Wills, Trusts & Estates Prof Blog

Article on The Stranger-to-the-Marriage Doctrine: Judicial Construction Issues Post-Obergefell

Lee-ford Tritt recently published an Article entitled, The Stranger-to-the-Marriage Doctrine: Judicial Construction Issues Post-Obergefell, Wills, Trusts, & Estates Law eJournal (2019). Provided below is the abstract to the Article.

The recent Supreme Court decision in Obergefell v. Hodges changed the legal understanding of marriage in the United States. By making same-sex marriage legal in all fifty states and requiring all states to recognize same-sex marriages from other states, the Court in Obergefell recognized evolving social attitudes toward same-sex marriage and expanded the legal definition of "marriage" to include spouses of the same sex. In so doing, the Court necessarily altered the implication of terms like "spouse," "husband," and "wife" - post-Obergefell, courts will need to construe these words in a way that acknowledges an evolving understanding of marriage. Courts have faced similar construction issues before. When the notion of the American family shifted in the mid-nineteenth century to include adopted children as "natural" children, courts struggled to ascertain donative intent behind language like "child," "children," and "descendants" that had traditionally excluded adoptees. The legalization and growing popularity of adoption made presumptive exclusion of adoptees for inheritance purposes socially obsolete, but neither society nor the law can move directly from presumptive exclusion to presumptive inclusion. In the adoption context, courts used several construction approaches to ascertain and effectuate donative intent in a period of definitional transition when words with once-plain meaning were inherently ambiguous. The construction approaches used by courts to navigate social and legal change in the context of adoption provide insight by analogy into the circumstances that courts face today, as they must construe language that no longer presumptively excludes same-sex spouses.

Celebrity Estate Problems Offer a Cautionary Tale — and Not Just for the Rich and Famous

Not having an estate plan that clearly details how a person wants to dispose of the entirety of their worldly possessions can cause messy fights between family members. If you are famous like Aretha Franklin or Prince those fights can be on the national stage for millions to watch. For the common man, the embarrasment, angst, and cost can still be painful, and unfortunately it happens everyday across the county amongst probate courts. 

The view that estate planning is only for the wealthy is changing, yet many Americans have not taken the most basic steps to ensure that their descendants and loved ones are properly provided for in the future. A recent survey by Edward Jones found that while 77% of Americans believe that estate and legacy strategies are important for everyone, only 24% of Americans have even taken the time to designate beneficiaries for all of their accounts, leaving the simplest of legacy decisions up in the air.

See Celebrity Estate Problems Offer a Cautionary Tale — and Not Just for the Rich and Famous, Market Watch, November 29, 2019.

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

Egyptian Woman Uses Christian Doctrine to Fight Unequal Islamic Inheritance Laws

Huda Nasrallah, a 40-year-old human rights lawyer in Egypt who is also a Coptic Christian, has faced three judges to tackle the Islamic law of the country that dictates that women only inherit half of what males inherit. She is arguing that she should be entitled to the exact same share of her father's estate as her brothers (all of which are on her side), and she is using Christian doctrine to do so. Two prior judges have ruled against her, citing Islamic law that favor men and using it as their justification in their decisions.

Their father, a former state clerk, passed away in December of last year, leaving a 4-story apartment in a lower income neighborhood of Cairo as well as a bank deposit. The siblings filed a request for inheritance at a local court, and Nasrallah invoked a church-sanctioned Coptic bylaw that calls for equal distribution of inheritance. A final verdict is expected to be handed down later this month.

A 2016 ruling from a Cairo court favored a Coptic woman who also challenged Islamic inheritance laws, but recent cases and the sentiment in the nation does not bode well for the minority believer. Egypt's Al-Azhar, the highest Sunni religious institution in the Muslim world, vehemently dismissed the proposal that called for equal inheritance rights. He claimed that it was contradictory to Islamic law and destabilizing to Muslim societies, fearing that if the state offers equal property rights to Christian women that Muslim women will demand the same.

See Caleb Parke, Egyptian Woman Uses Christian Doctrine to Fight Unequal Islamic Inheritance Laws, Fox News, November 15, 2019.

Article on The ‘Social Contract’, Care and Inheritance in England and Hong Kong

Brian Sloan recently published an Article entitled, The ‘Social Contract’, Care and Inheritance in England and Hong Kong, Elder Law eJournal (2019). Provided below is an abstract of the Article.

In common with much of the world, the populations of both England and Hong Kong are ageing. One of the most important questions of our age is therefore how to allocate the burdens of providing and funding the care that increasing numbers of people are likely to need. Another vital question affecting the elderly and their families is that of inheritance: how legitimate is the claim of family members (including adult children) to a person’s assets? The aim of this paper is to explore the relationship between these questions, with reference to concepts such as the ‘social contract’ and family solidarity, and the law of family provision in England and Hong Kong.

