Feminist Judgments: Rewritten Trusts and Estates Opinions [1 ed.] 9781108495110, 9781108860963, 9781108816953

Citation preview

feminist judgments: rewritten trusts and estates opinions For women and other marginalized groups, the reality is that the laws regulating estates and trusts may not be treating them fairly. By using popular feminist legal theories as well as their own definitions of feminism, the authors of this volume present rewritten opinions from well-known estates and trust cases. Covering eleven important cases, this collection reflects the diversity in society and explores the need for greater diversity in the law. By re-examining these cases, the contributors are able to demonstrate how women’s property rights, as well as the rights of other marginalized groups, have been limited by the law. Deborah S. Gordon is an associate professor of law at Drexel University Thomas R. Kline School of Law. Previously, she served as editor-in-chief of the NYU Law Review and she practiced law for over ten years before joining the academy. Her scholarship explores the intersection of language, emotion, and gender in inheritance law. She is the co-author of Experiencing Trusts and Estates (West Academic Press, 2017). Browne C. Lewis is Dean at North Carolina Central University School of Law. She is a member of the American Law Institute and has been a Core Fulbright Scholar in London and a Senior Fulbright Specialist in Israel. She has published Papa’s Baby: Paternity and Artificial Insemination (New York University Press, 2012) and The Ethical and Legal Consequences of Posthumous Reproduction: Arrogance, Avarice and Anguish (Routledge, 2016). Carla Spivack is Oxford Research Professor of Law at Oklahoma City University School of Law. She holds a Ph.D. in English literature from Boston College and a J.D. from New York University School of Law. Her dissertation was a study of backlash against female political power after the death of Elizabeth I. In her work, she focuses on gender and inequality.

Published online by Cambridge University Press

Published online by Cambridge University Press

Feminist Judgments Series Editors Bridget J. Crawford Elisabeth Haub School of Law at Pace University Kathryn M. Stanchi University of Nevada, Las Vegas William S. Boyd School of Law Linda L. Berger University of Nevada, Las Vegas William S. Boyd School of Law

Published online by Cambridge University Press

Advisory Panel for Feminist Judgments Series

Kathryn Abrams, Herma Hill Kay Distinguished Professor of Law, University of California, Berkeley, School of Law Katharine T. Bartlett, A. Kenneth Pye Professor of Law, Duke University School of Law Mary Anne Case, Arnold I. Shure Professor of Law, The University of Chicago Law School Margaret E. Johnson, Professor of Law, University of Baltimore School of Law Sonia Katyal, Chancellor’s Professor of Law, University of California, Berkeley, School of Law Nancy Leong, Associate Professor of Law, University of Denver Sturm College of Law Rachel Moran, William H. Neukom Fellows Research Chair, American Bar Foundation Angela Onwuachi-Willig, Chancellor’s Professor of Law, University of California, Berkeley, School of Law Nancy D. Polikoff, Professor of Law, American University Washington College of Law Daniel B. Rodriguez, Dean and Harold Washington Professor, Northwestern University School of Law Susan Deller Ross, Professor of Law, Georgetown University Law Center Verna L. Williams, Judge Joseph P. Kinneary Professor of Law, University of Cincinnati College of Law

Published online by Cambridge University Press

Feminist Judgments: Rewritten Trusts and Estates Opinions Edited by

DEBORAH S. GORDON Drexel University, Philadelphia

BROWNE C. LEWIS North Carolina Central University

CARLA SPIVACK Oklahoma City University

Published online by Cambridge University Press

University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108495110 doi: 10.1017/9781108860963 © Deborah S. Gordon, Browne C. Lewis, and Carla Spivack 2020 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2020 A catalogue record for this publication is available from the British Library. isbn 978-1-108-49511-0 Hardback isbn 978-1-108-81695-3 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Published online by Cambridge University Press

For my mother, Gail Gordon, and in memory of my father, Norman Gordon –DSG For my sisters, Emma S., Evon, Gloria, Ora Bell, and Emma L. –BCL In memory of my mother, Charlotte Spivack, and my father, Bernard Spivack –CS

Published online by Cambridge University Press

Published online by Cambridge University Press

Contents

Advisory Panel for Feminist Judgments: Rewritten Trusts and Estates Opinions

page xi xiii

Notes on Contributors

xv

Preface Acknowledgments

xvii

Table of Cases

xix

1

Introduction to the Feminist Judgments: Rewritten Trusts and Estates Opinions Project

1

Deborah S. Gordon, Browne C. Lewis, and Carla Spivack

2

In re Strittmater’s Estate, 53 A.2d 205 (N.J. 1947)

17

Commentary: Lloyd Bonfield and Bridget J. Crawford Judgment: Kristen K. Tiscione

3

In re Will of Moses, 227 So.2d 829 (Miss. 1969)

39

Commentary: Claire C. Robinson May Judgment: Julia Belian

4

In re Estate of Wilson, 59 N.Y.2d 461, 452 N.E.2d 1228 (1983)

65

Commentary: Deborah S. Gordon Judgment: Camille M. Davidson

5

O’Neal v. Wilkes, 439 S.E.2d 490 (Ga. 1994)

81

Commentaries: Ayelet Blecher-Prigat and Benedetta Faedi Duramy Judgment: Browne C. Lewis

6

Via v. Putnam, 656 So.2d 460 (Fla. 1995) Commentary: Eloisa C. Rodriguez-Dod Judgment: Elena Maria Marty-Nelson

ix

Published online by Cambridge University Press

100

x

7

Contents

In re Estate of Myers, 256 Neb. 817, 594 N.W.2d 563 (1999)

123

Commentary: Danaya C. Wright Judgment: Karen J. Sneddon

8

Egelhoff v. Egelhoff, 532 U.S. 141 (2001)

149

Commentary: Donna Litman Judgment: Naomi R. Cahn

9

Drevenik v. Nardone, 862 A.2d 635 (Super. Ct. Pa. 2004)

179

Commentary: Elizabeth R. Carter Judgment: Carrie A. Hagan

10

Reece v. Elliott, 208 S.W.3d 419 (Tenn. Ct. App. 2006)

190

Commentary: Browne C. Lewis Judgment: Browne C. Lewis and Elizabeth V. Sparks

11

Khabbaz v. Comm’r Soc. Sec. Admin., 930 A.2d 1180 (N.H. 2007)

201

Commentary: Melanie B. Jacobs and Browne C. Lewis Judgment: Lynda Wray Black

12

Karsenty v. Schoukroun, 959 A.2d 1147 (Md. 2008)

220

Commentary: Kent D. Schenkel Judgment: Allison A. Tait

Index

Published online by Cambridge University Press

246

Advisory Panel for Feminist Judgments: Rewritten Trusts and Estates Opinions

Alexander Boni-Saenz, Associate Professor, Chicago Kent College of Law Alfred L. Brophy, Professor, University of Alabama School of Law (Retired) Naomi R. Cahn, Harold H. Greene Professor of Law, The George Washington University Law School Camille M. Davidson, Dean and Professor of Law, Southern Illinois University School of Law Thomas P. Gallanis, Associate Dean for Research, Allan D. Vestal Chair in Law, and Professor of History, Iowa College of Law William P. LaPiana, Associate Dean, Rita and Joseph Solomon Professor of Wills, Trusts, and Estates, and Director, Estate Planning, Graduate Tax Program, New York Law School Ray D. Madoff, Professor, Boston College School of Law Sergio Pareja, Dean and Professor of Law, Henry Weinhofen Chair, University of New Mexico School of Law Casey Ross, Director, American Indian Law and Sovereignty Center, Clinical Professor of Law, and University General Counsel, Oklahoma City University School of Law Robert H. Sitkoff, John L. Gray Professor of Law, Harvard Law School Phyllis C. Taite, Interim Associate Dean and Professor of Law, Florida A&M University School of Law Michael T. Yu, Associate Professor of Law, California Western School of Law

xi

Published online by Cambridge University Press

Published online by Cambridge University Press

Notes on Contributors

Julia Belian is an associate professor of law at the University of Detroit Mercy School of Law. Lynda Wray Black is an associate professor of law at the Cecil C. Humphreys School of Law at the University of Memphis. Ayelet Blecher-Prigat is the Dean of Law School at the College of Law and Science, Israel. Lloyd Bonfield is Emeritus Professor at New York Law School and Visiting Professor at the University of Iowa College of Law. Naomi R. Cahn is the Harold H. Greene Professor of Law at the George Washington University School of Law. Elizabeth R. Carter is the Judge Anthony J. Graphia and Jo Ann Graphia Professor of Law at the Paul M. Herbert Law Center, Louisiana State University. Bridget J. Crawford is a professor of law at the Pace University Elisabeth Haub School of Law. Camille M. Davidson is Dean at the Southern Illinois University School of Law. Benedetta Faedi Duramy is a professor of law and Associate Dean of Faculty Scholarship at the Golden Gate University School of Law. Deborah S. Gordon is an associate professor of law at the Drexel University Thomas R. Kline School of Law.

xiii

Published online by Cambridge University Press

xiv

Notes on Contributors

Carrie A. Hagan is a clinical associate professor of law and Director of the Civil Practice Clinic at the Robert H. McKinney School of Law, Indiana University. Melanie B. Jacobs is Interim Dean and a professor of law at the Michigan State University College of Law. Browne C. Lewis is Dean at North Carolina Central University School of Law. Carla Spivack is Oxford Research Professor of Law at Oklahoma City University School of Law. Donna Litman is a professor of law at the Nova Southeastern University Shepard Broad College of Law. Elena Maria Marty-Nelson is Associate Dean for Diversity, Inclusion, and Public Impact and a professor of law at the Nova Southeastern Shepard Broad College of Law. Claire C. Robinson May is a professor of legal writing at the ClevelandMarshall College of Law. Eloisa C. Rodriguez-Dod is Associate Dean for Academic Affairs and a professor of law at the Florida International School of Law. Kent D. Schenkel is a professor of law at the New England College of Law. Karen J. Sneddon is a professor of law at the Mercer University School of Law. Elizabeth V. Sparks is an adjunct professor of law at the Cleveland-Marshall College of Law. Allison A. Tait is an associate professor of law at the University of Richmond School of Law. Kristen K. Tiscione is a professor of law and legal practice at the Georgetown University Law Center. Danaya C. Wright is the Clarence J. Teselle Endowed Professor of Law at the University of Florida Levin College of Law.

Published online by Cambridge University Press

Preface

Could a feminist perspective change trusts and estates law? To begin to answer this question, we brought together a group of scholars and lawyers to rewrite, using feminist perspectives, significant cases from a variety of courts around the country that address the many topics that might be covered in a trusts and estates class or addressed by estate planners or probate litigators. Some of the cases in this volume implicate gender on their face – questions about sex-based restrictions in charitable trusts and reproductive technology’s impact on inheritance rights – and some implicate gender in less obvious ways, such as how to value a surviving spouse’s rights with respect to a decedent’s estate or the parameters of adoption or retirement planning. Many people understand that feminist reasoning has tremendous potential to affect, for example, the law of employment discrimination, sexual harassment, and reproductive rights. People may be less aware that feminist analysis can likewise transform inheritance law. By highlighting the influence of perspective, background, and stereotyping on the reading and interpretation of both statutes and common law, Feminist Judgments: Rewritten Trusts and Estates Opinions shows what a difference feminist analysis can make. This volume, like all the books in Cambridge University Press’s Feminist Judgments Series, demonstrates that judges with feminist viewpoints could have changed the law, even based only on the precedent and law in effect at the time of the original decision. Or, even if the desired result could not be achieved under the current law, this volume shows how a powerful dissent can serve to draw attention to the fact that inheritance law operates in many cases to disadvantage women, racial minorities, LGBT+ individuals, and other historically oppressed groups. Together, the opinions and commentaries in this volume illustrate the importance of diversity of perspectives on the bench so that judges do not approach their work with a uniform worldview xv

https://doi.org/10.1017/9781108860963.001 Published online by Cambridge University Press

xvi

Preface

influenced by the same set of preconceptions and privileges. For judges, lawyers, students, and members of the general public, reading these critical opinions helps to expose the ways in which judges – and, in turn, the development of the law – are subtly influenced by preconceptions, existing power hierarchies, prevailing social norms, and “conventional” wisdom. This book shows that inheritance law is not neutral but rather shaped by the beliefs and policies of the society that produces it and the judges who apply it. At the same time, the contributors to this book hold out hope that the law of trusts and estates can be transformed to be an instrument of greater justice and equality for all people.

https://doi.org/10.1017/9781108860963.001 Published online by Cambridge University Press

Acknowledgments

This book would not have been possible without the support of Cambridge University Press, which so enthusiastically endorsed a series of books following the publication of Feminist Judgments: Rewritten Opinions of the United States Supreme Court (2016). The larger US Feminist Judgments project is intellectually indebted to the women who created the Women’s Court of Canada and the UK Feminist Judgments Project, which inspired similar projects throughout the world. We are grateful to Linda L. Berger, Bridget J. Crawford, and Kathryn M. Stanchi for their leadership and guidance. We wish to thank the members of our Advisory Panel, who embraced the project with enthusiasm and helped us to think about the book’s organization, limitations, and challenges. Our editors John Berger and Jackie Grant provided guidance and assistance throughout the publication process. For research assistance, we thank Elizabeth Sparks and John Canaan. For administrative assistance, we thank Diane Adams. Each of us would like to thank the many colleagues, students, friends, and family members who have supported our work on this project. Browne Lewis thanks the Plevin family and the Cleveland-Marshall College of Law for their generous support. Carla Spivack thanks Oklahoma City University School of Law for its generous support, and Misha, for taking care of pretty much everything else. Deborah Gordon thanks her husband, Jonathan Offenkrantz, and the Drexel University Thomas R. Kline School of Law for their generous support. All three of us thank all of our contributors for their enthusiasm and many hours of work and dedication (and numerous rounds of editing!) that have brought this project to life.

xvii

Published online by Cambridge University Press

Published online by Cambridge University Press

Table of Cases

Alan Banks, Jr. v. Ira R. Pusey, 393 Md. 688, 697, 904 A.2d 448 (2006), p. 234 Allender v. Allender, 199 Md.541,8 7A.2d 608(1952), pp. 240, 242, 243 Ankenbrandt v. Richards, 504 U.S. 689 (1992), p. 160 Atkinson’s Estate, 80 So.2d 12 (Miss. 1955), p. 55 Baker’s Will, 90 A. 1009 (N.J. Prerog. Ct. 1914), p. 37 Barnett v. Barnett, 124 So. 498, 500 (Miss. 1929), p. 54 Barrows v. Jackson, 346 U.S. 249 (1953), pp. 68, 79 Bearden v. Gibson, 60 So.2d665, 666 (1952), p. 52 Becker v. Neb. Accountability & Disclosure Comm’n, 249 Neb. 28, 33, 541 N.W.2d 36, 40 (1995), p. 142 Billiter v. Parriott, 128 Neb. 238, 258 N.W. 395, 397 (1935), p. 138 Boggs v. Boggs, 520 U.S. 833, 841 (1997), pp. 161, 162, 163, 164, 165, 168 Bourn v. Bourn, 140 So. 518 (Miss. 1932), p. 56 Bowen v. Hoxie, 137 Mass. 528 (1884), p. 218 Boylan v. Meeker, 28 N.J.L. 274, 277 (N.J. 1860), pp. 37, 38 Bradwell v. State, 16 Wall (83 U.S.) 130, p. 67 Brooks v. Brooks, 733 P.2d 1044, 1048 n.4 (Alaska 1987), p. 195 Brown v. Bel. of Educ., 347 U.S. 483 (1954), p. 10 Brown v. Fid. Tr. Co., 126 Md. 175, 94 A. 523 (1915), p. 238 Burnett v. Smith, 47 So.117, 118 (Miss.1908), p. 48 Butterworth v. Keeler, 219 N.Y. 446 (1916), p. 73, Califano v. Jobst, 434 U.S. 47 (1977), p. 210 California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U.S. 316, 330 (1997), pp. 152, 162 Campbell v. Campbell, 202 Neb. 575, 276 N.W.2d 220 (1979), p. 137 xix

Published online by Cambridge University Press

xx

Table of Cases

Caswell v. Kent, 186 A.2d 581, 581 (Me. 1962), p. 170 Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951), p. 98 Central States Found. v. Balka, 256 Neb. 369, 373, 590 N.W.2d 832, 836 (1992), p. 136 Chase v. Ameriquest Mortgage Co., 921 A.2d 369 (N.H. 2007), p. 209 Cheatham v. Burnside, 77 So.2d 719 (Miss. 1955), p. 52 City National Bank of Florida v. Tescher, 578 So.2d 701, 702 (Fla. 1991), p. 115 Clark v. Jeter, 486 U.S. 456 (1988), p. 215 Coins’ Will, 141 So.2d 759 (Miss. 1959), p. 49 Cook v. Walker, 15 Ga. 457 (1854), p. 97 Crawford v. Wilson, 139 Ga. 654, 78 S.E. 30 (1913), p. 95 Creason v. Myers, 217 Neb. 551, 350 N.W.2d 526 (1984), p. 136 Croft v. Alder, 115 So.2d. 595 (Miss. 1959), p. 41, 42, 45, 46, 49, 52, 56, 57, 59, 60 Crotty’s Will, 134 A. 622, 623 (Essex County Ct. 1926), p. 34 Curry v. Lucas, 180 So. 397, 398 (Miss. 1938), p. 55 Dennis v. Whitney, 844 A.2d 1267 (Pa. Super 2004), p. 188 Domain v. Bosley, 242 Md. 1, 7, 217 A.2d 555, 559 (1966), p. 236 Drevenik v. Nardone, 862 A.2d 635 (Super Ct. Pa. 2004), pp. 12, 179, 184–85 Drummond v. Fulton County Department of Family and Children Services, 237 Ga. 449, 228 S.E.2d 839 (1976), p. 97 Dunnock v. Dunnock, 3 Md. Chan.140,147 (1853), p. 237 Egelhoff v. Egelhoff, 532 U.S. 141 (2001), pp. 14, 149–54, 159 Emory University v. Dorsey, 207 Ga. App. 808, 429 S.E.2d 307 (1993), p. 97 Evans v. Newton, 382 U.S. 296 (1966), pp. 70, 80 Estate of Lopata, 641P.2d 952, 956 (Colo. 1982) (en banc), p. 195 Estate of Myers, 256 Neb. 817, 594 N.W.2d 563 (1999), pp. 12, 128–29, 132 Estate of Reap v. Malloy, 727 A.2d 326, 329 (D.C. 1999), p. 171 Ex parte Virginia, 100 U.S. 339 (1880), p. 78 Finch v. Wachovia Bank & Trust Co., 577 S.E.2d 306 (N.C. Ct. App. 2003), p. 132 First Church of Christ, Scientist v. Watson, 286 Ala. 270, 273, 239 So.2d 194, 196 (1970), p. 170 Fortenberry v. Herrington, 196 So. 232, 236 (Miss. 1940), p. 53 Friedberg v. Sunbank/Miami, N.A., 648 So.2d 204, 205–06 (Fla. Dist. Ct. App. 1994), p. 122 Frontiero v. Richardson, 411 U.S. 677 (1973), p. 10

