170, § 4.01.  This section was designed to “undo” marriages entered into due to the actions of conniving and/or abusive caregivers.

1.  Types of Voidable Marriages

a.   Proceeding pending at time of death

If a Family Code proceeding to void a marriage based on lack of mental capacity is pending at the time of death (or if the court has been asked to do so in a pending guardianship proceeding), the court may declare the marriage void despite the death of the decedent.  The court must apply the same standards as for an annulment under the Family Code.

b.  Proceeding not pending at time of death

If a proceeding to void a marriage based on lack of mental capacity is not pending at the time of death, the court may nonetheless deem the marriage void under the following circumstances:

• The decedent entered into the marriage within three years of the decedent’s death.
• An interested person files an application to void the marriage on the basis of lack of mental capacity within one year of the decedent’s death.
• The court finds that the decedent lacked the mental capacity to consent to the marriage and understand the nature of any marriage ceremony that might have occurred.
• The court does not determine that after the date of the marriage, the decedent gained the mental capacity to recognize the marriage relationship and actually recognized the relationship.

2.  Result if Marriage Deemed Void

The surviving partner of the void marriage is not considered as the decedent’s surviving spouse for any purpose under Texas law.  For example, the surviving partner would not be able to receive an intestate share of the estate or claim homestead rights.

Testamentary Capacity vs. Capacity to Marry

Bridget Crawford (Professor of Law, Pace Law School) has recently posted her thoughts on the differences between the capacity to execute a will and the capacity to marry.  See Marriage of Fools, Feminist Law Professors Blog, Sept. 26, 2007.

Here is an excerpt from her posting:

Fools can marry, but they cannot make a last will and testament.  To state the principle more precisely, the mental capacity required to enter into a legally binding marriage is lower than the mental capacity required to execute a valid will.  A frequently-cited case on point is Hoffman v. Kohns, 385 So. 2d 1064 (Fla. App. 1980). * * *

In my view, the law is incorrect in concluding that the mental capacity needed to marry is lower than that needed to make a will.  The decision to marry is, without question, intensely personal, but its personal nature should not in any way diminish the threshhold showing of mental capacity that must be made.  Marriage is a decision with significant legal consequences, especially with respect to property.  Among the legal consequences  of marriage is the creation of a surviving spouse’s right to an elective share of the decedent’s estate.

Donor’s Charitable Intent and Its Enforceability in Court

Evelyn Brody (Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology) has recently published her article entitled From the Dead Hand to the Living Dead: The Conundrum of Charitable-Donor Standing, 41 Ga. L. Rev. 1183 (2007).

Here is an excerpt from the introduction to her article:

For hundreds of years, scholars and practitioners have debated the central position of donor intent in Anglo-American law – the right of the "dead hand" to govern from the grave the use of a charitable donation into the indefinite future, even into perpetuity. The topic of this Article is not, however, that normative position, but rather the seemingly more mundane question of whether the donor can enforce his or her intent in court. As Professor Rob Atkinson cautions: "Standing questions are ‘who’ rather than ‘what’ questions. . . . Technically speaking, [a denial of standing] is merely a determination that the claim, however meritorious, should be asserted by someone else." Consider the following four scenarios:

Case 1: D gives $100,000 to C University to establish a fund to support library operations.

Case 2: D gives $100,000 to C University to establish a fund to support library operations. C agrees that D may bring suit to specifically enforce the restricted gift.

Case 3: D gives $100,000 to C University to establish a fund to support library operations. C agrees that D and D's descendants may bring suit to specifically enforce the restricted gift.

Case 4: D gives $100,000 to C University to establish a fund to support library operations, but that if C University does not carry out the purposes of the gift, the gift shifts to H University.

This Article considers whether these four cases provide D with the same rights to enforce the charity's performance of the gift, and, if not, whether they should be the same.

India and Intestate Succession

Siddhartha Shukla (National Law University, Jodhpur) has recently posted on SSRN an article entitled International Perspective on Intestacy Practices: Lessons for India.

Here is an abstract of the article:

The intestacy practices in India can be dated back to the ancient historic era and has evolved substantially over the centuries. Ironically, the present day law on the subject is countered with plethora of lacunae when compared with the scenario at the international arena. Whereas, the intestacy practices in India may be broadly divided in three phases on the basis of rights and obligations of coparceners, it is pertinent to note that flaws in each phase are evident. A comparison of the intestacy practices in New Zealand, Australia, U.S.A. and U.K. vis-a-vis India, surfaces plenty of ambiguous issues in the Indian law. Albeit the intestacy practices in the U.K. and the U.S.A. are very similar to those prevalent in India, their implementation creates a departure between the two leaving behind the India law.

