Wills, Trusts & Estates Prof Blog

Comment on What's Equitable Adoption Got to Do With It?: An Examination of Texas' 2017 Amendment and its Impact on Inheritance Rights

Leah Towe recently published a Comment entitled, What's Equitable Adoption Got to Do With It?: An Examination of Texas' 2017 Amendment and its Impact on Inheritance Rights, 71 Baylor L. Rev. 239-266 (2019). Provided below is an [] of the Comment.

The practice of adoption dates back to ancient times, as biological parents have transferred their children to other adults who wanted the children for "love, labor, and property." Many historians have traced adoption in the United States to Massachusetts' passage of the first "modern" adoption law in the 1850s. Specifically, the Massachusetts Adoption of Children Act promoted the notion that adoption should benefit the welfare of children, rather than adult interests. Since Massachusetts' initial law, all other states continue to implement and reform legislation governing adoptions. As times change and family dynamics evolve, many states have evolved as well, allowing for adoption outside of the statutory, legal process under certain facts and circumstances. The right facts and circumstances often result in a posthumous adoption out of equity, also known as equitable adoption.

Texas has recognized the concept of equitable adoption since the 1930s. While the plain language of the relevant statute has long suggested that equitably adopted children should be treated the same as legally adopted children and natural children for inheritance purposes, the Texas Supreme Court has refused to interpret the statute this way. In response, Texas lawmakers in the 85th Legislative Session of 2017 proposed and passed House Bill 2271 (H.B. 2271), which amended the definition of "child" in Section 22.004 of the Estates Code to include equitable adoption. H.B. 2271 also added a subsection to Section 201.054 to define "adopted child." With these changes, Texas lawmakers have expressed their intent to finally provide the same inheritance rights to both legally adopted children and equitably adopted children.

This Comment will briefly provide some background on the history of adoption in Texas; the history and evolution of equitable adoption in Texas; insight into the 85th Texas Legislature's 2017 amendment, as it could impact intestate succession - and by relation, testate succession and other inheritance rights - in the future; predictions regarding Texas courts' likely response to this amendment; and finally, a peek into the shortcomings of this amendment.

Is Imposing a Wealth Tax a Good Idea?

Recently, a group of wealthy Americans wrote a letter to the President saying that they should be taxed according to Senator Elizabeth Warren tax plan. That is, 2% on assets over $50 million and an additional 1 cent on the dollar for assets over $1 billion. Not only do they claim that that the proceeds from the tax will go to well-needed programs, but that the majority of Americans are for a tax for the extremely wealthy.

These types of calls to action are not new, especially when the country is nearing an election. But it is possible that this letter was more partisan than it claimed, as it appeared to cry out more to the Democratic presidential hopefuls than the current establishment. But would it better to tax the ultra-wealthy such a minute amount than just allow them to donate to their heart's content into the private sector, or even to the Federal Bureau of Fiscal Service? The Service said last year that the average donation was $2.69 million, while the federal government received $3.38 trillion from taxes during the 2018 fiscal year.

Would a wealth tax change the economic behaviors of the extremely wealthy? Would they stop donating to their pet causes because that money is already being taken out? We will have to see.

See Steven Chung, Is Imposing a Wealth Tax a Good Idea?, Above the Law, June 26, 2019.

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

Article on Conflict-of-Interest-Infected Virtual Representatives and a Cure

Thomas E. Simmons recently published an Article entitled, Conflict-of-Interest-Infected Virtual Representatives and a Cure, 64 S.D. L. Rev. 1-42 (2019). Provided below is an abstract of the Article.

The general rule that a person cannot be bound by an agreement or a decree unless she received notice encounters practical difficulties where a person is missing, incompetent, a minor, unascertained, or even unborn. In many trust proceedings, all beneficiaries are necessary parties. But short of appointing a guardian ad litem to represent persons who are difficult to notice, uncertainty and inefficiencies would be encountered were it not for the doctrines of representation and virtual representation. Under these common law doctrines persons--even if not yet in existence--can be held to be parties to a proceeding “virtually so.” The doctrine was developed by courts in the 1800s and was significantly expanded by New York by statute in 1967. Fifty years later, in 2017, South Dakota enacted a comprehensive and detailed statutory scheme for virtual representation in trust matters, whether in judicial or non-judicial proceedings. South Dakota has quietly revolutionized virtual representation by validating proceedings even where a representative has a conflict of interest. This article contextualizes, comments upon, and explicates that statutory scheme, including statutory amendments enacted in 2018.