Published online by Cambridge University Press

Table of Cases

xxi

Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 98 (1992), p. 164 Gathings v. Howard, 80 So. 240, 241 (Miss. 1920), p. 54 Geduldig v. Aiello, 417 U.S. 484 (1974), p. 10 Gianakos v. Magiros, 234 Md. 14, 197 A.2d 897 (1964), p. 240 Gillet-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004), p. 217 Gillis v. Smith, 75 So. 451, 451 (Miss. 1917), p. 54 Grant v. Norwood, 161 So.2d 189, 190 (Miss. 1964), p. 48, 55, 63 Grant v. Stamler, 59 A. 890, 890–91 (N.J. Prerog. Ct. 1905), p. 32 Gregory v. Estate of Gregory, 866 S.W.2d 379, 382 (Ark. 1993), p. 110–11, 121 Griswold v. Connecticut, 381 U.S. 479 (1965), p. 214 Gross v. Gross, 464 N.E.2d500, 504(Ohio 1984), p. 195 Ham v. Ham, 110 So. 583 (Miss. 1926), p. 56 Haness’ Estate, 130 A.655, 658 (N.J. Prerog.Ct.1925), pp. 32, 34 Hart v. Shalala, No. 94–3944 (E.D. La. Dec. 12, 1994), p. 217 Hays v. Henry, 1 Md. Chan. 337 (1851), pp. 224, 225, 237, 238, 240, 241, 244 Heien et al. v. Crabtree, 369 S.W.2d 28, 30 (Tx. 1963), p. 98 Herrington v. Herrington, 98 So.2d 646 (Miss. 1957), p. 48 Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979), p. 154, 162, 167 Hodges v. Darden, 51 Miss. 199 (1875), p. 57 Humphreys v. DeRoss, 567 Pa. 614, 790 A.2d 281 (2002), pp. 188–89 In re Estate of Carman, 213 Neb. 98, 100, 327 N.W.2d 611, 613 (1982), p. 139 In re Estate of Coffin, 246 A.2d 489 (N.J. Super. Ct. App. Div., 1968), p. 25 In re Estate of Disney, 250 Neb. 703, 704, 550 N.W.2d 919, 922 (1996), p. 136 In re Estate of Fischer, 545 A.2d 1266 (Me. 1988), pp. 141–42 In re Estate of Foxley, 254 Neb. 204, 207, 575 N.W.2d 150, 153 (1998), p. 136 In re Estate of Grant, 558 So.2d 208, 209 (Fla. Dist. Ct. App. 1990), p. 116 In re Estate of Johnson, 108 Misc.2d 1066, 439 N.Y.S.2 250 (Sur.Ct. 1981), p. 75 In re Estate of Johnson, 93 A.D.2d 1 (1983), pp. 70, 72, 74, 79 In re Estate of Kolacy, 332 N.J. Super. 593 (2000), p. 217 In re Estate of Malone, No. A-6147-12T2, 2014 WL 5712975 (N.J. Super. Ct. App. Div. Nov. 6, 2014), p. 25 In re Estate of Wilson, 87 A.D.2d 98, 460 N.Y.S.2d 932 (1982), pp. 11, 72, 73, 74, 76, 78 In re Kelly, 225 A.D. 29, 232 N.Y..S. 84 (App. Div. 1928), p. 77 In re Moorehead’s Estate, 137 A. 802 (Pa. 1927), pp. 181, 182–84 In re Strittmater’s Estate, 53 A.2d 205 (N.J. 1947), pp. 14, 17–23, 25, 26

Published online by Cambridge University Press

xxii

Table of Cases

In re Syracuse Univ., 3 N.Y.2d 665, 171 N.Y.S.2d 545, 148 N.E.2d 671 (1958), p. 76 In re Will of Moses, 227 So. 2d 829 (Miss. 1969), pp. 13, 39–42, 47 Jamison v. Jamison, 51 So. 130 (Miss. 1910), p. 48, 49, 50, 55, 56, 60, 63 Jaworski v. Wisniewski, 149 Md. 109, 131 A. 40, 43 (1925), p. 238 Johnson v. Girtman, 542 So.2d 1033 (Fla. Dist. Ct. App. 1989), p. 103 Jones v. Head, 185 Ga. 857, 196 S.E.2d 725 (1938), p. 97 Jones v. O’Neal, 194 Ga. 49, 52, 20 S.E.2d 585 (1942), p. 97 Kahn v. Shevin, 416 U.S. 351 (1974), p. 124 Karsenty v. Schoukroun, 959 A.2d 1147 (Md. 2008), pp. 14, 221–22, 227 Keith v. Culp, 111 So.2d 278, 281 (Fla. Dist. Ct. App. 1959), p. 114 Khabbaz v. Commissioner, Social Security Administration, 930 A.2d 1180 (N. H. 2007), pp. 11, 201–202, 206 Knell v. Price, 569 A.2d 636 (Md. App. Ct. 1990), pp. 222, 223, 225, 231, 232, 233, 234, 237, 241, 244, 245 Lee v. Lee, 260 Ga. 356, 392 S.E.2d 870 (1990), p. 97 Life Ins. Co. of New York v. Cisneros, 392 F.2d 198, 200 (6th Cir. 1968), p. 174 Loveridge v. Brown, 129 A.131, 134 (N.J. 1925), p. 32 Loving v. Virginia, 388 U.S. 1 (1967), p. 214 Lucas’ Will, 1 A.2d 929, 930 (N.J. Prerog. Ct. 1938), p. 32 Luff v. Luff, 359 F.2d 235, 236 (D.C. Cir. 1966), p. 172 Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), p. 77 Malchow’s Estate, 17 172 N.W. 915, 916 (Minn. 1919), p. 195 Malone v. Dixon, 410 S.W.2d 278 (Tex. Civ. App. – Eastland 1996), p. 92, 98 Mather v. Mather, 575 Pa. 181, 835 A.2d 1281 (2003), pp. 188–89 Mathews v. Lucas, 427 U.S. 495 (1976), p. 215 Matter of Wilson, 59 N.Y.2d. 461 (1983), pp. 65, 67–68 McBride v. McBride, 11 Cal. App.2d 521, 523, 54 P.2d 480, 481 (1936), p. 167 McCune v. Essig, 199 U.S. 382 (1905), p. 162 McMurtry v. Commission of Internal Revenue, 203 F.2d 659, 666 (1st Cir. 1953), p. 146 Meek v. Perry, 36 Miss. 190, 238 (Miss. 1858), pp. 41, 45, 48, 56, 61, 62 Middleditch v. Williams, 17 A. 826 (N.J. Prerog. Ct. 1889), p. 37 Moore v. Parks, 84 So. 230, 233 (Miss. 1920), pp. 52, 53, 54 Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972), p. 68 Mushaw v. Mushaw, 183 Md. 511, 517, 39 A.2d 465, 467–68 (1944), pp. 239, 240

Published online by Cambridge University Press

Table of Cases

xxiii

Nock v. Wayble, 59 So.2d 875 (Fla. 1952), p. 107, 119 Nunnally v. Trust Co. Bank, 261 S.E.2d 621, 624 (Ga. 1979), p. 92, 98 O’Bannon v. Henrich, 4 So.2d 208 (Miss.1941), pp. 42, 48, 50, 56, 60, 62, 63 Oeler by Gross v. Oelerm, 527 Pa. 532, 594 A.2d 649 (1991), p. 186 O’Neal v. Wilkes, 439 S.E.2d 490 (Ga. 1994), pp. 6, 12, 81–82, 84–86, 88–91, 94 O’Toole v. Cent. Laborers’ Pension & Welfare Funds, 299 N.E.2d 392, 394 (Ill. 1973), p. 173 Pennsylvania v. Brown, 373 F.2d 771 (3d Cir. 1967), p. 70 Pennsylvania v. Brown, 392 F.2d 120 (3d Cir. 1968), pp. 79 Perkins v. Brown, 27 So. 2d 521 (Fla. 1946), p. 122 Posner v. Posner, 233 So.2d 381, 385 (Fla. 1970); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), p. 44 Prudential Ins. Co. of Am. v. Burke, 614 S.W.2d 847, 849 (Tex. Civ. App.), writ refused NRE, 621 S.W.2d 596 (Tex. 1981), pp. 167, 173 Rabbitt v. Gaither, 67 Md. 94, 8A. 744, 746 (1887), pp. 237, 238 Randolph v. Randolph, 937 S.W.2d 815, 821 (Tenn. 1996), pp. 191, 192, 194, 196, 199 Rasco v. Estate of Rasco, 501 So.2d 421 (Miss. 1987), p. 172 Ratti’s Will, 15 A.2d 616, 619 (N.J. Prerog. Ct. 1940), pp. 32, 34, 37 Raynolds’ Estate, 27 A.2d 226, 230 (N.J. Prerog. Ct. 1942), p. 32 Reed v. Reed, 404 U.S. 71 (1971), p. 10 Reece v. Elliot, 208 S.W.3d 419 (Tenn. Ct. App. 2006), pp. 11, 190, 191, 195 Reins’ Will, 50 A.2d 380, 385 (N.J. Prerog. Ct. 1946), pp. 32, 33 Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627 (1967), p. 79 Rhodes v. Quantrell, 227 Ga. 761, 183 S.E.2d 207 (1971), p. 91, 96 Rucker v. Moore, 186 Ga. 747, 199 S.E. 106 (1938), p. 96 Sanborn v. Lang, 41 Md. 107, 108 (1874), p. 237 Schoukroun v. Karsenty, 177 Md.App. 615, 937 A.2d 262 (2007), pp. 14, 220, 221, 227, 231, 232, 233 Shelly v. Kraemer, 334 U.S. 1 (1948), pp. 68, 73, 78–79 Sherman v. Richmond Hose Co. No. 2, 230 N.Y. 462, 473 (1921), p. 76 Shimp v. Huff, 556 A.2d 252 (Md. 1999), p. 103, 110 Simeone v. Simeone, 581 A.2d 162 (Pa. 1990), p. 199 Skipper v. Smith, 239 Ga. 854, 238 S.E.2d 917 (1977), p. 97 Smith v. Smith, 25 A.11, 19 (N.J. Prerog. Ct. 1891), p. 32, 34 Solomon v. Dunlap, 372 So.2d 218, 219 (Fla. Dist. Ct. App. 1979), p. 116

Published online by Cambridge University Press

xxiv

Table of Cases

Stanton v. Stanton, 421 U.S. 7, p. 68 Sturgis v. Citizens’ Nat. Bank of Pocomoke City, 152 Md.654, 137 A. 378 (1927), pp. 238, 239 Triebe’s Will, 168 A. 404, 406 (N.J. 1933), p. 32 Tod v. Fuller, 78 So.2d 713 (Fla. 1955), pp. 104, 117 Trumball v. Gibbons, 22 N.J.L.117, 141 (N.J. 1849), p. 34 United States v. Virginia, 518 U.S. 515, 532–33 (1996), p. 174 United States v. Windsor, 570 U.S. 744 (2013), p. 158 Via v. Putnam, 656 So. 2d 460 (Fla. 1995), pp. 15, 102–04, 106, 209 Weiss v. Storm, 126 So.2d 295, 298 (Fla. Dist. Ct. App. 1961), p. 113 Whittington v. Whittington, 205 Md. 1, 106 A.2d 72 (1954), pp. 225, 233, 234, 240, 241, 242, 243, 245 Williams v. Murray, 239 Ga. 276, 276, 236 S.E.2d 624 (1977), p. 95 Wilson v. Moore, 929 S.W.2d 367 (Tenn. Ct. App. 1996), p. 191 Winder v. Winder, 218 Ga. 409, 412, 128 S.E.2d 56, 58 (1962), p. 96 Woodville v. Pizzati, 81 So. 127 (Miss. 1919), pp. 54, 55 Woodward v. Commissioner of Social Security, 760 N.E.2d 257 (Mass. 2002), pp. 203, 217 Yerkes v. Yerkes, 573 Pa. 294, 824 A.2d 1169, 1171 (2003), p. 186 Young v. Martin, 125 So.2d 734 (Miss. 1961), pp. 48, 53

Published online by Cambridge University Press

1 Introduction to the Feminist Judgments: Rewritten Trusts and Estates Opinions Project deborah s. gordon, browne c. lewis, and carla spivack

How would judicial opinions change if the judges were to use feminist methods and perspectives when deciding cases? That is the question that various groups of scholars, working around the globe and mostly independently of each other, have taken up in a series of books of “shadow opinions” – literally, rewritten judicial decisions – using precedents, authorities, theories, and approaches that were in existence at the time of the original decision to reach radically different outcomes and often using saliently different reasoning. This global sociolegal movement toward critical opinion writing originated when a group of lawyers and law professors who called themselves the Women’s Court of Canada published a series of six rewritten decisions in 2008 in the Canadian Journal of Women and the Law. Inspired by that project, scholars have produced similar projects in the United Kingdom,1 Australia,2 the United States,3 Ireland,4 and New Zealand/Aotearoa.5 There is an 1 2

3

4

5

See FEMINIST JUDGMENTS: FROM THEORY TO PRACTICE (Rosemary Hunter et al. eds., 2010). See AUSTRALIAN FEMINIST JUDGMENTS: RIGHTING AND REWRITING LAW (Heather Douglas et al. eds., 2015). See FEMINIST JUDGMENTS: REWRITTEN OPINIONS OF THE UNITED STATES SUPREME COURT (Kathryn M. Stanchi, Linda L. Berger, & Bridget J. Crawford eds., 2016); FEMINIST JUDGMENTS: REWRITTEN TAX OPINIONS (Bridget J. Crawford & Anthony C. Infanti eds., 2017); FEMINIST JUDGMENTS: REPRODUCTIVE JUSTICE OPINIONS REWRITTEN (Kimberly E. Mutcherson ed., forthcoming 2020); FEMINIST JUDGMENTS: FAMILY LAW OPINIONS REWRITTEN (Rachel Rebouché ed., forthcoming 2020); FEMINIST JUDGMENTS: TORTS OPINIONS REWRITTEN (Lucinda M. Finley & Martha Chamallas eds., forthcoming 2020). For a full list of other forthcoming volumes in the US Feminist Judgments series, see U.S. Feminist Judgments Project, https://law.unlv.edu/usfeminist-judgments/series-projects (last visited Dec. 15, 2018). See NORTHERN/IRISH FEMINIST JUDGMENTS: JUDGES’ TROUBLES AND THE GENDERED POLITICS OF IDENTITY (Máiréad Enright et al. eds., 2017). See FEMINIST JUDGMENTS OF AOTEAROA NEW ZEALAND: TE RINO – A TWO-STRANDED ROPE (Elisabeth McDonald et al. eds., 2017).

1

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

2

Introduction

international law feminist judgments project6 and a Scottish project.7 Other feminist judgments projects are underway in India, Africa, and Mexico.8 Most of the early projects involved rewriting judicial opinions that were mostly, if not entirely, grounded in questions of constitutional interpretation.9 Starting with Feminist Judgments: Rewritten Tax Opinions, however, scholars and lawyers approached the question posed at the start of this chapter by examining areas of law in which constitutional arguments do not necessarily play a primary role. This development in the series thus takes the sociolegal movement of critical opinion writing in an uncharted direction, exploring various subject matters from a critical feminist perspective.

the appeal of critical opinion writing Critical opinion writing, as a form of scholarship, has tremendous appeal to us – and given the number of completed, ongoing, and nascent projects around the world, it obviously appeals to others in different countries and across a variety of areas of law, too. But why? Critical opinion writing appeals because it represents a multidimensional challenge to preconceived notions about legal subjects and objects, as well as about how law is created and interpreted, and how it develops. Critical opinion writing challenges the law and the legal system to open its vistas. It encourages those who write and rewrite judicial opinions (and those who read and rely on those opinions) to respect varied perspectives. It showcases those viewpoints by including writers from different cultures and socioeconomic backgrounds, and of different genders, races, and sexual orientations. Critical opinion writing challenges rewriters – in this volume, professors or practitioners who are more accustomed to analyzing, applying, and critiquing judicial opinions than to writing them from the ground up – by forcing them to 6 7

8

9

See FEMINIST JUDGMENTS IN INTERNATIONAL LAW (Loveday Hodson & Troy Lavers eds., 2019). See SCOTTISH FEMINIST JUDGMENTS: (RE)CREATING LAW FROM THE OUTSIDE IN (Sharon Cowan, Chloë Kennedy, & Vanessa E. Munro eds., 2019). See Sharon Cowan et al., Feminist Judging: From Margin to Centre, S&LS Blog (Nov. 21, 2018), https://socialandlegalstudies.wordpress.com/2018/11/21/feminist-judging-margincentre/ (discussing the Scottish, Indian, and African projects); Scottish Feminist Judgments Project, www .sfjp.law.ed.ac.uk/ (last visited Dec. 15, 2018); The African Feminist Judgments Project, www .lawandglobaljustice.com/the-african-feminist-judgments-project/ (last visited Dec. 15, 2018); The Feminist Judgments Project: India, https://fjpindia.wixsite.com/fjpi (last visited Dec. 15, 2018); see also email from Alma Luz Kadue Beltran Y Puga Murai regarding Mexican Feminist Judgments (July 7, 2017). Bridget J. Crawford & Anthony C. Infanti, Introduction, in FEMINIST JUDGMENTS: REWRITTEN TAX OPINIONS, supra note 3, at 4.

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

Introduction

3

place themselves in the shoes of the judges or other original authors. Informed by the path that history has taken since the original opinion was written but using only those sources available at the time the original opinion was drafted, the rewriter must wrestle with and resolve the issues and conundrums that judges routinely face. This task demands achieving a just result in the case at hand while taking a broader view of how the case fits into the general framework and structures of the law, so as not to prematurely stymie future legal development or foreclose it altogether. Having played the role of the judge, opinion writers benefit from a new lens through which to view and interpret judicial opinions when they return to their lives as critics and consumers of judicial opinions. This experience should grant rewriters a new appreciation for the difficulty of crafting good judicial opinions and increase their empathy for the work done by judges. At the same time, critical opinion writing challenges judges themselves by highlighting the contingent nature of the opinions they write and their role in the process of making law. Imagining an alternative path for the law – whether by directly displacing the majority opinion in a case or by laying the groundwork for a different path in the future by means of an imagined concurring or dissenting opinion – challenges the tone of neutrality, objectivity, and inevitability that judges generally seek to convey when writing their opinions. Critical opinion writing also undermines the notion that it is not so much the person as it is the office pronouncing a judgment. The rewritten opinions thus pointedly show that, however nostalgic the analogy, a judge deciding cases is much more than a baseball umpire simply calling balls and strikes, as some have contended.10 By producing work in the form of a judicial opinion (rather than the more typical law review article or essay critiquing an opinion), the rewriter challenges the judicial monopoly not only on articulating what the law ought to be, but also on correctly interpreting the law or steering the law toward the cause of justice and the flourishing of society. The commentaries that accompany the rewritten opinions underscore this challenge by explaining just how the rewritten opinions differ from the originals and by imagining a different path for sociolegal history. Taken together, the opinions and commentaries in this volume also illustrate the importance of diversity on the bench, so that judges do not approach their work with a uniform worldview influenced by the same set of preconceptions and advantages, and can thus helpfully challenge and call into question each other’s perspectives.

10

Bob Egelko, Roberts Deftly Evades Attempts to Pin Him Down, S.F. CHRON., Sept. 15, 2006, at A4.d.

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

4

Introduction

For those who read these rewritten opinions (and we hope that some sitting judges and current lawmakers will be among them), critical opinion writing may help to expose the ways in which judges – and, in turn, the development of the law – are subtly influenced by preconceptions, endemic privilege and power hierarchies, and prevailing social norms and “conventional” wisdom. Compared with the originals, the rewritten opinions demonstrate how appreciating alternative perspectives can benefit the law and society as a whole; they reveal how subjective experiences and unchallenged assumptions can influence the interpretation and application of the law and its development. Naturally, the commentaries included with each rewritten opinion in this volume facilitate these revelations, but, in the end, there is no substitute for comparing the original and rewritten opinions side by side for yourself. Whether you are a student of inheritance law, a practitioner, a judge, or merely an interested citizen, actively engaging in this process of questioning judicial decision-making can help to develop your sensitivity to the multiple (and sometimes insidious) influences on any decision-maker. For those of you who are judges, this process may help to raise your awareness of these influences so that they do not inappropriately shape your own opinion writing.

the goals of the project This volume, Feminist Judgments: Rewritten Trusts and Estates Opinions, is unique in that it covers an area of the law that, perhaps more than any other, influences people’s security and opportunities in life. This area of law is about the intergenerational and interspousal transfer of wealth. Women in the United States have less wealth than men – much less. Women have thirtytwo cents for every dollar of wealth that men have.11 Because wealth is primarily transmitted through inheritance, inheritance law – the law of trusts and estates – matters to women. We define the law of wealth transmission as it applies to women and affects women’s access to wealth broadly: It includes access to entitlements such as social security and pension benefits, donative freedom (in other words, the right to devise property as desired), the right to make end-of-life decisions, the right of a surviving spouse to a fair share of a predeceased spouse’s estate, the right of a spouse to be released from a contract that waives her rights to family wealth, the right to form families in nontraditional ways, and much more. 11

Janice Traflet & Robert E. Wright, America Doesn’t Just Have a Gender Pay Gap: It Has a Gender Wealth Gap, WASHINGTON POST, Apr. 2, 2019, available at www.washingtonpost.com /outlook/2019/04/02/america-doesnt-just-have-gender-pay-gap-it-has-gender-wealth-gap/.

