Wills, Trusts & Estates Prof Blog

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.

Intestate Succession Under Hindu Law

Taru Jain (Advocate, Supreme Court of India) has recently posed an article on SSRN entitled General Principles of Intestate Succession Under Hindu Law.

Here is the abstract of this article:

Succession implies the act of succeeding or following, as of events, objects, places in a series. In the eyes of law however, it holds a different and particular meaning. It implies the transmission or passing of rights from one to another. In every system of law provision has to be made for a readjustment of things or goods on the death of the human beings who owned and enjoyed them.

In the present paper I discuss and analyze the rules of inheritance that the Hindu Succession Act, 1956 prescribes for matters of succession when an individual (a Hindu male or female) dies without prescribing for how his/her property shall devolve upon his/her death i.e. rules of intestate succession.

The "Uncleing Principle" and Intestate Succession

Gary Spitko (Professor of Law, Santa Clara University School of Law) has recently posted on SSRN his article entitled Open Adoption, Inheritance, and the  Uncleing Principle.

Here is the abstract of his article:

This article critiques current inheritance law relating to adopted children in light of the purposes of modern adoption law and the increasing prevalence of open adoptions.  The article proposes an uncleing principle to determine intestate inheritance rights in cases of open adoption in which a birth parent has maintained a qualifying functional relationship with the adopted-out child subsequent to the adoption.  When applicable, the uncleing principle would treat the adopted-out child and her birth parent as potential heirs of one another.  Unlike the presently dominant  all-or-nothing  approach to inheritance rights arising from adoption, however, the proposal would not under any circumstances treat the birth parent as a legal parent of the adopted-out child for purposes of inheritance.  Rather, the uncleing principle would treat the birth parent as an uncle or aunt to the adopted-out child, and would similarly increase the distance on the family tree between the adopted-out child and members of her birth family by one line of inheritance and two degrees of kinship.  When applicable, the uncleing principle would better serve the interests of the adopted child, her adoptive family, and her birth family than does the all-or-nothing approach, under which the adopted-out child is either a child of her birth parents for purposes of inheritance or is a stranger to her birth parents for purposes of inheritance.  The uncleing principle affirms the parental role of the adoptive parents by refusing to treat a birth parent as a legal parent.  Simultaneously, the uncleing principle recognizes and validates the importance of the bond between the adopted child and her birth family when the birth parent has maintained a sufficient functional relationship with the adopted child subsequent to the adoption.

Siegel’s Heirs Receive a Share of Superman Copyright

According to Michael Cieply, Ruling Gives Heirs a Share of Superman Copyright, NYTimes.com, March 29, 2008:

A federal judge here on Wednesday ruled that the heirs of Jerome Siegel — who 70 years ago sold the rights to the action hero he created with Joseph Shuster to Detective Comics for $130 — were entitled to claim a share of the United States copyright to the character.***

[T]he ruling threatened to complicate Warner’s plans to make more films featuring Superman, including another sequel and a planned movie based on the DC Comics’ “Justice League of America,” in which he joins Batman, Wonder Woman and other superheroes to battle evildoers.***

[T]he judge’s 72-page order described how Mr. Siegel and Mr. Shuster, as teenagers*** worked together on a short story, “The Reign of the Superman,” in which their famous character first appeared not as hero, but villain.***

When Detective Comics bought 13 pages of work for its new Action Comics series the next year, the company sent Mr. Siegel a check for $130, and received in return a release from both creators granting the company rights to Superman “to have and hold forever,” the order noted.

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

Spousal Abandonment and the Elective Share

In Purce v. Patterson, 654 S.E.2d 885 (Va. 2008), the court analyzed a state law which disqualifies a surviving spouse from taking the elective share or by intestacy if he or she “willfully deserts or abandons” the other spouse and such desertion or abandonment continues until death.

The court stated that the relevant period for determining abandonment extends to the time of the deceased spouse’s death and that even though the couple agrees to separate, conduct after the separation can amount to abandonment within the meaning of the disqualification statute.

