Wills, Trusts & Estates Prof Blog

Article on Intestate Inheritance Rights for Unmarried Committed Partners: Lessons for U.S. Law Reform from the Scottish Experience

E. Gary Spitko recently published an Article entitled, Intestate Inheritance Rights for Unmarried Committed Partners: Lessons for U.S. Law Reform from the Scottish Experience, 103 Iowa L. Rev. 2175 (2018). Provided below is an abstract of the Article.

No U.S. state affords intestate inheritance rights to the unmarried and unregistered committed partners of a decedent. This omission has become more and more problematic in recent years as cohabitation rates in the United States has risen and marriage rates have decline. Indeed, the phenomenon of increasing cohabitation rates and declining marriage rates is observed across the developed word. Unlike in the United States, however, a significant number of foreign jurisdictions have reformed their law to afford intestate inheritance rights to a decedent's surviving unmarried committed partner.

This Article looks to Scottish law to inform consideration of how U.S. states might best reform their intestacy statutes so as to provide intestate inheritance rights to a surviving unmarried committed partner. Examination of Scottish law should provide especially fruitful for U.S. law reformers. The relevant Scottish statutory provisions have been in effect since 2006 and have been extensively critiqued by Scottish courts, academics, and practitioners. Indeed, the Scottish Law Commission ("SLC"), whose recommendations led to adoption of the current scheme, has called for repeal of these intestacy provisions, and has offered a replacement scheme. Moreover, Scottish succession law and U.S. succession law share significant norms valuing certainty and preferring fixed entitlements and limited judicial discretion.

The Article evaluates the Scottish statute with respect to three major issues of principle that should be at the center of U.S, reform discussions: fulfillment of purpose, implications for certainty and administrative convenience, and implications for marriage. The Article similarly evaluates the SLC's proposal to replace the current statute. Finally, the Article reflects upon the Scottish statute and the SLC proposal in considering which element of Scottish law a U.S. state might profitably borrow or should reject in an effort to craft a more inclusive approach to the intestate inheritance rights of unmarried committed partners consistent with the principles of U.S. succession law. The jumping off point for this discussion is this author's previously published proposal for a model statute that implements an accrual/multi-factor approach to intestate inheritance rights for unmarried committed partners. After describing the significant features of this proposal, the Article considers how one might evolve the proposed accrual/multi-factor approach to incorporate the lessons learned from the Scottish experience.

Article on Family Protection in the Law of Succession: The Policy Puzzle

Richard Storrow recently published an Article entitled, Family Protection in the Law of Succession: The Policy Puzzle, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

To promote the protection of families, succession law diminishes the power of testation in a variety of ways that shield surviving spouses and children from disinheritance. The article conducts a survey of the law in fifty states, five main territories, and the District of Columbia and uncovers a remarkable diversity of family-protection provisions. Less apparent than the substance of the provisions themselves are the policies behind them. In a comprehensive study, this article concludes that family-protection provisions seek to prevent decedents from using their testamentary freedom in ways that impoverish those who are dependent upon them or that work unfairness against family members who have contributed in important ways to the accumulation of their wealth. In addition to these concerns is a notable ambivalence about the extent to which family protection statutes should undercut the expectations of those who have been promised a share of a decedent’s estate.

What To Do When You Hate Your Son-In-Law: A Practical Lesson In Estate Planning

Will contests are avoided as much as possible because no family wants their dirty laundry aired out in public to become tinder for the gossip mills. So what do you do if you thoroughly despise the spouse of one of your children and must disinherit your child to insure that the hated individual gets nothing?

There is no law saying you must like the chosen spouse of your offspring, but it is presumed that you like your child enough to usually include them in your estate. As a "natural object of your bounty," disinheriting a child should be taking extremely seriously. It is important to consider alternatives such as trusts so that the child can still inherit without the dreaded spouse being unjustly enriched during the marriage or in the case of a divorce. A testator may also simply skip the child and allow the next generation, the grandchildren, to inherit in the place of their parents. 

You may not like their choice of spouse, but it was not your decision to marry them. A last will is not the forum to try to teach your child a lesson or to show them your ultimate disapproval. As a parent, you are inclined to protect them. A will or trust that shows them that though you may not agree with them, but you still love them, will resonate for many years to come.

See Cori A. Robinson, What To Do When You Hate Your Son-In-Law: A Practical Lesson In Estate Planning, Above the Law, March 12, 2019.

