Wills, Trusts & Estates Prof Blog

After Sveen v. Melin, Is There a Contracts Clause Argument Against Laws Retroactively Terminating Child Support Obligations After the Death of the Obligor Parent?

Millions of children in the United States benefit from child support agreements, which establish enforceable financial obligations against a payor parent, often following divorce. Historically, under common law, the death of an obligor parent terminated these obligations, leaving the supported child without financial recourse. While some states continue to uphold this rule through case law or statute, others, such as California, have reversed it judicially or legislatively. Variations exist, with some states preserving the obligation post-mortem or granting courts discretion to either terminate or revive it. However, any termination or reduction of child support obligations after the obligor parent’s death disproportionately harms the child, raising questions of fairness and constitutional implications under the U.S. Constitution's Contracts Clause.

The Contracts Clause prohibits state laws from impairing contractual obligations, but its scope has narrowed significantly since 1980. The U.S. Supreme Court, in cases like Sveen v. Melin, has allowed retroactive laws to impair contracts if they advance a significant and legitimate public purpose in a reasonable way. However, child support agreements differ from other financial arrangements, like life insurance policy designations, as they directly benefit children’s well-being. Despite the Sveen precedent, arguments can be made that retroactive laws terminating child support obligations constitute substantial impairments that fail to serve legitimate public purposes, violating the Contracts Clause.

This issue becomes more complex because the Contracts Clause applies only to legislative actions, not judicial rulings. States adhering to the common law rule avoid constitutional scrutiny under the Clause, while those legislatively codifying retroactive termination risk violations. This essay contends that retroactive termination laws not only constitute poor policy but also likely fail constitutional muster under the Sveen framework. By distinguishing child support agreements from other contractual arrangements, the essay argues that terminating such obligations upon the obligor parent’s death undermines children’s rights and welfare, presenting a compelling case for legislative reform to preserve these vital agreements.

For more information see Diane Kemker "After Sveen v. Melin, Is There a Contracts Clause Argument Against Laws Retroactively Terminating Child Support Obligations After the Death of the Obligor Parent?" ACTEC Law Journal, Fall 2024. 

Testamentary Freedom: A Constitutional Perspective

As the 2024 Legislative Session in Oklahoma concluded, the House Judiciary Committee recommended HB 3505, a bill addressing the validity of estate planning instruments for individuals diagnosed with Alzheimer’s, dementia, or other cognitive impairments. The proposed law would invalidate any powers of attorney, wills, trusts, or amendments made after such a diagnosis, as well as any instruments created or amended within two years prior. In cases of invalidation, the original document would take precedence. While the bill did not advance to a vote on the House floor, its potential reconsideration raises significant legal and ethical concerns.

Critics argue that HB 3505 is problematic due to its rigid, mandatory language and retroactive effects. The bill presumes testamentary incapacity without requiring factual evidence, barring individuals with cognitive impairments from engaging in estate planning by default. This approach diverges from traditional practices, where a testator’s competency is a factual question determined by courts, often allowing individuals under guardianship to make wills under judicial oversight. By creating a statutory presumption of incapacity, the bill shifts the burden of proof onto those seeking to uphold amendments, thereby circumventing established legal protections.

Additionally, the bill’s constitutionality under federal and state law remains uncertain. Critics suggest that HB 3505 could violate due process rights by stripping individuals of their ability to manage their affairs based on an arbitrary timeline rather than clear evidence of incapacity. The lack of individualized assessment undermines fundamental principles of fairness and autonomy, raising serious legal and ethical questions. As Oklahoma lawmakers consider similar measures in the future, the implications of HB 3505 warrant careful scrutiny to ensure compliance with constitutional standards and respect for personal agency.

For more information see Richard J. Goralewicz "Testamentary Freedom: A Constitutional Perspective" ACTEC Law Journal, Fall 2024. 

Article: Anna Nicole's Constitutional Estates Law Legacy

Dave Fagundes recently published, Anna Nicole’s Constitutional Estates Law Legacy, ACTEC Law Journal, Fall 2024. Provided below is an Abstract:

If you were alive in the early 90s and even remotely cognizant of popular culture, you remember the billboard. It featured a young model recently re-styled Anna Nicole Smith recumbent in a grassy field sporting form-fitting Guess jeans and a top revealing ample cleavage. Herplatinum blond hair and smoky stare invoked—quite intentionally—her idol, Marilyn Monroe. The billboard was so compelling that it became a public safety hazard. The Norwegian parliament debated banning it because it was causing distracted drivers to crash. 

 

Anna Nicole’s turn as the leading Guess spokesmodel made her a world celebrity. She was discussed in the same company as leading supermodels of the time and enjoyed a few years of media favor thanks to her mix of down-home Texas simplicity and smoldering sex appeal. This moment didn’t last long. In 1994, Anna Nicole wed superannuated oil billionaire J. Howard Marshall II, and their yawning age difference and her perceived instrumentalism made her easy fodder for talk show ridicule. When Marshall died the next year, Anna Nicole found herself financially adrift, not only because she received nothing from Marshall’s estate but also because her incipient drug habit had alienated Guess and other sponsors.