The ‘Social Contract’, Care and Inheritance in England and Hong Kong

Brian Sloan recently published an Article entitled, The ‘Social Contract’, Care and Inheritance in England and Hong Kong, Wills, Trusts, & Estate Law eJournal (2019). Provided below is an abstract of the Article.

In common with much of the world, the populations of both England and Hong Kong are ageing. One of the most important questions of our age is therefore how to allocate the burdens of providing and funding the care that increasing numbers of people are likely to need. Another vital question affecting the elderly and their families is that of inheritance: how legitimate is the claim of family members (including adult children) to a person’s assets? The aim of this paper is to explore the relationship between these questions, with reference to concepts such as the ‘social contract’ and family solidarity, and the law of family provision in England and Hong Kong.

As Aretha Franklin’s Heirs Dispute Control of Estate, Judge Orders Court Supervision

The reigning queen of soul, Aretha Franklin, died in August of last year and the world believed that passed away without a will. But the discovery of three handwritten documents found in her home foreshadowed a rocky and emotional road for her family.

If Franklin had indeed died intestate, Michigan law dictated that because she did not have a spouse at the time of her death, her $80 million estate would have been divided equally among her four sons. But in each of the wills, provided specific provisions to be made for her oldest son, who reportedly has special needs, and that the balance of assets would then be distributed equally among her other three sons. But there remains a question of whether Franklin did create the wills herself, and the youngest son, Kecalf, convinced the judge to have a handwriting expert examine the wills to ensure his mother wrote the documents.

Aretha's niece, Sabrina Owens, was originally named the estate's personal representative, but Kecalf has also petitioned the court to replace her - with him, thus causing dissention among the family. Owens was Aretha's choice to handle her estate, and she is known to be a capable business person, but the largest asset to the estate is no surprise: the rights to the diva's music catalog and likeness. If properly managed, these can be a financial powerhouse to the heirs and preserve their mother's legacy for future generations.

See Cozen O'Connor, As Aretha Franklin’s Heirs Dispute Control of Estate, Judge Orders Court Supervision, Lexology, September 11, 2019.

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

Article on Recent Cases: Intestacy, Wills, Probate, and Trusts

Gerry W. Beyer recently published an Article entitled, Recent Cases: Intestacy, Wills, Probate, and Trusts, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

This article discusses judicial developments (mid-2018 to mid-2019) relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. The discussion of each case concludes with a moral, i.e., the important lesson to be learned from the case. By recognizing situations that have led to time consuming and costly appeals in the past, probate judges can reduce the likelihood of appeals and their success and estate planners can reduce the likelihood of the same situations arising with their clients.

The Legal Dangers of Living Together

According to the U.S. Census Bureau, the number of unmarried couples who 50 and over shot up 75% between 2007 and 2016. For many it is because they have already experienced one difficult divorce and are nervous to entangle themselves and their possessions again. But simply living together can end up being complex because estate planning laws were written to favor married couples.

If one partner has a medical emergency and has not executed a health care power of attorney, the other partner cannot make any decisions for them. They would be considered "legal strangers." If they were married, however, not having the document would not hinder the healthy partner from making appropriate choices. Unmarried couples also need to get signed HIPAA releases so medical information can be released to them. Death of one partner can also create more woes. Without the proper legal documents, the surviving partner won’t be entitled to make decisions regarding the donation of the deceased’s organs or arrange for the person’s burial or cremation.

When there is a financial imbalance and one partner has promised to take care of the other, with no trust or will in place can cause serious problems for an unmarried couple. If the wealthier one dies intestate, their assets will be distributed according to the intestacy laws of their state and an unmarried partner is not recognized as an heir. On the other hand, if they were married and died intestate in a community property state, the surviving spouse is automatically entitled to inherit as much as half the value of the deceased’s assets.

See Brad Wiewel, The Legal Dangers of Living Together, Next Avenue, August 28, 2019.

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

Article on Big Data and the Modern Family

Shelly Kreiczer-Levy recently published an Article, Big Data and the Modern Family, 2019 Wis. L. Rev. 349-372 (2019). Provided below is an abstract of the Article.

Despite numerous reforms over the years, intestate succession rules continue to privilege traditional, white, heterosexual families. It is evident that the one-size-fits-all scheme cannot truly reflect diversity of lifestyles and associations. This Article considers an innovative option that has become increasingly popular in recent years: using big data to create personalized rules, tailored to the personal characteristics of each decedent. This Article explores the promise and drawbacks of personalized intestacy, arguing that personalized default rules fall short in the realm of inheritance, because these rules are personal and inheritance law is inherently relational. It then offers preliminary guidelines for adapting big data techniques to the relational aspects of inheritance.