The research paper aims to suggest changes in the Indian intestacy law and practices, which is based on the intestacy model prevalent in the U.K., U.S.A, New Zealand and Australia.  Perhaps, the critiques may connote such a comparison flawed per se, the reason for such a comparison is to develop intestacy practice more comprehensive and error free. It is further suggested that the extension of jurisdiction of Family Courts in India to include family matters. Besides, entrusting greater judicial discretion to the aforesaid courts would enhance their efficiency and avoid procedural complexities.

401(k) CLE

The National Constitution Center is sponsoring a 60-minute audio conference on October 3, 2007 entitled Dramatic 401K and Defined Benefit Plan Changes: Are you ready?

Here is a description of the program:

Do you know what you need to do today to ensure that your plans are compliant? Are you prepared for your 2007 and 2008 deadlines? Last year, Congress passed the most comprehensive legislation impacting retirement plans in thirty years -- the Pension Protection Act. Join us for a 60-minute audio conference where you will discover:

• New accelerated vesting rules for employer contributions to 401(k) plans
• Required retirement plan amendments for 2007 and beyond
• How the new law impacts your finances
• Tips for avoiding fiduciary responsibility for default investment funds

Life Insurance CLE

The American Bar Association Section of Real Property, Trust and Estate Law and the ABA Center for Continuing Legal Education are sponsoring a teleconference and live audio webcast on October 2, 2007 entitled Effective Use of Life Insurance in Estate Planning.

Here is a description of the program:

Life insurance is an important part of many clients’ estate plan. Its uses include providing liquidity to pay estate taxes, final expenses, and the cost of administration; equalizing the value received by heirs; and providing cash for the purchase of a business interest as part of a buy-sell arrangement.

With the continuing uncertainy in federal estate tax laws, clients want flexibility in their estate plans. Life insurance in conjunction with carefully drafted life insurance trusts can help provide that flexibility.

With proper planning, life insurance death benefits can be received without being subject to either federal estate tax or income tax. Mistakes can cause unexpected income tax, gift tax, or estate tax liabilities.

Life insurance policy features are constantly evolving. A familiarity with the types and features of policies available is crucial to help your clients select the right product to accomplish their objectives.

Attend this program to learn:

• Tips and techniques for using life insurance and life insurance trusts to provide flexibility in estate planning
• Some life insurance tax traps to avoid
• New rules for employer-owned life insurance
• Recent life insurance product developments and how to examine insurance policy features

Former Ramone Drummer Sues for Royalties

Richard "Richie Ramone" Reinhardt, a former member of the punk band Ramones, is suing several major corporations, the band's management, and the estate of the band’s lead guitarist to recover royalties on songs sold over the Internet. Reinhardt claims he is owed at least $900,000 in royalties because he never authorized digital sale of the six songs he wrote for the band. Reinhardt has asked the court to issue an injunction prohibiting further use of his songs without permission.

The Ramones formed their band in 1974 and performed until 1996. They are known as one of the best punk bands of all time. Three of the group’s leading members Johnny, Joey, and Dee Dee died in recent years. Reinhardt became the Ramones’ drummer in the 1980s and performed during the group’s most illustrious years. However, according to Reinhardt’s attorney, he never received due recognition creatively or economically. The settlement attempts between Reinhardt and the other side have failed and the case will be going to trial.

See AP, Former Ramone Sues Over Song Downloads, MSN.com, Sept. 21, 2007.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

James Brown Update

LaRhonda Petitt will appear in court today (September 24, 2007) to assert a claim to the estate of James Brown.  LaRhonda, now 45 years old, claims that DNA testing proves that she is one of Brown's children.  She also claims that she has been "walking around looking like this man for 45 years."

LaRhonda is making two claims against Brown's estate.  First, she claims she is entitled to a share as a pretermitted child and second, she wants back child support.

LaRhonda also wants Brown's body moved to more convenient location so that it would be easier for her to visit her alleged father.

See Page Ivey, Woman wants share of James Brown estate, Yahoo! News, Sept. 23, 2007.

Special thanks to Sara Hudman (J.D. Candidate, Texas Tech University School of Law) for bringing this article to my attention.

Estate Planning for Pets Telephone Seminar

On September 28, 2007, Neil Hendershot (editor of the PA Elder, Estate & Fiduciary Law Blog) and Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law) will explore this issues important to estate planning for pet owners both in Pennsylvania and nationally.

The seminar entitled Estate Planning for Pets is sponsored by PBI.  Follow the link for details about the program and registration information.