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

Introduction

5

This area of law is especially poignant because it applies to the most personal and yet commonplace experiences of life: marriage, divorce, childrearing, sickness, and (of course) death. Paradoxically, these are areas in life in which women are commonly not situated in the same way as men. Do women still feel more pressure than men to marry and have children before a certain age? Does this disadvantage women in discussing and negotiating family wealth issues? How does their greater likelihood of being caregivers for children and elders inhibit their own ability to build wealth? Does the statistical likelihood that a woman will outlive a male spouse make spousal inheritance a more fraught issue for women than for men? A central question of feminist jurisprudence – and hence of this volume – is, How should the law deal with the reality of women’s different situations in these life events? Should it offer women special protections based on this reality, or should it simply express the law’s aspirations by treating women as equals? The goals of this book are to raise these questions in the context of wealth transmission and to make readers connect trusts and estates law with women’s social status and relative lack of wealth. Just as the volume that gave rise to this series, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, showed how feminist analysis can transform the decisions of a nation’s highest court and a volume that might be seen as a companion to this one, Feminist Judgments: Rewritten Tax Opinions, showed how feminist analysis can transform statutory analysis, so too does this volume show how feminist analysis can transform the rules we apply to the making and receiving of gratuitous transfers and ask whether a feminist transformation of this area of law would change women’s wealth. Although feminism’s starting point with respect to trusts and estates is women’s material inequality and how the law should address it, it broadens out, as it must, into wider questions about the wealth disparities of other groups. This is because, first, the question common to all interactions of subordinated groups with the law is whether the law should acknowledge and account for the unevenness of the playing field we stand on or whether it should blindly apply the same standards to everyone and “let the chips fall where they may.” Once we ask this question with respect to women, it becomes inevitable that we ask the question about others as well. The second reason why feminism must confront other types of discrimination is the phenomenon of intersectionality – that is, the way in which multiple vectors of oppression interact when a person is a member of more than one historically unequal group (e.g., an African American woman). There are examples in this book of how these multiple vectors intersect to magnify the

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

6

Introduction

wealth effects of each kind of discrimination. In this volume, Browne Lewis’s rewrite of O’Neal v. Wilkes12 makes exactly this point in showing how the refusal to recognize equitable adoption negatively affects both women as women and African American women as members of their communities. To emphasize and welcome this intersectional approach, we asked two different authors – one from the United States and one from Israel – to write commentaries on the O’Neal opinion. This book has a broader aim than showing people why it is important to look at these issues through a feminist lens; it is also designed to appeal to several different audiences with the hope of raising awareness about the field of estates and trusts. Because this area focuses on death and dying, laypersons may not ordinarily be inclined to read such a book. The opinions and commentaries in this book are therefore written accessibly for anyone who is interested in these issues and opinions – in cases as stories that impact everyone and to which the vast majority of people will be able to relate.

methodology Our process for choosing which trusts and estates cases to rewrite from a feminist perspective was deliberate and thoughtful. We began by putting together a list of cases culled from our own teaching, knowledge, and scholarship. Other than one reproductive technology case and one gender-restricted charitable trust case, the cases did not necessarily address gender on their face, but many of them raised obvious questions of gender as the law was applied. For example, one case involved a woman who was defined as having an “insane delusion” because she left her property to an organization that advocated for woman suffrage. Another involved a testator whose will was invalidated because she devised her property to a younger man with whom she was having a romantic relationship. Other cases are even less obviously about gender, although they have very real and disparate effects on women, both economically and politically. Those cases involve topics such as: how federal law preempts many areas otherwise relevant to trusts and estates law; a surviving spouse’s right to an elective share of the decedent’s estate and the value of her interest; the ability to satisfy child support from trust property; and whether an “equitably adopted” child is entitled to inherit from an intestate decedent. To benefit from the input of colleagues with different areas of expertise, we assembled a diverse and distinguished group of leading trusts and estates scholars as our advisory panel to help us to evaluate the cases on our list as 12

439 S.E.2d 490 (Ga. 1994) (see Chapter 5).

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

Introduction

7

especially deserving (or not) of feminist rewriting and to suggest other cases. This panel consists of Alexander Boni-Saenz, Alfred L. Brophy, Naomi R. Cahn, Camille M. Davidson, Thomas P. Gallanis, William P. LaPiana, Ray D. Madoff, Sergio Pareja, Casey Ross, Robert H. Sitkoff, Phyllis C. Taite, and Michael T. Yu. The names of all of the panel members and their institutional affiliations are listed at the front of this book. We received much valuable feedback from the panel and expanded the list of cases. We then issued a public call for authors, allowing those interested in rewriting an opinion or delivering a commentary to indicate their preferences for any of the cases on the list. Prospective authors were further invited to suggest cases that we had not included. With the goal of choosing the most qualified and diverse range of authors and taking into account the input of our advisory panel, we narrowed the list down to eleven cases. We are proud that our contributors bring to the book a range of expertise and experience. The authors include nationally recognized inheritance law experts, well-known feminist scholars, specialists in other areas of the law (e.g., health law), junior scholars, a practicing attorney, and colleagues whose primary teaching work occurs in the clinical setting. We sought diversity of expertise, gender, ideology, race, sexual orientation, and status in the academy, consistent with an active commitment to a volume that would represent many viewpoints and voices.

what is a feminist judgment, anyway? In our call for participation, we explicitly stated that we, as volume editors, conceive of feminism as a broad movement concerned with justice and equality, as explained above, and that we welcomed proposals to rewrite cases to bring into focus the ways in which traits such as gender, race, ethnicity, socioeconomic class, disability, sexual orientation, national origin, and immigration status may, in isolation or in intersection, influence the outcome of cases. In keeping with the stance taken in the compilation and editing of Feminist Judgments: Rewritten Opinions of the United States Supreme Court, we did not instruct authors on what we believed to be a “feminist” interpretation of the cases or confine them to any certain method or process for completing their work. It is the view of the editors of this volume, shared by the editors of other volumes in the Feminist Judgments series, that while feminism has been historically motivated by concern for equality for women, the most effective and inclusive feminism takes into account the way in which many intersecting identities can make the quest for justice more complex and elusive, given the structure of both the law itself and the meaning of equal protection as interpreted by twenty-first-century courts. We did and do

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

8

Introduction

welcome a diversity of viewpoints about feminism’s goals and practices and how they manifest in judicial opinions. Consequently, this volume includes commentators and opinion writers who disagree about what does and does not make the original and the rewritten opinion feminist.

guidelines for opinions and commentary The purpose of Feminist Judgments: Rewritten Trusts and Estates Opinions is to show (not describe) how certain inheritance law cases could have been decided differently if the judges had brought to bear a more gender-sensitive viewpoint. Authors were free to draw on their own understandings and interpretations of feminist theories and methods, but they were limited to rewriting their opinions based on the law and facts in existence at the time of the original decision. This is a key feature of all the books in the Feminist Judgments series. Whether the question involves statutory law (tax, the Employee Retirement Income Security Act of 1974 or ERISA, elective share) or common law (mental state, trust restrictions, adoption), the rewritten opinions show how a judicial decision often depends on the judges’ experiences, perspectives, and reasoning processes. Opinion authors were free to rewrite the majority opinion, to add a dissenting or concurring opinion, or even to imagine that the original opinion had been appealed and write an opinion affirming or reversing that appeal. Some authors enjoyed the exercise of reenvisioning the original opinion as though they had been part of the deciding court. Other authors found it easier to react to a majority opinion with which they disagreed and therefore chose to write a dissent. Of the eleven rewritten cases in the book, only one is a US Supreme Court decision. We also include decisions from the highest courts in Florida, Georgia, Maryland, Mississippi, Nebraska, New Hampshire, New Jersey, and New York, and from lower courts in Pennsylvania and Tennessee. What the collection demonstrates is that incorporating feminist theories and methods into inheritance cases, regardless of the court, is consistent with judicial duties and accepted methods of interpretation. From a practical perspective, opinion authors were limited to 10,000 words, regardless of whether they were writing reimagined majority opinions, dissenting opinions, or concurring opinions, as appropriate to the court. Commentators had the difficult task of explaining, in 4,000 words or fewer, what the original court decided, how the feminist judgment differs from the original judgment, and what practical impact the feminist judgment might have had on the law in this area. Each opinion and commentary went through at least three rounds of editing with us, and opinion writers and commentators also shared their thoughts with each other throughout the process. In fact,

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

Introduction

9

many pairs of opinion writers and commentators worked quite closely and cooperatively through the rounds of editing, with the commentary writers incorporating points at the request of the opinion writers and opinion writers acting on suggestions from the commentary writers. The members of our advisory panel also graciously read and gave comments on draft opinions, ensuring that the authors received feedback from multiple sources. The ultimate decision to accept or reject feedback, however, remained with the authors. Had we been the authors or commentators, we might have taken a different approach or reached a different conclusion in several cases in the book. And in some cases, as mentioned above, opinion writers and commentators saw issues differently. In any event, we did not press authors to reach the conclusions we would have reached nor did we force opinion writers and commentators to reach agreement. Instead, we celebrate these multiple viewpoints as consistent with the richness and complexity of feminist thought.

organizing the cases The eleven cases in the book span 1947 to 2008. They implicate a wide range of issues, including the adverse impact of paternalism, the basic meaning of equality, marriage, divorce, retirement, blended families, adoption, reproductive technology, charitable gifts, trusts, and end-of-life decision-making. We considered a variety of different organizational frameworks for the cases, attempting to group them by common themes or subject matter. Ultimately, however, because many of the cases involve multiple issues, it was difficult to settle on any one coherent organizing framework. For that reason, we decided to present the cases in chronological order. By presenting cases from oldest to most recent, we hope to have eliminated our personal bias, and readers should be able to develop their own sense of how the opinions relate to each other and how various courts’ styles, language, and reasoning have evolved. All citations in the opinions follow the “blue pages” rules in The Bluebook system of citation that are normally used by judges and practitioners. Citations in the commentaries follow The Bluebook system of citation for law review footnotes.

feminist theories and methods A Formal Equality vs. Substantive Equality Out of the important sex discrimination cases brought before the Supreme Court in the 1970s emerged what might be called a “formal equality” approach

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

10

Introduction

to sex discrimination. In the 1971 trusts and estates case Reed v. Reed,13 the Supreme Court ruled for the first time that a law violated women’s rights to equal protection under the Fourteenth Amendment. That case involved an Idaho statute that accorded an automatic preference for a male administrator of a decedent’s estate, given two individuals equally related to the decedent. Then attorney (now Justice) Ruth Bader Ginsburg wrote the brief on behalf of the Reed plaintiff, successfully arguing that the Idaho law was unconstitutional. Unfortunately, she did not persuade the Court to apply to gender discrimination cases the strict scrutiny that applied in racial discrimination cases.14 Two years later, in Frontiero v. Richardson,15 Ginsburg was amicus curiae for the plaintiff in a case that challenged the Air Force’s automatic allocation of spousal benefits to married male service members, but required married female service members to show that their husbands were dependent on them before receiving a spousal benefit. Eight of the justices agreed that the Air Force’s policy was unconstitutional, but they could not agree on the appropriate level of scrutiny under which to evaluate the law. Thereafter it became likely that gender discrimination claims always would be subject to “intermediate scrutiny,” not strict scrutiny. For many feminists, removing formal obstacles to women’s participation in all aspects of political, social, and economic life was the primary goal of early litigation. Yet others became dissatisfied with this formal equality approach and instead sought reform that would achieve substantive equality between women and men. The underlying rationale is that in cases in which women and men are not equally situated (e.g., pregnancy), treating the sexes the same operates in fact as a form of discrimination against women, by denying them the care they need.16 This problem is illustrated by the case of Geduldig v. Aiello,17 in which the Supreme Court found that the exclusion of pregnancy from the California state disability plan did not violate the Equal Protection 13

14 15 16

17

404 U.S. 71 (1971) (rejecting legal preference between two equally related individuals for the male administrator of a decedent’s estate). See, e.g., Brown v. Bel. of Educ., 347 U.S. 483 (1954) (outlawing segregation in public schools). 411 U.S. 677 (1973). See, e.g., Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 MINN. L. REV. 1, 6 (2011) (“But what about all those situations in which the sex inequality is real, so the sexes are situated unequally? The more pervasive the reality of sex inequality is, the fewer outliers will be permitted in reality, so the more that reality will look like a sex-based difference, mapping itself onto (the social idea of) sex as such, which it will be increasingly rational for law to ignore as it ascends the tiers of scrutiny.”). 417 U.S. 484 (1974).

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

Introduction

11

Clause, on the grounds that the classification made by California was between “pregnant women and nonpregnant persons.”18 The debate about formal equality versus substantive equality echoes clearly in many of the feminist judgments in this book. In her rewritten opinion for Estate of Wilson,19 for example, Camille M. Davidson relies on formal equality feminist theory when she makes the argument that gender-restrictive scholarships that exclusively advantage men should be treated the same as those that solely benefit women. On the other hand, Lynda Wray Black writes a dissent in Khabbaz v. Commissioner20 grounded in the quest for substantive equality. Black makes that point that, because they live longer and make less lifetime income, women are usually the ones seeking social security survivor’s benefits. Thus the denial of those benefits to posthumously conceived children places an undue financial burden on women. B Antisubordination/Dominance Feminism Another significant concern of some feminists is the way in which law reinforces power imbalances. Of differences between men and women, Catharine MacKinnon writes: “[A]n equality question is a question of the distribution of power. Gender is also a question of power, specifically of male supremacy and female subordination. The question of equality is at the root a question of hierarchy, which – as power succeeds in constructing social perception and social reality – derivatively becomes a categorical distinction, a difference.”21 Power differences between races, classes, and along other lines also are feminist concerns, because policies that are neutral on their face can reinforce existing hierarchies and oppressions.22 In their rewritten opinion of Reece v. Elliot,23 Elizabeth Sparks and Browne Lewis rely on antisubordination theory to opine that because contract law advantages men, the woman 18

19 20 21

22

23

Id. at 497. At least in partial response to Geduldig, Congress passed the Pregnancy Discrimination Act of 1974. See 42 U.S.C. §2000(e) et seq. That Act requires, among other things, that employers treat pregnant employees the same as employees with similar ability to work. 452 N.E.2d 1228 (N.Y. 1983) (see Chapter 4). 930 A.2d 1180 (N.H. 2007) (see Chapter 11). Catharine A. MacKinnon, Difference and Dominance, in FEMINISM UNMODIFIED 40 (1987). In her early writings, Professor MacKinnon called this the “dominance approach,” but she has explained that “it’s as much about subordination as dominance”: Emily Bazelon, The Return of the Sex Wars, N.Y. TIMES MAG., Sept. 10, 2015, at 56, available at www.nytimes.com/2015/09/13/ magazine/the-return-of-the-sex-wars.html. Ruth Colker, Anti-Subordination above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. REV. 1003, 1007–10 (1986). 208 S.W.3d 419 (Tenn. Ct. App. 2006) (see Chapter 10).

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

12

Introduction

would be disadvantaged if the court were to enforce the prenuptial agreement that the parties signed. Even the ostensibly neutral task of placing an economic value on a property interest can be impacted by gender. In revisiting Estate of Myers,24 Karen Sneddon explores the gendered implications of the elective share, including how a particular state’s law reduces the surviving wife’s right to elect against her decedent husband’s estate by the value of the wife’s life interest in a trust that the husband created. Sneddon explains that the court’s failure to make reasonable findings that would support a fair and equitable valuation of the wife’s life interest disadvantages the surviving spouse, thereby exacerbating the gender wealth gap and reinforcing the cycle of female dependence and inexperience in handling financial matters. Carrie Hagan takes a parallel approach in her rewrite of Drevenik v. Nardone,25 a case involving a claim for child support from the trustee of the claimant’s exhusband’s trust. Although child support laws are written gender-neutrally, Hagan describes how women are significantly more likely than men to be custodial parents and to need child support. C Intersectionality, Antiessentialism, and Multiple Identities One important branch of feminist legal theory that emerged in the 1990s was a critique of the idea of “women” as a monolithic category, without recognition of differences of race, class, immigration status, sexuality, or other significant identity categories. Angela Harris, for example, writes against what she calls “gender essentialism” – “the notion that there is a monolithic ‘women’s experience’ that can be described independently of other facets of experience like race, class and sexual orientation.”26 Kimberlé Crenshaw similarly critiques any feminism that ignores the fact that gender may represent only one axis of a woman’s oppression, when in fact oppression may intersect along the axes of gender and race.27 As mentioned above, Browne Lewis illustrates this theory in her rewrite of O’Neal v. Wilkes. Lewis contends that the original court would have reached a different outcome if it had acknowledged the informal family arrangements that are quite common in the African American community. The precedent set by the original O’Neal opinion uniquely disadvantages women of color, who are often reluctant to participate in formal 24 25 26

27

256 Neb. 817, 594 N.W.2d 563 (1999) (see Chapter 7). 862 A.2d 635 (Super. Ct. Pa. 2004) (see Chapter 9). Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 585 (1990). Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139.

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

Introduction

13

adoptions because of their distrust of the judicial system. Another feminist judgment that illustrates an intersectional, antiessentialist approach is Julia Belian’s rewrite of In re Will of Moses.28 Belian shows how it is not simply the fact that Fannie Traylor Moses was a woman that led the court to invalidate her will on the grounds of undue influence, but also that Moses was middleaged, disabled, alcoholic, and unconventional in her personal life. These characteristics combined to make her experience different from that of the imagined “typical” woman. D Autonomy and Agency An emphasis on the ability of women – and all people – to make decisions about their own bodies is an important feminist commitment. For some feminists, that manifests as a concern about the ability to control whether and when to become pregnant or to continue a pregnancy, or resistance to government interference with women’s bodies through forced sterilization or forced caesarean sections.29 It is also a fundamental methodological commitment of many feminists to engage in what Katharine Bartlett has called “feminist practical reasoning,” which includes taking a broad approach to the facts of each particular case.30 Several rewritten opinions in this book accentuate the autonomy or agency of the decedent, in ways that the original opinions did not, and they also provide a factually rich context for the cases. Along with taking an intersectional approach, Belian’s rewrite of In re Will of Moses emphasizes the testator’s independence and competence in affirming her “unconventional” bequests. In doing so, Belian’s rewrite reclaims the testator’s agency from the grasp of the prejudice and stereotypes evident in the original opinion. E Women’s Experiences and Intimate Relationships It is not surprising that much of feminist scholarship is devoted to women’s experience of their lives as women.31 And because women are, in the view of 28 29

30

31

227 So.2d 829 (Miss. 1969) (see Chapter 3). See, e.g., Rosalind Pollack Petchesky, Abortion and Woman’s Choice: The State, Sexuality, and Reproductive Freedom, in FEMINIST JURISPRUDENCE: CASES AND MATERIALS 413–16 (Cynthia Grant Bowman, et al. eds., 4th ed. 2011). See generally Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829, 849–58 (1990). MARTHA CHAMALLAS, INTRODUCTION TO FEMINIST LEGAL THEORY 4–5 (3d ed. 2013) (describing feminist commitment to studying women’s experiences as an outgrowth of the “consciousnessraising groups of the late 1960s and early 1970s, where women were encouraged to express their

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

14

Introduction

Robin West, “profoundly relational,”32 one subject of feminist legal analysis is marriage as an organizing principle in private and public life. Whatever one’s position on women as more or less “relational” than men, marriage and women’s legal status within marriage has indeed long been a subject of feminist critique. In this volume, marriage and its economic and social implications are key considerations of several of the feminist judgments included. For example, Naomi Cahn’s rewritten opinion in Egelhoff v. Egelhoff33 – addressing ERISA preemption in the context of a state revocation-on-divorce statute – explores the history and goals of state and federal statutes governing retirement and how the rules relating to spouses can have disproportionately negative effects on women. Allison Tait’s rewritten opinion in Karsenty v. Schoukroun34 explores the historical events that gave rise to the adoption of an elective share in Maryland, including how trusts were used to sidestep women’s dower rights and how, as early as the turn of the nineteenth century, Maryland courts guaranteed a surviving wife a portion of a decedent husband’s estate – until courts started clouding this right by looking at the decedent’s intent. Tait’s opinion in Karsenty reconfirms a bright-line rule that restores the original purpose of the elective share in Maryland to put marital partners on a more equal footing. These judgments relating to marriage are informed by a focus on women’s experience and consideration of the ways in which the law reproduces patterns of men’s dominance over women – two classic moves in feminist legal theory.35 F Uncovering Implicit Male Bias Martha Chamallas has identified uncovering implicit bias and male norms in the law as one of the “opening moves” of feminist theory.36 Chamallas is referring to a commitment to uncovering the way in which laws that appear neutral on their face are based on and embody male experiences or male ideals. Kristen Tiscione’s rewritten opinion resolving the dispute in In re Strittmater’s Estate37 accomplishes this task in the context of the wills doctrine

32

33 34 35 36 37

subjective responses to everyday life and discovered that ‘the personal was political,’ in the sense that their personal problems also had a political dimension”). Robin L. West, The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 15 WIS. WOMEN’S L.J. 149, 210 (2000). 532 U.S. 141 (2001) (see Chapter 8). 959 A.2d 1147 (Md. 2008) (see Chapter 12). Chamallas, supra note 31, at 4–5, 11–12. Id. at 8. 53 A.2d 205 (N.J. 1947) (see Chapter 2).

