Wills, Trusts & Estates Prof Blog

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

Friday, December 23, 2016

Article on Providing for Posthumously Conceived Children

Posthumous childrenKayleigh S. Shuler recently published an Article entitled, Deferring to the Dead: A Uniquely American Approach to Providing for Posthumously Conceived Children, 17 Or. Rev. Int’l L. 341–362 (2016). Provided below is an abstract of the Article:

In this paper, I will conclude that the state legislatures should uniformly allow posthumously conceived children to inherit from their deceased parent which will, in turn, allow courts to extend Social Security and other benefits to these children. By comparing the purposes underlying U.S. inheritance law to the purposes underlying French inheritance law, I will demonstrate that uniform inheritance for these children is consistent with the U.S.’s approach throughout the intestacy system. I will argue that values like equality and efficient estate administration emphasized within French inheritance law—and often cited as reasons against allowing posthumously conceived children to inherit—are not as prevalent in U.S. inheritance law. Instead, under U.S. law, efficiency often gives way to ensuring a decedent’s intent is carried out. Legislatures must extend the American principles of intent-fulfillment to the context of granting inheritance rights to posthumously conceived children. 

Other scholars and legal advocates have also argued for change in U.S. intestacy law that would allow posthumously conceived children to inherit from the estate of their deceased parent. These scholars have grounded their conclusions in alternative theories, including Constitutional arguments involving the Equal Protection Clause, or moral arguments based on ensuring the dignity of the deceased. My scholarship reaches the same conclusion, but by arguing from a historical and cultural perspective. In particular, I argue that allowing posthumously conceived children to inherit is consistent with the American approach to inheritance law and its emphasis on testamentary intent. In Part I, I will illustrate how the rights of a posthumously conceived child differ from those of a posthumously born child under current law, and I will explore the primary scenario in which American courts (both state and federal) have encountered these children’s claims. In Part II, I will explain the historical roots of both the American inheritance law system and the French inheritance law system and how those roots persist in each country’s modern law. Finally, in Part III, I will conclude that current law often fails to contemplate posthumously conceived children, thereby forcing courts to deny them rights in a way that is inconsistent with the rest of American inheritance law. 

 

December 23, 2016 in Articles, Estate Planning - Generally, Science | Permalink | Comments (0)

Tuesday, December 13, 2016

Psychological Anatomy of Family Wealth Disputes

Wealth disputesPublicly fighting over family wealth has indeed become a reoccurring theme in our times. Those family members at war, however, would most likely prefer not to air their dirty laundry, as the perceived greed does not always begin to tell the story. Oftentimes, the root of these costly disputes is deep-seated psychological issues. Perhaps, these issues can be traced all the way back to childhood, where some studies suggest that birth order impacts a child’s temperament. Further, several studies illustrate that these childhood experiences continue to influence children into adulthood. Consequently, these psychological seeds planted in early childhood could be the reason for such legal battles. Setting up a sturdy estate plan can help with some of these issues, but in addition, some wealthy families are setting up family meetings to openly discuss their wealth transfer. These steps alone, however, do not always prevent family disputes. 

The potential problem might lie with the parties inability to recognize the function of psychology in the estate planning process. A licensed professional is often needed to address these deep-seated issues, but this comes with its own challenges, namely workable settings and afforded privileges. Further, this interdisciplinary approach to estate planning is not guaranteed to prevent post-mortem disputes over family wealth but could be a beneficial option to those families seeking extra guidance.     

See Darren T. Case, Death, Wealth, and the Psychological Anatomy of a Family Dispute, Psych Central, December 13, 2016. 

 

December 13, 2016 in Estate Planning - Generally, Science | Permalink | Comments (0)

Saturday, November 26, 2016

Stephen Hawking Predicts Human Race Survival

PlanetsStephen Hawking predicts that humanity will not survive another 1,000 years on planet Earth due to things like climate change, nuclear weapons, and robots. Hawking claims that the human race’s best chance for survival is establishing new colonies on other planets. This prediction comes at a time when space exploration has been ramping up. NASA is searching for “goldilocks” that might help sustain human life while Elon Musk plans to colonize Mars within the next century.

