Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

A Member of the Law Professor Blogs Network

Thursday, March 26, 2015

Article on Challenges Facing the Posthumously Conceived Child

Test tubesAndrew T. Peebles (J.D. Candidate, University of Missouri School of Law, 2015) recently published an article entitled, Challenges and Inconsistencies Facing the Posthumously Conceived Child, 79 Mo. L. Rev. 497-515 (2014).  Provided below is the article’s introduction:

The use of artificial reproductive technology (ART) has increased sharply in recent decades as families plan ahead in the face of such difficulties as disease and military service that raise doubts as to whether reproduction will be possible for an individual in the future.  Posthumous conception of children is a widely used form of ART, and it allows families to expand, even after the death of one of the parents.  In vitro fertilization is the newest form of this technology.  But for the posthumously conceived child, the difficulties continue as most states bar these children from inheriting Social Security survivor’s benefits from a deceased parent.  The Supreme Court of the United States case of Astrue v. Capato ex rel. B.N.C. has recently given authority to this inequality, holding that posthumously conceived children are eligible for such benefits if they qualify as a “child” under state intestacy law. However, the Court’s decision in this case has left several problems unresolved that will continue to plague courts in the future and will lead to further inconsistent decisions and disparities for children born through in vitro fertilization.  Due to the rise in the use of this innovative technology, these issues affect an increasing portion of the population.

This Note will discuss the problems with the Supreme Court of the United States’ decision, the inconsistencies that exist in state intestacy law, and the solutions that are necessary to remedy these challenges.  Part II gives a brief background of the facts and circumstances surrounding Astrue.

Part III discusses the history of the Social Security Administration and in vitro fertilization and points out the conflicting results from various jurisdictions that have dealt with this issue.  Part IV delves into the Supreme Court’s reasoning behind its decision in Astrue.  Finally, Part V comments on the reasons Astrue was poorly decided, the difficulties that will result from the decision, and the methods to resolve these complications.

March 26, 2015 in Articles, Estate Administration, Estate Planning - Generally, Intestate Succession, Non-Probate Assets, Technology | Permalink | Comments (0) | TrackBack (0)

Legal Parent May Still Virtually Adopt

Gavel2Shalanda Sanders brought a claim in a Georgia trial court arguing that she had a right to inherit from the man that she believed was her father until she was 14-years-old, Clifford Riley. Sanders was born while her mother and Riley were married, but found out at age 14 that her biological father was Roy Warren. The trial court granted summary judgment against Sanders and she appealed.

In Sanders v. Riley, the Georgia Supreme Court reversed the trial court. The court reasoned that the fact that the legal presumption was that Riley was Sanders' father did not preclude her from making her virtual adoption claim. The court noted that for Riley to have prevented a future challenge to his presumptive status, he would have had to effectively publicly announce the private information that his wife had an affair. Further, the court found that Sanders reconnecting with her biological father later in life did not change or undue the virtual adoption.

See, Woman May Proceed With Claim of Virtual Adoption by Presumptive Legal Father, Bloomberg BNA, March 24, 2015.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

March 26, 2015 in Estate Administration, Intestate Succession, New Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 18, 2015

Virtual Adoption Not Severed By Reconnecting with Natural Father

AdoptionIn Sanders v. Riley, Ga. LEXIS 179 (Ga. March 16, 2015), the Georgia Supreme Court held that once a child has been virtually adopted by an adopted father, the subsequent relation between the adopted child and the natural father does not sever the previous virtual adoption. 

Here, the court was faced with a situation where a child was treated as having been virtually adopted by the father who raised her, and then reconnected to her biological father when the child was 14.  The father died intestate, setting up a dispute over his estate between the father’s biological son and the daughter.  In the opinion, the Georgia Supreme Court explained, “Just as children, once legally adopted, do not become unadopted by forming a relationship later in life with their biological parents—something that is occurring with increasing frequency—children, once virtually adopted, do not become unadopted by developing a relationship later on with their biological parents.” 

See Jeffrey Skatoff, Virtual Adoption Not Undone By Developing Relationship with Natural Father, Florida Probate Lawyers, March 17, 2015.