Article on Disrupting the Wealth Gap Cycles: An Empirical Study of Testacy and Wealth

Danaya C. Wright recently published an Article entitled, Disrupting the Wealth Gap Cycles: An Empirical Study of Testacy and Wealth, 2019 Wis. L. Rev. 295-323 (2019). Provided below is an introduction of the Article.

When many of us think about the wealthy, we assume that they have inherited wealth, trust funds, or at least a history of knowing the right people. There are always a few stories of the hard-working immigrants who pulled themselves up by their bootstraps, as well as the spendthrift scions of wealthy families who manage to squander vast riches in a remarkably short period of time. But we rarely hear about the vast numbers of modest and obscure families that grow wealth carefully from generation to generation, keeping their wealth and their family skeletons away from the spotlight. How those families grow and maintain their wealth is through judicious use of tax mechanisms to minimize income and estate taxes, judicious use of trusts to reduce squandering wealth by irresponsible children and grandchildren, and through estate plans that channel property to those who will protect it, use it wisely, and pass it on in ways that maintain the wealth.

In early-modern England, estate planning was usually done earlier than we do it today, when children were young enough to be influenced and when parents had a good sense of their children's personalities. It was done when the patriarch had sons about to marry and he could convince them to accept limitations on family property in exchange for access to income immediately to allow him to start a family. When the son's children came of marrying age, the hope was that he would have imbibed the spirit of protecting the family property and would willingly accept continued constraints, impose them on his children and, if everyone played along, the family dynasty would be protected through a strict settlement renegotiated at each generation. The use of trusts and conservative trustees was crucial to keep wayward family members in line by denying them access to income if they bucked the system.

For those in Jane Austen's day, estate planning came at mid-life, when new families were being formed. In our day, estate planning comes at the end of life, as each generation usually hangs on to property, especially earned wealth, perhaps to lord it over neglectful children, but more often because the best way to deal with the uncertainty of the future is to retain control as long as possible. But hanging on to property until the end puts the owner at risk that he will die without making appropriate plans and his estate will be dissipated through family squabbles, probate delays and expenses, and that dreaded of all wealth-destructors: the estate tax.

The common denominator for most people who want to grow and protect wealth has been capable estate planning, planning that provides adequate resources for the current generation, protects the principal for the future, and provides flexibility so that each generation gets what it needs without constraining the property too severely. The trust is the most common mechanism for preserving wealth, but it is not the only mechanism. Life estates, pre-nuptial contracts, powers of appointment, and joint tenancies have provided ways to protect assets while providing for basic needs of future generations. More recently, living and asset-protection trusts, beneficiary designations, and TOD real-estate deeds have made estate planning even easier for the wealthy and the not-so-wealthy alike.

This panoply of estate planning options, however, seems to have passed by many who could really benefit from it. The person of modest wealth who dies without any estate planning risks having her property be dissipated to pay for guardianships, probate, and shares for heirs, regardless of their need or ability to manage property. Those who die young, before they have amassed much wealth, and those who die without proper estate planning will often leave little for their dependents, heirs who themselves will suffer from lack of investment in human capital by their parents and grandparents, thus leaving them less likely to earn significant wealth and less likely to have sufficient wealth to pass on to the next generation. The cycle of wealth-building by those who already have wealth is enhanced by probate and tax laws, while the cycle of wealth-destruction is perpetuated by administration costs, onerous legal requirements, and everyday inequalities. While many structural factors may contribute to the dissipation of wealth by some and the accumulation of wealth by others, one factor that seems to correlate closely to the various wealth gaps is dying intestate and having one's property pass by the default statutory rules of intestate succession, and dying testate and having one's property pass according to the wealth-saving mechanisms and procedures of planned wills and will-substitutes.

In an empirical study of all decedents dying in 2013 in Alachua County, Florida whose estates were probated, either testate or intestate, the data show striking correlations between intestacy and lower wealth, and testacy and greater wealth. And the demographics of those who died intestate correspond to the demographics of those people at risk of falling into the cycle of wealth-dissipation. To explore the possible effects of intestacy and testacy on wealth and property succession, I analyzed 408 estates (293 testate and 115 intestate) across a variety of categories, including wealth, age, race, sex, and marital status. All of these lines of inquiry support the claims by many economists that wealth gaps between men and women, white and black, or married and unmarried couples are growing and should be of great concern to lawmakers. This study supports those claims and ends by calling for more focus on how to bring estate planning services to the populations most vulnerable to dying intestate.