Killer should not do indirectly what he or she cannot do directly

Karen J. Sneddon (Assistant Professor, Mercer University Walter F. George School of Law) has recently published her article entitled Should Cain's Children Inherit Abel's Property?: Wading into the Extended Slayer Rule Quagmire, 76 UMKC L. Rev. 101 (2007).

Here is the introduction to her article:

A killer should not benefit from the death of his or her victim. Confusion exists as to whether this notion precludes not only direct benefits, like inheriting the victim's property, but also precludes indirect benefits. Indirect benefits include instances where the individual who inherits the victim's property subsequently gives the victim's property to the killer. The individual may give the killer the property to pay for the killer's legal expenses or to support the killer upon completion of the killer's prison sentence. Generally, the law prohibits an individual from doing indirectly what he or she cannot do directly. And even though “[t]he law generally will not permit by indirection or circuity what it will not allow directly,” attempts by courts, including the U.S. Court of Appeals for the Seventh Circuit, to address the problem of indirect benefits to the killers have been trapped in a quagmire of conflicting goals and fact-specific decisions. Such decisions provide little guidance or direction to future decision makers. This Article argues that a killer should not be able to indirectly benefit from the death of his or her victim. More specifically, this Article examines case law grappling with the ability of the killer's relatives to receive the victim's property. This Article then examines the challenges, feasibility, and necessity of crafting a rule that prevents killers from indirectly benefiting from the death of their victims. Finally, this Article proposes a clearly articulated rule that furthers both the relevant policies and acknowledges the significance of certain facts.

Probate Researchers Bring Good News While Uncovering Family Secrets

The following is from Katie Dailey, Dying without a will leaves a fortune behind, women.timesonline.co.uk, March 6, 2008:

In the middle of the night, the Government publishes a list of those who have died intestate; that is without a will, and without any close relatives.***

Over the next few days, weeks or months researchers will track down long-lost relatives, etching in blanks in the family tree, and ultimately making a trip to a lucky individual. They will find out that they are entitled to an inheritance, often millions - the fortunate winners of a genealogical lottery for which they never bought a ticket.***

Each company employs mobile agents who will do the local ground work once an address for the deceased is found - that means going to local register offices and libraries, knocking on neighbours' doors, chatting up ancient aunts, and seeking out the crucial pieces of the jigsaw puzzle that might lead to a windfall;***

They also cite the case of an illegitimate, solitary woman who left a considerable estate. Having traced her mother's progeny from a later marriage, Kin's researchers discovered that the deceased was the product of the routine abuse of her mother by her grandfather.***

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

The Central Provident Fund (Amendment) Act 2006 and Intestate Succession in Singapore

Barry C. Crown  (Associate Professor, Faculty of Law, National University of Singapore) has recently posted on SSRN an article entitled Death and the Central Provident Fund: Legislative Intervention. 

Here is an abstract of this article:

The Central Provident Fund (Amendment) Act 2006 is essentially a technical piece of legislation, fine-tuning various aspects of the operation of the Central Provident Fund ('CPF') scheme. Needless to say, legislation of this nature rarely calls for comment in an academic law review. However, section 12 of the Central Provident Fund (Amendment) Act 2006 is of importance in the Singapore law of succession. It amends section 25 of the principal Act, the Central Provident Fund Act, which provides for the disposition of CPF moneys on the death of a member who has not made a nomination under the CPF scheme. The new section 25 resolves a longstanding problem in the law of succession, but unfortunately it does so in a way which is likely to give rise to difficulties for CPF members in the future. To appreciate fully the change that has taken place, it is necessary to devote a few words to the state of the law as it stood prior to the recent amendment

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 his article entitled How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America. 

Here are excerpts from the introduction to 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.***

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.***

A child conceived during marriage by in vitro fertilization and implanted in the mother’s womb after the father’s death is not the father’s heir

Ten embryos were produced through IVF using the husband’s sperm and his wife’s ova.  Two embryos were implanted in the wife’s uterus but the pregnancy terminated in a miscarriage.  Approximately one month later, the husband died intestate.  Eleven months after his death, two embryos were implanted in his wife’s uterus resulting in the birth of a child twenty months after the husband’s death.  The mother appealed a denial of her claim for Social Security benefits for herself and for the child to the Federal District Court which certified to the Arkansas Supreme Court the question of whether the child is the father’s heir. 

