Wills, Trusts & Estates Prof Blog

Equitable Adoption Analyzed

Michael J. Higdon (Lawyering Process Professor, William S. Boyd School of Law at the University of Nevada, Las Vegas) has recently published his article entitled When Informal Adoption Meets Intestate Succession: The Cultural Myopia of the Equitable Adoption Doctrine, 43 Wake Forest L. Rev. 223 (2008).

Here is the author's description of his article:

Part I will first detail the role that informal adoption plays within the extended family model as that model currently exists within the two most predominant minority ethnic communities in the United States. Against that backdrop, Part II will then delve more deeply into the law of intestate succession and, more specifically, the equitable adoption doctrine, looking both at the underlying policies as well as the specific tests that courts have developed to determine if someone qualifies as an equitably adopted child. In light of these judicially created tests, Part III will discuss the difficulties that an informally adopted child faces when trying to establish himself as an equitably adopted child. Finally, as a result of how underinclusive and potentially discriminatory the current tests are under the equitable adoption doctrine, Part IV will explore ways in which courts and legislatures can make the doctrine and the laws of intestate succession more cognizant of and more responsive to informally adopted children in the United States.

"The Shelf Project"

According to its website, "[t]he Shelf Project is a collaboration by professionals in the tax community to develop and perfect proposals that Congress can pull off the shelf when it needs revenue.  By some projections, Congress will need $4 trillion of new revenue over a decade beginning in 2009-2010. Shelf project proposals will strengthen the tax base, raise revenue and chase the money."

The project has cataegories for income tax and estate tax.  It is curious to note that the authors of this project elected not to create categories for the gift tax or the generation-skipping transfer tax. 

Need an Organ -- Don't Smoke Weed Revisited

Earlier on this blog, I reported on the case of Timothy Garon who was suffering from hepatitis C and was in urgent need of a liver transplant.  Timothy was refused a spot on the transplant list because of his use of marijuana and has subsequently died.  The moral of this story was not to use marijuana or other recreational pharmaceuticals if you may be in need of an organ transplant.

Unfortunately for Jonathan Simchen who is in dire need of a kidney, he did not follow this advice.  Instead, he followed the advice of his doctor who prescribed medical marijuana to control his nausea.  Now, Jonathan may end up paying the ultimate price for smoking weed -- a premature death because he was removed from the organ transplant list once his use of marijuana was discovered.  See Marcus Baram, Medical Marijuana User Denied Organ Transplant, ABC News, May 20, 2008.

Heritage "Trusts & Estates Newsletter"

Heritage Auction Galleries is an auction house which works extensively with fiduciaries such as executors, administrators, and trustees when the property under administration consists of collectibles such as artwork, stamps, coins, and comic books.

The company publishes a Trusts & Estates Newsletter which contains a variety of interesting articles such as the following:

• Replacing Mystery with Transparency & Trust
• Uncle Sam Wants His Art Back
• Better Estate Appraisals
• Fakes: The Best (or Worst) of 2007
• Know Thyself: Collector, Dealer or Investor
• Of Stained Glass and Pyramids: Copyright and Art
• Estate Tax Liability: The Fine Art of Determining Fair Market Value
• Appraising, an Individual or Team Effort
• Minority and Marketability Discounts for Fine Art Appraisals
• Changes in Charitable Donation Rules

To receive this newsletter which is designed to provide the T&E community with up-to-date news and commentary on a complimentary basis, e-mail your contact information to Estates@HA.com, call 1-800-872-6467, or fax to 214-443-8425.

The Reading "Bucket List"

Due to the popularity of the movie Bucket List about two terminally ill men who leave  a cancer ward  to take a road trip with a list of things they want to do before they die, people have been giving more thought to uncertainty of their future existence and the importance of not postponing the things they want to do.  Of course, this idea has been done many times before such as in the 1960's TV series Run For Your Life in which a successful lawyer is told by his doctor that he will die in one to two years and then has all sorts of neat adventures.

