Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, May 13, 2020

California Appeals Court: Deceased Husband’s Sperm has no Value if it Cannot Actually be Used

IVFAfter her husband fell into an irreversible coma, a woman had his sperm extracted and stored at a tissue bank in hopes that she could one day conceive a child biologically related to him. 10 years after he died, the woman requested the sperm. The tissue bank could not find it, and the woman sued them, asserting contract and tort claims under California law. The trial court found in Robertson v. Saadat that the woman suffered no injury because she had no right to use the sperm to conceive a child. The woman appealed.

The California Court of Appeal, Second District, affirmed the trial court’s decision. Sperm is not governed by the rules that apply to gifts or personal property, and as gametic material, it must be specifically mentioned in testamentary documents. “In other words, the fact that plaintiff as Aaron’s spouse may be his legal next of kin has no bearing on whether she may use his sperm for posthumous conception.” Furthermore, the husband had no knowledge of the sperm extraction before his death, and therefore had no “‘decisionmaking authority as to the use of [the gametes] for reproduction.'”

The court also rejected the woman's argument that the sperm fell under the Uniform Anatomical Gift Act (UAGA) as the sperm would be "transplanted" into her. The legislative history of the UAGA indicates that “transplantation” under the UAGA refers to taking organs and tissue from a donor and placing them in recipients whose equivalent organs or tissue are damaged, not to conceive a child.

Because the woman could not prove that she was entitled to use the deceased husband's sperm as his surviving spouse, she had to show that it had been his intent to allow her to conceive with the extracted sperm. There must be an express indication in writing of an intent to allow the use of decedent’s genetic material for posthumous conception. The husband did not leave such writing, so there was no express intent.

With no intent nor entitlement to use the sperm, there was no value to the sperm, and the woman could not claim emotional distress caused by the inability to conceive the husband's child.

See California Appeals Court: Deceased Husband’s Sperm has no Value if it Cannot Actually be Used, Probate Stars, May 11, 2020.

May 13, 2020 in Current Events, Estate Administration, Estate Planning - Generally, Science, Technology, Wills | Permalink | Comments (0)

Friday, March 27, 2020

Can You Sue Someone If You Get Coronavirus?

Covid2History has shown us that many cases have been successfully brought concerning transmission of viruses or infectious disease, including during a pandemic. These past lawsuits pertaining to Ebola, H1N1 (swine flu), and HIV/AIDS, and can serve as an indication of whether you can sue a person or entity if you contract the novel coronavirus - COVID-19.

Several courts have ruled that a person has a claim against someone who passes on the HIV/Aids virus. The California Supreme Court in John B. v. Superior Court ruled that suits regarding the negligent transmission of sexual diseases, such as the HIV/AIDS virus, can proceed based on constructive knowledge. Indeed, because of the nature of the virus, some states have criminalized the transmission of HIV/AIDS.

The Supreme Court of Texas, in a February 2020 opinion, Coming Attractions Bridal and Formal, Inc. v. Texas Health Resources, addressed exposure to Ebola in a claim brought under the Texas Medical Liability Act. A nurse of a Dallas hospital helped care for a patient infected with Ebola, then went to Ohio to shop at a bridal shop. Once she returned to Dallas, she became ill and later diagnosed with Ebola herself. The bridal shop claimed the hospital where the nurse worked was negligent for failure to prevent transmission of the Ebola virus to the nurse and alleging that the hospital’s negligence caused the shop to close due to health concerns and adverse publicity because of the virus. The case was dismissed due to failure to file an expert report, not due to failure to state a claim. Another Ebola case in Texas was remanded for further proceedings.

In Ebaseh Onofa v. McAllen Hospitals, a 2015 Texas Court of Appeals case, husband alleged that his wife returned from her shift at the hospital not feeling well. The hospital had confirmed cases of H1N1 virus (swine flu) in the hospital. She admitted to the emergency room a few days later and died just two days after that. The husband sued for wrongful death because the wife was not offered an N95 mask and the court granted the hospital summary judgement. The appellate court affirmed, concluding that the husband  "produced nothing more than speculation on the element of causation" because there were no positive H1N1 patients in the wife's unit. Therefore, although it was possible that the husband could sue for his wife’s contraction of the virus, he had to present some evidence of causation to survive summary judgment.

See Can You Sue Someone If You Get Coronavirus?, Probate Stars, March 26, 2020.