In Finley v. Astrue, No. 07-627, 2008 WL 95775 (Ark. Jan. 10, 2008), the court said no.  The Arkansas intestacy statute requires that a person be conceived before an intestate’s death to inherit.  Because the statute was enacted in 1969 long before the development of IVF technology, the legislature could not have intended a child created through IVF and implanted after a gamete donor’s death be an heir of the genetic parent.  The court expressly declined to define the term “conceive.”

Parent may inherit from a child whom the parent did not support

A child received a large settlement of a medical malpractice action which was eventually placed in a special needs trust which on the child’s death is to be distributed to her heirs under the law in effect at the time of her death.  After the child’s death, the mother opposed the father’s claim to one-half the trust property on the grounds that he failed to support the child during her lifetime. 

In In re Rogiers, 933 A.2d 971 (N.J. Super. Ct. App. Div. 2007), the court affirmed the trial court’s grant of a summary judgment to the father on his claim to the estate, holding that the New Jersey intestacy statute does not condition the right of a parent to inherit from a child on the provision of support for the child.

Kentucky Dower Statute Analyzed

Elizabeth S. Muyskens (J.D. Candidate 2008, University of Kentucky College of Law) has recently published her Note entitled Married in Kentucky: a Surviving Spouse's Dower Right in Personalty, 96 Ky. L.J. 99 (2007-2008).

Here is an excerpt from her Note:

Kentucky is not only unusual for retaining some form of the common law rule of dower through statute, but also for including personal property in its dower statute. Common law limited dower to real estate and, in most states, the right to dower has been replaced with elective share statutes.***

Rather than trying to persuade the legislature to abolish Kentucky's dower statute, this Note analyzes the current way that Kentucky courts define and administer personal property in the context of dower along with the transactions that courts have found constituted a fraud on the surviving spouse's dower right in personal property. An understanding of the current status of a spouse's dower interest is necessary to ensure that transactions involving personal property will not be found fraudulent and therefore voided upon the interested spouse's death.

Equal Inheritance Rights Could Positively Impact Health and Economy in Uganda

Rachel C. Loftspring (J.D. Candidate 2008, University of Pennsylvania Law School) has recently published her Comment entitled Inheritance Rights in Uganda: How Equal Inheritance Rights Would Reduce Poverty and Decrease the Spread of HIV/AIDS in Uganda, 29 U. Pa. J. Int'l L. 243.
   

Here is an excerpt from the conclusion to her article:

In Uganda, clearly the culture, through the use of traditional customs, has been a force of oppression for women.*** Those laws that Uganda has promulgated to better the situation of women are either not enforced or not sufficient. As a result, women are left to suffer, often while also battling HIV/AIDS, as victims with little recourse.

But, if women had sufficient inheritance rights, their situation would improve. How to achieve sufficient inheritance rights is the crucial question. The country could commit to enforcing the laws already passed, create new and better laws, or import the UPC as a functional model that ensures that widows (and widowers) receive a fair share of their deceased spouses' estates. With inheritance rights women would become economically independent and the decision-makers in all aspects of their lives. Such independence, as this Comment has shown, would have great ramifications: it would decrease poverty and reduce the spread of HIV/AIDS in Uganda.

Discretion in Property Devolution and Heirs’ Misconduct

Anne-Marie Rhodes (Professor, Loyola University Chicago School of Law) has recently published her article entitled Consequences of Heirs' Misconduct: Moving from Rules to Discretion, 33 Ohio N.U. L. Rev. 975 (2007).