Peter Boxall has prepared a book entitled 1001 Books You Must Read Before You Die which sets forth a "reading list" for basically the rest of your life.  Here is a description of the book:

For discerning bibliophiles and readers who enjoy unforgettable classic literature, 1001 Books You Must Read Before You Die is a trove of reviews covering a century of memorable writing. Each work of literature featured here is a seminal work key to understanding and appreciating the written word.The featured works have been handpicked by a team of international critics and literary luminaries, including Derek Attridge (world expert on James Joyce), Cedric Watts (renowned authority on Joseph Conrad and Graham Greene), Laura Marcus (noted Virginia Woolf expert), and David Mariott (poet and expert on African-American literature), among some twenty others.Addictive, browsable, knowledgeable—1001 Books You Must Read Before You Die will be a boon companion for anyone who loves good writing and an inspiration for anyone who is just beginning to discover a love of books. Each entry is accompanied by an authoritative yet opinionated critical essay describing the importance and influence of the work in question. Also included are publishing history and career details about the authors, as well as reproductions of period dust jackets and book designs.

For an interesting review of this book, see William Grimes, Volumes to Go Before You Die, NY Times, May 23, 2008.  Here is an excerpt from the review:

Two potent factors make “1001 Books” * * * compelling: guilt and time. It plays on every serious reader’s lingering sense of inadequacy. Page after page reveals a writer or a novel unread, and therefore a demerit on the great report card of one’s cultural life. Then there’s that bullying title, with its ominous allusion to the final day when, for all of us, the last page is turned. * * *

Assume, for the sake of argument, that a reasonably well-educated person will have read a third of them. * * * That leaves 698 titles. An ambitious reader might finish off one a month without disrupting a personal reading program already in place. That means he or she would cross the finish line in the year 2063.

"How to Build and Manage an Estates Practice" Second Edition Released

Daniel B. Evans has recently authored the second edition of his classic book entitled How to Build and Manage an Estates Practice.

Here is the publisher's description of the book:

Specifically tailored to the unique needs of the estates and trusts lawyers, this updated second edition of "How to Build and Manage an Estates Practice" focuses on making your practice better. Written as a "book of ideas," you'll find guidance on marketing, effective client communications, fee agreements, and ethics, including the updates to the American Bar Association's Model Rules of Professional Conduct. Whether you're a solo practitioner or a lawyer at a large firm, you'll find the tools you need to make a difference.

Authored by Daniel B. Evans, a veteran attorney focusing on the areas of estate planning and estate and trust administration, this edition highlights constructive ways to apply ideas that have worked for him to your own practice. Organized logically, the book starts with deciding what kinds of clients you want, to finding those clients, to choosing clients and establishing fee agreements, to doing the actual legal work.

Inside, you'll find:

• Strategies in defining your practice to bring focus and growth
• The best ways to communicate with your clients
• How technology and ethics have changed the practice area
• Analysis of the Department of the Treasury Circular 230 issued in 2005
• Innovative ideas for finding new clients
• Ethics issues, including the challenges of marital and inter-generational representation
• Fee agreements, including ideas on alternative billing in estate planning, administration, and litigation
• Optimum strategies and practical ideas for billing
• Tips on hiring personnel
• Sample forms, checklists, and questionnaires, such as an Estate Planning Questionnaire, Estate Administration Schedule, and Will Execution Instructions, are included on an accompanying CD

Law and Proximity -- An Interesting Interface

Adam J. Hirsch (William and Catherine VanDercreek Professor of Law, Florida State University College of Law) and Gregory Mitchell (Professor of Law & E. James Kelly, Jr.-Class of 1965 Research Professor, University of Virginia School of Law) have recently published their article entitled Law and Proximity, 2008 Ill. L. Rev. 557.