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

Introduction

15

of insane delusion. Tiscione’s opinion shows how a seemingly objective test – an unreasonable belief held against all evidence to the contrary – can, in its application to decisions made by women, embody stereotypes and bias. This theme is also evident in Elena Marty-Nelson’s dissent in Via v. Putnam.38 In that case, the court ignores the wishes of the decedent’s first wife and permits the second wife to inherit even though the couple in the first marriage had mirror wills. Marty-Nelson’s dissent highlights how the majority permits the man’s actions to dictate the resulting plights of both women. G Additional Resources In describing some of the feminist theories and methods that writers of these feminist judgments employ, we have detailed only a small number of the multiple perspectives, concerns, and methods that comprise the rich field that is feminist legal theory. We have not mentioned socialist feminism,39 postmodern feminism,40 third-wave feminism,41 pragmatic feminism,42 queer theory,43 or cultural feminism,44 to name just a few other perspectives. For those who want to learn more about feminist legal theory generally, we recommend Martha Chamallas’s book Introduction of Feminist Legal Theory.45 For those curious about feminist legal theory as applied to feminist judgments in particular, the first two chapters of Feminist Judgments: Rewritten Opinions of the United States Supreme Court provide a great deal of background and context.46

conclusion This volume seeks to challenge its readers in a number of ways. First, and most importantly, it challenges readers to ask, “What might have been?,” and the 38 39

40

41

42 43

44

45 46

656 So.2d 460 (Fla. 1995) (see Chapter 6). See, e.g., Cynthia Grant Bowman, Recovering Socialism for Feminist Legal Theory in the 21st Century, 49 CONN. L. REV. 117 (2016). See, e.g., Mary Jo Frug, A Postmodern Feminist Legal Manifesto (An Unfinished Draft), 105 HARV. L. REV. 1045 (1992). See, e.g., Bridget J. Crawford, Toward a Third-Wave Feminist Legal Theory: Young Women, Pornography and the Praxis of Pleasure, 14 MICH. J. GENDER & L. 99 (2007). See, e.g., Margaret Jane Radin, The Pragmatist and the Feminist, 63 S. CAL. L. REV. 1699 (1990). See, e.g., Patricia A. Cain, Feminist Jurisprudence: Grounding the Theories, 4 BERKELEY WOMEN’S L.J. 191 (1989); Diana Majury, Refashioning the Unfashionable: Claiming Lesbian Identities in the Legal, 7 CAL. J. WOMEN & L. 286 (1994). See, e.g., NANCY CHODOROW, THE REPRODUCTION OF MOTHERING: PSYCHOANALYSIS AND THE SOCIOLOGY OF GENDER 57–76 (1978) (marking the beginning of gender difference as infancy). See supra note 31. See supra note 3.

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

16

Introduction

sequel question, “What could be?” These rewritten opinions offer us an opportunity to question the inevitability, in the words of playwright Berthold Brecht, of “the way things turned out.” Brecht sought in his drama to prevent the audience from making an emotional connection and thus identifying with the characters. Instead, he wanted the spectators to challenge and critique the characters’ words and actions and to question their rightness or necessity. In the same way, these opinions and commentaries seek to disrupt the reader’s identification with the law as part of “the way things are” and encourage them instead to question outcomes and to imagine different ones. On a more granular level, these opinions try to present specific ways in which feminist thought can and should inform legal doctrine. There is no doubt that law in general has been written and practiced by men for most of its history; the entry of women and feminism onto the legal stage is relatively recent. This volume is an exploration of how that influence might look moving forward as it asks us to revisit seemingly settled doctrines and perspectives in inheritance law. Looking at these cases with new eyes might lead to more equitable outcomes for women in the future.

https://doi.org/10.1017/9781108860963.002 Published online by Cambridge University Press

2 Commentary on In re Strittmater’s Estate lloyd bonfield and bridget j. crawford

background “Feminism . . . is plainly not insanity.”1 That was the pronouncement of a New Jersey lower court in 1944 in rebuffing extended family members who objected to the probate of the will of a woman who left the bulk of her estate to an equal rights organization. But New Jersey’s highest court did not embrace the same sentiment in its final decision in Strittmater’s Estate,2 a case that has come to illustrate for generations of law students the doctrine of insane delusion. New Jersey’s highest court attributed Louisa Strittmater’s testamentary dispositions to her “insane hatred of men,” disregarding the fact that she had limited contact with her extended family. In Strittmater, the New Jersey Court of Errors and Appeals substituted its judgment for the testator’s, overriding the law’s longstanding commitment to the principle of testamentary freedom. The ten male judges who voted to set aside Strittmater’s will exercised the very kind of patriarchal control that the decedent had resisted her entire life. Louisa Strittmater was born in 1896 and joined the National Woman’s Party in 1925. The National Woman’s Party, founded by woman suffrage advocate Alice Paul, devoted its early efforts to securing women the right to vote. With the ratification of the Nineteenth Amendment in 1920, the organization shifted its focus to passing an equal rights amendment (ERA) to the US Constitution. For many years, Strittmater volunteered weekly to do clerical work in offices of the National Woman’s Party. She regularly spoke to family members and neighbors about the importance of women’s equality. She tried to recruit others to the organization. In 1940, Strittmater corresponded with Alice Paul, stating her intention to make the National Woman’s Party the “beneficiary of a legal document.” Strittmater died of cancer in 1944 at the age 1 2

Advisory Master’s Conclusions, Estate of Strittmater 5 (Essex County Orphans’ Ct. 1945). 53 A.2d 205 (N.J. 1947).

17

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

18

In re Strittmater’s Estate

of forty-eight. In her will, she made testamentary bequests of personal and household effects and a modest amount of cash to her cousin. Strittmater left the remainder of her estate to the National Woman’s Party and appointed the organization as executor of her will. Louisa Strittmater was an unusual woman in many respects. In an era when most women married, Strittmater remained single her entire life and never had children.3 Strittmater’s parents died when she was in her early thirties, and she supported herself by renting out rooms in the Bloomfield, New Jersey house she inherited from her parents. She collected the rents personally, made repairs to the property herself, conducted regular banking transactions, and participated in the local small business association. She was not a wealthy woman, but Strittmater managed her own finances, owned many pleasure-reading books, enjoyed visiting museums, and saw the occasional film at the movie house in Newark. She was a private person, though, and did not talk at length about her extended family members, even when her doctor asked for the names of her next of kin on the eve of an important surgery. Indeed, Strittmater saw her next of kin – her cousins and uncle – only infrequently, with multiple years passing between visits. She “never indicated any hate or hatred for any of her relatives,”4 but was not close to them by any measure. Equal to (or perhaps even greater than) Strittmater’s independence and self-sufficiency were her eccentricities. She had contentious relations with neighbors: She mowed down a neighbor’s flowers, tossed cans into a neighbor’s yard, hurled an empty baby carriage from the sidewalk into the street, raked leaves under a neighbor’s car and set them on fire, and peered into tenants’ windows. One of her tenants complained that Strittmater worked noisily in the basement of the house after midnight, intermittently turning a flashlight on and off. On a few occasions, Strittmater appears to have “exposed herself” to others by sitting on her elevated porch steps and ascending a ladder (presumably without undergarments). Strittmater’s personal physician reported that there was “nothing usual” about Strittmater and that she “was a paranoiac of the type . . . of split personality . . . [These types of patient] are always on the defensive, they are always abused.”5 Strittmater allegedly was violent on two occasions 3

4 5

From the time Strittmater was twenty years old to the time she was forty years old, marriage rates for women hovered between 75 and 80 percent. See US Department of Health, Education, and Welfare, 100 YEARS OF MARRIAGE AND DIVORCE STATISTICS, UNITED STATES 1867–1967 (1973), available at https://stacks.cdc.gov/view/cdc/12831. Caveat against Probate of Will, Essex County Surrogate’s Court 50 (testimony of Ruth Robbins). Caveat against Probate of Will, Essex County Orphans’ Court 91 (testimony of Dr. Sarah Smalley). It is possible that Dr. Smalley misspoke, intending to say that patients like

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

In re Strittmater’s Estate

19

in her lifetime: She threw a kitten after it jumped on her, and she smashed a clock against the wall. There is no doubt that Strittmater came to have strained relations with (or at least unpleasant memories of) her parents. Strittmater wrote, in the margins of a personal book, “My father was a corrupt, vicious and unintelligent savage – a typical specimen of the majority of his sex. Blast his worm stinking carcass and his whole damn breed.”6 On the reverse of a family photograph, Strittmater wrote that her mother was a “moronic she-devil.”7 Strittmater also said that her mother was a “two-faced parasite [who] sacrificed me to her emotional satisfaction.”8 It is not clear what prompted these comments or why Strittmater experienced a change from what she otherwise reported as a pleasant childhood.9 There is no doubt that Strittmater had negative feelings about men in general. Strittmater said that “women were going to rule the world” and that “men were beasts and that male children when they are born should be thrown in to the fire.”10 She believed “that men were primarily interested in sex,”11 and she patronized female doctors when she could. Strittmater’s dislike of men did not seem to extend to every individual man she knew, however. She had cordial relations with her male attorney, her male banker, the male head of the local small business association, and at least one of her male tenants. After Strittmater’s cancer surgery and death shortly thereafter, her attorney promptly offered the will for probate. Two of Strittmater’s cousins and an uncle objected; they sought to have the will set aside on the grounds that Strittmater had a delusion “directed against her male relatives and in fact all men,” and therefore alleged that she lacked the requisite mental capacity to execute a will. In a lengthy report, an Advisory Master of the Essex County (N.J.) Orphans’ Court recommended that the will be admitted to probate. Although the Advisory Master’s report is somewhat confusing, it rests on two grounds: first, that Strittmater’s “hatred of men” was not “constructed out of unrealities adhered to against all reason”; and second, that her interest in

6

7 8

9 10 11

Strittmater were “abusive” (not “abused”) or that there was an error in the testimony’s transcription, but that is not clear. Memorandum, New Jersey Prerogative Court, Appeal of Decree of Orphans’ Court of County of Essex, Estate of Strittmater 23 (1946). Id. Caveat against Probate of Will, Essex County Orphans’ Court 94 (testimony of Dr. Sarah Smalley). Id. Caveat against Probate of Will, Essex County Orphans’ Court 51 (testimony of Ruth Robbins). Caveat against Probate of Will, Essex County Orphans’ Court 129 (testimony of Mildred V. Palmer).

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

20

In re Strittmater’s Estate

women’s rights made the selection of the National Woman’s Party as the primary beneficiary of her estate “natural.” She had not seen her cousins or uncle more than three times in the ten years preceding her death.12 Upon the Advisory Master’s recommendation, the Surrogate admitted the will to probate. Because the National Woman’s Party was not authorized by state law to act as the executor of a New Jersey decedent’s will, the Surrogate appointed Strittmater’s long-time attorney as executor instead.

original opinion On appeal, the New Jersey Prerogative Court reversed the decision of the Essex County Orphans’ in a short, six-paragraph opinion. Unlike the Advisory Master, who had mostly disregarded the testimony of Strittmater’s personal physician, a general practitioner, the Prerogative Court judge relied heavily on the physician’s view that Strittmater suffered from paranoia and insane delusions. The Prerogative Court judge made no note, as the Advisory Master had, of the different standards for mental illness from a medical perspective, on the one hand, and the mental capacity required to execute a will, on the other. As evidence that her will was the product of an insane delusion, the Prerogative Court cited Strittmater’s negative writings about her parents, her “insane hatred” of men, her statements about men generally, her use of foul language, and two violent incidents (the throwing of the kitten and smashing of the clock). The judge noted in dicta that Strittmater had been a member of the National Woman’s Party for several years. Notwithstanding Strittmater’s regular volunteer work for the Party and her efforts to get others to join the organization, he followed that observation by stating, “[T]he evidence does not show that she had taken great interest in it.” The Prerogative Court also noted that Strittmater had minimal contact with her cousins toward the end of her life, but failed to indicate what weight he accorded to that fact. He then summarily ruled that the will was the product of an insane delusion and should be set aside. The Court of Errors and Appeals of New Jersey (now the Supreme Court of New Jersey) affirmed the decision of the Prerogative Court by a vote of ten to two. The Court of Errors and Appeals did not set forth its reasoning; instead, it simply stated “Decree affirmed” and quoted in its entirety the six-paragraph opinion of the Prerogative Court. 12

Advisory Master’s Conclusions, Estate of Strittmater 14 (Essex County Orphans’ Ct. 1945).

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

In re Strittmater’s Estate

21

Law school casebooks on trusts and estates often include the Strittmater opinion to illustrate the ill-defined concept of insane delusion. Scholars typically classify insane delusion as a subset of mental capacity claims. In New Jersey, an insane delusion is one “which has no real existence except in its imagination and its persistent adherence to it against all evidence.”13 In other words, an insane delusion is “one to which the testator adheres against all evidence and reason to the contrary.”14 Thus, if the alleged delusion has some grounding in reality, then it is not insane (and thus not a proper probate challenge). For example, a testator may choose to leave all of her assets to one of her two surviving adult children. Assume that, during her lifetime, a testator tells anyone who will listen that Child A is plotting to steal the testator’s jewelry and that the testator therefore intends to leave all of her assets to Child B. Child A appears to be a paragon of virtue in all respects, however, and no one (other than the testator) believes that Child A is remotely capable of stealing jewelry from anyone, let alone a member of the family. After the testator’s death, Child A objects to the probate of the will on the grounds that the testator was suffering from an insane delusion regarding the stealing of jewelry. If the will proponent produces a (legally obtained and thus admissible) recording of Child A talking about how much she loved and coveted the testator’s jewelry, the insane delusion claim should fail: The testator’s belief had some basis in reality. In addition, for an insane delusion claim to be successful, the delusion must impact the will’s disposition. For example, a testator might execute multiple wills over a period of fifty years, in each will leaving all of her assets to Charity X and Charity Y, altering the percentage from time to time based on her assessment of the charities’ needs. The testator has no intention of leaving any property to either Child A or Child B, because they are well provided for via lifetime trusts. When the testator dies with a will that leaves her entire estate in equal shares to Charity X and Charity Y, Child A is unlikely to be successful in asserting that an insane delusion caused the testator’s particular dispositive plan. The testator has no obligation to leave anything to her children. The nature of testamentary freedom is such that the testator can leave property to whomever she chooses (subject to certain rights of a surviving spouse). And if testamentary freedom means anything in theory, a testator does not need to have a “good” reason (or any reason at all) for making a particular disposition. Practically speaking, though, when 13

14

Advisory Master’s Conclusions, Estate of Strittmater 14 (Essex County Orphans’ Ct. 1945) (internal citations omitted). Robert J. Sitkoff & Jesse Dukeminier, WILLS TRUSTS & ESTATES (10th ed. 2017).

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

22

In re Strittmater’s Estate

a testator or her estate plan does not conform to conventional expectations, a court may be open to an insane delusion claim. That doctrine provides the court some “cover” for imposing its own views about the disposition that a testator should have made. In this hypothetical, because the testator had a similar estate plan in effect for many years (only the respective percentages passing to Charity X or Charity Y varied) and because her children were well provided for, a court is not likely to entertain Child A’s claim that the testator suffered from an insane delusion. Strikingly, the opinion of the Prerogative Court (repeated by the Court of Errors and Appeals) in Strittmater fails to cite any legal authority or to engage with either prong of the insane delusion analysis: whether Strittmater had an insane delusion, and if so, whether that delusion caused Strittmater’s disposition to the National Woman’s Party. Arguably, both the Prerogative Court and the Court of Errors and Appeals found Strittmater to be unsympathetic as a human being or disapproved of the designated recipient of her estate (or both). The courts substituted their judgment for hers. Admittedly, the Special Master below likely was no Strittmater fan either. He wrote that Strittmater embraced “feminism to a neurotic extreme” and that she was foul-mouthed, violent, vituperative toward her parents, possessed an “unwholesome imagination,” and possibly even kept a stash of gold coins in her basement. Thus it is not unreasonable to conclude that the Special Master thought that Strittmater was odd at least and, in any case, out of step with behavioral standards for polite, well-bred, middle-class white women of the era. Nevertheless, the Special Master found that Strittmater’s support for an organization advocating legal equality for men and women was “not irrational.”15 This may have been because of the Special Master’s own assessment of the reasonableness of seeking equal rights for men and women or because of an unstated assumption that Strittmater’s negative feelings about men were well grounded in her personal experience. (The twenty-first-century reader does surmise that there may be more information relevant to Strittmater’s personal story than the court record reveals.) The Special Master noted that Strittmater had carefully considered the goals of the National Woman’s Party and corresponded with its leader about supporting the organization. These facts, combined with Strittmater’s demonstrated competence in managing her business and financial affairs,16 suggested to the Special Master that she was tethered to reality and capable of making 15 16

Advisory Master’s Conclusions, Estate of Strittmater 6, 7 (Essex County Orphans’ Ct. 1945). Advisory Master’s Conclusions, Estate of Strittmater 9–11 (Essex County Orphans’ Ct. 1945).

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

In re Strittmater’s Estate

23

testamentary plans that should be respected. In contrast, the Prerogative Court and the Court of Errors and Appeals overrode the carefully considered testamentary plans of an odd, eccentric (and perhaps unkind or even unwell) woman. Both of these courts ignored the law in doing so.

feminist judgment The feminist opinion of Professor Kristen Konrad Tiscione, writing as Justice Tiscione, reaches the opposite result to that of the Court of Errors and Appeals. Tiscione reverses the decision of the Prerogative Court and remands the case, effectively upholding the finding of the Special Master and the Orphans’ Court’s admission of Strittmater’s will to probate. Central to Tiscione’s analysis is a more robust and authentic presentation of Strittmater’s life story; that is consistent with the feminist legal method of emphasizing the importance of women’s experiences as women.17 Tiscione fills in a detailed timeline, enabling the reader to discern why a seemingly dutiful daughter who had assisted two aged immigrant parents might have morphed after their death into an eccentric (or, as some might say, even angry, lonely or mentally ill) woman. Tiscione identifies two distinct periods in Strittmater’s life: the first two-thirds under the control of her parents, and the last third (from the age of thirty-two to her death at the age of forty-eight) as a woman navigating the world on her own with little money or education. Within the structure of this German immigrant family, undoubtedly the care of her father fell to Strittmater after her mother’s death. Strittmater was not especially old or young (she was in her early thirties when her parents died), but she lived in the wake of World War I. That war resulted in the deaths of 120,000 American men. Almost three times as many were seriously wounded. Whether personal preference, family obligations or demographics contributed to Strittmater’s life choices, she remained bound to the patriarchal family for the first two-thirds of her life. Tiscione effectively locates Strittmater’s personal development in the larger historical context of the women’s rights movement. She joined the National Woman’s Party in 1925 (at the age of twenty-nine); this was before her parents died. It is possible, as Tiscione intimates, that affiliation with the National Woman’s Party was one of the ways in which Strittmater was able to assert her agency outside the family. Tiscione also notes that the

17

See, e.g., Patricia Cain, Feminist Legal Scholarship 77 IOWA L. REV. 19, 20 (1991) (“[L]egal scholarship is not feminist unless it is grounded in women’s experience”).