Here is the conclusion to her article:

The changing landscape of modern families and property necessitates an ongoing reconsideration of intestate statutes for the devolution of property. Concerns about an heir's misconduct have historically only been modestly addressed within intestacy, and that remains true today. Nevertheless, recent disinheritance statutes have moved beyond the tradition of an objective rule to granting a judge discretion in certain sensitive circumstances. This legislative grant of discretion is extraordinary. It may mark the beginning of a subjective approach in the disposition of intestate property, one that in balancing the intent of the decedent against society's general public policy in very limited circumstances of heirs' misconduct places a thumb on the scale in favor of the decedent's particular intent. For a system premised on the importance of decedent's intent, it is a step in the right direction and bears watching.

Martin Luther King, Jr. Died Intestate

Today we celebrate the life of Martin Luther King, Jr., one of the main leaders of the American Civil Rights Movement.

Dr. King devoted all of his income and talent to the movement.  He died intestate, leaving less than $30,000 in his estate.  Some of that money was already earmarked for the movement.

Additional information about Dr. King’s legacy is available on NPR’s Talk of the Nation entitled The Legacy of Martin Luther King Jr.

Washington court to decide whether a son who killed his mother can inherit her estate

The following is from Natalie Singer, Son seeks estate of mother he killed, seattletimes.nwsource.com, Jan. 3, 2008:

From inside Western State [Hospital], where he's spent most of his time since stabbing his mother and brother to death with a butcher knife in 1999, Hoge is fighting to inherit part of his mother's estate. ***

After Hoge killed his mother, Pamela Kissinger, her family won $800,000 in a civil suit against King County when it was determined that a public-health clinic had failed to give Hoge his medication and was partially responsible for the slayings.

Hoge's claim to that money is now poised to set legal precedent for interpretation of Washington's sometimes-vague Slayer Statute: the law that prohibits most killers from profiting off their victims.***

The Slayer Statute is designed to prevent those guilty of two key things — a "willful" and "unlawful" killing — from profiting from their crimes.  While some states have decided whether people found not guilty by reason of insanity can inherit the estates of their victims, Washington has not.

Special thanks to Deborah Letz (attorney, San Antonio, Texas) and for bringing this situation to my attention.

Post-Death Implantation Child Not Considered an Heir in Arkansas

The following is from John Lyon, Court: Embryo implanted in mother's womb after father's death not an heir, Arkansas News Bureau, Jan. 11, 2008:

A child conceived through in vitro fertilization but implanted in his mother's womb after his father's death is not automatically considered his father's heir under Arkansas' inheritance laws, the state Supreme Court said Thursday in an advisory opinion.

The court issued the opinion in response to a request from a federal judge in an Arkansas woman's lawsuit against the Social Security Administration over its denial of her claim for "child's insurance benefits."

The Supreme Court noted that the state statute governing intestacy * * * was enacted in 1969, before the technology of in vitro fertilization was developed, and therefore does not address the issue.

Because the law predates the technology, "we can definitively say that the General Assembly ... did not intend for the statute to permit a child, created though in vitro fertilization and implanted after the father's death, to inherit under intestate succession," Justice Paul Danielson wrote.

Danielson wrote that it is not the court's role to create law, but he added that "we strongly encourage the General Assembly to revisit the intestacy succession statutes to address the issues involved in the instant case and those that have not but will likely evolve."

Special thanks to Deborah Letz (attorney, San Antonio, Texas) and for bringing this case to my attention.

Inheritance by Non-Marital Children

Browne Lewis (Visiting Professor, University of Pittsburgh School of Law) has recently published her article entitled Children of Men: Balancing the Inheritance Rights of Marital and Non-Marital Children, 39 U. Tol. L. Rev. 1 (2007).

Here the conclusion to her article:

In the current climate in the United States, marriage is not a requirement for procreation. A woman has various reproductive options. She can have a child from a non-marital sexual relationship or through the use of artificial insemination. Thus, the number of children being born out of wedlock has increased. Historically, non-marital children were not permitted to inherit from their fathers. The U.S. Supreme Court and various state legislatures have taken actions to expand the inheritance rights of non-marital children. Unfortunately, those procedures are complicated and require non-marital children to depend upon the affirmative actions of their parents. The UPA introduces a system that allows non-marital children to inherit from their fathers on mostly equal terms with marital children, but further improvements are needed to fairly treat non-marital children for inheritance purposes. My proposed system gives the probate court flexibility to balance the interests of the state, non-marital children, and marital children. This system addresses the proper inclusion of non-marital children in intestacy statutes, but would need to be uniformly adopted by the states to accommodate family mobility and promote fairness among the states.