March 27, 2020 in Current Affairs, Estate Planning - Generally, New Cases, Science | Permalink | Comments (0)

Monday, March 16, 2020

Loving Our Elderly Neighbor During the Coronavirus

WindowEarlier this month in response to the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) advised that those older than 65, and those with serious chronic medical conditions, such as heart or lung disease and diabetes, have a higher risk of complications from the virus and thus should practice social distancing. This was no idle advice; 80% of the deaths in China were attributed to those 60 years and older. Those are do not fall into the category of being high risk or elderly can still infect those that are, so social distancing is a critical prevention strategy.

Social distancing can be negative for all of us, but older persons are more at risks for the side effects of shutting themselves off from the rest of the world. A 2019 study found that when older adults interacted with people outside of normal friendship and family circles, they “were more likely to have higher levels of physical activity, greater positive moods, and fewer negative feelings.” The effects of social distancing - loneliness and isolation - can have the opposite effect, and for older Americans whose families are distant, or who live alone, social distancing can feel especially isolating.

Here are a few suggestions for keeping our elderly family and friends safe during this time:

  • At the individual level, elders and those in their kinship circles can create schedules to help them stay in contact with family, friends, and community.
  • Encourage older Americans who must stay home to stay active if possible.
  • Take an inventory of the older adults in your web of relationships and identify their needs.
  • Recognize the importance of faith and religious practice to the well-being of older Americans.
  • Remember that elderly Americans may need help utilizing digital tools and navigating the online world.
  • As they move out of the public eye, we must be intentional about moving closer to older Americans through other means that do not necessarily involve physical contact.

See Naomi Cahn & Amy Ziettlow, Loving Our Elderly Neighbor During the Coronavirus, Institute for Family Studies, March 16, 2020.

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

March 16, 2020 in Current Affairs, Estate Planning - Generally, Science | Permalink | Comments (0)

Wednesday, March 11, 2020

The Limits of Dementia Treatment in Primary Care

DementiaA survey conducted through Alzheimer’s Association showed that Half of primary care physicians say their field is not prepared to handle the increasing number of people with dementia they expect to be treating in the next five years. Currently 40% of primary care physicians say they are “never” or only “sometimes comfortable” diagnosing dementia, which does not bode well as the population with dementia grows.

Also, 27% of the physicians that participated in the survey said that they are uncomfortable answering questions from patients pertaining to dementia, but in fact, most of the physicians said they received only “very little” training on dementia in their residencies.

See Shraddha Chakradhar, Flattening the Covid-19 Curve, Primary Care Physicians on Dementia, & the Pulsating Brain, STAT Morning Rounds, March 11, 2020.

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

March 11, 2020 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science | Permalink | Comments (0)

Tuesday, March 10, 2020

Article on Tax Incentives for Green Burial

Forest2Virginia J. Haneman recently published an Article entitled, Tax Incentives for Green Burial, Wills, Trusts, & Estates Law eJournal (2020). Provided below is an abstract of the Article.

Every living being is doomed to decay and die and decay some more. Death is inevitable, and the disposal of our dead is a fundamental global activity with the potential to have significant environmental impact. In the United States, the environmental toxicity of “traditional” modern burial is stark. A cosmeticized body is pumped with three gallons of embalming fluid (containing chemicals such as formaldehyde) that eventually leaches through metal and wood and into the ground. An estimated 5.3 million gallons of embalming chemicals are buried annually in what are essentially luxury landfill-slash-golf-courses, with landscaping and grass to maintain and mow, in coffins that are typically constructed of nonbiodegradable chipboard. And while cremation is a more environmentally friendly alternative, incineration cremation falls short of being labeled “green.” Fire-based cremation utilizes significant resources and energy, attributable to the substantial quantity of fossil fuel required to burn human remains at 1,562° F (850° C) to reduce a corpse to ash. Pollutants are generated in doing so, including an average of 250,000 tons per year of carbon emissions and an estimated 320 to 6,000 pounds of mercury (from incineration of dental fillings) per year.

This tradition-steeped industry has projected domestic annual revenues of $68 billion (by 2023) and, interestingly, the industry has slowly started to “go green.” Changing the way in which one is buried will not solve the problem of climate change, but it does respect the notion that one’s last act on earth should not be to harm it. Industry norms are on the brink of disruption: the alt-death or death positive movement seeks to infuse the human experience back into death; there is capital investment into new innovative death service technologies, e.g. Funeralocity, WeCroak; and green death care tech startups are dramatically broadening available options for reintegrating human remains back into the environment in an eco-friendly manner. Unfortunately, a myriad of market failures and obstacles are impeding that disruption. This Article explores our modern disconnection from death, the transitioning of human remains in an environmentally friendly manner, the importance of pre-need or pre-death planning and prepayment to protect the grieving consumer, and the way in which tax incentives may be utilized to weave these ideas together in a cohesive plan for a green tax credit. A Pigouvian subsidy is proposed in the form of a refundable tax credit for qualified expenditures related to the nonrefundable prepayment of expenses arising from “sustainable disposition or transition of human remains.”

