Saturday, October 11, 2008
Connecticut Supreme Court Rules that Civil Unions Unconstitutional, Same-Sex Marriage will be Allowed
In Kerrigan v. Commisioner, the Connecticut Supreme Court ruled that same sex couples have a constitutional right to marry.
The court announced that sexual orientation is a quasi-suspect class under the Equal Protection clause of the state constitution, and therefore it is entitled to a heightened level of scrutiny. The court said that same sex couples suffer a constitutional harm, and that a separate but equal scheme of civil unions did not pass constitutional muster. In its decision, the court emphasized that civil unions are not equal to marriage even though they share all of the same rights. The name itself was enough to offend Equal Protection. Marriage has a long history in our culture, but civil unions are a recent construct. Therefore, the civil union scheme created in fact not an equal institution, but an inferior one.
Pursuant to local law, the court exercised substituted judgment to approve an estate plan on behalf of a conservatee which effectively disinherited conservatee’s son. After the conservatee’s death, the son sued his sister who was the trustee of the lifetime trust approved in the substituted judgment proceeding.
The court in Murphy v. Murphy, 78 Cal. Rptr. 3d 784 (Cal. Ct. App. 2008), held that the son’s action was barred by collateral estoppel, his claims of undue influence, fraud, and conflict with a prior testamentary agreement all having been disposed of in the prior action.
Friday, October 10, 2008
Presumption That a Lost Will Last in the Possession of Testator Has Been Revoked Not Superseded by UPC
The court In re Estate of Conley, 753 N.W.2d 384 (N.D. 2008), held that the common law presumption that a lost will last in the possession of the testator is presumed to have been destroyed by the testator with the intent to revoke it is part of the law of North Dakota, even though it is not part of the Uniform Probate Code provisions adopted by the state. In accord with provisions governing presumptions in civil cases generally, for the lost will to be admitted to probate, the presumption must be rebutted by the preponderance of the evidence.
In the course of a divorce action in Washington, the court appointed a professional guardianship agency as the trustee of a trust the husband had created for his children. In an earlier case, the court held that the divorce court lacked jurisdiction to appoint a trustee. The agency then began proceedings to appoint a trustee to protect the children’s assets. The husband opposed the agency’s action maintaining that after the court’s decision, it had no authority to do anything with regard to the trust. The court in In re Irrevocable Trust of McKean, 183 P.3d 317 (Wash. Ct. App. 2008), held as a matter of first impression that because the agency assumed the office of trustee under color of right and in good faith that the doctrine of de facto trustee applied to validate the agency’s actions as if it were the trustee.
Thursday, October 9, 2008
Joint Revocable Trust is Mutual and Contractual and Therefore Cannot be Amended by Sole Surviving Settlor
In Kansas, two beneficiaries of a revocable trust jointly created by husband and wife brought a declaratory judgment action to invalidate amendments wife made after husbandâs death. Using the same criteria applied to wills, the court in Mangels v. Cornell, 189 P.3d 573 (Kan. Ct. App. 2008), found that the trust was joint and contractual and therefore could not be amended by only one of the settlors.
In California, a trust included a no contest clause stating that any beneficiary who “voluntarily” participates in any proceed attacking the trust or the related pour over will would forfeit his or her interest. In Safai v. Safai, 78 Cal. Rptr. 3d 759 (Cal. Ct. App. 2008), the court held that a minor appearing in a proceeding attacking the validity of the trust by his guardian ad litem did not appear “voluntarily” and therefore was not subject to the no contest clause.
The Creation of Joint Accounts with Survivorship Rights After Execution of a Will Cannot Alter the Will
In Pennsylvania, after executing a will which divided her probate estate equally among her children, the testatrix created several joint bank accounts with rights of survivorship with herself and one of her children as the joint holders. After the testatrix's death, the other children challenged the exclusion of the joint accounts from the probate estate. The court In re Estate of Piet, 949 A.2d 886 (Pa. Super. Ct. 2008), held that to apply the presumption of ownership in the surviving joint holder would revoke the preexisting will in a manner not allowed under the will revocation statute.