Spousal Elective Share in Alabama

Kevin R. Garrison (Alabama Law Review Senior Articles Editor, University of Alabama School of Law) has recently published his comment entitled The Ins and Outs of the Alabama Elective Share, 58 Ala. L. Rev. 1161 (2007).

Here is the introduction to his comment:

The spousal elective share, or forced share, is a doctrine designed to protect the rights of a surviving spouse. The basic premise, although it varies wildly in detail across the country, is that a spouse can either choose to take under the decedent's will or choose to take a fractional share (often one-third) of the decedent's estate-but they cannot choose both. It is unclear exactly how often the elective share is used in Alabama since the vast majority of records are only kept at the county level and few cases make it to a court with published opinions. Additionally, most married partners provide substantial portions of their estates to the survivor, and it appears that spousal disinheritance does not occur frequently.

It is important to note that although most statutes dealing with the rights of surviving spouses are now phrased in gender-neutral terms, the effects of these statutes are not always gender-neutral. Women are much more likely to be the surviving spouse due in part to the fact that, on average, women in Alabama live over six years longer than men and tend to marry men older than themselves. On top of this, men in Alabama earn more than women on average and hold more property titled in their names. This Comment will trace the development of Alabama's statutory treatment of the rights of the surviving spouse, examine how Alabama courts have construed such statutes, and examine potential mediating doctrines to ameliorate the harsh deficiencies of the elective share in Alabama.

Top SSRN Downloads

Here are the top downloads from July 26, 2007 to September 24, 2007 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days:

Rank	Downloads	Paper Title
1	280	Erickson: A Primer on FLPS Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: July 21, 2007 Last Revised: July 21, 2007
2	198	Fiduciaries Kenneth M. Rosen, University of Alabama - School of Law, Date posted to database: July 17, 2007 Last Revised: August 13, 2007
3	90	Speak Clearly and Listen Well: Negating the Duty to Diversify Trust Investments Jeffrey A. Cooper, Quinnipiac University School of Law, Date posted to database: August 10, 2007 Last Revised: August 23, 2007
4	38	Anna Nicole Smith and the Right to Control Disposition of the Dead James T.R. Jones, Louis D. Brandeis School of Law, Date posted to database: June 28, 2007 Last Revised: August 2, 2007
5	35	Agency Costs, Charitable Trusts, and Corporate Control: Evidence from Hershey's Kiss-Off Jonathan Klick, Robert H. Sitkoff, Florida State University College of Law, Harvard Law School, Date posted to database: August 31, 2007 Last Revised: September 21, 2007
6	20	When Informal Adoption Meets Intestate Succession: The Cultural Myopia of the Equitable Adoption Doctrine Michael J. Higdon, University of Nevada, Las Vegas, Date posted to database: August 28, 2007 Last Revised: August 28, 2007

"God" Responds to Lawsuit

Earlier on this blog, I reported on the lawsuit filed by Nebraska state senator Ernie Chambers against God last week claiming that He has caused “widespread death, destruction and terrorization of millions upon millions of the Earth’s inhabitants.” 

Sen. Chambers is seeking a permanent injunction against God.  If he is successful, God would prohibited from allowing people to die or become disabled thus ending the need for estate planning.

Eric Perkins, a Corpus Christi lawyer, has filed a response on God's behalf.  He states that God "denies that this or any court has jurisdiction ... over Him any more than a court has jurisdiction over the wind or rain, sunlight or darkness."  He also wrote that "any harm or injury suffered is a direct and proximate result of mankind ignoring obvious warnings."

See Anna Jo Bratton, 'God' gets an attorney in lawsuit, Dallasnews.com, Sept. 21, 2007.

Special thanks to Mark Killingsworth (J.D. Candidate, Texas Tech University School of Law) for bringing this article to my attention.

Are Celebrities’ Postmortem Publicity Rights Really Protected?

The following entry is based on Kurt Wenzel, Licensing the Dead, San Francisco Chron., Sept. 9, 2007, at F2.

The California Senate is considering a bill which will defend postmortem right of publicity owned by the heirs of celebrities. It prohibits illegal commercial use of likeness, voices, and signatures of deceased icons. If passed, this bill could open floodgates of litigation because it may retroactively affect publicity rights held in public domain. While this legislation gives the rights of publicity to the celebrities’ families, it does not necessarily protect the images of the dead icons.

Several large companies like CMG and Cobris compete for obtaining licensing rights to dead celebrities and then sell them to marketers for advertisement. The heirs are just as willing to exploit their deceased relatives’ fame. The celebrities’ images may be utilized in the promotion of products of which they never heard and in ways of which they could have disapproved. Recent examples of using dead persons’ fame for commercial purposes include the Rosa Parks and Chevrolet commercial and Audrey Hepburn dancing for the Gap.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.