Here is the abstract of their article:

Perceptions of proximity matter to people. When they come close to getting something they want, or when they nearly avoid something that harms them, or nearly are harmed by something, people tend to react more strongly than when they miss getting the thing they want by a lot, or when a harm that befalls them was unavoidable, or when a potential harm never came close to occurring. This article explores these psychological phenomena and their implications for legal policy and process. The article begins by reviewing the existing literature on the psychology of proximity and proceeds to consider its implications for the law of torts and criminal law (i.e., harms), and for the regulation of lotteries and gambling law (i.e., goods). The article then turns to situations where legal process can itself raise perceptions of proximity—viz., near misses of legality. The article argues that lawmakers could mitigate the frustrations of near misses by structuring law, and issuing legal judgments, in a manner that avoids or obscures them. In particular, the article explores the implications of the psychology of proximity for the rules-standards debate and assesses the virtues of substantial compliance doctrines, a form of legal structure that has received insufficient attention in the course of the rules-standards debate. The article concludes that lawmakers should take the psychology of proximity into consideration when they make policy choices, but in so doing lawmakers need to bear in mind the potential functionality of that psychology. Near miss experiences can be painful but simultaneously educational, stirring behavioral adjustments in those who endure them.

Here is an example they use from an estate planning perspective:

If, let us say, a beneficiary whom a testator disinherits on the deathbed could sue the estate for damages based on emotional distress, freedom of testation would cease to exist in its robust form. A devastating reversal of fortune though it might (quite literally) be, the last-minute revocation of an inheritance results from the testator’s assertion of property rights. These rights find justification in economic and political theory, even though their exercise can cause frustration in others.

Innovative Study Aid for Wealth Transfer Taxation Courses

Alexandra Klein (attorney, New York), with the assistance of Aejaz Dar (attorney, New York) and Mitchell M. Gans (Steven A. Horowitz Distinguished Professor of Tax Law, Hofstra University), has recently published The Estate and Gift Tax Map -- Federal Estate and Gift Taxation for Law Students 2008-2009 (Thomson West).

As described by the publisher:

This work is as a study tool for learning about the estate and gift tax provisions of the Internal Revenue Code. It visually presents the concepts of the Code in clear and logical graphics that show the tax system as a whole and the relationships between its component parts.

The "map" is actually a large poster (36" x 28" and suitable for wall display) which uses a flow chart approach for explaining the federal gift and estate tax (but not the generation-skipping transfer tax).  I think this study aid is highly effective in presenting the basics -- it is concise and easy to follow.  Of course, the finer points are omitted and the map contains a clear warning that the map is not a substitute for a detailed study of the law.

To read a student's review of the map, see Derek Tokaz, An NYU Law Grad Discovers the Real Money In in Study Aids, Not Law Firms, Commentator, March 13, 2008, at 6.

Reminder: Deadline for ABA Student Writing Competition Approaching

The June 20, 2008 deadline for the ABA Real Property, Probate and Trust Journal Law Student Writing Competition discussed previously on this blog is rapidly approaching.

The following is from the official ABA announcement:

The University of Miami School of Law Graduate Programs in Estate Planning and Real Property Development is sponsoring the 2008 Real Property, Trust and Estate Law (RPTE) law student writing contest. The first-place winner will receive $1,500 cash and a one-year membership in the RPTE Section (valued at $50). The winner will also receive free round-trip airfare and weekend accommodations to attend the RPTE Fall Leadership Meeting, November 5th - 9th in Montreal, Quebec Canada (valued at approximately $1,000). In addition, the winner’s essay will be considered for publication in a future issue of the Real Property, Probate and Trust Journal and announced in Probate & Property, the Section magazine.

The second-place winner will receive $700 cash and will be announced in Probate & Property. The third-place winner will receive $500 cash and an honorable mention in Probate & Property.

2008 Contest Rules and Entry Form

Re-examining standing of heirs and beneficiaries to challenge decedent’s marriage after death

Terry L. Turnipseed (Assistant Professor of Law, Syracuse University College of Law) has recently posted on SSRN an updated version of his article entitled How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America which also appears in 96 Ky. L.J. 275 (2007-2008).

Here is the abstract of his article:

Should you be able to marry someone who has only days to live? If so, should the government award the surviving spouse the many property rights that ordinarily flow from marriage?