New York Developments

Terry L. Turnipseed (Assistant Professor of Law, Syracuse University College of Law) has recently published his article entitled Estates and Trusts, 57 Syracuse L. Rev. 1135 (2007).

Prof. Turnipseed explains that "[t]his Survey year there have been substantial developments in estates and trusts law in New York, including a handful of important legislative provisions and numerous noteworthy, interesting cases."

Problems with UDPAI Revealed

Adam J. Hirsch (William and Catherine VanDercreek Professor of Law, Florida State University College of Law" has recently posted on SSRN his article entitled The Uniform Acts' Loophole in Fraudulent Conveyance Law.

Here is the abstract of his article:

This article illuminates a glitch in the Uniform Disclaimer of Property Interests Act of 1999 (UDPIA) which allows persons to disclaim not only inheritances but, in one special circumstance, part of their own, preexisting ownership interest in property. The article suggests a strategy whereby an insolvent debtor can exploit this glitch to put property out of the reach of creditors and thereby to employ disclaimer law to effect what would otherwise constitute a per se fraudulent conveyance. In the process, the article analyzes the legislative history of UDPIA to show how the glitch found its way into this Uniform Act and also offers a novel analysis of the legality of insolvent disclaimer generally under the text of UDPIA. Further sections of the article weigh the advantages and shortcomings of the proposed asset protection strategy in comparison to alternative ones already in use, including analysis of the availability of the strategy to debtors who do not themselves reside in a UDPIA jurisdiction and the viability of the strategy for debtors who enter a bankruptcy proceeding.

Chris Benoit Update

Earlier on this blog, I reported how in June 2007, pro wrestler Chris Benoit killed his wife, son, and himself triggering complex issues regarding the distribution of the estates of these three individuals, all of whom died intestate.

According to AP, Benoit's Prescription Not Legal, cbs46.com, Oct. 8, 2007:

The amount of testosterone prescribed * * * far exceeded the normal amount for a hormone disorder he was purportedly being treated for, federal prosecutors said in new court papers.

The papers were filed in a criminal case against Dr. Phil Astin, Benoit's personal physician, who is charged with overprescribing medication to two other patients.

Inheritance Scams Lead to Arrests

The United States Postal Service has recently seized over $2.1 billion in counterfeit checks and more than 77 people have been arrested in connection with scams originating in e-mail messages which play on the recipient's desire to get "something for nothing."

According to Post Office Cracks Down On Fake Check Scam, CBSNews.com, Oct. 3, 2007:

Most of the cons start with e-mails telling of an inheritance or lottery win and ask the victim to help bring the money to the United States. The victim is asked to cash a check that comes in the mail and to send part of the money back to the person sending it, said Greg Campbell, inspector in charge of global security and investigations for the Postal Inspection Service.

Then that person disappears with the money and the original check bounces, leaving the victim with a loss. * * *

U.S. Assistant Attorney General Alice Fisher said: "There is no lottery. There is no inheritance. The checks are not real. But there are real victims. The crime knows no borders, and our coordinated law enforcement knows no borders."

September 17, 2007 Discussion Draft of UPC Amendments

The September 17, 2007 discussion draft of amendments to the Uniform Probate Code are particularly focused on issues related to children born through assisted reproduction.

The draft appears to provide that donors of gametes are not parents for purposes of intestacy (and, under the UPA, gamete donors aren't parents for other purposes either).

It also appears to provide that in most situations (except adoption by a stepparent or relative), an adopted child cannot inherit from his or her genetic parents.

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

Woman gives birth to her grandchildren

Under Brazilian law, a person may serve as a surrogate mother only if she is closely related to the donor. 