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

24

In re Strittmater’s Estate

ERA, sponsored by the National Woman’s Party, came to a vote in the US Senate during the time that Strittmater’s cousins were appealing the probate of her will. Thus, while national leaders debated what constitutional protections, if any, would be extended to women, the judges in the Strittmater case squarely confronted the question of how much autonomy the law will grant to someone at death and whether the range of that autonomy differs depending on whether the decedent is male or female, socially conforming or more eccentric. Tiscione’s feminist judgment provides rich context for the insane delusion claims raised by the objectants to the will. There are long literary, medical, and legal traditions that treat independent or nonconforming women as mentally unhinged. Consider, for example, the groundbreaking work of Sandra Gilbert and Susan Grubar in The Mad Woman in the Attic,18 or the association of female “hysteria” with criminality.19 In this vein, Tiscione focuses in particular on the testimony of Strittmater’s personal physician (who was not a specialist in mental illness). The doctor cited as reasons for her diagnosis of a “split personality” Strittmater’s reluctance to supply the names of relatives (with whom she was not close) before surgery and her unwillingness to get undressed for a physical examination during one visit to a doctor’s office. These actions are hardly proof of mental illness. And yet even if Strittmater had been mentally ill, that does not mean that she could not execute a legally valid will. In arguing for Strittmater’s testamentary capacity, Tiscione emphasizes her autonomy and agency. She focuses the reader on Strittmater’s intelligence, competence in business affairs, volunteer work on behalf of the National Woman’s Party, and long-held desire to confer a testamentary benefit on the Party in preference to her relatives, with whom she was not particularly close (but with whom she had no conflict either). In order to give full legal recognition to Strittmater’s autonomy as of legally sound mind, Tiscione emphasizes the importance of allowing her to exercise full dominion over her property. The court, therefore, should not have substituted its judgment in favor of the testator’s “in the name of what we or her family thinks is right.” In Tiscione’s reading, Strittmater was as capable as any man of making her own decisions, and those decisions deserved respect under the law. Indeed, for the court to take testamentary freedom away from Strittmater was to commit precisely the sort of paternalistic abuse against 18

19

Sandra Gilbert & Susan Gubar, THE MADWOMAN IN THE ATTIC: THE WOMAN WRITER AND THE NINETEENTH-CENTURY LITERARY IMAGINATION (1979). See, e.g., Caesar Lombroso & William Ferrero, THE FEMALE OFFENDER 218 (1895).

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

In re Strittmater’s Estate

25

which she railed: forcing women’s figurative and literal wills to bend to the judgment of men, all in the name of “protecting” women from themselves.

feminist implications At one level, it is tempting to dismiss the original decision in Strittmater as inconsequential; it has been cited only twice by other courts.20 At another, Strittmater continues to serve as the paradigmatic case on insane delusion, even if some instructors use it to critique the doctrine as an empty vessel that a deciding authority (i.e., a probate judge or appellate judges) may fill with value judgments. The Strittmater case thus has had an outsized influence on generations of law students (many of whom are now lawyers) who are well acquainted with an assumption in law about the relationship between difference and mental incapacity. Had Tiscione’s opinion been the actual decision of the New Jersey Court of Errors and Appeals, insane delusion in the context of equal rights for women would have been revealed clearly as a male pretense for mounting a will challenge. A person may be eccentric, difficult, lonely, unusual or even insane in some clinical sense, but that does not mean she lacks the ability to create a valid will. After all, “[f]eminism . . . is plainly not insanity.”21 Tiscione’s rewritten feminist judgment thus exposes the deep misogyny driving the Strittmater opinion. As Tiscione observes, valid wills can (and often do) seem “unnatural, unjust, and even cruel.” Certainly Strittmater’s intestate heirs so concluded and therefore attacked the will’s validity. But what is a “natural” disposition is entirely subjective. One of the important contributions of feminist legal theory – and Tiscione’s feminist judgment – is challenging the alleged “neutrality” or “naturalness” of structures, systems, and norms.22 Tiscione’s feminist judgment illuminates the use of the doctrine of insane delusion in this case as both a product and constituent part of male-dominated political, social, and legal systems. 20

21 22

See, e.g., In re Estate of Malone, No. A-6147-12T2, 2014 WL 5712975 (N.J. Super. Ct. App. Div. Nov. 6, 2014) (citing Strittmater for the proposition that a will contestant must prove lack of capacity at time of will execution); and In re Estate of Coffin, 246 A.2d 489 (N.J. Super. Ct. App. Div., 1968) (citing Strittmater for the proposition that a will contestant alleging that the testator suffered from insane delusion must prove that the disputed instrument or provision was the product of an insane delusion). Advisory Master’s Conclusions, Estate of Strittmater 5 (Essex County Orphans’ Ct. 1945). See, e.g., Katharine T. Barlett, Feminist Legal Methods, 103 Harv. L. Rev. 829, 862 (1990) (“Feminists’ substantive analyses of legal decisionmaking have revealed to them that so-called neutral means of deciding cases tend to mask, not eliminate, political and social considerations from legal decisionmaking”).

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

26

In re Strittmater’s Estate

I N R E S T R I T T M A T E R ’ S E S T A T E , 5 3 A . 2d 2 0 5 (N.J. 1947)

justice kristen k. tiscione, delivering the opinion of the court This is an appeal from a decree of the Prerogative Court reversing the Essex County Orphans’ Court’s decision to probate the last will and testament of Louisa F. Strittmater. The issue is whether a single and eccentric woman, who belonged for nearly twenty years to an organization that works to achieve equal rights for women, lacked testamentary capacity to leave the bulk of her estate to that organization. The appellees – her uncle, two male cousins, and a female cousin – argue that she was governed by insane delusions about men that caused her to disinherit her male relatives. We reverse the Prerogative Court and remand the case for proceedings not inconsistent with this opinion.

i Louisa was an only child, born in 1896 to German immigrants, Joseph and Josephine. The record reveals little about her childhood, education, or relationship with her parents. At the age of nineteen, Louisa joined the National Woman’s Party (Party), a political organization with a large following. The Party was formed in 1916 by Alice Paul, the famous suffragist from Mount Laurel Township. Paul and the Party were instrumental in gaining women’s right to vote with the ratification of the Nineteenth Amendment. Shortly thereafter, Paul cowrote the Equal Rights Amendment (ERA). Last year, while this case was pending before the Prerogative Court, the US Senate voted on the ERA for the first time; it was defeated by a vote of thirty-eight to thirty-five. Louisa belonged to the Party her entire adult life. When Louisa’s father died in 1928, her mother having predeceased him, Louisa inherited the family home. At the age of thirty-two, she took in boarders as her sole source of income. Until her death, Louisa managed all her own personal and business affairs. She purchased and prepared her own food, collected rent from tenants, and took care of the property, including mowing the lawn and making repairs, such as painting and paper-hanging. She belonged to the local landlords’ association for fifteen years. In the early 1930s, Frederick Weber, the president of the association,

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

In re Strittmater’s Estate

27

referred Louisa to Laurence Semel, a lawyer she then retained to collect unpaid rent. She retained Semel several times thereafter to appeal the tax assessment of her property. In 1939, she borrowed money from a local bank to pay back property taxes and made regular mortgage payments until her death. In the late 1930s, Louisa told Semel she was interested in including the Party in her will. From 1939 until at least 1941, Louisa volunteered once a week in the Party’s New York office, typing, filing, and clipping press notices. Prior to that, she may have volunteered regularly at the New Jersey office until it closed. At some time in 1940, Louisa spoke with the Secretary of the Party’s New York office, Mildred Palmer, about how to leave money to the Party. Palmer referred her to the Washington, DC office. In July 1944, Louisa wrote a letter to Alice Paul in Washington stating that the work of the Party was “of supreme consequence to women” and informed Paul that she intended “to make the N.W.P. beneficiary of a legal document.” It is not known if the letter was sent or received. As Louisa got older, she changed. She became secretive, bitter, antagonistic, and sometimes cruel. As a young woman, she wrote about pleasant memories of her childhood and spoke kindly about her parents. After her parents died, she wrote about her father, “Blast his worm stinking carcass and his whole damn breed.” Several years later, she described him as “a corrupt, vicious and unintelligent savage – a typical specimen of the majority of his sex.” Her vitriol extended to her mother, whom she described as a “moronic she-devil” and a “two-faced parasite [who] sacrificed [Louisa] to her emotional satisfaction.” Helen Morse, one of Louisa’s tenants in 1941, testified before the Orphans’ Court that Louisa had encouraged her to join the Party. Morse also stated that if you disagreed with Louisa, “[S]he would turn on you.” She sometimes drank to excess, used vile language, mocked Morse’s lame daughter, and called the neighborhood children names. Morse and others testified that Louisa mowed down the flowers in her neighbor’s yard at least once, kept strange hours, spent time down in the cellar in the middle of the night mumbling and carrying on, lit a fire of leaves under a neighbor’s car, and would sometimes sit at the top of her front steps without underclothes and expose herself. When she felt questioned, she became defensive, and she told neighbors and acquaintances to mind their own business. Louisa shared her general feelings toward men in varying degrees with two female relatives, Ruth Robbins and Margaret Strittmater, and several acquaintances, including her general practitioner, Dr. Sara Smalley; her tenant, Morse; and a friend, Jane Beech. She told her cousin Ruth that “all male children

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

28

In re Strittmater’s Estate

should be throwed in a fire when they were born” and that “women were going to rule the world.” She told Morse that “men as a whole were beasts,” that they “should be exterminated,” and that “science would take care of” existing without them. She told Beech that men were the natural enemies of women and used women as slaves. Louisa often said similar things to Margaret, her cousin Joseph’s wife, saying she hated men and they should “go back” to being apes. She owned thirty-five books when she died, thirty-four of which Ruth described as “sex books.” In these, she wrote comments, such as “[m]ale lust is a vicious disease, literally a cancer in the side of the race. We are still in the dark ages of sexual savagery and violence.” In another, she wrote: Men being only a sex have desire to and have perpetrated upon women complete dehumanization, have reduced her to only an object of sex pleasure and gratification for themselves. . . . To further this and taking advantage of the socially, emotionally starved womanhood craving for kindness and humanity, they [men] have dubbed sexual intercourse “love.” This fraud is only another one of the steps by which delusion, degradation and exploitation have been foisted upon women by their (self-styled) “protectors.” Swindle and humbug are the foundations of men’s dominance not to mention less pretty things.

Louisa does not appear to have discussed or acted on these feelings with any particular men. Weber, Semel, and her cousin Joseph testified that she never told them anything about hating men. Joseph stated, “We [he and Louisa] had no hard feelings or we had no hard words or anything like that.” He also stated that Louisa had no difficulty with her remaining cousin Robert. According to Joseph, [the family] were “all on friendly terms and always visited together,” usually when they were visiting his father, Martin. Joseph also testified that, for some period of time, they exchanged Christmas cards. Although Louisa visited with her extended family at times, they did not see each other often or much toward the end of her life. Ruth testified that her last conversation with Louisa was in 1934. In 1940, she saw Louisa at the funeral of Ruth’s father, but they did not speak much. In November 1944, Ruth saw Louisa for the last time in the hospital. Joseph testified that he saw Louisa at the funeral in 1940 and once more in the hospital, but that their last real visit was some time in 1939. Margaret first met Louisa in 1939, presumably with Joseph. She saw Louisa again at the funeral and cared for Louisa for about ten days when she came home from the hospital in late November 1944. There is no evidence in the record of any recent contact between Louisa and her uncle or her cousin Robert.

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

In re Strittmater’s Estate

29

Ruth also testified that Louisa visited and wrote less often once Ruth married in 1936. Jane Beech testified that she and Louisa visited each other two or three times a week beginning in 1929 until she moved in 1935 and then occasionally thereafter. Beech stated that Louisa did not come to visit when her husband was home and that Louisa did not want to meet her son one time when he came to visit. Beech said she first invited Louisa to her home because “[s]he was a very lonesome person” and because Jane “felt sorry for her.” Like Beech, Palmer testified that Louisa was “desperately lonely and that I could see.” When Palmer asked Louisa if she had relatives, Louisa told her, “They are not interested in me.” On October 30, 1944, Louisa went to see Dr. Smalley, complaining about “someone choking her.” Dr. Smalley suspected she had a thyroid problem because her eyes were bulging, but Louisa would not consent to a full examination. Dr. Smalley ran some tests, which were negative, and asked Louisa to come back to be examined. Either that day or on the morning of the 31st, Louisa went back to see Dr. Smalley. When Louisa removed her coat, the doctor observed that Louisa had a large abdominal tumor and told her she would likely need surgery. Around midday on the 31st, Louisa met Semel at his office. She told him she had a tumor, needed surgery, and wanted to make her will. Louisa directed Semel to leave her estate to the Party and make the Party the executor of her will. She mentioned that she owned her house and had some gold coins. She told Semel that she thought Ruth would be happy to arrange her funeral but wanted her to be paid $100 for doing so. Louisa also directed him to leave Ruth her personal and household effects, including her tools and jewelry. Louisa told Semel she thought Ruth’s husband might want the tools. When Semel asked Louisa if she wanted to leave anything to her other relatives, she told him she had another cousin and an uncle, but they were all in sufficiently good circumstances not to need her money. Louisa signed the will later that afternoon. Louisa was operated on several days later. The surgeon found a large fibroid tumor and cancer in her abdomen that was so far advanced that “little could be done.” She was released from the hospital in late November. Margaret cared for her at home because there was no one else. Louisa spoke daily with Margaret about the Party, explaining that she wanted women to get ahead in the world and be self-supporting and that the Party was working to achieve equal rights for women. According to Margaret, equal rights for women were the “main thing” for Louisa. It was “what she really was in favor of.” Louisa died on December 6 from a pulmonary embolism and congestive heart

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

30

In re Strittmater’s Estate

failure. Her death certificate states she had both ovarian and metastatic cancer of the abdomen.

ii Appellees filed a caveat against probate of Louisa’s will in the Essex County Surrogate’s Court on December 11. A lunacy hearing was held over several days in May and June of 1945. In support of the appellees’ claim, Dr. Smalley testified that she had treated Louisa on and off since 1923 and thought Louisa was insane: “There is a type of insanity that we speak of as paranoic of the Bleuler type of split personality. He calls it paranoic dementia praecox and he is given credit for that type of split personality.” She also testified that Louisa kept a pistol under her pillow and was capable of killing someone. In her opinion, Louisa was not capable of making a will because she did not know she had a tumor, did not believe surgery to remove it was necessary, and, when pressed, said she had only one relative the doctor could contact in case of emergency. When the doctor asked if she had any other relatives, Louisa told her, “That is all, that is enough.” In contrast, the testimony of Weber, Semel, two of Semel’s employees, Palmer, an employee of the bank where Louisa borrowed the money, two tenants (one male and one female), and Beech supported the appellant’s claim that Louisa was sane, often perfectly normal, knew what she wanted, was aware of what she owned, knew who her relatives were, and was competent in all her business and personal affairs, including making arrangements with the hospital prior to her surgery and paying the bill before she died. In November 1945, the Orphans’ Court granted the probate of Louisa’s will. The Advisory Master in the case stated, “I cannot hold that . . . [Louisa’s] hatred of men was of an ungovernable or irrational sort, blind to fact; that it was so constructed out of unrealities adhered to against all reason, as to constitute, in a technical sense, an insane delusion.” Clapp, A.M., Conclusions, R. 14. The Prerogative Court reversed the finding. Vice Ordinary Bigelow stated that the evidence did not show Louisa had taken great interest in the Party but that “she regarded men as a class with an insane hatred.” Bigelow, V.O., Memorandum, R. 23. Acknowledging that Dr. Smalley was not an expert in diseases of the mind and noting regret at not having the benefit of an expert, Vice Ordinary Bigelow nevertheless concluded, “I think it was her paranoic condition, especially her insane delusion of the male, that led her to leave her estate to the National Woman’s Party.” Id. at 22–23. This appeal followed.

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

In re Strittmater’s Estate

31

iii The appellant argues that Louisa was perfectly capable of making a last will and testament. First, there was ample testimony that she was competent in managing her financial affairs, often behaved normally, and knew what property she owned and who her relatives were. Second, Dr. Smalley’s testimony to the contrary should be disregarded because she did not diagnose Louisa as insane until after she died, and she was biased against Louisa. At most, Louisa’s feelings toward men were hopes or prejudicial beliefs. Finally, even if Louisa did think the Party’s purpose was to eliminate men altogether, she was mistaken. The appellees counter that Louisa’s will was unnatural and unjust. They argue that Louisa suffered from insane delusions about men, including the notion that the Party’s goal is to eliminate all men, which caused her to disinherit her male relatives. The appellees rely heavily on the comments Louisa made in several of her books and the testimony of Dr. Smalley. They argue that this hatred, along with Louisa’s support of the Party, amounted to a monomania that was the offspring of a disordered mind. Even if Louisa had sent the 1944 letter to Paul, they argue, there is ample evidence that she hated men and believed the Party would effectuate the ruling of the world by women.

iv Cases involving allegations of insane delusions often arise from mixed feelings of grief, shock, and resentment. Whenever testamentary capacity is called into question, a court is faced with a natural tension. On the one hand, the court must strive to give expression to the deceased’s wishes; on the other hand, it must contend with traditional – often the surviving family’s – views on what the deceased ought to have done with her property. This tension is heightened when, like Louisa, the deceased held unpopular views, was not well-liked or likeable, or suffered from some mental affliction that did not in itself compromise her capacity to make a will. The issue as framed below was whether Louisa suffered from an insane delusion that caused her to leave the bulk of her estate to the Party. Put differently, did her hatred of men cause her to disinherit her male relatives? The appellees would undoubtedly agree that if the answer to either question is in the affirmative, we must invalidate the will and distribute her property according to the laws of intestacy. The result, of course, would be to strip

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

32

In re Strittmater’s Estate

Louisa of her testamentary freedom and distribute her property to the same family members who challenge her sanity here. In this case, the threshold the issue, which the Prerogative Court ignored, is whether Louisa had testamentary capacity to make a will in the first place. If she had the requisite capacity – and we hold that she did – that would normally end our inquiry. However, insane delusions of the type alleged here can supersede testamentary capacity where they influence the making of a will. As more fully discussed below, we find that the appellees failed to prove either that Louisa lacked capacity or that she suffered from insane delusions that caused her to leave her property to the Party. It was the duty of the Orphans’ Court to hear the evidence and determine its weight and credibility. Having found that Louisa had sufficient capacity and did not suffer from insane delusions, there having been nothing adduced on the appeal to show that the court was not justified in its decision, its Order should not have been disturbed. See, e.g., In re Lucas’ Will, 1 A.2d 929, 930 (N.J. Prerog. Ct. 1938). We begin our analysis with the longstanding presumption in this jurisdiction in favor of capacity. The law presumes that the testatrix was sane and mentally capable of making a will, In re Triebe’s Will, 168 A. 404, 406 (N.J. 1933), and courts should jealously guard the testamentary right. See In re Haness’ Estate, 130 A. 655, 658 (N.J. Prerog. Ct. 1925). As long as the testatrix had the requisite capacity to make a will and the will was executed pursuant to statutory requirements, it is valid. See, e.g., In re Raynolds’ Estate, 27 A.2d 226, 230 (N.J. Prerog. Ct. 1942). Under such circumstances, her power of disposition is absolute. Likeable or not, she can give her property to whomever she pleases, even if the will appears unreasonable, unjust, or unnatural. See, e.g., Raynolds’ Estate, 27 A.2d at 235–36; Smith v. Smith, 25 A. 11, 19 (N.J. Prerog. Ct. 1891). A Testamentary Capacity Because there is no allegation that the will was not properly executed, the only issue is capacity. There is no question that Louisa had the requisite capacity to make a will. The law sustains a will made by one of a very low or moderate capacity, Loveridge v. Brown, 129 A. 131, 134 (N.J. 1925); Haness’ Estate, 130 A. at 658, and it can do so even if the testatrix was insane in a medical sense. See In re Ratti’s Will, 15 A.2d 616, 619 (N.J. Prerog. Ct. 1940); Grant v. Stamler, 59 A. 890, 890–91 (N.J. Prerog. Ct. 1905). As long as the testatrix knew what property she owned, how she wanted to dispose of it, and who the natural objects of her bounty were (either family or friends), her capacity is established. Triebe’s Will, 168 A. at 406; In re Reins’ Will, 50 A.2d 380, 385 (N.J.