 See Doug Criss, Stephen Hawking Says We’ve Got About 1,000 Years to Find a New Place to Live, CNN, November 18, 2016.

November 26, 2016 in Current Events, Science, Technology | Permalink | Comments (1)

Saturday, May 14, 2016

Article On Insane Delusions And The Law

Pen and PaperJoshua C. Tate (Southern Methodist University Dedman School of Law) recently published an article entitled, Personal Reality: Delusion in Law and Science, 49 Conn. L. Rev. (2017). Provided below is an abstract of the article:

The concept of an insane delusion appears in several branches of the law, including contracts, gifts, and wills. Critics of the traditional doctrine have made compelling arguments in favor of its modification or abolition in the context of wills, given that it is often used as an excuse to substitute the values of jurors for those of the testator. Moreover, recent scientific studies have shown correlations between delusions and other cognitive impairments, calling into question the need for an independent doctrine of insane delusion. Nevertheless, there is evidence that not all deluded individuals have additional cognitive biases, and those who do may have some impairments while lacking others. Due to the nature of gratuitous transfers, adoption of the fairness-based approach to mental illness in the Restatement (Second) of Contracts is not a feasible alternative to the traditional insane delusion doctrine for wills. This Article accordingly proposes a new use for the concept of a delusion in making legal determinations regarding mental capacity in the context of wills. The concept would be better formulated as a doctrine of partial sanity, used when a testator is found to lack general mental capacity, and only as a basis for upholding all or part of a will. Under such a rule, the issue of a testator’s general mental capacity would be decided first. If the person in question had general mental capacity, the will would be held valid. But if the person did lack general mental capacity, the court could consider whether the lack of capacity was caused by a delusion, and, if so, whether that delusion actually affected the disposition of the estate. To the extent that a particular decision by the deluded individual was not the product of irrational decision making, the choice would be respected. This would preserve, in modified form, a legal concept that has existed for centuries and remains relevant in modern science, without giving excessive license to courts and juries to second-guess the lifestyles and eccentricities of individuals.

May 14, 2016 in Articles, Science | Permalink | Comments (0)

Wednesday, May 11, 2016

How Purposeful Aging Creates Health Benefits

Fullfilling lifeIn this column Richard Eisenberg discusses the impressions he came away with after attending the Milken Center for the Future of Aging’s Purposeful Aging Summit.  He discusses how there is a growing body of scientific research showing the health benefits of purposeful aging.  One of the ways that senior citizens can get a sense of purpose in their life is through volunteer work.  People do not need to have a new career to lead a purposeful life and volunteer work can pay dividends.  “The need is great, the Summit panelists agreed, to get the word out about programs like Experience Corps and Senior Corps.”  This column discusses a need to spark a volunteer movement to help senior citizens gain a sense of purpose and fulfillment for their lives.

See Richard Eisenberg, The Secret To Living A Longer, Healthier Life, Forbes, May 11, 2016.

May 11, 2016 in Elder Law, Estate Planning - Generally, Science | Permalink | Comments (0)

Saturday, May 7, 2016

Prince’s Estate Will Use Blood Sample To Fight Paternity Claim

Prince3I have previously discussed the ongoing issues surrounding the estate of the late iconic musician Prince.  Recently the Prince estate has announced that it is ready to use a sample of Prince’s blood to battle any paternity claims against the royal bloodline.  “A Minnesota judge signed off Friday on a request from the Rock Hall of Famer’s reps to analyze a sample of Prince’s blood in case of future ‘parentage issues.’”  The blood sample will be delivered to a DNA Diagnostics center for genetic testing just in case anyone comes forward claiming to be Prince’s child.  There will likely be a long drawn out estate fight because Prince passed away without a will.  These legal developments are probably going to be ongoing because of the large size of the estate. 

See Larry McShane, Prince’s estate to fight paternity claims with late rock icon’s blood sample, Daily News, May 6, 2016.

