ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Thursday, July 22, 2021

Feminist Judgments: Via v. Putman

SpivackMy colleague Carla Spivack (left) is one of the editors of Feminist Judgments: Rewritten Trusts and Estates Opinions.  The volume includes some opinions that touch on contracts issues that may be of interest, even to people like me, who run from trusts and estates issues whenever they crop up in the first year contracts course.

The format of the book follows that of the others in the Feminist Judgments series.  One scholar provides an overview of the case; another, playing the role of judge, delivers an opinion.  It's a fun way to present critical perspectives on canonical cases.  In today's case, Eloisa C. Rodriguez-Dod (below right) provides the commentary on Via v. Putnam (FL 1995), which sets up the alternative opinion by Elena Maria Marty-Nelson (below left). 

Eloisa-rodriguez-dodJoann Putnam had five children with her husband, Edgar Putnam.  She also had a son Robert Blackburn.  She died in 1985, having executed mutual wills with Edgar that provided for all six children.  Edgar remarried in 1988, without getting his new wife, Rachel, to agree to a waiver regarding the assets covered by his contract with Joann.  When he passed in 1992, his will was admitted to probate, and it provided that his estate was to be divided among the six children.  However, Rachel challenged Edgar's will, seeking a family allowance exempt property, homestead, and both the pretermitted and spousal elective share. 

Dean Rodriguez-Dod takes us through the procedural history.  The probate court, while recognizing Rachel's claims, seems to have subordinated them the the children's rights as third-party beneficiaries to the mutual wills, which the court treated as a binding contractual agreement between Joann and Edgar.  Florida's Second District Court of Appeal reversed, largely relying on a public policy argument: the Florida legislature, according to the intermediate appellate court, intended to favor the claims of surviving spouses.  This reading of the statutory scheme conflicted with a prior decision of Florida's Third District Court of Appeal.  Florida's Supreme Court sided with the Second District Court of Appeal, noting that the "institution of marriage has been a cornerstone of western civilization for thousands of years and is the most important type of contract ever formed."

In her dissenting opinion, Marty-nelson-elenaDean Marty-Nelson argues that the majority's opinion "undermines marriage and undervalues women."  The legislative scheme generally provides that a surviving spouse's share is net of all creditors claims.  The majority creates an exception where the creditors are surviving children, as third-party beneficiaries under a will agreement.  There is no justification for a court-made exception to a legislative scheme, nor is there any good reason to treat surviving children differently, let alone worse, than other creditors.

The majority was concerned that, absent the exception that it created, Rachel, the surviving spouse, would take nothing from Edgar's estate.  Dean Marty-Nelson does not see that as the only possible outcome.  Once Joann died, Edgar's estate was impressed with an equitable trust in favor of the children to the extent that his assets could be traced to his first marriage.  However, assets that arose during Edgar's second marriage would not be.  Dean Marty-Nelson's dissenting opinion does not undermine either marriage or undervalue either of Edgar's wives.

Tomorrow's post will cover the chapter on Reece v. Elliott

This post is part of a continuing series on introducing critical perspectives, including critical race theory, into the teaching of first-year contracts.  Other posts in the series include:

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