Special thanks to Carissa Peterson (Hrbacek Law Firm, Sugar Land, Texas) for bringing this article to my attention.

Article on Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain’s Brief Encounter with Forced Heirship

Lloyd Bonfield recently published an Article entitled, Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain’s Brief Encounter with Forced Heirship, 58 Am. J. Legal Hist. 479-504 (2018). Provided below is an abstract of the Article.

This article observes a little-noted proposal (the Landed Property of Intestates Bill) introduced into the British Parliament in 1836. It considers the debate upon it that ensued and the accompanying pamphlet literature. The Bill proposed to alter the inheritance custom of primogeniture that directed the pattern of descent of freehold land in the absence of directions by settlement or will, and the dialogue is used as a lens to view the nexus between inheritance customs and broader political, economic and social concerns. The intensity of the dispute over primogeniture suggests that more was at stake than simply the devolution of land. The controversy in the Commons over the proposed legislation encompassed a discussion on the variety of purposes that succession law should serve. Lurking in the background in the debate over the proposed Bill was a more abstract conundrum: should succession laws primarily be crafted to serve political ends, namely, the constitution, or was it more appropriate to calibrate them to foster desirable social, economic or familial goals? In short, the debate put into sharp focus the question of what interests drive inheritance law and how attempts can be made to modify it, if and when such concerns alter over time. The Bill failed, and it would be for another century for Parliament to abolish primogeniture.

A Patriarch Leaves No Will and the Home he Meant for his Cambridge Family May be Lost

Marcelle Harrison’s family has lived in a three-story home near Central Square in Cambridge, Massachusetts for close to 40 years, during which time four generations laid their heads. Now she may have to relocated because her stepfather died intestate in 2011 after the passing of her mother two years prior, meaning that legally her stepfather's blood relatives back in his native country of Barbados have a stronger claim to her childhood home.

Harrison, 64, received the news in a letter the day before Thanksgiving. The home was purchased by her parents in 1980 for $23,000 but was now worth more than $1 million. Her stepfather, Noel Aimes, never learned how to properly read or write but had every intention to leave the home to the family that lived in the house, according to Harrison. “Since you were not an heir-at-law, your appointment is in jeopardy of being set aside,” wrote Gayle Stone-Turesky, a Boston lawyer who was appointed by the state as a public administrator, who is brought in to handle estates where there is no will and no blood heir living in the state.

An attorney for the niece and nephew in Barbados said that they intend to sell the property once the case is settled.  They are the children of Noel's sister, the only family member he appeared to be close to once he had moved to Boston. According to Harrison, the aunt passed away in 2001 and the niece visited Noel once, presumably for money while passing through the Commonwealth.

Harrison's neighbors are outraged by her predicament and have started a GoFundMe page to assist in legal fees and to possibly attain a bargaining chip. She appears to have a strong case to be reimbursed at least for the taxes she paid on the property, any improvements she made to the house, and even her care of her stepfather in his final days. She may be able to work out a deal with the niece and nephew so that her and her family remain in the cherished family home.

See Maria Cramer, A Patriarch Leaves No Will and the Home he Meant for his Cambridge Family May be Lost, Boston Globe, February 7, 2019.

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

Article on Women Participation to Inheritance in Kosovo

Egzonis Hajdari published an Article entitled, Women Participation to Inheritance in Kosovo, Wills, Trusts, & Estates Law eJournal (2014). Provided below is an abstract of the Article.

The right to inheritance is one of the basic human rights. This right in Kosovo is regulated by the Law on Inheritance. This law represents a modern law harmonized with the highest international standards in this field. It regulates substantially, all the matters related to inheritance. The Law on Inheritance in Kosovo through its solutions ensures full equality of women with men to inheritance. Regardless of this, practical realities of life prove a completely different situation. Consequently, women participation to inheritance is estimated to be very limited. The reasons for this situation are numerous and of different natures. In fact, these reasons significantly are the reflection of still strong influence of the Albanian customary law in people's consciousness. This is the law that constantly treated women as a second hand subject. In this scientific paper is made a modest attempt to brief a short historical of women participation to inheritance issue in Kosovo, to continue with the legal aspect treatment and practical situation of women participation to inheritance manifestation in Kosovo during the period of time 2008-2012.