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

In re Strittmater’s Estate

33

Prerog. Ct. 1946). The evidence establishes that Louisa was fully aware of the property she owned and how she wanted to dispose of it. She lived in and took care of the home she inherited from her parents until her death, and she competently managed her personal and business affairs. She even paid her hospital bill before she died. In the late 1930s, Louisa first spoke with Semel about leaving her estate to the Party. Then again, in 1940, she spoke with Mildred Palmer about it, who directed her to the Washington office. In 1944, Louisa wrote a letter to Alice Paul saying she planned to make the Party the beneficiary of a legal document. Whether or not the letter was sent, it indicates her continued intent to include the Party in her will. Finally, in October 1944, having learned that she was undergoing major surgery, Louisa made an appointment with Semel in order to make her will. She specifically directed Semel to leave her household and personal effects to her cousin Ruth and the balance of the property to the Party. The evidence also establishes that Louisa knew full well who her relatives were. Louisa visited on occasion with Ruth as late as 1934. In the mid to late 1930s, Louisa talked to Jane Beech about Ruth, and Jane met Robert’s wife and son once, when they were visiting Louisa. Louisa saw Joseph and Ruth at Ruth’s father’s funeral in 1940. Then, at some time between 1939 and 1941, Louisa told Mildred Palmer that she had relatives but that they were not interested in her. Finally, when Louisa made her will in October 1944, she told Semel about Ruth and that the rest of her family was well situated and did not need her money. In challenging Louisa’s capacity, the appellees rely on Dr. Smalley’s testimony that, on the day before she made her will, Louisa first said she had no relatives and then said she had only one, Ruth. Louisa’s refusal to disclose the names of the rest of the family of whom she had seen so little in recent years is not proof that she was unaware of them. Louisa’s behavior is equally consistent with her being secretive and not wanting her relatives to know about her upcoming surgery. Even if – and the court deems it unlikely – Louisa had been unable to recall the names of other relatives in Dr. Smalley’s office that day, a failure of memory does not negate testamentary capacity. See Reins’ Will, 50 A.2d at 385. The court does not credit Dr. Smalley’s testimony as to Louisa’s insanity for some of the same reasons the Orphans’ Court did not and the Prerogative Court hesitated. First, the doctor is a general practitioner, not a specialist in diseases of the mind. Her ignorance as to these matters was revealed in her explanation of the Bleuler type of split personality, which she claimed Dr. Bleuler called “dementia praecox.” However, Dr. Bleuler coined the

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

34

In re Strittmater’s Estate

phrase “schizophrenia,” meaning “split” and “mind,” to describe this particular disease of the mind, having rejected “dementia praecox,” meaning senile dementia, as misleading and inaccurate. Second, the reasons Dr. Smalley gave for Louisa being unable to make a will do not prove incapacity under the law. Indeed, a person may be insane in the medical sense and still make a valid will. B Insane Delusions An insane delusion sufficient to override testamentary capacity is “the mind’s spontaneous conception and acceptance of that, as a fact, which has no real existence except in its imagination, and its persistent adherence to it against all evidence.” Haness’ Estate, 130 A. at 658; Smith, 25 A. at 12. Mistakes of fact or false beliefs do not constitute delusions as long as there was some extrinsic evidence to support the deceased’s beliefs and the deceased’s conclusions, based on those beliefs, were rational. Haness’ Estate, 130 A. at 658–59; Smith, 25 A. at 12. Nor do insane delusions include strong, violent, or even unjust prejudices. See Trumball v. Gibbons, 22 N.J.L. 117, 141 (N.J. 1849); In re Crotty’s Will, 134 A. 622, 623 (Essex County Ct. 1926). In Haness’ Estate, the testator disinherited his wife and children. They claimed he was insane because he said they were crazy and murderers. In rejecting their claim, the court found the testator’s extreme prejudice against his family to be the result of hatred, not insanity. Haness’ Estate, 130 A. at 659. Noting that the testator blamed his wife for their marital troubles and thought she had tried to poison him, the court stated his beliefs were based “on what appealed to his reasoning powers as sufficient evidence, and while he may have shown . . . that he lacked power to analyze and weigh evidence, or to discriminate between what was true and what was false, it does not follow that he was suffering from an insane delusion.” Id. Similarly, Louisa’s feelings toward men were the result of hatred, not insanity. Over time, they gave rise to hopes or beliefs about the position women should and will someday occupy in society. Like the testator in Haness, Louisa may not always have been able to discriminate between what was true and what was false, but it does not follow that she suffered from insane delusions. See also Ratti’s Will, 15 A.2d at 619 (holding that the testatrix’s belief that she had been poisoned by her family was rationally based on an attack of indigestion that she mistakenly concluded was an attempt on her life). Based on the appellees’ argument and to read the Prerogative Court’s opinion, one might conclude that hating men is equivalent to being a feminist and that both of these things are a form of insane delusion. What is most troubling is the Vice Ordinary’s willingness to affirm Louisa’s insanity

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

In re Strittmater’s Estate

35

without the aid of an expert, on the apparent ground that any woman who hates men is obviously crazy. Now then, we must ask, is there is no set of facts – no extrinsic evidence – upon which Louisa could have based a rational hatred of men or a passionate desire for women’s rights? The record in this case is far too complex to permit such sweeping generalizations and illogical leaps. Moreover, the legal status of women here and throughout the world belies such a claim. First, something may have happened in Louisa’s life to change her feelings toward her parents and to shape her hatred of men. Because she was not a woman of the world, it is reasonable to assume that her attitudes about men and perhaps sexuality were influenced largely by her father’s behavior toward her and her mother. Once her father died, she may have experienced a reaction to this as his suppressive influence was removed. This may explain both the subsequent changes in her personality and the intense anger she expressed. Her interest in reading “sex books,” as Ruth described them, may have been an expression of the insult she suffered because of her father’s domination and her mother’s inability to protect her. Although there is no evidence in the record to support these findings, the point is that Louisa may have had sufficient evidence in her own life that men were the root of all evil. Given the appellees’ burden here, we do not take the absence of evidence as proof to the contrary. What the evidence does establish, however, is that Louisa was desperately lonely. It does not strain credulity to think she may have felt abandoned when Ruth got married, which is why she visited her less often. Having never married, Louisa may have felt unwelcome and uncomfortable with Jane Beech’s husband. Having never had children, Louisa may have wanted to avoid Jane’s son and resented Helen Morse for having a daughter. But for her father, personal relationships with men were essentially foreign to Louisa. Second, Louisa’s belief in equal rights for women and the dominance of men in society was hardly delusional. Growing support for the ERA suggests the extent to which many women share at least some of Louisa’s beliefs. As the Advisory Master stated in his recommendations to the Orphans’ Court, “Feminism, even that which leads to an abhorrence of men and induces one to look forward some day to the dominance of women over men, is plainly not insanity.” Clapp, A. M., Conclusions R. 6. Indeed, there is ample evidence that women have not been treated equally and continue to be subordinated by men. It took women’s suffrage groups, including the National Woman’s Party, over seventy years to gain women’s right to vote. The Nineteenth Amendment is just twenty-seven years old; Louisa would have been aged twenty-four when it was ratified.

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

36

In re Strittmater’s Estate

Despite this significant achievement, women continue to struggle for equality. A woman today is expected to marry and have children, not to pursue an education and career. Not only do women often lack funds to attend college, but they are also prohibited from attending many private and public universities. Some of the oldest and most prestigious schools in this country, including our own Rutgers University, do not admit women. Those women who do graduate from college often complain of being denied positions for which they are qualified in favor of men. When they do get hired, they do not earn the same salary as men in the same position. A working woman can certainly expect to lose her job once she becomes pregnant. She is then expected to stay at home and perform her domestic duties as wife, mother, and homemaker. Particularly now, as men have returned to the workforce, women pursuing careers are likely to be resented. Louisa’s mother died when Louisa was aged thirty. Her father lived two more years, and it is reasonable to assume that she took care of the house and cared for him at the end of his life. At the age of thirty-two, she was finally free. At that age, most women are married with children and living in their own homes. Once her father died, Louisa struggled, largely alone, to make ends meet on a very modest income. Without education and much prospect of a better life, her anger may have been intensified by what she experienced as a lost opportunity and a culture hostile to women – particularly single women. She had few relatives, who lost interest in her and for whom she felt no great affection. Not surprisingly, she found companionship and solace in the Party and its goals, with which she identified. We thus conclude that Louisa’s hatred of men and support of the Party were not based on insane delusions. To the extent that her feelings constituted more than beliefs or prejudices, they were based on extrinsic evidence that, at least in Louisa’s mind, justified them and their intensity. Based on conversations Louisa had with female relatives and friends, as well as the letter she wrote to Alice Paul in 1944, we find that Louisa understood the true nature of the Party and its goals. Even if she did not, a mistake of fact would not change the result here. C Causation Ultimately, whether Louisa’s feelings were beliefs, mistakes of fact, or delusions is immaterial because the appellees did not prove they caused Louisa to leave her property to the Party. Insane delusions cannot be used to defeat a will if they do not influence the deceased in making it. See In re

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

In re Strittmater’s Estate

37

Baker’s Will, 90 A. 1009 (N.J. Prerog. Ct. 1914); Middleditch v. Williams, 17 A. 826 (N.J. Prerog. Ct. 1889) (stating that insane delusions do not invalidate a will where they do not influence the disposition of property). In Baker’s Will, the testatrix disinherited her son, leaving her estate to the orphans’ home that cared for her as a child. Her son claimed she suffered from insane delusions about him and her neighbor. Disregarding the testimony about delusions relating to the son, the court found the delusions about her neighbor had no effect on her will. Baker’s Will, 90 A. at 1009. To the contrary, the court found she had always considered the home entitled to her bounty, and her son had ignored her at the end of her life. Id.; see also Ratti’s Will, 15 A.2d at 619 (finding the deceased’s decision to leave her estate to charitable organizations instead of her sister followed naturally from her belief that her sister had tried to poison her to get her money). Similarly, there is insufficient evidence to prove that Louisa’s attitudes toward men affected her decision to leave her personal and household effects to Ruth and the rest of her estate to the Party. Several male witnesses testified that Louisa never discussed her feelings about men with them; in fact, the record reflects she was most antagonistic with women. Her cousin Joseph testified that that he and Louisa were on friendly terms and never had hard words between them. When Louisa became ill, she was reluctant to tell Dr. Smalley about her relatives because, as she told Mildred Palmer, they were not interested in her. When Semel asked Louisa about leaving money to her relatives, she told him they did not need her money. She did, however, mention that Ruth’s husband might want her tools. And, according to Margaret, she did not speak against any of her relatives in the last days of her life. Based on these facts, we cannot conclude that Louisa’s feelings toward men influenced her testamentary decisions. Despite the Prerogative’s Court’s finding to the contrary, there was ample evidence of Louisa’s interest in and devotion to the Party for nearly twenty years. In the words of the Advisory Master, “No one of [Louisa’s] next of kin, cousins and an uncle of hers, saw her more than three times in the last ten years, being no more interested in her than she in them. In view of her extreme feministic interests, more so in the National Woman’s Party than any other cause, it was wholly natural of her to leave her estate to the Party.” Clapp, A.M., Conclusions, R. 14. A will may seem unnatural, unjust, or even cruel. To those whom it excludes, it may seem appropriate that the court step in and undo the injustice. However, where the testatrix possessed ample testamentary capacity and did not suffer from insane delusions, we must uphold the will. In Boylan

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

38

In re Strittmater’s Estate

v. Meeker, our Supreme Court held, “That the will to others, not having the means of knowing what the testator knows, not occupying h[er] standpoint, not having lived h[er] life, not having h[er] secret affections and hates, may seem unreasonable, injudicious, and even unjust, is no reason why it should be declared the product of a diseased mind.” Boylan v. Meeker, 28 N.J.L. 274, 277 (N.J. 1860). Nor will we substitute our judgment for that of Louisa in the name of doing what we or her family thinks is right. To strip Louisa of her testamentary freedom would be to commit the fraud she hated most: to foist upon her the judgment of men to the benefit of men and the detriment of women, all in the name of protecting traditional values. Reversed and remanded.

https://doi.org/10.1017/9781108860963.003 Published online by Cambridge University Press

3 Commentary on In re Will of Moses claire c. robinson may

background In re Will of Moses concerns a will challenge based on undue influence when a woman’s will left her estate to her younger male romantic partner.1 In 1964, Fannie Traylor Moses, a thrice-widowed fifty-four-year-old businesswoman, executed a will leaving her estate to her close companion, Clarence H. Holland, an attorney fifteen years her junior.2 Moses hired a disinterested attorney to draft her will, at her direction, and without Holland’s presence or knowledge. She asked yet another attorney to keep it safe for her.3 Two years earlier, in 1962, Moses had supplied the funds for Holland to purchase a large real property, which the couple then held as tenants-in-common.4 Moses and Holland appear to have had a longstanding personal and sometimes professional relationship: He had previously acted as her attorney.5 Upon Moses’ death at the age of fifty-seven in 1967, an earlier will from 1957 was offered for probate in Hinds County Chancery Court, Mississippi.6 Holland petitioned to set aside the 1957 will and admit to probate the 1964 will, in which Moses had revoked all prior wills and named him as primary beneficiary.7 Moses’ older sister and other beneficiaries of the previous will responded by arguing that the 1964 will was the product of undue influence by Holland. In addition, they argued that Moses lacked testamentary capacity when she signed the 1964 will. Further, they challenged Holland’s ownership

1 2 3 4 5 6 7

In re Will of Moses, 227 So.2d 829 (Miss. 1969). See id. at 831–32. See id. at 832–35. See id. at 832. See id. Id. at 831. Id.

39

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

40

In re Will of Moses

interest in the land from the 1962 transaction, arguing that it too had been the product of undue influence.8 The chancery court ruled that, although Moses possessed testamentary capacity at the time of its drafting and execution, the 1964 will was invalid because there was a presumption of undue influence by Holland upon Moses that Holland could not overcome. The court further ruled that Moses was the true owner of the real estate in question and canceled Holland’s interest as a cloud upon her title.9 The end result favored Moses’ sister and invalidated both Moses’ 1964 bequest to Holland and his ownership of the land to which he had held title since 1962. Holland appealed the chancery court’s decision to the Supreme Court of Mississippi. Holland – and Moses’ testamentary wishes – would fare no better in the Supreme Court. In November 1969, the Supreme Court of Mississippi affirmed the lower court’s decision five to four, concluding that the 1964 will was subject to a presumption of undue influence that the appellant had not overcome.10 Likewise, the Supreme Court agreed that Holland was acting as Moses’ attorney in the 1962 real estate purchase and therefore took ownership only as her trustee: a ruling that invalidated his personal ownership interest.11

original opinion The Supreme Court majority, in recounting the facts of the case, made clear who it considered to be an appropriate object of Moses’ bounty. With respect to the 1957 will benefiting her sister, the court noted, “[Moses] had once lived with this sister and was grateful for the many kindnesses shown her.”12 In contrast, the court viewed the relationship between Moses and Holland not only with suspicion but also with pity and derision: “There was strong evidence that this aging woman, seriously ill, disfigured by [breast cancer] surgery, and hopelessly addicted to alcoholic excesses, was completely bemused by the constant and amorous affections of Holland, a man 15 years her junior. There was testimony too indicating that she entertained the pathetic hope that he might marry her.”13 The court held that evidence of this relationship, as characterized above and in concert with Holland’s prior role as Moses’ attorney in some previous 8 9 10 11 12 13

See id. See id. See id. at 836–37. See id. at 838. Id. at 831–32. Id. at 833.

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

In re Will of Moses

41

matters, sufficed to establish a presumption of undue influence with respect to the 1964 will. To overcome the presumption, Holland needed to establish that Moses “had acted upon the independent advice and counsel of one entirely devoted to her interest.”14 Moses had engaged independent counsel to draft her will, but the evidence still failed to satisfy the court. The court relied primarily upon the rule of Meek v. Perry, in which an adult female ward’s will leaving the bulk of her estate to her guardian was invalidated due to a presumption of undue influence rising from the confidential relationship alone.15 Another case cited by the court, Croft v. Alder, required both (1) a confidential relationship between a testator and her beneficiary and (2) that the beneficiary was “actively concerned” in the preparation or execution of the will for the presumption of undue influence to apply.16 However, “suspicious circumstances, such as mental infirmity of the testator,”17 could also fulfill the second requirement, opening the door for extra-evidentiary speculation by the court. Although Holland was not present at or involved in its drafting or its execution, the Mississippi Supreme Court nonetheless found cause for concern in the circumstances surrounding Moses’ 1964 will.18 The court regarded the drafting attorney as merely a “scrivener” for his purported failure to interrogate Moses about her desire to leave her estate to Holland rather than to a family member.19 The drafting attorney asked Moses about her marital status and whether she had children, but, with those questions answered, he did not proceed to question or challenge Moses’ testamentary wishes as she presented them.20 He simply drafted (and, at her later direction, corrected) a will that would carry them out as she intended. The court nominally accepted the conclusion that Moses had testamentary capacity when she executed her will, but, returning to the unorthodox relationship at the center of the case, found that undue influence had nonetheless colored the proceedings: A weak or infirm mind may, of course, be more easily over persuaded. . . . Mrs. Moses was in ill health, she was an alcoholic, and was an aging woman infatuated with a younger lover, 15 years her junior, who was also her lawyer. If this combination of circumstances cannot be said to support the view that 14 15

16 17 18 19 20

See id. See id. at 834 (citing Croft v. Alder, 115 So.2d 683, 686 (Miss. 1959), discussing Meek v. Perry, 36 Miss. 190 (1858)). Croft, 115 So.2d at 683 (cited in Moses at 834–36). Moses at 835 (quoting Croft). See id. Id. at 834. See id. at 833–34.

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

42

In re Will of Moses

Mrs. Moses suffered from a “weakness or infirmity” of mind, vis-a-vis Holland, it was hardly calculated to enhance her power of will where he was concerned.21

Unpersuaded by the evidence that Moses had both received the advice of independent counsel and had clearly and competently communicated her testamentary wishes, the majority affirmed the lower court and declared her will benefiting Holland invalid.22 In contrast to the majority’s view, Moses struck the dissenting justices as a competent, independent businesswoman, disposing of her property as she saw fit. There was no evidence that Holland had pressured her to prepare a will in his favor or had any involvement whatsoever. In sound mind, she had consulted an attorney and had him memorialize her clear testamentary wishes.23 The dissenting justices asked, “What else could she have done?”24 The dissent maintained that, under Croft, the presumption of undue influence did not arise, because only a confidential relationship existed, with no “active concern” by Holland or suspicious circumstances. The circumstances of Moses’ personal relationship with Holland and her drinking habits25 did not pertain to the drafting or execution of the will and were therefore irrelevant. The dissent characterized the majority’s holding as inviting open inquiry and speculation regarding every aspect of a testator’s life unrelated to the making of a will to provide an excuse to set it aside.26

feminist judgment and implications Longstanding cultural confines and stereotypes of women frame the original 1969 In re Moses decision, with no acknowledgment or reflection of the growing women’s liberation movement of the time. As a result, Moses – a mature, accomplished, independent businesswoman – becomes, in the eyes of the majority, a helpless, pitiful, lovelorn fool. As this new character in the court’s narrative, Moses is twice deprived of her agency: first, in secret by the hypothetical undue influence of her younger male companion; and again, 21 22 23 24 25

26

Id. at 835. See id. at 836–37. See id. at 838–43 (Robertson J., dissenting). See id. at 843 (Robertson J., dissenting). Perhaps alluding to the gendered standard Moses faced, the dissent cited O’Bannon v. Henrich, 4 So.2d 208 (Miss. 1941), in which an alcoholic testator left his estate to his fiancée. His siblings lost their will contest for undue influence and incapacity: “[W]e are unable to perceive how it could be said that it was unreasonable for him to leave [his property] to the woman he loved and expected to marry.” Id. at 209 (cited in Moses at 840 (Robertson J., dissenting)). See Moses at 839–43 (Robertson J., dissenting).