In almost every state, the only person allowed to challenge the validity of a marriage (or, by extension, the property consequences thereof) after the death of one of the spouses is the surviving spouse! Seems incredible, does it not? The expectant heirs of a dying man (or woman) who marries on his (or her) deathbed cannot challenge the marriage post-death. Ironically, the one person allowed to challenge is the only person who has absolutely no motivation to do so.

How did this rule come about? What, if anything, should we do to change it?

This article explores these and other related questions, including a proposed theoretical framework for a model act giving heirs and beneficiaries standing to sue in order to negate the property consequences that flow from marriage, depending on the level of mental capacity at the time of the marriage.

Individuals on their deathbeds have just as much right to marry as anyone, and if competent and under no duress, the parties to the marriage certainly should have protection under the law. Protection should be appropriately shaped to avoid harassment of widows and widowers.

However, I simply cannot see a valid argument for denying a decedent-spouse's heirs (those who would take the decedent's property if he or she died unmarried and intestate) and beneficiaries (those who would take under the decedent's valid will, if any, absent a spousal election) the right to challenge the property consequences of a suspect marriage, especially when that challenge is based on traditional grounds that might naturally flow from a deathbed marriage.

Ironically, a decedent on their deathbed may not have the legal capacity to enter into a contract but can get married. It is only reasonable that these poor people and their heirs and beneficiaries should have state protection against a surviving spouse taking some or all of the decedent's property. Protection of heirs and beneficiaries is necessary where a surviving spouse may have few legitimate motives for entering into a deathbed marriage, particularly in light of the surviving spouse's ability to take some or all of the decedent's property.

The current incentives are off kilter. A greedy potential spouse has every incentive to find a minister or officer of the law willing to marry them off to a wealthy sick person and no legal incentives not to try it. No matter how ugly the situation, a marriage becomes set in stone with no person other than the surviving spouse allowed standing to seek redress in a court of law upon the death of one of the spouses. Allowing, in an appropriate way, heirs and beneficiaries to challenge the property consequences of a suspect marriage puts in place the proper disincentives before attempting to take advantage of one of feeble mind and spirit.

If these property consequences are allowed to stand, victims will continue to abound in deathbed marriage situations where consent is lacking: the decedent, her family, and society generally. Just imagine how you would feel losing an expectancy in such circumstances.

Note that 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 if all of the following conditions are met:

• 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.

3.  Effective date

The new statute applies not only a decedent who dies on or after September 1, 2007, but also to decedents who died earlier if the probate or administration is pending on September 1, 2007 or is commenced on or after September 1, 2007.

More on a Trustee's Power to Adjust under the Revised UPIA

Richard W. Nenno (Managing Director and Trust Counsel for Wilmington Trust Company, Wilmington, Delaware) has recently published his article entitled The Power to Adjust and Total-Return Unitrust Statutes: State Developments and Tax Considerations, 42 Real Prop. Prob. & Tr. J. 657 (2008) [ABA membership needed to access link].

Here is the editors' synopsis of his article:

This Article discusses two concepts new to trust law: the power to adjust receipts and disbursements between principal and income under section 104 of the Uniform Principal and Income Act and the total-return unitrust statute. The Article examines traditional ways to address the problem trustees have in balancing the demand for increased distributions with their duties as prudent investors, describes recently developed statutory solutions and discusses relevant federal tax considerations.

Song Parodies -- Tax Style

Watch out Weird Al, there is a new parodist on the block -- Steven Zelin, "The Singing CPA."  Steve is an independent singer and songwriter from New York City whose "day job" is a CPA.

His newest self-titled CD, The Singing CPA, contains thirteen songs, many of which have appeal to the estate planning community as well as to CPAs (e.g., My CPA [YMCA], A Charitable Contribution (Makes the Tax Bill Go Down) [A Spoonful of Sugar (Makes the Medicine Go Down)], Dear. I.R.S. [original composition], and Tax Deductible [Unforgettable]).  You may listen to snippets of his songs, purchase the songs as MP3 downloads, and read the lyrics.