Article on Historic Partition Law Reform: A Game Changer for Heirs’ Property Owners

Thomas W. Mitchell recently published an Article entitled, Historic Partition Law Reform: A Game Changer for Heirs’ Property Owners, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

Over the course of several decades, many disadvantaged families who owned property under the tenancy-in-common form of ownership – property these families often referred to as heirs’ property – have had their property forcibly sold as a result of court-ordered partition sales. For several decades, repeated efforts to reform state partition laws produced little to no reform despite clear evidence that these laws unjustly harmed many families. This paper addresses the remarkable success of a model state statute named the Uniform Partition of Heirs Property Act (UPHPA), which has been enacted into law in several states since 2011, including in 5 southern states. The UPHPA makes major changes to partition laws that had undergone little change since the 1800s and provides heirs’ property owners with significantly enhanced property rights. As a result, many more heirs’ property owners should be able to maintain ownership of their property or at least the wealth associated with it.

Maine Legalizes Medically Assisted Suicide

On Wednesday, Maine became the ninth jurisdiction to legalize medically assisted suicide when Governor Janet Mills signed the Maine Death With Dignity Act, joining California, Colorado, Hawaii, Oregon, Vermont, Washington, New Jersey and the District of Columbia. It narrowly passed both houses before it found its way onto the governor's desk.

The bill requires the patient to undergo two waiting periods and one written and two oral requests and obtain opinions from at least two physicians stating that it is appropriate. The person requesting the medication must also be at least 18 and have a "terminal illness," defined in the bill as one that cannot be cured and will likely result in death within six months. The Act criminalizes coercing a patient into requesting life-ending medication and falsifying a request for the procedure.

Supporters of the bill say that terminally ill patients should have the option to end their lives with dignity. But critics claim that the policy is dangerous and entices insurance companies to promote medically assisted suicide in leu of quality care. Matt Valliere, executive director of Patients Rights Action Fund, commented that the legislation "puts the most vulnerable people in society at risk for abuse, coercion and mistakes."

See Tal Axelrod, Maine Legalizes Medically Assisted Suicide, The Hill, June 12, 2019.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

Connecticut Finally Updated its Trust Laws

Finally! The Connecticut legislature has passed House Bill 7104, containing the state's version of the 2000 Uniform Trust Code as well as the 2017 Uniform Directed Trust Act. The Uniform Trust Code has already been passed in 35 jurisdictions. The bill awaits the governor's signature.

HB 7104 was a project that included several groups of professional writing and advising on the bill. It was drafted by a small working group of lawyers from the Estates and Probate Section of the Connecticut Bar Association with substantial input from the Connecticut Bankers Association, the Offices of the Probate Court Administrator and the Attorney General. The bill extends the statutory rule against perpetuities for new trusts from 90 to 800 years, and provides for the establishment of irrevocable, self-settled Domestic Asset Protection Trusts, which exist in over 20 other jurisdictions.

See Suzanne Brown Walsh, Praise the Lord (and Pass the Governor a Pen): Connecticut Finally Updated its Trust Laws, Murtha Law, June 6, 2019.

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

Texas Statutes Now Allow a Court To Modify or Reform an Unambiguous Will

Texas courts have historically relied on the testator's intent on whether a will is ambiguous or not, and whether or not to present extrinsic evidence contrary to the will's instructions. If a court found that will was unambiguous, outside evidence could not be brought in by any party.