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

In re Will of Moses

43

in the court’s decision erasing her testamentary intent. To right these wrongs, Julia Belian, writing as Justice Belian, avails herself of the feminist thought of the 1960s, including Betty Friedan’s The Feminine Mystique, the mission statement of the recently formed National Organization for Women, and others. She uses this new wave of thought to turn the tables on the original opinion, writing her feminist judgment as an imaginary majority opinion and criticizing the original majority as the imaginary dissent. In doing so, Belian is able to expose the opinion’s animus toward Moses’ defiance of gendered cultural norms and societal expectations in favoring her lover over her devout sister and other relatives. Belian further identifies how the doctrine of undue influence itself relies upon such norms and expectations for human behavior. Rather than acquiesce in the underlying assumptions and stereotypes as they relate to women and other groups traditionally viewed as the lesser “other,” Belian strips the undue influence doctrine of its stereotypes, prejudices, and conjectures about women. In Belian’s hands, the narrative is transformed into that of a strong woman, who – having overcome adversity and obtained power, wealth, and love – exercised her right to have her testamentary wishes carried out as she so clearly directed. As Belian recognizes, stereotypes of women were not Moses’ only challenge under the law of undue influence. Society’s prejudice against “older” women (Moses was aged fifty-four when she made her will) contributed to the ruling. She was perceived as having a disability: her allegedly grotesque disfigurement from breast cancer surgery. She reportedly struggled with alcoholism and heart ailments. And she maintained a nonmarital, intimate relationship with Holland, fifteen years her junior. While any one of these factors might have caused a court to question Moses’ will, Belian recognizes that their intersection – being a woman, middle-aged, disabled, and a habitual drinker,27 and defying convention in her personal life – put Moses at an enhanced risk of having her testamentary wishes disregarded and made her experience different from that of the imagined “typical” woman. Belian’s perspective reflects the influence of the concept of intersectionality theory popularized in legal literature by Kimberlé Crenshaw,28 as well as an anti-essentialism viewpoint that rejects 27

28

According to the record, Moses often drank whiskey in her home. Whether she was addicted, self-medicating for pain, or simply enjoying herself may be lost to history: “Female intoxication has been almost universally viewed as more distasteful and more reprehensible than male intoxication.” Edith S. Lisansky Gomberg, Historical and Political Perspective: Women and Drug Use, 38 J. SOCIAL ISSUES 9, 20 (1982). See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Anti-Discrimination Doctrine, Feminist Theory and Anti-Racist Politics, 1989 U. CHI. LEGAL F. 139 (1989).

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

44

In re Will of Moses

a singular experience of womanhood.29 Belian sees Moses’ experience as both multifaceted and individual. In the feminist judgment, this complexity works in Moses’ favor rather than to her detriment. Belian views Moses’ personal characteristics and experiences largely positively, highlighting Holland’s apparent devotion and loyalty to her, as well as Moses’ strong personality, wealth, and business expertise: “The facts and circumstances surrounding their relationship support equally well an argument that Moses was the dominant personality and that Holland was her dependent, smitten lover.” Perhaps, Belian supposes, in a particularly satisfying revision of the original majority opinion, “Holland entertained a pathetic hope that Moses might marry him.” Belian’s revision releases Moses from the sex stereotyping that the original opinion imposes. The feminist judgment foreshadows later sex-stereotyping cases, such as Price Waterhouse,30 and the double binds that women face. Was Moses too strong or too weak? Too smart or too foolish? What gentler, more feminine version of Moses would be allowed to maintain her agency? Or would she simply then appear to have been even more easily influenced? (And would this imaginary version of Moses still have the considerable estate she had to bequeath at her death, without her sharp business acumen?) She certainly was not a delicate Southern belle, who might have been expected to succumb to the spell of Holland’s flattery and attention. But society does not embrace the alternative of a strong, independent woman of means, independent will, and sexual freedom. Recognizing the dilemma, Belian refuses to punish Moses for failing to fit prevailing expectations of womanhood during her life and refuses to force presumed feminine weaknesses upon Moses after her death. The factual story Belian presents is a straightforward narrative of an intelligent woman making choices regarding her estate. Belian does not allow common perceptions of what it is to be feminine – weak, desperate for male attention – to be assigned to Moses posthumously. In addition, as Belian points out, it is far from unnatural that Moses chose to benefit her devoted nonmarital partner over her devout and perhaps judgmental sister. Not all influence is undue – certainly not that stemming from friendship, love, or affection. The bequest is unnatural only because a woman is not behaving as she should. The bequest is unnatural only if the central relationship is not to be believed. Belian’s rewritten opinion regarding the correct legal standard is crucial to the feminist judgment, demonstrating how the seemingly neutral rule of the 29

30

See, e.g., Trina Grillo, Anti-Essentialism and Intersectionality: Tools to Dismantle the Master’s House, 10 BERKELEY WOMEN’S L.J. 16 (1995). Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

In re Will of Moses

45

presumption of undue influence can invite implicit biases into decisionmaking. Belian acknowledges the longstanding rule that a confidential relationship between testator and beneficiary raises a presumption of undue influence, then dissects the difference between a finding that a confidential relationship alone suffices to give rise to the presumption, as in Meek v. Perry,31 and requires the relationship plus improper action in connection with the will, as in Croft v. Alder.32 She rejects application of the rule in Meek, under which a young woman’s bequest to her guardian, absent a showing to the contrary, was presumed to be the product of undue influence because of the confidential relationship alone.33 The better rule of Croft presumes undue influence only when there is both a confidential relationship and something more constituting the beneficiary’s “active concern” with the making of the will. Belian highlights that this second formulation is more consistent with valuing individual agency, particularly for women, over paternalistic oversight of their affairs. Without evidence of improper action by the fiduciary pertaining to the drafting or execution of the will, stereotypical assumptions about the testator’s susceptibility to influence easily become the basis for the presumption of undue influence. A critique of formal equality is implied, following Catharine MacKinnon,34 because the same rule affects women and men disparately in the degree of scrutiny their wills are likely to attract. The better standard that Belian adopts anticipates the problem of subjectivity and reduces the risk of bias in application. Belian reminds readers that women’s property rights have been hard won, delayed and diminished because of cultural assumptions of feminine weakness, pliability, and dependent status35 – and because of the law. To deprive a woman of her testamentary agency based on such assumptions echoes the historical legal framework and literary models that would deny her individual 31

32 33 34

35

Meek is problematic in another more visceral respect. Unacknowledged in Moses and other cases in which it is cited, the bequest at issue in Meek included persons held in American slavery. See Meek, 36 Miss. at 192. Those individuals whom the testator in Meek attempted to pass by will as property had been denied all agency under law. 115 So.2d. 595 (Miss. 1959). See id. at 258–59. See, e.g., Catharine MacKinnon, Reflections on Sex Equality under Law, 100 YALE L.J. 1281 (1991) (critiquing formal equality). The stereotypical traits and experiences of “womanhood” are typically and historically assigned to white women. See Devin W. Carbado & Cheryl I. Harris, Intersectionality at 30: Mapping the Margins of Anti-Essentialism, Intersectionality, and Dominance Theory, 132 HARV. L. REV. 2193, 2230 (2019) (“The positioning of Black women outside the category of normative womanhood was part of a broader social process that facilitated the racialization of normative womanhood as white”).

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

46

In re Will of Moses

freedom and rights under similar assumptions – or punish her for failing to conform to them. In rejecting the dependent, passive female archetype, Belian incorporates the second-wave feminism of the time – a sensibility noticeably absent from the original opinion. The feminist judgment disallows irrelevant deviations from society’s norms in one’s personal life from qualifying as “suspicious circumstances” in satisfaction of the second part of the rule. By requiring affirmative evidence of some action by the beneficiary and not allowing conjecture to stand in, Belian significantly reduces the opportunity for sexist cultural biases to come into play. Belian’s judgment, like the original opinion, holds that Moses had testamentary capacity, but Belian declines to undercut that holding with speculation and assumptions regarding the nature of Moses’s personal relationship with her younger companion. Applying the Croft rule, Belian finds that the presumption of undue influence never arose, because the record lacked any evidence of impropriety or involvement of Holland with the drafting or execution of Moses’s will. If the presumption had arisen, Belian notes, Moses’s consultation with an independent, disinterested attorney would have been sufficient to overcome the presumption. For the court to require more – to demand a probing inquiry by the attorney into Moses’s clearly expressed wishes – would again force Moses into the ill-fitting role of the naı¨f whose questionable judgment should be second-guessed by male authority. In formulating a feminist judgment that would have allowed Moses and future testators outside of the societal mainstream their agency, Belian weaves together teachings from each of feminism’s three dominant waves. She recalls that the right of women to hold and convey property pushed against the prevailing notion that women had no economic interests or agency of their own and were subordinate to their husbands in all such matters. She identifies and rejects the sex stereotyping that would recast Moses as one easily swayed and in need of paternalistic oversight, and she calls out the forces that would punish Moses for not playing her culturally expected feminine role in life. Finally, by acknowledging the intersectionality at play in Moses’ experience, Belian draws from the third wave of feminist activism and theory, recognizing that multiple identities may constitute one’s individual experience of living in society as a woman. Her opinion, had it been published in 1969 Mississippi, likely would have caused a stir in judicial circles seemingly insulated from the rising tide of the women’s rights movement. Or it might have stirred a revolution, moving toward a less subjective jurisprudence of undue influence, to the considerable benefit of the many “others” to follow.

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

In re Will of Moses

47

I N R E W I L L O F M O S E S , 2 2 7 So.2d 8 2 9 (Miss. 1 9 6 9)

justice julia belian, delivering the opinion of the court This case comes on petition for rehearing of our previous decision reversing the chancellor’s decree denying probate to a will on grounds that it was procured by undue influence. For the reasons set forth below, we deny the petition for rehearing and thereby reverse the chancellor’s refusal to probate the 1964 will of Fannie Traylor Moses.

i Moses died on February 6, 1967. An instrument, dated December 23, 1957, and purporting to be her last will and testament, was duly admitted to probate in common form in the Chancery Court of the First Judicial District of Hinds County. Thereafter, on February 14, 1967, the appellant, Clarence H. Holland, an attorney at law and not related to Moses, filed a petition in that court, tendering for probate in solemn form, as the true last will and testament of Moses, a document dated May 26, 1964, under the terms of which he would take virtually her entire estate. This document contained a clause revoking former wills, and Holland’s petition prayed that the earlier probate of the 1957 should be set aside. The beneficiaries under the 1957 will (the principal beneficiary was an older sister of Moses) responded to Holland’s petition, denied that the document he tendered was Moses’ will, and asserted, among other things, that (1) it was the product of Holland’s undue influence upon Moses; (2) at the time of its signing, Moses lacked testamentary capacity; and (3) the 1957 will was Moses’ true last will and testament, and its probate should be confirmed. By cross-bill, the respondents prayed that Holland’s apparent ownership of an interest in certain real estate had been procured by undue influence and that it should be cancelled as a cloud upon the title of Moses, the true owner. By agreement, the case was heard by the chancellor without a jury. After hearing and considering a great deal of evidence, oral and documentary, together with briefs of counsel, the chancellor, in a carefully considered opinion, found that (1) the 1964 document, tendered for probate by Holland, was the product of undue influence and was not entitled to be admitted to

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

48

In re Will of Moses

probate; (2) the earlier probate of the 1957 will should be confirmed; and (3) Moses had been the true owner of the interest claimed by Holland in the real estate, and his claim of ownership should be cancelled as a cloud upon the title. Holland appealed the chancellor’s decree, and, after full hearing, the appropriate division unanimously granted that appeal on April 7, 1969. Under our constitution and the rules and practice of this court, a case heard by a division of the court may be transferred to the full court upon its own motion. Miss. Const., §149A. Pursuant to Rule 35 of the Rules of the Mississippi Supreme Court, that judgment was set aside by order entered on the minutes of the division and the case transferred from the division to the full court on petition for rehearing. Miss. R. App. Proc. 35. The appellant originally assigned a number of grounds for reversal, but the chief argument is that even if Holland, as Moses’ attorney, occupied a continuing fiduciary relationship with respect to her on May 26, 1964, the date of the execution of the document under which he claims her estate, the presumption of undue influence was overcome because, in making the will, Moses had the independent advice and counsel of one entirely devoted to her interests. A decree reversing the chancellor and admitting the 1964 will to probate would then moot the question regarding the real estate transaction, because Holland would retain his half-interest in the real property acquired during Moses’ life and inherit the one remaining half-interest under the residuary clause of the 1964 will.

ii Deep in its heart, the law of wills is founded on two irreconcilable principles. On the one hand, courts take great pains to recite that testamentary freedom is the law’s lodestone – that we are governed by the testator’s intent. Miss. Code Ann. §657 (1956); Young v. Martin, 125 So.2d 734 (Miss. 1961); Herrington v. Herrington, 98 So.2d 646 (Miss. 1957); O’Bannon v. Henrich, 4 So.2d 208, 209 (Miss. 1941); Burnett v. Smith, 47 So. 117, 118 (Miss. 1908). On the other hand, the inheritance rights of blood kin predate our testamentary freedom (and even our entire legal system), and courts show little reluctance to reject any will that does not benefit those they expect it to benefit. See, e.g., Young, 125 So.2d; Jamison v. Jamison, 51 So. 130 (Miss. 1910); Meek v. Perry, 36 Miss. 190, 238 (Miss. 1858). Cf. Grant v. Norwood, 161 So.2d 189, 190 (Miss. 1964). The overlap of these two principles, each offering ample legal support for what, between them, may be opposite outcomes, creates a field of indeterminacy that

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

In re Will of Moses

49

forces courts to rely on nonjuridical principles – which are seldom articulated and probably unconscious – to resolve the dispute before them. Often, and in this case, that nonjuridical principle is an impermissible bias. In such cases, a finding of undue influence is both the product and the tool of such biases. One of the subtlest and slipperiest of doctrines, undue influence is, by its nature, usually proved by a web of supposition built upon a foundation of presumptions about the nature of human interaction. Chief among these is the courts’ tendency to presume undue influence (even if they do not call it a presumption) whenever a testator has devised his – or her – property in a way that fails to conform to the patterns dictated by the principles of inheritance. Id. See also In re Coins’ Will, 141 So.2d 759 (Miss. 1959); Croft v. Alder, 115 So.2d 683 (Miss. 1959). This is hardly surprising. The statute De Donis Conditionalibus of 1290 secured the right of the enfeoffed landholder’s eldest son to be enfeoffed in the same lands and in the same manner as his deceased father. George Burton Adams, CONSTITUTIONAL HISTORY OF ENGLAND 164 (1921). This evolved, very generally, into our system of inheritance (or intestate distribution): a system that passed title to land and other wealth from father to son in a strict order of priority. For the next two-and-a-half centuries, estates in land passed only by inheritance, and, at law, decedents could not change that outcome. Mary C. Love, HUMAN CONDUCT AND THE LAW 35–52 (1925). But fathers (and other decedents) do not always prefer their eldest sons, and so a landholder’s impulse to circumvent the strict system of inheritance is at least as old as the law of inheritance itself. Id. Finding insufficient flexibility at law, property owners (or their lawyers) turned to equity to bind their lands by their wills and, to that end, had developed the use, forerunner of the modern-day trust. Id. Henry VIII’s efforts to foreclose that practice through the 1536 Statute of Uses prompted rebellion and, eventually, some degree of royal capitulation, in the enactment of the Statute of Wills in 1540, which partially made up for the execution of uses by permitting direct devise of estates in land by will. Id. The granting of this testamentary freedom did not, of course, result in a pandemic of property owners hurling their estates at strangers. Most testators who exercise their freedom to leave their property by will nonetheless leave it to blood relations, using their testamentary freedom merely to benefit some particular blood relations over others. See, e.g., Coins’ Will, 141 So.2d; Croft, 115 So.2d; Jamison, 51 So. The usual pattern of testamentary distribution is key to understanding the doctrine of undue influence. The inherent problem with “undue

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

50

In re Will of Moses

influence” is not whether the testator was influenced, O’Bannon, 4 So.2d, but whether that influence was “undue,” which courts seem generally to interpret as “unfair,” which, in turn, seems to be the label courts employ whenever a will under scrutiny does not conform to the court’s expectations: When the validity of a particular transaction has been challenged and is being scrutinized by a court, one of the first things to be noted is whether or not the transaction conforms to the normal pattern of similar transactions. If it does conform to the normal and usual pattern, this fact in and of itself is evidence of no small value that the challenge is without merit. If it does not conform, a suspicion immediately is aroused that there may be something wrong with the transaction and that the challenge may have merit. If the nonconformity is sufficiently pronounced, this fact, in and of itself, is evidence of substantial value that the challenge is meritorious. Milton D. Green, Proof of Mental Incompetency and the Unexpressed Major Premise, 53 YALE L.J. 271, 298–99 (1944) (original emphasis); see also Milton D. Green, Fraud, Undue Influence and Mental Incompetency, 43 COLUM. L. REV. 176, 182 (1943)

Mississippi law does not require that testators leave their estates to their family, of course, and courts have always tolerated some testamentary tinkering, even showing a willingness, under certain facts, to admit a will that fails to benefit blood relations entirely. Jamison, 51 So. at 132. But the law has not altogether given up its solicitous concern for blood kin. In most cases, a will benefiting nonfamily members is viewed with suspicion. Id., quoting 1 Isaac F. Redfield, THE LAW OF WILLS (3d ed. 1869) at 516. This is not because courts have any philosophical doubt about whether testators should be free to choose their beneficiaries, but because the courts disapprove of one particular choice: the choice to benefit someone outside that network of blood kin. Testators who make that choice risk a court finding that it was no choice at all but the product of undue influence. The danger is more pronounced for women and other classes of society whose members are viewed by the established hierarchy as less rational or less intelligent than those in power. Thus we come to this case, in which an unmarried woman’s choice to benefit a friend of long standing over her sister (and, to a far lesser extent, her other siblings) has come under fire, not because of any verifiable bad faith or fraudulent behavior on the part of her friend, but because of the chancellor’s inability to extend the idea of testamentary freedom far enough to encompass a woman’s mind and heart.