March 10, 2020 in Articles, Current Affairs, Death Event Planning, Estate Planning - Generally, Income Tax, Science | Permalink | Comments (0)

Tuesday, March 3, 2020

Trends in Electronic Health Record Use Among Residential Care Communities: United States, 2012, 2014, and 2016

CdcChristine Caffrey, Ph.D., Christopher Cairns, M.P.H., and Vincent Rome, M.P.H. recently published a newsletter entitled, Trends in Electronic Health Record Use Among Residential Care Communities: United States, 2012, 2014, and 2016, National Health Statistic Reports, No. 140, CDC.gov, March 3, 2020. Provided below is the abstract to the newsletter.

Introduction—This report presents a trend analysis of electronic health record (EHR) use and health information exchange capability among residential care communities. EHR systems and health information exchange have the potential to improve communication and facilitate care coordination, especially during care transitions.

Methods—Data in this report are from the residential care community survey component of the 2012, 2014, and 2016 waves of the biennial National Study of Long-Term Care Providers (NSLTCP), which is conducted by the National Center for Health Statistics. For the EHR use measure, respondents were asked if, for other than accounting or billing purposes, they used EHRs. Among those who indicated they did use EHRs, health information exchange capability was also measured using items that asked residential care communities if their computerized system supported electronic health information exchange with physicians or pharmacies. A weighted least-squares regression was used to test the significance of trends across the 2012, 2014, and 2016 NSLTCP waves by several residential care community characteristics, including bed size, ownership status, chain affiliation, U.S. Census division, and metropolitan statistical area (MSA) status.

Results—The percentage of residential care communities that used EHRs increased between 2012 and 2016 overall (20% to 26%), for all bed size categories, profit and nonprofit ownership, chain and nonchain affiliation, six out of nine census divisions, and MSA and non-MSA status. Among residential care communities reporting EHR use, computerized support for health information exchange with physicians or pharmacies also increased between 2012 and 2016 overall (47.2% to 55.0%) and among communities that had more than 100 beds, were for profit, chain affiliated, located in the East North and East South Central census divisions, and in both MSAs and non-MSAs.

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

March 3, 2020 in Articles, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Tuesday, February 11, 2020

An Alzheimer’s Treatment Fails: ‘We Don’t Have Anything Now’

Brainscan2Scientists collected a group of candidates that were still healthy but had a genetic mutation that unfortunately guaranteed they would develop dementia. During a five year study, the candidates received monthly infusions or injections of one of two experimental drugs, along with annual blood tests, brain scans, spinal taps and cognitive tests. Contrary to the hopes of the scientists participating in the study, the medications did nothing to stop or slow the cognitive decline of the patients.

The data from the study is still being analyzed, so there could be some adjustments to get better results in the future, such as higher doses or starting the drugs on younger patients. The study was small, with only 194 participants, 52 of which took a drug called gantenerumab, made by Roche, and an equal number took solanezumab, made by Eli Lilly. The participants all carried gene mutations that cause an overproduction of amyloid, which accumulates in hard plaques in the brain and is a sure sign of Alzheimer's.

Many anti-amyloid drug trials have failed recently, and companies have spent billions of dollars of this avenue, with the company Pfizer completely bowing out of the race. But many researchers are not ready to throw in the flag. The disease always progresses in the same manner, with an accumulation of amyloid and then the emergence of another protein, tau. “Amyloid and tau define the disease. Bingo,” said Dr. Ronald Petersen, director of the Mayo Clinic Alzheimer’s Disease Research Center. “To not attack amyloid doesn’t make sense.”

Dr. Randall Bateman, a neurologist at Washington University in St. Louis and principal investigator of the study, says that his heart goes out to the patients that have this genetic mutation and are destined to get Alzheimer's. We don’t have anything now to treat these people,” he said, as there are four drugs that slow the mental decline, but none that stop it.

See Gina Kolata, An Alzheimer’s Treatment Fails: ‘We Don’t Have Anything Now’, New York Times, February 10, 2020.

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

February 11, 2020 in Current Events, Estate Planning - Generally, Science | Permalink | Comments (0)

Wednesday, January 22, 2020

Why Millennials are the “Death Positive” Generation

HeadstoneThe majority of Americans have not planned for their ultimate end, and especially do not usually do so in their 20's. The journal Health Affairs found that in 2017 only one in three US adults have an advance directive, including a living will with end-of-life medical instructions, power of attorney naming a person responsible for last affairs, or both. The National Funeral Directors Association states that only 21% of Americans have spoken to their family or loved ones about their wishes.