 

Years of struggle followed. In 2002, she struck a deal to star in The  Anna Nicole Show, one of the earliest reality television shows. Its tagline  was “It’s not meant to be funny—it just is!” But twenty years on, the show appears more exploitative than humorous, showcasing Anna Nicole roaming aimlessly around Los Angeles, often visibly intoxicated, as a cadre of shady eccentrics swarm around her.

 

In 2005, Anna Nicole’s life moved from tragicomic to tragic. She gave birth to a daughter in November, only to have her 21-year-old son Daniel die of an overdose in her hospital room the next day. Anna Nicole never recovered from the blow, and in 2007 she too succumbed to a combination of drugs and illness and died at 39 in a Florida hotel.

 

Anna Nicole’s cultural legacy is conflicted. Her slow, painful public decline following her first few incandescent years of success made her a common subject of ridicule in the media. Her shocking early death made her an object lesson in the dangers of consumptive excess. Unlike her idol Marilyn Monroe, who continues to attract fascination even a half-century after her death, Anna Nicole no longer occupies a significant place in the popular consciousness.

But Anna Nicole’s story did leave a lasting mark in a way few would have imagined. Her protracted lawsuit to recover a share of the estate of her late husband spawned not one, but two, trips to the Supreme Court of the United States, and in so doing established a pair of important holdings about estates law and federal jurisdiction that continue to have salience to this day. Anna Nicole’s cultural legacy may have faded away, but her legal one remains.

 

This Essay examines Anna Nicole’s surprising constitutional estates legacy in three parts. First, it overviews the bitter litigation between Anna Nicole and the estate of J. Howard Marshall II. It then turns to the pair of Supreme Court cases spawned by that litigation. Part II discusses the holding and significance of Marshall v. Marshall, a successful challenge to the scope of the wills exception to federal jurisdiction. Part III discusses the holding and significance of Stern v. Marshall, which held that Article I bankruptcy judges cannot enter final judgments on state law counterclaims. In its Conclusion, the Essay reflects on the contrast between Anna Nicole’s absence from cultural memory with the impact left by the cases she litigated.

Article: Constitutional Limitations on the Enforcement of Foreign Forced Heirship Laws

Raquel Begleiter, Austin Bramwell, and Molly Schiff recently published, Constitutional Limitations on the Enforcement of Foreign Forced Heirship Laws, ACTEC Law Journal, Fall 2024. Provided below is an Abstract:

Nearly all fifty of the United States and the District of Columbia follow the common-law principle of testamentary freedom. By contrast, in countries that follow civil law or Sharia law, testamentary freedom is limited. Those countries instead have forced heirship regimes, whereby a decedent’s estate is required to be divided into shares for his or her legal heirs and distributed in proportions determined by the number of heirs living at the decedent’s death and degree of consanguinity. In some forced heirship regimes, shares are distributed on the basis of consanguinity and without regard to age, sex or legitimacy. Under other regimes, by contrast, a decedent’s sons receive shares of the estate twice as large as daughters receive. It is generally accepted that courts apply the law of a decedent’s dom-icile in matters involving decedents’ estates. 

It is also generally accepted that a court may refuse to apply the law of another state or country where doing so would violate the public policy of the forum state. To date, no court in the United States appears to have had the occasion to decide whether to follow Sharia forced heirship laws applicable to the disposition of a decedent’s U.S. situs property. Similarly, it does not appear that a United States court has determined whether to recognize a foreign court’s forced heirship judgment based on Sharia law.

 

This article examines to what extent probate courts in the United States would refuse, on constitutional grounds, to apply the law of a decedent’s domicile or to recognize and enforce a foreign forced heirship judgment, if doing so would result in the court applying a discriminatory sex-based classification. The article proceeds as follows: Section II discusses conflicts of law and the public policy exception to the application of foreign law under conflicts-of-law principles. Section III reviews courts’ recognition and enforcement of foreign judgments under principles of comity and the exceptions thereto. Section IV addresses whether the public policy exception can be based on rights under the United States Constitution and argues that a United States court may have a basis, under the Equal Protection Clause of the Fourteenth Amendment, for refusing to apply sex-based succession law. Similarly, a court in the United States may have constitutional grounds for refusing to recognize a foreign forced heirship judgement ordering the distribution of a decedent’s estate in accordance with sex-based law. Finally, Section V provides practitioner considerations for planners whose clients may wish to ensure that a United States court will not—or will, as the case may be—apply Sharia forced heirship rules to the succession of U.S. situs property.

Article: The Concept of Beneficial Ownership in Express Trust: A Necessity?