Here is some additional background on this innovative performer:

For the past 4 years, Steven Zelin has entertained New Yorkers at midnight mailing their tax returns at the last minute at the James A. Farley Post Office. * * * Steven has appeared on the Joey Reynolds Show (WOR) on tax day and made the New York Daily News on April 17th performing his song Dear I.R.S. at the main Manhattan post office. He was a featured CPA in the Spotlight section for The Trusted Professional, the NYSSCPA publication. Steven was a hit as the featured entertainer at the annual New York CPA Conference. He was profiled in the February 2007 issue of CFO magazine and has received tons of exposure on Youtube for his "tax rap" and 5th birthday video tribute to Sarbanes Oxley. Steven is available to perform at corporate parties and events!

Adjustment Power of Trustees Under Revised UPIA Analyzed

S. Alan Medlin (David W. Robinson Professor of Law, University of South Carolina School of Law) has recently published his article entitled Limitations on the Trustee's Power to Adjust, 42 Real Prop. Prob. & Tr. J. 717 (2008).  [ABA membership needed to access link].

Here is the editors' synopsis of his article:

This Article examines the Uniform Principal and Income Act’s acceptance of the modern portfolio theory of investment, which focuses on the total return of a trust. The Uniform Principal and Income Act introduces the power to adjust, which allows a trustee to allocate between income and principal based on principles of fairness rather than the type of asset return. The Article analyzes the factors that determine when a trustee has the power to adjust and what limitations on the power might apply. The Article also discusses the hierarchy of judicial remedies available under the Act to guide a trustee uncertain about the power to adjust in a given trust situation.

UPIA Twins Analyzed

Christopher P. Cline (Wealth Management Director, Wells Fargo Bank, N.A., Portland, Oregon) has recently published his article entitled The Uniform Prudent Investor and Principal and Income Acts: Changing the Trust Landscape, 42 Real Prop. Prob. & Tr. J. 611 (2008) [ABA membership needed to access link].

Here is the editors' synopsis of his article:

This Article examines the effects the Uniform Prudent Investor Act and the Revised Uniform Principal and Income Act have had on the investment decisions of trustees. Designed to aid trustees in the performance of their duties, these Acts have also presented a number of new challenges for trustees. The Article explores the changes initiated by the Prudent Investor Act and the resulting litigation that has occurred in its wake. The author then analyzes the effects of the power to adjust given to trustees by the Revised Uniform Principal and Income Act.

Prop for Teaching Undue Influence

The Papyrus company sells a nifty birthday card, The Google-Eyed Hypnotist, which can be used in the process of teaching undue influence.

The card shows a man dressed in 1950-esq clothing with a machine that spins a supposedly trance-inducing wheel.  When you tilt the card, the wheel appears to spin revealing the subliminal message "Put Me in Your Will."

Barnes Foundation Update

The Barnes Foundation is an "educational art institution in Lower Merion Township, a suburb of Philadelphia, Pennsylvania * * *.  It was founded in 1922 by Dr. Albert C. Barnes, who made a fortune by co-developing an early antimicrobial drug, Argyrol.  Today, the Foundation possesses more than 2500 objects, including 800 paintings estimated to be worth more than $2 billion. * * *  In order to preserve the institution's identity, Barnes set out detailed terms of its operation in an indenture of trust to be honored in perpetuity after his death. These included limiting public admission to two days a week so the school could use the art collection for student study, and prohibitions against lending works in the collection, touring the collection, and presenting touring exhibitions."  Wikipedia, Barnes Foundation.

In what is a rather long and complicated story, the trustees decided that the building housing the collection need repair which

required breaking some terms of the indenture, and from 1993 to 1995 a selection of 83 French Impressionist paintings were exhibited on a world tour, the proceeds of which were to be used to pay for the reconstruction. 