However, in 2015, the Texas Legislature created several provisions that allow a court to look at extrinsic evidence to modify the otherwise unambiguous terms of a will upon certain circumstances under Texas Estates Code § 255.451. First and foremost, only a personal representative (such as an administrator or executor of the estate) can petition a court to modify an unambiguous will. Also, the court will only allow the modification under three different circumstances: 1) it “is necessary or appropriate to prevent waste or impairment of the estate’s administration," 2) the modification “is necessary or appropriate to achieve the testator’s tax objectives or to qualify a distributee for government benefits and is not contrary to the testator’s intent,” and 3) the modification “is necessary to correct a scrivener’s error in the terms of the will, even if unambiguous, to conform with the testator’s intent.” A scrivener’s error, or mistake by the attorney writing the will, does not include a mistake of law or fact by the testator.

Overall, the court's goal is to support the testator's original intent and follow their wishes. Even if that means altering what is physically written down on the piece of paper.

See David Fowler Johnson, Texas Statutes Now Allow a Court To Modify or Reform an Unambiguous Will, Texas Fiduciary Litigator, June 6, 2019.

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

Florida Governor Signs Bill Authorizing Electronic Wills

The Governor of Florida signed today legislation authorizing electronic wills. Florida now joins Nevada, Indiana, and Arizona as the fourth state to authorize wills to be in electronic form.

Follow this link to read the full text of Florida House Bill 409.

Note that this legislation will not take effect until January 1, 2020.

ABA RPTE Conservation Easement Task Force Report: Recommendations Regarding Conseration Easements and Federal Tax Law

The ABA Conservation Easement Task Force published this Report, entitled, ABA RPTE Conservation Easement Task Force Report: Recommendations Regarding Conseration Easements and Federal Tax Law, Real Property, Trust and Estate Law Journal, Vol. 53, No. 2 (Fall 2018/Winter 2019). Provided below is the synopsis of the Report.

In October 2015, the American Bar Association's Real Property, Trust and Estate Law (RPTE) section convened a Conservation Easement Task Force. The objective of the Task Force was to provide recommendations regarding federal tax law as it relates to conservation easements. This Report is the culmination of the Task Force's work. Part I of the Report is an Executive Summary of the Task Force's recommendations. Part II provides the background necessary to understand the Task Force's recommendations. Part II briefly set forth the Task Force's comments of the Tax Cuts and Jobs Act of 2017 as it relates to charitable contributions in general and conservation easement donations in particular. In Part IV, the Task Force recommends that the Treasury publish safe harbor provisions that would be common to most conservation easements. Part V sets forth the Task Force's recommendations regarding amendments and discretionary consents, the inconsistent use regulations, and furthering transparency in conservation easement administration. Part VI discusses issues surrounding valuation of conservation easements. Part VII contains a brief comment on syndicated conservation easement transactions. Part VIII is the Task Force response to certain proposals the Treasury Department made (most recently in 2016) to change conservation easement law.

Appendix A sets forth the "perpetuity" requirements of § 170(h) and the Treasury Regulations. Appendix B offer specific language to facilitate the preparation of key safe harbor provisions.

Washington Becomes the First State to Legalize Composting of Humans

Washington Governor Jay Inslee signed a bill this Tuesday that legalizes human composting, but the law will not go into effect until May of next year. Human composting speeds up the process in which dead bodies turn into soil. Human composting will be the third option for citizens, combined with traditional burials and cremations.

The bill's sponsor, Senator Jamie Pedersen, said it is an environmentally friendly way of disposing of human remains and that it gives citizens more "freedom to determine for themselves how they'd like their body to be disposed of." The option also will be cheaper, estimating that composting will cost $5,500 compared to burials at $8,000 to $25,000 and cremations ranging up to $6,000.

According to Katrina Spade, the CEO of the human composting company Recompose, a "body is covered in natural materials, like straw or woods chips, and over the process of about three to seven weeks, thanks to microbial activity, it breaks down into soil." The family of the deceased will then received the soil that remains, and will be up to them how they use the soil.

Recently, Luke Perry's family had his body undergo a similar process by burying him in a "mushroom suit."

See Faith Karimi & Amir Vera, Washington Becomes the First State to Legalize Composting of Humans, CNN, May 22, 2019.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.