Rise in Cohabiting Couples Choosing Death Bed Marriages [UK]

Many couples are wedding shortly before one partner dies, presumably for the tax and probate benefits of such transactions. In the United Kingdom, everything that passes to a surviving spouse is exempt from inheritance tax. The spouse also inherits at the probate value, meaning when a major asset is sold the capital gains tax will only apply on the increase of value from when the person passed away.

The Passport Office released a report in May 2018 that there were 190 urgent applications for a Registrar General’s License to get married or enter a civil partnership, an 11% increase from the year before. This can be highly beneficial for those that believe that common law marriages have the same right of inheritance as formal ones. This is not the face, and unfortunately many people do not find this out until it is too late - and the inheritance tax bill is due.

Adult children may dispute a marriage performed in the throes of illness, especially if a will is written that disinherits them entirely or removing a portion of what they believed they were due. They may question if their parent had the capacity for either contract or whether there was undue influence. A last minute marriage will certainly protect the spouse or civil partner, but having a watertight will is also essential to clear up any confusion.

See Kate Saines, Rise in Cohabiting Couples Choosing Death Bed Marriages, Money Pages, January 11, 2019.

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

Police Investigating Theft of Assets from Aretha Franklin's Estate

It appears that the drama of the late soul diva is continuing, with police in Chicago stating that there is an active theft investigation involving Aretha Franklin's mansion, and that it began before her death in August. It is also reported that the investigation involves someone using her funds inappropriately, but was unclear of how much.

Franklin's son Edward, 61, is also in a court battle with the estate in an effort to attain a court order for the estate to hand over monthly financial documents to her heirs. The estate is withholding the statements because it could allegedly have a negative impact on the criminal investigation of the missing assets.

The estate is also being audited by the IRS, claiming that the diva owed the Service more than $6.3 million in back taxes and $1.5 million in penalties. The estate is contesting the claim, stating there is a dispute over what was and was not income for the singer.

See Leah McDonald, Police Investigating Theft of Assets from Aretha Franklin's Estate, Daily Mail, January 11, 2019.

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

Aretha Franklin's Estate May Owe Millions in Back Taxes

The undisputed "Queen of Soul," Aretha Franklin, passed away in August of this year, but according to court documents filed this week she was not up to date on her taxes at the time of her death. The documents say that the Internal Revenue Service claims that Franklin owes $6.3 million from the tax years 2012 to present, with another $1.5 million in penalties. The odd thing is, the tax year of 2018 is not quite over yet.

The attorney for the estate, David Bennett of Thav Gross P.C., issued a statement that the Estate disputes the tax claims, and that, "The Estate is diligently working to resolve any remaining issues."

A new lien has also been placed on the estate by a publishing company. The company claims that it is owed $136,000 for royalties in connection with the 1973 song Angel. Franklin's personal attorney has also placed a lien on the estate for $54,000 for unpaid bills from the last 6 years.

See Aretha Franklin Owes IRS Almost $8 Million in Back Taxes and Penalties, TMZ, December 27, 2018.

Greece Should not Have Applied Sharia Law in Will Contest

In a recent case in the European Court of Human Rights, the court found that Greece should not have allowed the two sisters a deceased Muslim man apply Sharia law to contesting the validity of their brothers will.

In Molla Sali v Greece, a Grand Chamber judgment held that Greece had violated Article 14 of the European Convention on Human Rights, which prohibits religious discrimination, when the country applied Sharia law to the inheritance of a wife's estate. The husband had a will written up and notarized 5 years before his death, bequeathing his wife all of his property. However, his two sisters contested the will. They claimed that their brother was part of the Thrace Muslim community and that any question of inheritance should be governed by Sharia law instead of Greek Civil Code. Under Sharia law, there is no testacy - inheritance is simply provided by intestacy rules, and wills are only meant to compliment those rules. Under the intestacy guidelines, the sisters were entitled to three-quarters of their brother's estate because they were close relatives.

After several layers of appeals, the European Court found for the wife, stating that she had been discriminated against because of her husband's religion. Because the husband went to a notary and had a will drawn up and publicly notarized, he was subjecting himself to the Greek Civil Code, just like a non-Muslim Greek national. "The fact is that if her husband, the testator, had not been of Muslim faith, Ms Molla Sali would have inherited the whole estate."

See Howard Friedman, European Court: Greece Should not Have Applied Sharia Law in Will Contest, Religion Clause Blog Spot, December 21, 2018; see also Molla Sali v Greece.

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