March 18, 2015 in Estate Administration, Estate Planning - Generally, Intestate Succession, New Cases | Permalink | Comments (0) | TrackBack (0)

Saturday, March 14, 2015

Article on Posthumously Conceived Children and State Intestacy Laws

Test tubesLane Thomasson recently published an article entitled, Burns v. Astrue: “Born in Peculiar Circumstances,” Posthumously Conceived Children and the Adequacy of State Intestacy Laws, 91 Denv. U. L. Rev. 715-740 (2014). Provided below is the article’s abstract.

A posthumously conceived child is one born to a woman who became pregnant by the preserved semen of a dead man. This Comment examines the rights of posthumously conceived children to receive social security benefits using an example from the Utah Supreme Court, Burns v. Astrue. Currently, the result is determined by the intestacy laws of the state where the semen donor died. It also discusses the applicable intestacy provisions in the states comprising the Tenth Circuit, as well as the approaches used by the Uniform Probate Code and the Uniform Parentage Act. The Comment concludes by addressing whether it would be more desirable to leave the determination of the issue to each state, to pass federal legislation that would bring all states into conformity with each other, or to adopt model legislation in every state.

March 14, 2015 in Articles, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Sunday, March 1, 2015

Till Death Do You Part


After a three-year marriage and less than amicable break-up, a young couple finally moved on with their separate lives.  Now, a missing signature unites them in death. 

A 31-year-old man who died intestate left his entire estate to his estranged wife, even though the couple already split their assets.  The man’s grieving family has no rights to the assets.  At the heart of the legal battle is a missing signature.  The man’s estranged wife had served signed divorce papers on him months before his death but had not signed them.  Thus, upon the man’s death he was still legally married, and the remainder of his estate went to his estranged wife. 

The man’s new partner said his father was left “heartbroken” over the dispute.  She will ask the court to grant an order giving her a share of the estate.  “I’m not by any means money-driven but I think that [her late partner] would want what’s right to take place.”

See Michaela Whitbourn, Family Battle of Wills Over Missing Signature Exposes the Limitations of Estate Law, The Sydney Morning Herald, Feb. 28, 2015.

March 1, 2015 in Estate Administration, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Thursday, February 26, 2015

Fitness Star Greg Plitt Dies Intestate

Greg plitt

When Bravo T.V. fitness star Gregg Plitt was tragically hit and killed by a commuter train while shooting a sports drink commercial last month, he did not have a will.  Now, Plitt’s family is trying to ensure his $800,000 estate ends up in the right hands. 

The 37-year-old did not have a spouse or child when he died, and according to court documents, his father filed a petition to control his son’s estate. Regardless as to whether a petition is filed, the California intestacy statute requires that his parents will share his estate.

See Bravo’s Greg Plitt Had $800K in the Bank…But No Will, TMZ, Feb. 24, 2015.

See also Jay Brinker, Greg Plitt’s Final Run, Jay Brinker, Attorney, Feb. 24, 2015.

Special thanks to Jay Brinker (an Ohio attorney) for bringing this article to my attention.

February 26, 2015 in Estate Administration, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Monday, February 23, 2015

Bobbi Kristina's Life Support Battle Continues

Bobbi Kristina

Bobbi Kristina was found lifeless in the bathtub only a few months ago, and now her father Bobby Brown must decide when to terminate life support. 

On of the problems this situation presents is that Bobbi Kristina was already far removed from her family when she was found.  The absence of any kind of medical directive makes Brown the de facto next of kin when it comes to determining how long the doctors should keep her alive. 

Although Nick Gordon was Bobbi Kristina’s longtime boyfriend, fathers outrank boyfriends or even fiancés.  If Bobbi Kristina and Nick ever got married, he would have had the spousal right to make medical decisions on her behalf.  Instead, like many couples living together without a marriage license, their opinions can be overruled at any time once hospital administrators get in touch with the parents or other blood relatives.  Furthermore, a husband would have inherited the $20 million Bobbi Kristina’s mother left her; now Bobby Brown may end up with Whitney’s money after all. 

