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“SPOUSE.” Your client needs to define a “spouse” more specifically. Does “spouse” include someone who has filed for divorce but the divorce is not yet final? A spouse who is legally separated? A spouse who is not legally married to the other spouse but who hold themselves out as legally married? These are all questions to consider in drafting the definition of a “spouse.” Is s domestic partner a spouse? The parties to a civil union? Do only legal marriages count? What about whether someone is married in any state regardless of the state of administration?
When do you want someone to cease being a spouse? Until divorce? Separation? Filing for divorce? These questions need to be addressed.
The Windsor case was not discussed, although the speaker noted that it does not extend to civil unions or domestic partnerships, and many questions still remain unanswered.
“DESCENDANT.” Similar to the question of who is a spouse, who is a “descendant?” Can an adopted person inherit from the parents of an adopted parent? Older documents refer to “lawful” or “blood” descendants, but those definitions are obsolete today.
“Equitable adoption” is an issue, even if many of us have not heard of it. Consider whether a child may inherit from her stepfather’s mother, since they had a very close relationship. One California case has said “no,” even though it acknowledged the relationship was akin to parent/child. This stressed the need for clients to convey their wishes in their documents, particularly where the family is not the standard Ozzie and Harriet variety.
Likewise, do brothers and sisters include the children of a former son-in-law of the decedent’s parents and his new wife? One court said no, but it did take a court to clarify. Better to clarify in your documents.
What about a child born during marriage, presumed to be the issue of the marriage under state law, but was actually another man’s child? One case from the 1950’s looked to the law at the time of the Will and confirmed the strong presumption that a child born during wedlock is the issue of the marriage.
The moral of the story is that even the traditional ideas of children, siblings, descendants, and issue etc can be difficult to determine if not clearly defined in the document.
“THE NEW TECHNOLOGY.” What is the status of children born after a father has been deceased (using frozen sperm)? Are such children descendants of the father? What happens if children born after decedent’s state has been administered and is terminated? Most states still do not address this issue.
What about the use of genetic material? It might sound crazy (and the speaker assured us she isn’t), but there are
issues surrounding harvesting genetic material. For example:
See Block, Dorian, Dead Man Johnny Quntana’s Sperm Can’t Impregnate Girlfriend, New York Daily News, April 30, 2009.
See also, Block, Dorian, Judge Allows Wife to Harvest Dead Husband’s Sperm, New York Daily News, April 18, 2009.
See Martinez, Jose, After Husband Kills Himself, Wife Goes to Court Saying She Wants His Sperm, New York Daily News, October 15, 2010.
Blalock, Katie, Crowdfunding helps Tucson Woman Raise Money To Have Dead Fiance’s Child, Nov. 7, 2014, available at http://www.abc15.com/news/local-news/watercooler/ Who owns a deceased person’s genetic material? Can it be harvested? By whom?
RESTRICTIONS ON MARRIAGE. These clauses are generally not upheld. Query what happens if not upheld? Should always provide a default provision.
NOT THE FIRST RODEO. Traditional A/B plans don’t always work for second, third, and subsequent marriages. Your third wife may be younger than your children! Consider a floor on distributions or using unitrust provisions. What if you leave the residence to the spouse, but the tangible personal property to your children? Would you like them to clean out the house around the surviving spouse?
Some things to consider with a house and “not a first” marriage:
Real estate taxes on any residence owned in a trust;
Routine maintenance and repairs on the residence;
Major capital expenditures (such as a new roof) for the residence;
Medical expenses and health insurance;
Insurance on a residence, artwork or other valuables;
Income taxes on the distributions from the trust;
Caregivers; and Automobiles and auto insurance An independent fiduciary may be better than the spouse or children.
NO RODEO AT ALL. More unmarried couples choose not to marry. Per the last census, there are more than 7.5 million unmarried opposite-sex households and many have children, both natural and adopted.
Domestic relationship agreements can be enforced as a contract. They need consideration, such as household work, financial support, but not sex. But maintenance payments may not be deductible upon termination of the relationship, unlike with a divorce.
TWILIGHT RELATIONSHIPS. These start later in life. Many couples marry over age 50, and there are issues peculiar to these couples, such as caregiving issues, residence, nursing home, etc.
SAME-SEX MARRIAGES. The issues are generally the same as all of those noted above, and then there is the issue of validity of the marriage from state-to-state. Watch powers of appointment that allow appointment to a “spouse” and, as noted above, define spouse to include who and what you intend.
The bottom line is to think about the world we’re living in and how that effects our estate planning and be sure to draft for those issues.
9:50 - 10:40 Planning for Life After Death: Laws of Succession vs. The New Biology Joshua S. Rubenstein Most of us are accustomed to having a relatively broad ability to control the disposition of our property following our deaths. It comes as a surprise to know how little ability we have to control the disposition of ourselves, and the uses to which we can be put, following our deaths. This talk will examine the ability to control burial and the disposition of body parts, the posthumous use of our genetic material, inheritance by posthumously procreated individuals, and exhumation for the purpose of genetic testing. It will also offer practical suggestions concerning what can be done to address the fact that medical science now permits the class of one’s children not to be closed by one’s death.
Reporter: Kimon Karas Esq.
Josh divided the topic into five parts: Control over disposition of remains, control over disposition of body parts, control over posthumous reproduction, control over inheritance by posthumously reproduced individuals, and control over posthumously paternity testing with respect to alleged lifetime conceptions.
Josh commenced his presentation with the statement that there is a huge gap between law and science. Law is significantly lagging behind scientific advances in this area.