Claudia Michelle de Brito had difficulty conceiving and thus asked her mother, Rosinete Palmeria Serrao, to serve as her surrogate mother.  Rosinete had four of Claudia's embryos implanted in her.

On September 27, 2007,  Rosinete gave birth via Cesarean section to twin boys.  Thus, she is the birth mother of her two grandchildren.  The potential estate planning issues triggered by this situation could be tremendous!

See Surrogate Gives Birth to Her Own Twin Grandsons in Brazil, FoxNews.com, Sept. 30, 2007.

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

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.

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.

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.

The Gullah Coast-Inheritance Interface

Faith Rivers (Associate Professor of Law, Vermont Law School) has recently published her article entitled The Public Trust Debate: Implications for Heirs' Property Along the Gullah Coast, 15 S.E. Envtl. L.J. 147 (2006).

Here is the introduction of her article:

Heirs' property ownership is a significant problem facing the African American community in the "Lowcountry" of South Carolina. Heirs' property generally refers to real property purchased by African Americans and held within families for generations without clear title. The land is owned by a group of relatives - the heirs - who possess fractionated fees as tenants in common. This form of concurrent ownership is an undivided interest in a fractional share of property. All cotenants share unity of possession, but acquire titles to varying sized interests at different times. Each generation passes the property down to their heirs, as there is no right of survivorship for tenants in common. The disposition of tenants in common property is governed by the law of partition. Partition provides for the division of property, or its cash "equivalent," according to owner interests.

The scope of the heirs' property problem has been difficult to document. According to scholarly opinions rendered nearly three decades ago, more than one-third of all "black-owned" property in the rural South is owned as heirs' property. More recent research conducted for the Coastal Community Foundation of South Carolina (CCF) confirms that a significant portion of land in the Lowcountry is still held as heirs' property. Assessors identified nearly 2,000 property tracts of heirs' property in Charleston County, and another 1,300 properties (involving 17,000 acres) in neighboring Berkeley County. Within Berkeley County, the president of the Cainhoy Huger Community Development Corporation estimated that "85 percent of the *149 property [on the Cainhoy Peninsula] is owned as heirs' property." The prevalence of heirs' property is most evident on the Sea Islands and in isolated rural communities within the Lowcountry. At the time of the CCF study, there were 111 tracts of heirs' property on Wadmalaw Island in Charleston County. Likewise, on St. Helena Island, a small 64 square mile island in Beaufort County, researchers identified 124 heirs' property parcels.

Over the past three decades, scholars have proposed various strategies to re-conceptualize and protect heirs' property. Building upon work of scholars in the field, and the work of two generations of land preservation activists and lawyers who began the struggle in Hilton Head, this piece considers the state of heirs' property in the Lowcountry of South Carolina and evaluates various conservation strategies that may be utilized to preserve heirs' property. This Article examines the efficacy of utilizing the public trust doctrine and various tax incentive mechanisms as tools to conserve heirs' property. In particular, this Article proposes the development of a Gullah Culture Preservation Exemption as a conservation tool that preserves Gullah ownership and traditional use of coastal lands without hindering the property rights of heirs' property owners.

Post-Mortem Conception, Inheritance, and New York Law

Erica Howard-Potter (J.D., 2006, Albany Law School) has recently published her article entitled Beyond Our Conception: A Look at Children Born Posthumously Through Reproductive Technology and New York Intestacy Law, 14 Buff. Women's L.J. 23 (2005-2006).

Here is an excerpt from the article's introduction:

This comment will first discuss the different types of assisted reproductive technologies, common law presumptions of paternity and the law behind posthumous (or after-born) and non-marital children. Next, this comment will look at the United States cases that have dealt with the issue of posthumously conceived children, followed by the approaches taken by the American Law Institute, the National Conference of Commissioners on Uniform State Laws, the American Bar Association and the few state legislatures that have specifically dealt with this issue. A focus on current New York law will follow, including the intestacy statute, a section of the domestic relations law, the non-marital children statute, case law and a look to policy recommendations made by a New York State task force created specifically to discuss children born as a result of assisted reproductive technology. Additionally, there is current proposed legislation in New York concerning after-born children and children of assisted reproduction that will be discussed. There will then be a brief discussion about wills, detailing the difference between posthumously conceived children's rights under a will versus under intestacy law. Finally, there will be some proposals and suggestions made to the New York State Legislature on how New York should handle this issue.