See Scott Martin, Would Whitney Have Let Bobbi Die? Life Support Fight Highlights Need for Multiple Levels of Advance Directive, Trust Advisor, Feb. 16, 2015.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

February 23, 2015 in Current Affairs, Estate Planning - Generally, Intestate Succession, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Sunday, February 22, 2015

Attempt to Avoid Estate Tax Blocked By Judge


A Brooklyn Surrogate judge rejected the petition of an heir who sought to disclaim her infant’s interest in a deceased grandparent’s estate in order to avoid a large estate tax liability. 

When Sharon Lindsay died intestate, her property went to her husband, son and daughter, Kimberly Friedman.  Lindsay left approximately $6.25 million to be shared among her immediate family members, but due to New York estate tax law, Friedman’s and her brother’s share would be subject to a $200,000 tax liability.  The share allotted to Lindsay’s husband would not be taxed because of the marital exception.

Friedman and her brother decided to allow their father inherit the entire $6 million estate tax free by renouncing their share of the estate.  Yet, the legal glitch in their tax avoidance plan was Friedman’s infant daughter, who would inherit Friedman’s share if Friedman disclaimed her own interest.  Thus, Friedman would have to renounce her share of the estate as well as her daughter’s interest to have the desired tax effect.

Although New York courts have granted the renunciation of an infant’s right to an inheritance, the court in Brooklyn held that the best interest of the child must be a determining factor.  Since it was unclear from the court record whether Friedman and her brother had an agreement with their father to share in the $6 million after all parties renounced their share, the judge was unwilling to take chances with the child’s future inheritance.  The possibilities of Friedman’s daughter obtaining no inheritance on account of her mother’s renunciation could not be ignored in order to receive a tax benefit. 

See Charisma L. Troiano, Brooklyn Judge Blocks Heir’s Attempt to Avoid N.Y. Tax on $6M Estate, Brooklyn Daily Eagle, Feb. 21, 2015.

February 22, 2015 in Estate Administration, Estate Planning - Generally, Estate Tax, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 18, 2015

Travis County Probate Judge Holds Gay Marriage Ban Unconstitutional

Gay marriage

Travis County Probate Judge Guy Herman ruled yesterday that the Texas ban on same-sex marriage was unconstitutional; however, the county will not yet issue marriage licenses to gay couples. 

Herman made the ruling as part of an estate fight where Austin resident Sonemaly Phrasavath sought to have her eight-year relationship to Stella Powell deemed as a common law marriage.  When Powell died intestate last summer, Travis County courts became involved in the battle over Powell’s estate between Phrasavath and two of Powell’s siblings.

Last year, a federal judge declared Texas’ same-sex marriage ban unconstitutional but stayed his own ruling.  The case is now being considered by the U.S. 5th Circuit Court of Appeals.

 See Wire Reports, Travis County Won’t Issue Same-Sex Marriage Licenses After Austin Judge Rules Texas’ Ban Unconstitutional, The Dallas Morning News, Feb. 17, 2015.

February 18, 2015 in Current Affairs, Estate Planning - Generally, Intestate Succession, New Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2015

Give More Than Chocolates This Valentine's Day

ChocolatesValentine’s Day is right around the corner, and while you might want to show your affection with a box of chocolates or greeting card, the best way to take care of those you love is to review your estate plans. 

If you do not have a will, brush up on your state’s intestate succession statutes.  If you do have a will, review and update it this month.  In either case, one of the truly important aspects to understand is that contractual arrangements take priority over wills. 

Contractual arrangements that you may want to review this month include life insurance and annuity policies; retirement accounts; employee benefit plans; revocable and irrevocable trusts; payable on death accounts, certificates of deposit, savings bonds; and transfer on death designations for stocks, bonds and mutual fund accounts.  Make sure that your intentions for how, and to whom, you want to leave money and property are in accordance with how you have your accounts and property titled.  How your will is written will be secondary to these contractual arrangements. 

Since it is also Valentine’s Day, think about writing a love letter to accompany your will, funeral file or estate plans.  Not only is it nice for beneficiaries to have your assets, but also a reminder of your affection for them. 

See Jane Wolery, A Box of Chocolates and a Will: Valentine’s Is a Great Time To Review Estate Planning, Fairfield Sun Times, Feb. 9, 2015.   

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

February 11, 2015 in Estate Administration, Estate Planning - Generally, Intestate Succession, Non-Probate Assets, Wills | Permalink | Comments (0) | TrackBack (0)