Hui Jing (Faculty of Law, The University of Hong Kong) recently published, The Concept of Beneficial Ownership in Express Trust: A Necessity?, 2024. Provided below is an Abstract:

The symmetry between legal and equitable estate is often considered a defining characteristic of an express trust. Consequently, the concept of beneficial ownership plays a crucial role in understanding how an express trust is established and operated. However, concentrating solely on beneficial ownership leads to the categorisation of charitable and non-charitable purpose trusts as exceptions within the express trust framework. This also creates challenges in understanding the entitlement of discretionary trust beneficiaries to initiate legal proceedings regarding the mismanagement of trust property by trustees. This article argues that due administration, instead of beneficial ownership, is a shared concern applicable to all kinds of express trusts. By shifting the focus from beneficial ownership to due administration, it is possible to establish a doctrinal connection among all types of express trusts. Furthermore, the increasing adoption of express trusts in civil law jurisdictions demonstrates that trust law has surpassed the confines of the common law sphere, and the understanding of trusts is no longer limited to the context of common law. By emphasising due administration, it becomes feasible to encourage a conversation between civil and common law jurisdictions regarding their unique approaches to express trusts.

Article: Reconciling Equitable Claims with Torrens Title

Rohan Havelock (University of Auckland - Faculty of Law) recently published, Reconciling Equitable Claims with Torrens Title. Provided below is an Abstract:

Under the Torrens system of land registration, the act of registration confers what is commonly regarded as immediate 'indefeasibility' of title, meaning the relevant estate or interest is held free from unregistered estates or interests. Nevertheless, the courts have always permitted so-called 'in personam claims' against registered proprietors based on legal or equitable obligations, and which may result in the title being defeated. Although it has been more than 130 years since the first Torrens statute was enacted, the relationship between the statutory protection and equitable claims arising out of receipt of property by third parties remains an uneasy one. This has been an enduring source of uncertainty for those using or administering the Torrens system. This article argues in favour of a more systematic approach to delineation of the legitimate scope of 'receipt-based' equitable claims. The key question is whether the claim involves the assertion of an interest or estate incompatible with the protection conferred by the wording of the Torrens statutes.

 

Article: Looking through Trusts

Adam S. Hofri-Winogradow (Peter A. Allard School of Law, the University of British Columbia) and Mark J. Bennett (Victoria University of Wellington) recently published, Looking through Trusts, 2024. Provided below is an Abstract: 

As everyone knows, trusts are often used to avoid or subvert different rules of law. To combat such avoidance, jurisdictions enacted anti-avoidance rules; yet many of these rules do not fully prevent trusts-based avoidance, or in some cases reflect some jurisdictions' acceptance of such avoidance. We review the anti-avoidance rules applied by Canada, the US, the UK, Australia and New Zealand to try and stymie trusts-based avoidance in three subject areas: distribution of family property on divorce or separation, taxation of income accrued in settlor-controlled trusts, and means-tested eligibility for welfare benefits. We find that antiavoidance doctrines are often less than fully effective in tackling liability or means testing avoidance by way of discretionary trusts, and offer recommendations to improve the treatment of such trusts for anti-avoidance purposes.

Article: Economic History and The Remaking of Family Law

June Carbone (University of Minnesota - Twin Cities - School of Law) and Naomi Cahn (University of Virginia School of Law) recently published Economic History and The Remaking of Family Law, 2024. Provided below is an Abstract:

In looking at the history of family law, we locate family law – and the status of women and children within it – as a function of political economy. That is, family law is shaped by a societal system that allocates access to, and control of, sources of wealth, decision-making power, and responsibility for dependents. As the nature of family assets has changed from land to male wage labor to two incomes and a complex set of complementary employer and state-provided benefits, so too have family dynamics and, ultimately, family law. They have evolved into the contemporary system, with a distinct allocation of decision-making power necessary to channel greater investment into children, manage the relationship between two more financially independent adults, and coordinate the investments in more complex family relationships.

While these legal changes govern all families, families do not necessarily interact with the legal system in the same ways. As a practical matter, couples with assets tend to drive the legal changes as they are more likely to bring cases that produce precedent-setting legal developments or engage in the political lobbying necessary to enact legislative changes. At the same time, couples without assets often form families, dissolve them, and form new ones without necessarily interacting with the legal system at all. This makes family law, that is, the body of statutes and decided cases, “middle class family law,” reflecting and reinforcing the norms of those with assets.

In this article, we trace both the evolution of the dominant family law of the middle class as these doctrines have changed in response to new economic systems, and the ways that families without assets have emerged from the shadows of the law, becoming more visible over time and thus posing more of a challenge to mainstream doctrines.

Article: An Update on Foreign Trusts Under French Tax Law

Pierre-Jean Douvier (Independent) recently published, An Update on Foreign Trusts Under French Tax Law, 2024. Provided below is an Abstract:

In this article, the authors explain how trusts are treated under French law by both legislation and the French courts. In particular, the authors focus on the Court of Appeal decision in Clive-Worms (Case No. 19PA00458).

Article: Draft Circular Sheds Light on Tax Ramifications of Italian Taxation of Trusts

Alberto Trainotti (Independent) recently published, Draft Circular Sheds Light on Tax Ramifications of Italian Taxation of Trusts, 2024. Provided below is an Abstract:

This note examines the tax treatment of trusts in Italy in light of a draft Circular of the Italian tax authorities, published in August 2021, on Italian tax provisions related to trusts.