Unfortunately, a number of financial irregularities arose. Between the renovations, these irregularities, and the associated legal expenses, the financial situation of the Barnes declined, in spite of millions of dollars in revenue from the painting tour. * * *

On September 24, 2002, the Foundation announced that it would petition the Montgomery County Orphans' Court (which oversees its operations) to allow it to disregard two of the terms of Dr. Barnes's indenture as per Dr. Albert C. Barnes will: 1) limited the board of trustees to five members of which Lincoln University, PA was granted authority to name four of the five members, and 2) that the works in the collection must remain in perpetuity in the gallery in Lower Merion. The Foundation argued that it needed to expand the board of trustees to fifteen members to make fundraising viable, and that for the same reason it needed to relocate the gallery from Lower Merion to a site in Philadelphia on the Benjamin Franklin Parkway. In its brief to the court, the Foundation stated that donors had proved to be reluctant to commit financial resources to the Barnes unless the gallery were to become more accessible to the public. On December 15, 2004, after a two-year legal battle (which included an examination of the Foundation's financial situation), Judge Stanley Ott of the Montgomery County Orphans' Court ruled that the Foundation could relocate. * * *

Former students of The Barnes Foundation have expressed concern that the new gallery will be a full-scale museum rather than a school. They continue to protest to the trustees and public officials. The Foundation has repeatedly insisted that the education program will be preserved in the new gallery, which will continue to be the site of the Foundation's courses. * * *

After Judge Ott's decision in 2004, a group called Friends of the Barnes Foundation was formed consisting of former students, neighbors and art lovers from around the region and the world to try and find a way to keep the collection together in its home in Merion.  * * *

The Barnes Foundation is moving ahead with its plans to move its gallery collection to the Benjamin Franklin Parkway * * *.  The Friends of the Barnes Foundation and Montgomery County have filed briefs in Montgomery County Orphan's Court to open the hearings that allowed the move. (February 29, 2008) They had hoped to persuade Judge Ott to reopen the case that gave permission to the Foundation to move the collection because of the changed circumstances in the County.

On May 15, 2008 Judge Ott published an opinion dismissing the request of both the Friends of the Barnes Foundation and the Montgomery County Commissioners to reopen the case due to lack of standing.

For additional analysis of this case, see Neil E. Hendershot, "No Standing" for Barnes Foundation Petitioners,  PA Elder, Estate & Fiduciary Law Blog, May 19, 2008.

How talking about an inheritance may hurt your prospects of landing a new job

Rosemary Haefner in Top 10 interview mistakes, CNN.com, May 12, 2008, reports on a variety of mistakes job applicants make during their interviews.

The following is one of the mistakes from her list:

Applicant told the interviewer he wouldn't be able to stay with the job long because he thought he might get an inheritance if his uncle died - and his uncle wasn't "looking too good."

Medical Emergency and Distress Relief Grants by Private Foundations

The IRS has recently issued an information letter authorizing private foundations to make grants to individuals and families who require assistance in connection with terminal conditions or life-threatening illnesses without need for advance IRS approval.

The letter was issued in response to a request from Foundation Source.  See Letter from Ward L. Thomas to Jeffrey D. Haskell (April 9, 2008).

Family Philanthropy

Foundation Source has recently published a booklet entitled Engaging the Family in Your Philanthropy: Creative strategies and practical approaches to involving the next generation.

Here is the company's description of the booklet:

Today’s landscape – even with its economic uncertainties – is providing the perfect opportunity for families and their advisors to talk about charitable giving. Private foundations continue as a powerful tool for wealth preservation and legacy building. The question then becomes: how can family members of all ages come together through philanthropy?

Engaging the Family in Your Philanthropy, just published by Foundation Source, shares what we have learned from our more than 750 clients about raising a philanthropic family. It talks about how a private family foundation can instill values and tradition; maintain family ties; deepen social consciousness; increase personal fulfillment; and develop skills, knowledge and awareness. The booklet also provides a blueprint for getting started and for engaging family across the generations. Whether you're new to philanthropy or at it for some time, there are nuggets for everyone.

Mark Rothko to be Exhumed and Reburied

On February 25, 1970, artist Mark Rothko committed suicide.  He was then buried in a plot owned by fellow painter, Theodoros Stamos.