In Livesay v. Carolina First Bank, 665 S.E.2d 158 (N.C. Ct. App. 2008), a North Carolina Appellate court rejected the argument that the application of a statute making property held in a revocable trust which was created before the statute’s effective date subject to the settlor’s debts is an impermissible retroactive alteration of vested rights. The court held that because a revocable trust is a will substitute, the beneficiaries of the trust have expectancies rather than vested rights and therefore they have no constitutionally protected interests.
Wednesday, October 8, 2008
The following excerpts are from LifeSharers, U.S. Transplant Waiting List Hits 100,000 -- America Needs Two Waiting Lists, Not One (Oct. 7, 2008):
The waiting list for organ transplants in the United States has topped 100,000 people. America needs two transplant waiting lists, according to LifeSharers, a national network of organ donors: the ‘A’ list for registered organ donors and the ‘B’ list for people who have not agreed to donate.
As of 5:14 p.m. on October 7, there were 100,024 people on the national transplant waiting list, according to the United Network for Organ Sharing, which administers the waiting list and establishes rules for allocating donated organs.
“If UNOS allocated organs first to registered organ donors, more people would donate and thousands of lives would be saved every year,” says David J. Undis, Executive Director of LifeSharers. * * *
Every year, Americans bury or cremate 20,000 transplantable organs. And every year, over 8,000 Americans die because there aren’t enough organs for everyone who needs one.
Allocating organs first to organ donors will also make the transplant system fairer. * * *
People who want to donate their organs to other organ donors * * * can join LifeSharers. LifeSharers members agree to offer their organs first to other members when they die, if any member is a suitable match. Membership is free at www.lifesharers.org or by calling 1-888-ORGAN88. There is no age limit, parents can enroll their minor children, and no one is excluded due to any pre-existing medical condition.
Browne Lewis (Assistant Professor of Law, Cleveland-Marshall College of Law) has recently posted on SSRN her article entitled Dead Men Reproducing: Responding to the Existence of Afterdeath Children.
Here the syllabus of her article:
Medical advances currently available permit dead men to reproduce. Sperm can be successfully stored for at least ten years. Therefore, a man's heirs may be created years after his death. Recently, this event has gone from a possibility to a reality. More and more women are choosing to conceive children using the sperm of their dead husbands or boy friends.
Widows of soldiers killed in the wars in Iraq and Afghanistan have conceived children through artificial insemination using their dead husbands' sperm. The process of creating afterdeath children can occur in two contexts. Scenario One - Prior to going to war, the man has his sperm extracted and placed in a sperm bank. If the man does not return from the war, his wife or girl friend uses his stored sperm to create his child. Scenario Two - The man is killed in the war. His wife or girl friend has the doctor harvest sperm from his dead body. Then, she uses that sperm to conceive his child. Either scenario results in the existence of an afterdeath child that needs financial support.
The law has not kept pace with the reproductive technology. Hence, when the mothers of the posthumously conceived children file social security surviving children claims on behalf of their children, the claims are often rejected. The children are denied benefits because the agency is not equipped to deal with "survivors" who did not exist at the time that the insured worker died. The resolution of these Social Security cases often turns on the manner in which the children are classified under the states' intestacy systems. If the child is eligible to inherit under the intestacy system, the child is entitled to social security survivor's benefits.
The legal issue examined in this article is: whether a posthumously conceived child should have the opportunity to inherit from his or her father. The resolution of that issue is important because the existence of posthumously conceived children has the potential to impact the distribution of a man's estate. If the man dies with a validly executed will leaving his estate to his children, the question becomes whether or not posthumously conceived children should be included in the definition of "children". In the event that a man dies without a will, the question to be resolved is whether or not posthumously conceived children should be considered heirs under the intestacy system.
As long as the possibility exists for dead men to reproduce, the courts and the legislatures must take steps to deal with the rights of the resulting children. Any system put in place must balance the interests of the state, the existing heirs, the decedent, and the posthumously conceived child. To guarantee a fair balance, state legislatures must give posthumously conceived children the opportunity to inherit from their deceased fathers. Nonetheless, the opportunity to inherit should not be a right to inherit. Consequently, the legislatures should only give posthumously conceived children the chance to inherit if they satisfy certain conditions.