Chris Benoit's 'Roid Rage Triggers Complex Intestacy Issues

In June 2007, pro wrestler Chris Benoit went into a "'roid-rage" (extreme anger triggered by high does of steroids) killing his wife, son, and himself.

His actions have now triggered complex issues regarding the distribution of the estates of these three individuals, all of whom died intestate.

The key issue that needs to be decided is the order that the individuals died.  Here are the options:

1. Chris strangled his wife, killed his son, and then committed suicide -- Under this scenario, the multi-million dollar estate would pass to his children from a prior marriage.
    
2. Chris killed his son, strangled his wife, and then committed suicide -- Under this scenario, part of the estate would pass to his mother-in-law (his wife's mother) under Georgia law because the applicable slayer statute would constructively treat Chris has having died before his wife and son.

See Harry R. Weber, Order of deaths key to wrestler's estate, Yahoo! News, Aug. 15, 2007. 

Special thanks to Andrew D. Rothstein (Associate, Trusts & Estates Department, Rackemann, Sawyer & Brewster, P.C., Boston, MA), Payson Lederman (attorney, California), and Al Brophy (Professor, University of Alabama School of Law) for bringing this development to my attention.

Married or Unmarried? The answer depends on why you are asking in West Virginia!

Lisa M. Gunno (Senior Managing Editor, Volume 109 of the West Virginia Law Review; J.D. 2007, West Virginia University College of Law) has recently published her note entitled De Facto Marriage in West Virginia: If the Court Recognizes the Relationship for Alimony, Why Not For Probate?, 109 W. Va. L. Rev. 867 (2007).

Here are excerpts from the article's introduction and conclusion:

Did you ever think that under the law of one state you could be considered both married and not married at the same time? While this may seem illogical, it is exactly how an individual could be viewed under the current law of West Virginia. Consider the following scenario: John and Mary have been living together for quite some time in a committed relationship; they both contribute to the household expenses and support each other in every way. The couple has decided not to pursue a formal marriage ceremony, but feel their relationship is more stable than most married couples in their community. Mary is still receiving alimony from her ex-husband Dave. Dave, who is obviously upset with the relationship, goes to court and requests that his alimony payments be terminated because of the existence of a de facto marriage between John and Mary. The court, after looking at the circumstances of the situation, holds that John and Mary are de facto married and terminates Dave's alimony payments. A few months after this court order, John dies in a tragic accident. Mary realizes the couple had not yet completed their wills, and that John's property will pass through intestate succession. According to the laws of the state, Mary will not receive any portion of the property when it passes by intestate succession because she was not “legally” married to John at the time of his death.  * * *

Over the years, the West Virginia Legislature and the West Virginia Supreme Court of Appeals have laid the groundwork that would appear to allow an individual who either meets the criteria listed in the de facto marriage statute or found in Goode v. Goode to inherit from their deceased “spouse.” The West Virginia Legislature has previously enacted a statute which lists the factors to be considered when determining if a de facto marriage exists. This legislation and subsequent case law demonstrates that the Legislature and the Court are willing to recognize this relationship in at least one area of the law. The test presented by the Legislature resembles closely both the test for finding the relationship of equitable adoption and also the test presented by the Court when determining whether or not to divide the property of unmarried cohabitants while both are still alive. The decisions of the West Virginia Supreme Court of Appeals also support the theory that the courts have the ability to distribute the property acquired by unmarried cohabitants.  Therefore, the Legislature should broaden the application of the de facto marriage statute to apply in the realm of probate, as well as for alimony purposes. If the Legislature is not willing to take this step, the Court should take the initiative and expand the holding in Goode v. Goode to apply to those individuals who hold themselves out to be married and remain together until the death of one of those individuals.