Journalist Jessica Mitford wrote a book about the funeral industry in 1963, finding that consumers only interacted with the funeral industry on average every 14 years, and then only under duress. There was a veil over the business and people were not aware of the choices available until it was left up to their loved ones after they passed. Now social media, digital applications and websites started by a younger generation are changing how Americans as a whole view death.

From WeCroak, an app that spurs you to live in the moment by reminding you 5 times a day that you will perish, to Deadhappy, a pay-as-you-go life insurance company, the death industry is evolving and modernizing. Sites like Funeralocity provide comparative pricing for funeral home services by zip code so people do not have to physically enter nor call the businesses to get quotes. Patrick Schmitt, the co-founder of FreeWill, says that the number of people age 18 to 24 crafting wills is low, but shoots up among 25- to 44-year-olds.

Phil Olson, a technology ethicist at Virginia Tech specializing in death studies, says that “Millennials want their uniqueness or their quirkiness to come out in their final act." But there may be a darker, more finalistic point of view to it - “It’s a way of exercising control over death,” he says. “It’s a way of coming to grips with your own mortality — to think about it and plan for it and try to make it your own.” 

See Eleanor Cummins, Why Millennials are the “Death Positive” Generation, Vox, January 22, 2019.

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

January 22, 2020 in Current Affairs, Death Event Planning, Estate Planning - Generally, Science, Technology, Wills | Permalink | Comments (0)

Monday, January 20, 2020

Son's Legal Fight for Dead Dad's Frozen Head Against Cryogenics Firm

CryogenicsKurt Pilgeram says that the company Alcor Life Extension Firm was to preserve his late father's body cryogenically, but instead only froze the man's head, and sent Kurt the rest of his ashes. He sued the company for a million dollars, claiming the event caused him extreme mental distress. Now Alcor is countersuing the son, claiming fraud by way of hiding documents from the probate court.

Diane Cafferata, the attorney who represents the company, says that "After [Laurence] Pilgeram died in 2015, his son hid the codicil and all his father's testamentary documents from the probate court and falsely claimed his father died intestate," thus causing Kurt and his brother to inherit their father's $16 million fortune. Cafferata also claims that the son blocked the company from received an $80,000 life insurance policy that was to pay for the preservation. Within the alleged codicil is a provision that states if a beneficiary challenged his father's wish to be preserved, they were to receive merely a dollar.

Laurence Pilgeram was a scientist that worked for several decades in the field of cryogenics and entered into an agreement with Alcor back in 1990 at the age of 67 to be preserved upon his death. When he died in 2015 of cardiac arrest he was 90. The program requires the person's body to be brought to the company as soon as possible after death, but Alcor was not notified until three days after Pilgeram's passing. Because of this, they were forced to do a "neuro-isolation," where only the head is preserved and the rest of the body is cremated because the future may hold the ability to regrow a healthy body around a functioning brain, according to the company's website.

Pilgeram is the company's 125th person to be preserved.

See James Gordon, Son's Legal Fight for Dead Dad's Frozen Head Against Cryogenics Firm, Daily Mail, January 18, 2020.

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


January 20, 2020 in Current Events, Death Event Planning, Estate Planning - Generally, New Cases, Science, Wills | Permalink | Comments (0)

Thursday, January 16, 2020

Dying in the Neurosurgical I.C.U.

BrainscanWhen a doctor diagnoses a patient with brain death, no matter what a doctor does, the organs and rest of the body inevitably follows. But when an injury is devastating to the brain but has not incurred in becoming brain dead, the decisions of the physician as well as the family of the patient can be much more difficult.

Often times inconsistent communication and support between medical staff members and families exacerbate the situation. A new field, neuropalliative care, seeks to focus “on outcomes important to patients and families” and “to guide and support patients and families through complex choices involving immense uncertainty and intensely important outcomes of mind and body.” Together, family members and neuro-I.C.U. caregivers can agree on the appropriate action when the patient has not provided a legal document dictating their wishes, including transitioning the patient to comfort care and allowing the patient to die.

Doctors often think it is most important to be precise and not make mistakes; to predict the future and provide patients and their families with medical certainty. But usually connection and empathy are far more important than certainty. Patients and families want to know that the physicians care about them and that they appreciate their pain in difficult circumstances.

See Joseph Stern, M.D., Dying in the Neurosurgical I.C.U., New York Times, January 14, 2020.

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

January 16, 2020 in Current Affairs, Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, Science | Permalink | Comments (0)