The following developments regarding Rothko's remains were reported in Kathryn Shattuck, 38 Years After Artist’s Suicide, His Remains Are on the Move, NY Times, April 16, 2008:

A state judge has allowed the daughter and son of the artist Mark Rothko to have his body disinterred from a Long Island cemetery and reburied in a Jewish cemetery in Westchester County over the objections of some Long Island residents.

Justice Arthur G. Pitts of State Supreme Court in Riverhead agreed to allow Mr. Rothko’s daughter, Dr. Kate Rothko Prizel, and son, Dr. Christopher Rothko, to remove the remains of their father from the East Marion Cemetery on the North Fork of Long Island. * * *

To remove their father’s remains, Dr. Prizel and Dr. Rothko needed the consent of the East Marion Cemetery Association and Georgianna Savas, the executor of the estate of the painter Theodoros Stamos, who owned the plot.

In March 2007, the cemetery association voted to allow the exhumation; Nancy Poole, the association’s secretary-treasurer, cast the sole dissenting vote. The board members nonetheless decided to require Dr. Prizel and Dr. Rothko to obtain a court order to protect the association against possible community opposition.

The Rothko estate was also the subject of considerable litigation in the 1970s:

The executors were accused of selling or consigning paintings to the Marlborough at less than market value while collecting exorbitant commissions and dividing the proceeds. In 1975, the men were found guilty of negligence and conflict of interest, removed as executors and fined, along with the gallery, $9.2 million.

Special thanks to Adam J. Hirsch (William and Catherine VanDercreek Professor of Law, Florida State University College of Law) for bringing this development to my attention.

Number of Registered Organ Donors Increases, But Numbers Still Inadequate

According to National Donor Designation Report Card Reveals A 10 Percent Increase In Registered Organ, Eye And Tissue Donors Since 2006, PRWeb.com, April 18, 2008:

A national report card prepared by Donate Life America shows a 10 percent increase in donor designations over the last 18 months, bringing the total number of registered donors in the United States to nearly 70 million. Still, only 35 percent of licensed drivers and ID card holders have committed themselves to donation by registering to be donors through their state registry or motor vehicle department – leaving the donor shortage a leading public health crisis.

The Impact of Estate Tax on Bequests of Publicity Rights

Joshua Tate (Assistant Professor of Law, Southern Methodist University School of Law; Visiting Assistant Professor, University of Pennsylvania Law School) has recently posted on SSRN his article entitled Marilyn Monroe's Legacy: Taxation of Postmortem Publicity Rights.
   

Here is the abstract of his article:

In an April 2008 essay in the Yale Law Journal Pocket Part, Mitchell Gans, Bridget Crawford and Jonathan Blattmachr argue that recent state legislation recognizing postmortem publicity rights fails to take into account the likely estate tax consequences. This response explains that, although Gans, Crawford, and Blattmachr are correct that making publicity rights devisable could have adverse tax consequences for some estates, those consequences are not as far-reaching as might be imagined, and the legislative solution they propose will not in fact solve the problem. Estate tax will not be levied on the estates of long-deceased celebrities like Marilyn Monroe (the subject of the recent California legislation with which Gans, Crawford, and Blattmachr lead their piece), and the analogy to wrongful death benefits misconstrues the case law on that subject. Gans, Crawford, and Blattmachr are employing the specter of federal death taxes - which have applied to devisable publicity rights in California since 1985, and are irrelevant to the recent legislative reforms there - in an attempt to frighten state legislatures into unnecessarily restricting testamentary freedom.

A “Simple” Method of Body Disposition – Do Nothing?

A woman, Hedviga Golik, has recently been found in her apartment in Zagreb, Croatia 35 years after she died.  During these past decades, no one noticed that she was missing.  Her neighbors recently broke into her apartment in their attempt to lay claim to it and were surprised to see her mummified body in her bed.

Since she died in 1973, the windows of her apartment were open which kept the odor of her decaying body in check. Some of her neighbors claimed that she had discussed going overseas.

For more details about this unusual situation, see AP, Woman's dead body lies in flat for 35 years, CNN.com, May 16, 2008.