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

May 7, 2016 in Current Affairs, Estate Planning - Generally, Intestate Succession, Music, Science, Technology | Permalink | Comments (0)

Monday, May 2, 2016

What Are The Causes And Effects Of Alzheimer's Disease?

DementiaAlzheimer's Disease is one of the most terrifying afflictions that can strike those approaching retirement age as it strips a person of their personality and leaves them helpless before death. This terrible disorder is though to afflict over five million Americans, mostly women, with that number only to grow as the Baby Boomers hit the prime age for the disease to develop. But what causes Alzheimer's? While the exact cause if still unknown, there appears to be at least some genetic connection with onset of the disease at an early age. It is usually diagnosed by a series of mental test and, sometimes, testing brain fluids for traces of the protein that is associated with the disorder. However, there is limited knowledge on how to prevent or lessen the risk of developing the disease although there have been some links showing good cardio vascular health may help avoid it. If you think you are suffering from Alzheimer's, it is a good idea to go to your doctor for confirmation since memory naturally fades with age and the odds of developing the disorder are, thankfully, far from certain.

See Pam Belluck, What Is Alzheimer’s Disease?, The New York Times, April 30, 2016.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

May 2, 2016 in Science | Permalink | Comments (0)

Sunday, April 24, 2016

Certain Genetic Tests Will Be Reimbursed By Medicare

Genetic testingMedicare will now offer reimbursements for cancer patients who receive genetic testing for certain hereditary cancer-related disorders.  This expanded coverage of genetic testing will give cancer patients the tools they need to decide on different treatment options.  It will also provide family members and relatives with information about possible risks they might have.  More genetic information can help people identify hereditary risks and to take early preventative steps.  As the population continues to age issues relating to what Medicare covers is going to take on more importance in public discussions.  Lawmakers looking for support from senior citizens will need to discuss their plans for tackling these Medicare issues.  Cancer is a deadly disease that impacts the lives of millions of information and the information that can be obtained from this type of genetic testing will give people the tools to help fight this disease.

See Elizabeth Leis Newman, Medicare to reimburse certain genetic tests, McKnight’s, April 22, 2016.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

April 24, 2016 in Current Affairs, Estate Planning - Generally, Non-Probate Assets, Science, Technology | Permalink | Comments (0)

Monday, April 18, 2016

The Struggles Of Living With Alzheimer’s Disease

Alzeimer'sThis is an emotional first person account from patient-advocate Greg O’Brien about the struggles of living with Alzheimer’s disease.  Around five million Americans currently suffer from Alzheimer’s disease, and that number is expected to double within the next 20 years as baby boomers continue to age.  The cost of treating Alzheimer’s patients is currently more than $200 billion per year, and that number could surpass $1 trillion by 2050.  In this column Greg O’Brien documents his own personal struggle with the disease and the impact it is having on his relationship with his family.  This account personalizes a struggle that is impacting millions of people.  Alzheimer’s disease also has an impact on estate planning as families struggle to adapt to the changing circumstances.  Planning ahead for diseases like Alzheimer’s is always important for any estate planning.

See Greg O’Brien, I’m documenting my own Alzheimer’s disease while I still can, The Washington Post, April 13, 2016.

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

April 18, 2016 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Monday, April 4, 2016

Low Oil Prices Changing Economic Balance Of Power In Africa

PetrostateThe low price in oil has been changing the economic balance of power in Africa.  Major petroleum exporters like Nigeria and Angola which have benefited in the past from high fuel prices are not being hit hard.  African countries with more diversified economies like Ethiopia and Tanzania have been more resilient to lower commodity prices and have been attracting more investment.  The countries that failed to diversify their economies during the oil boom period are now having to deal with rising levels of unemployment, inflation, and popular discontent.  Countries that have put effort into diversifying their economies by developing their service and industrial sectors have been less negatively impacted by the drop in commodity prices.  This is causing a shift in the balance of economic power from West Africa to East Africa. 

See Luke Patey, Africa’s Petrostates Are Imploding, Foreign Policy, April 4, 2016.

April 4, 2016 in Current Affairs, Estate Planning - Generally, Science | Permalink | Comments (0)