Josh started his presentation discussing control over the disposition of one’s remains. Historically there has been no recognized property interest in the body. Under English common law, there was no property interest in corpses, which were deemed to belong to the public. American common law established quasi-property right vested in the next-of-for the limited purpose of burial or other disposal. The only redress for wrongful handling of corpse is an action in tort, i.e. intentional infliction of emotional distress. A funeral home may not assert a lien for the nonpayment against a corpse. The litigation in this area involved funeral homes for improper handling of a corpse. Similarly there is no right to dispose of body parts, i.e. no property interest. Josh referenced one’s sale of blood (individual repeatedly sold rare type of blood) resulted in income and not capital gains. Also one has no intellectual property rights to one’s body parts (physicians used genetically unique spleen of a man who suffered from hairy cell leukemia to develop and patent a commercial T-cell line value at more than $3 billion). (Damages in tort only for plaintiff’s surgically removed eyeball being negligently washed down the drain.)(No property rights in excrement containing marijuana-filled balloons).
A decedent cannot control his own burial. Essentially such direction guided usually by i) decedent’s wishes. ii) family members, or iii) state statutes defining priority. State statutes address disposition of one’s body through burial, cremation or cryogenics (“ultimate estate freeze”). Although there is no absolute right some states are starting to recognize the right to dispose of one’s body. Absent such a statute, the right rests with family members. If a state does have a statute generally those are located in the state’s health laws and not the probate statutes.
Next Josh discussed one’s rights to body parts. There is no right to dispose of body parts while living although state statutes allow for disposition at death. Recent developments permit ‘untransplantable’ body parts to be transplanted. The Uniform Anatomical Gift Act deals with anatomical gifts by decedents. Statute standardizes the process of organ donation but prohibits sale. Unclear whether ‘a stillborn infant or fetus’ is covered within the definition of decedent. The National Organ Transplant Act is the only federal law that prohibits the transfer of a body part for ‘valuable consideration’. Exceptions include blood, sperm and ova. Possible justification is these are items that are replenishable and less painful and dangerous to donate. Death for this purpose is generally defined by the Uniform Determination of Death Act (adopting the whole brain definition of death). In summary while organ donation law is fairly settled, it has not promoted significant organ donation. Josh suggests affirmative legislation is needed to balance the conflict between sanctity of corpses versus the severe shortage of body parts needed to reduce death and suffering. There are 2 models proposed: the mandatory donation model with exemption for religious beliefs and the presumed consent model which is prevalent and the law in at least 28 countries.
Next Josh discussed the control over posthumous reproduction. This includes gametes (eggs and sperm) which can be cryogenically stored and later thawed (the oldest frozen sperm sample used for a live birth had been frozen 21 years); zygotes, single cell, fertilized eggs; pre-embryo.
Posthumous gamete harvesting. Sperm harvesting is not illegal but the issue being who controls this. In context of females it has been reported frozen eggs being sold by donors ranging from $2500 to $100,000. Reference to www.eggdonor.com.
In the absence of a written agreement among the parties there is scant state legislation addressing custody of preembryos, where a couple divorces or simply cannot agree on a course of action. Florida’s statute was the first and is a roadmap for others to follow. In general the Florida statute requires that the commissioning couple and their physician enter into a written contract providing for the disposition of the couple’s gametes and pre-embryos in the event of death, divorce, or another unforeseen circumstance. Embryos are neither persons nor property possibly something in between. Consensus seems to be that disposition of frozen genetic material is governed by contract. In the absence of a contract it would appear that gametes belong to the surviving spouse and may even be devisable ‘quasi-property.’ Next Josh addressed the control over inheritance by posthumously reproduced individuals. Most states developed a statutory and/or maintain a common law scheme to address children born posthumously to their parent’s death although conceived prior to death. Not until recently however have a few jurisdictions addressed such births when conception occurred after biological father’s death. Common law requires conception and proof of paternity before a father’s death for inheritance. The first statute addressing this was the Uniform Parentage Act. (Act establishes the ability of the husband of the sperm receiver to be deemed the resulting child’s father). California’s version of the Act was the first state to recognize posthumously conceived children to be eligible for inheritance where child is conceived within 2 years of and consistent with wishes of deceased parent. The Uniform Status of Children of Assisted Conception Act provides that anyone who dies before implantation of an embryo or conception with gamete is not the resulting child’s parent unless specific provisions are made for posthumous children by will. The Uniform Probate Court considers a posthumously conceived child to be ‘in gestation’ at the deceased parent’s death if that child is born in utero within 36 months after the parent’s death, or is born no later than 45 months after the parent’s death.
The issue of posthumously conceived children raises issues that have not been addressed as to how the rule against perpetuities applies, i.e. if this person is not considered on the testing date to be a life in being; legitimacy issues;
forced heirship; and rights of afterborn children. The majority of case law in this area has been social security cases whether such child or parent was entitled to benefits. In summary there is little agreement among jurisdictions on the inheritance rights of children conceived after the death of a parent.
The final topic Josh addressed was the control over posthumous paternity testing with respect to alleged lifetime conceptions. The genesis of this has dealt with the law regarding exhumation that requires a showing of necessity. The cases dealing with exhumation historically have dealt with reburial, corrected burial and allegedly suspicious causes of death. Advances in technology have diminished exhumation, through HLA blood typing, which only rules out paternity and genetic marker testing that is 1 in 7.5 trillion accuracy rate of paternity. In summary there seems to be no serious discussion of the decedent’s interest in avoiding post-mortem testing.
Josh concluded that today part of the estate planning fact gathering must include questions of clients of whether they have engaged in artificial reproductive technology. If so is there a contract with a lab that outlines rights and responsibilities. If not complete amend so issues are addressed. In document drafting review definition of issue/descendants to confirm client’s wishes are carried out.