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

In re Will of Moses

51

iii The testator comes from a longstanding and esteemed family of the Jackson area. Moses and her sister, Miss Nettie Traylor, were nieces of Miss Fannie Traylor, who was well known and loved throughout Mississippi in her position as the state secretary for the Baptist Women’s Missionary Union and executive secretary for the Baptist Association until her untimely death in 1944. Nettie Traylor, who never married, worked thirty-six years as the executive assistant for that same organization before retiring in 1964. She now lives with her other sister in Pinola, Mississippi. By the time of her first marriage, Moses had earned her living as an insurance agent for several years already, eschewing the life of singleminded devotion to the Baptist Church that her sister and aunt had chosen, succeeding despite the well-known discriminations facing women in American workplaces. See, e.g., AMERICAN WOMEN: THE REPORT OF THE PRESIDENT’S COMMISSION ON THE STATUS OF WOMEN, U.S. Gov’t Printing Off’c 693–825 (1963). By 1960, she had been widowed three times. Her second husband left her a substantial business, Dickson Paint and Glass, which she managed successfully for several years. After her third husband’s death, she struggled with a diagnosis of breast cancer, a hideous disease, fatal in more than one third of all cases, and for which we have not yet begun to find any treatment other than radically disfiguring surgery. These background facts demonstrate the decedent’s incredible strength of character and indomitable will to live her life on her own terms. Perhaps as early as 1951, but no later than 1961 or thereabouts, Moses began to spend time with Clarence Holland, who also began his career in the insurance industry and then went on to obtain his law degree and join the bar. In contrast to Moses, Holland is not an entrepreneur who loved wheeling and dealing, but a settled and stable state employee, as he has been for most of his legal career – a mild-mannered and dedicated public servant. Holland and Moses became close friends, and together they purchased a parcel of farmland in 1962. Moses funded the purchase with cash she obtained from several annuities she held. The cash was deposited in a bank account called “Cedar Hills Ranch.” She gave Holland authority to keep track of this account, as well as of her personal account. On June 7, 1962, the deal was closed. At closing, the persons present, in addition to the sellers and their agents and attorney, were Moses and Holland. Moses had no other counsel. Holland issued a check on the Cedar Hills Ranch account (into which only Moses had deposited any money) for the balance of the purchase price. The deed conveyed the land to Holland and Moses in equal shares, as tenants in common. On the

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

52

In re Will of Moses

following day, Holland issued another check on the Cedar Hills Ranch account for $835.00 to his brother, in payment for a tractor. Eight days later, Holland drew another check on this account for $2,100.00 to buy undisclosed number of cattle from his father. In March 1964, Moses retained an attorney (not Holland) to prepare a new will for her. There is no evidence that Holland participated in the selection of this attorney. This attorney was and is a reputable and respected member of the bar, who had no prior connection with Holland and no knowledge of Mrs. Moses’ relationship with him. He had neither seen nor represented Mrs. Moses previously, and he never represented her afterward. He was acquainted with Holland and was aware that Holland was a lawyer. After an informational interview, including questions about her marital and parental status, Moses supplied the attorney with additional required information, and the attorney drafted a will according to her instructions. Moses corrected a drafting error she discovered upon review, and finally, in May 1964, Moses properly executed the new will at the attorney’s office in the presence of two secretaries. Neither the drafting attorney nor Holland nor any other persons were present at the execution. Moses died more than two years later, in February 1967.

iv A Under Mississippi law, the overall burden of proving the validity of a will rests upon the proponent of that will. Croft, 115 So.2d at 688; Cheatham v. Burnside, 77 So.2d 719 (Miss. 1955). That burden is initially satisfied when the proponent makes out a prima facie case that the will is valid, which is done simply by probating the will in common form. Moore v. Parks, 84 So. 230, 233 (Miss. 1920). Subscribing witnesses are called to attest the execution of wills and to testify as to the testamentary capacity of the testator and the circumstances attending the immediate execution of the instrument. Croft, 115 So.2d. Nothing additional is required from the proponent at this point: “The prima facie case made for proponents by the introduction of the proof of probate in common form extends to every aspect of the will touching upon its validity. Without more, the proponents have introduced sufficient evidence to sustain their burden of proof.” Bearden v. Gibson, 60 So.2d 665, 666 (1952) (citations omitted). In particular, the proponent of the will is not required to prove the absence of undue influence. Moore, 84 So. at 233.

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

In re Will of Moses

53

B With regard to testamentary capacity, Mississippi has developed fairly detailed and specific tests to guide courts, and the elements of those tests generally align with similar tests in other jurisdictions. Young, 125 So.2d at 738. As to the degree of mental capacity required, this court has approved the rule, as to a will, that it is sufficient for the testator to understand and appreciate the nature of his act, the natural objects or persons of his bounty and their relations to him, and be capable of reasoning and thinking of how he desired to devise and bequeath his property. Moore, 84 So. at 238; Fortenberry v. Herrington, 196 So. 232, 236 (Miss. 1940). The contestant in this case challenged capacity, along with alleging undue influence. The chancellor found the testator had sufficient capacity, and we agree: “Her [Moses’] mind was capable of understanding the essential matters necessary to the execution of her will on May 26, 1964, at the time of such execution.” In Moore, the court’s description of the testator could well have been written to describe Moses. In Moore, the court found: . . . that both before and after the date of the will she was a woman of strong mentality, capable of managing her own affairs and of understanding her business dealings; that as a matter of fact she personally looked after a great deal of her business . . . She possessed quite a large estate of plantations, storehouses, and personal property. In other words, the testimony shows that she possessed sufficient testamentary capacity to make a will. Moore, 84 So. at 232

Just so with Fannie Moses. Moses was no naive schoolgirl floundering helplessly in her widowhood, but a strong adult who had owned at least two businesses over the course of her life, as well as several parcels of real property, and who appears to have taken a strong hand in managing all of these herself. Shortly after the death of her second husband, she had the perspicacity to file articles of incorporation for the paint company that she took over, demonstrating an understanding of her property holdings and of sophisticated legal tools for protecting those holdings. See Clarion Ledger, Page 16, Legal Notices (Dec. 31, 1953). She successfully sold that business in 1956 and enjoyed the profits therefrom. She had been ill, but there was no testimony indicating that illness had diminished her mental abilities. In other words, the evidence overwhelmingly supports the chancellor’s finding that Moses possessed sufficient testamentary capacity to make a will. This finding demonstrates a soundness of judgment we wish had carried through the rest of the chancellor’s opinion.

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

54

In re Will of Moses

C In contrast to the rules regarding capacity, the rules and standards for undue influence, even where they are clearly stated, are much more complex, involving unclear tests and sometimes counterfactual presumptions. Undue influence is that which is “of such character as to destroy the testator’s free agency.” Woodville v. Pizzati, 81 So. 127, 132 (Miss. 1919) (quoting 1James Schouler, LAW OF WILLS §229 (5th ed. 1915)). The undue influence must intrude on the testamentary act itself: “Undue influence in the matter of executing a will must be the substitution of another’s will for the will of the testator.” Barnett v. Barnett, 124 So. 498, 500 (Miss. 1929). Not all influence is undue: “Influence, in a legal sense, is undue only when it introduces a transaction which injures some one materially, or which is intrinsically unfair or unconscientious.” Gathings v. Howard, 80 So. 240, 241 (Miss. 1920). Not even all overwhelming influence is undue: “Fraud and imposition, or undue influence, vitiate a will, whenever practiced upon a weaker mind to the extent of overpowering and directing it, provided the result be such that others have a right to complain.” Woodville, 81 So. at 132 (quoting Schouler at §225). This court emphasized that point even earlier in Gillis v. Smith, 75 So. 451, 451 (Miss. 1917): [U]ndue influence cannot be predicated of any act unless free agency is destroyed, and that influence exerted by means of advice, arguments, persuasions, solicitation, suggestion, or entreaty is not undue, unless it be so importunate and persistent, or otherwise so operate, as to subdue and subordinate the will and take away its free agency. Nor is influence ordinarily considered undue which arises out of sympathy, kindness, attention, attachment or affection, gratitude for past services, desire of gratifying the wishes of another or of relieving distress, claims of kindred and family or other intimate personal relations, love, esteem, social relations, prejudices, or flattery.

The strength of our agreement with the chancellor’s finding of capacity undergirds our disagreement with his finding of undue influence: “The capacity being proven, it is necessarily presumed that the will was made in the absence of undue influence, or, as is ably expressed by that gifted jurist, the lamented Judge Whitfield, ‘capacity proved, the legal presumption is that he was a free agent – that the alleged will was his free and voluntary act.’ ” Moore, 84 So. at 233 (citations omitted). Because Moses had such a strong personality and so clearly had capacity to exercise it, it is all the less likely she would have been susceptible to any efforts by Holland to influence her away from her own “natural” will. Moreover, there is no proof in this voluminous record that Holland ever

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

In re Will of Moses

55

did or said anything to Moses about devising her property to anybody, much less him. He did not select her attorney. He did not attend Moses’ meeting with the attorney or the execution of the will. The evidence simply does not support the chancellor’s finding that Moses’ will was the product of undue influence. We acknowledge, however, that direct proof of undue influence is not required. Woodville, 81 So. at 132. Often, undue influence can be proven only by circumstantial evidence. Curry v. Lucas, 180 So. 397, 398 (Miss. 1938). In Jamison, we took great pains to spell this out: It follows, from the very nature of the thing, that evidence to show undue influence must be largely, in effect, circumstantial. It is an intangible thing, which only in the rarest instances is susceptible of what may be termed direct or positive proof. The difficulty is also enhanced by the fact, universally recognized, that he who seeks to use undue influence does so in privacy. He seldom uses brute force or open threats to terrorize his intended victim, and if he does he is careful that no witnesses are about to take note of and testify to the fact. He observes, too, the same precautions if he seeks by cajolery, flattery, or other methods to obtain power and control over the will of another, and direct it improperly to the accomplishment of the purpose which he desires. Subscribing witnesses are called to attest the execution of wills, and testify as to the testamentary capacity of the testator, and the circumstances attending the immediate execution of the instrument; but they are not called upon to testify as to the antecedent agencies by which the execution of the paper was secured, even if they had any knowledge of them, which they seldom have. Only general rules concerning the amount and character of evidence required to establish undue influence in the execution of a will can be laid down. As to what is sufficient must depend upon the facts and circumstances of each particular case. These general rules have been stated and restated in many hundreds of different cases in the courts of every jurisdiction considered authority in this country. Different language is used by the different courts; but one main, underlying principle, whatever the phraseology, is found in all, and that is that the evidence required to establish it need not be-indeed, cannot be-of that direct, affirmative, and positive character which is required to establish a tangible fact. The only positive and affirmative proof required is of facts and circumstances from which the undue influence may be reasonably inferred. Jamison, 51 So. at 131 (citations omitted)

However true all of this may be, none of it supports the idea that that undue influence can be proved by no evidence at all. See, e.g., Grant, 161 So.2d; In re Atkinson’s Estate, 80 So.2d 12 (Miss. 1955). It can, however, be presumed.

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

56

In re Will of Moses

D It is well established in Mississippi and elsewhere that, where a confidential relationship is shown to exist between a testator and a beneficiary, the law raises a presumption of undue influence. 16 Am.Jur., Deeds, §§392–95, 402; 26 C.J.S., Deeds, §§193, 58; Ham v. Ham, 110 So. 583 (Miss. 1926); Bourn v. Bourn, 140 So. 518 (Miss. 1932);Griffith, MISSISSIPPI CHANCERY PRACTICE (2d ed. 1950), §589. There are at least two distinct problems with the rule regarding the presumption, however. First, Mississippi courts have not been consistent with regard to whether a confidential relationship alone is sufficient to raise the presumption. Even this court has tended to overlook differences across time and differences in the type of transaction in question. Compare, e.g., Jamison v. Jamison, 92 Miss. 468 (1908) with Croft v. Alder, 237 Miss. 713 (1959). Additionally, the classic statement of the rule ignores certain crucial ways in which the law has been shaped by cultural expectations – a problem especially notable in this case and in every case involving a woman or other person who is a member of a class that lacks power in our society. With regard to the first problem, the authorities available disagree on whether a presumption of undue influence requires proof only of a confidential relationship, Meek, 36 Miss. at 245; see also O’Bannon, 4 So.2d, or proof of a confidential relationship plus something additional. 2 Page on Wills, 94 C.J.S. Wills §239, 1091–96 (presumption not raised by mere fact of confidential relationship, although that fact will merit close judicial scrutiny); 2 Pomeroy, EQUITY JURISPRUDENCE §956 (4th ed. 1918) (transaction not necessarily voidable and may be valid). In one of Mississippi’s earliest cases on the subject, this court provided an extremely detailed summary of the authorities, concluding that American law, like the law in England, raises a presumption of undue influence in regard to contracts whenever a guardian and that guardian’s ward are parties to the contract, not because we believe that there is secret evidence that the guardian actually did overwhelm the ward’s own free will, but as a policy-based rule to prospectively reduce the temptation facing all guardians to engage in such self-dealing. Meek, 36 Miss. at 249. The court further concluded that such a presumption should arise equally in a case involving a will, for the same reasons. Id. Further, the court also held that such a presumption should arise in any situation involving a similarly confidential relation, such as the relation between an attorney and client. Id. By contrast, in Croft, this court stated that, even when a court finds that a confidential relationship existed between the parties, the presumption of undue influence is raised only when the beneficiary under the will has abused

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

In re Will of Moses

57

that relationship. Croft, 115 So.2d at 688 (presumption raised “where a confidential relation exists between a testator and a beneficiary under his will, and the beneficiary has been actively concerned in some way with the preparation or execution of it”). Croft distinguishes the cases on the basis of whether the transaction was an inter vivos gift or a testamentary gift, classifying inter vivos gifts with deeds (as raising a presumption of undue influence without more) and distinguishing those from bequests by will, to which a different rule applies. Id. Under Croft, the presumption of undue influence arises under a will contest only when the contestant proves the existence of the confidential relationship plus something else: suspicious circumstances, direct involvement of the beneficiary in the drafting or execution of the will, or reduced capacity on the part of the testator. Id. This better view conforms with the view of numerous other states, which have determined to value testamentary freedom over a clearly paternalistic supervision of their citizenry. 94 C.J.S. Wills §239, 1091–98 (1956). Second, the conflict between these approaches works to the particular disadvantage of women and other similarly situated legal actors in our society. However long it took landed noblemen to win the right to devise their estates as freely as they wished, it took women far longer. Until relatively recently, wealthy property holders in our culture were almost exclusively male, because women under the coverture of marriage had no legal identity and were as incapacitated at law as infants, prisoners, and the insane. See generally Tapping Reeve, THE LAW OF BARON AND FEMME 2–194 (2d ed. 1846). In 1839, Mississippi became the first state to enact a Married Women’s Property Act, which permitted wives to hold property and act legally in their own name; as early as 1875, this court affirmed married women’s rights as legal persons. Hodges v. Darden, 51 Miss. 199 (1875). This right did not come without cost: In that same year, in a separate (but surely related) enactment, the legislature decreed that if a widow did have a separate estate, the value of that estate would serve as a cap on how much of her husband’s estate she could elect under her dower rights, in lieu of whatever her provision her husband made (or, more likely, did not make) for her in his will. Miss. Laws, 1839, ch. 46, p. 72. Spouses of either sex did not achieve status as “heirs” of decedents until 1880 and, to this day, have no greater right to a decedent’s estate than any individual child of the decedent. Miss. Stat. §1651 (1930). As late as 1917, the Mississippi bar continued to relish attitudes such as are reflected in this footnote to Hemingway’s 1917 Code: Venerable relics of antiquity, you have come down to us from a former generation. You have survived the wreck of empires and change of dynasties.

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

58

In re Will of Moses

Born away back in the womb of time, whereof the memory of man runneth not to the contrary, you have outlived the war of the Roses, passed safely through the Protectorate, crossed the ocean, survived the great American Revolution, and rode out the storm of the late great war. Whatever attendants were absent from the bridal altar, you two, at least, were always there; and when the bride and groom mutually murmured, “With all my worldly goods I thee endow,” you, as priest and priestess, sealed the covenant. Like shades, you’ve followed the twain blended into one, and when either fell, one of you administered the balm of consolation to the survivor. If pure religion and undefiled be to visit the fatherless and the widow in their affliction, thy mission has been akin to it. Venerable priest and priestess of the common law, farewell! You have been pleasant in your lives, and in death have not been divided. Soliloquy of an old lawyer, November, 1880 (cited in William Hemingway, 2 Annotated Mississippi Code 1106 n* (1917))

As a state and as a culture, we have limited women’s rights to the property their own labor surely helped to produce, and with each slight expansion grudgingly granted, we seem to have curtailed other rights in tandem: Despite all the talk about the status of American women in recent years, the actual position of women in the United States has declined, and is declining, to an alarming degree throughout the 1950’s [sic] and ’60s. Although 46.4% of all American women between the ages of 18 and 65 now work outside the home . . . full-time women workers today earn on the average only 60% of what men earn, and that wage gap has been increasing over the past twentyfive years in every major industry group. MISSION STATEMENT, National Organization of Women, adopted October 29, 1966

Women depend on men in our legal society, not as much as they did in the past, but still to a highly significant degree. That dependence is created by our culture and imposed on women regardless of their own inherent abilities or desires: “Confined to the home, a child among her children, passive, no part of her existence under her own control, a woman could only exist by pleasing man. She was wholly dependent on his protection in a world that she had no share in making: man’s world. She could never grow up . . . .” Betty Friedan, THE FEMININE MYSTIQUE 82 (1963). The law has then used that culturally created dependence to justify infringing the rights of women who do not need such protection. See, e.g., Packard v. Packard (1864 Illinois case arising out of laws permitting husbands to commit wives to insane asylums on no more than the husband’s word). One of literature’s most frequent tropes is the woman who strays outside of societal

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

In re Will of Moses

59

norms and thereby surrenders societal protection of her rights. The parade of characters sounds a somber litany of our culture’s treatment of women: Anna Karenina – dead – suicide; Daisy Miller – dead – a pox; Lily Bent – dead – overdose; Tess of the D’Urbervilles – dead – hanged for murder. On the one hand, women who transgress society’s expectations can be victimized, and we acknowledge that courts must be vigilant to protect the interests of those who need protecting. On the other hand, a rule that presumes that as many as half of all otherwise competent legal actors need such draconian protection is a deeply problematic rule. We hereby resolve this problem by adopting the interpretation of Croft: A presumption of undue influence will arise only where a confidential relation exists between a testator and a beneficiary under his will, and there are additional suspicious circumstances to suggest undue influence, such as the beneficiary’s active concern with the preparation or execution of the governing instruments. Croft, 115 So.2d at 688. Under this rule, there is no presumption of undue influence raised in this case that is not rebutted by Moses’ consultation with independent counsel. E In Croft, the court was very careful to define and limit the suspicious circumstances that must exist, in addition to the confidential relationship, to even give rise to the presumption of undue influence. Croft, 115 So.2d at 688. The specific examples listed were where the beneficiary actively participated in the preparation of the will, actually drafted it, or assisted in its execution. Id. All of these carefully tabulated suspicious circumstances were present in the Croft case. Id. In this case, by contrast, even the dissent has conceded that, in the absence of the presumption of undue influence, there is no basis to support a finding that Holland exercised undue influence over Moses. This being true, the first question to be decided is whether the presumption of undue influence arises under the circumstances of this case. We hold that the presumption did not arise. The fact, alone, that a confidential relationship (i.e., one of trust and mutual affection) existed between Holland and Moses is not sufficient to give rise to the presumption of undue influence in a will case. We said in Croft: [S]uch consequence follows where the beneficiary has been actively concerned in some way with the preparation or execution of the will, or where the relationship is coupled with some suspicious circumstances, such as mental infirmity of the testator; or where the beneficiary in the confidential

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

60

In re Will of Moses

relation was active directly in preparing the will or procuring its execution, and obtained under it a substantial benefit. Croft, 237 Miss. at 723–24, 115 So.2d at 686

It was not contended in this case that Holland was in any way actively concerned with the preparation or execution of the will. There is not one iota of testimony in this voluminous record that Clarence Holland even knew of this will, much less that he participated in the preparation or execution of it. The evidence is all to the contrary. The appellees rely solely upon the finding of the chancellor that there were suspicious circumstances. However, the suspicious circumstances listed by the chancellor in his opinion had nothing whatsoever to do with the preparation or execution of the will. These were remote antecedent circumstances having to do with the meretricious relationship of the parties and the fact that, at times, Moses drank to excess and could be termed an alcoholic, but there is no proof in this long record that her use of alcohol affected her willpower or her ability to look after her extensive real estate holdings. It is common knowledge that many persons who could be termed alcoholics own, operate, and manage large business enterprises with success. It is true that Holland had represented Moses in at least some matters, and she told friends he was both her attorney and her boyfriend. But if Holland was embarking on a scheme to defraud Moses of her wealth, he made a pretty poor effort at it. As we noted in Jamison, 51 So. at 131, most undue influence is done offstage and behind the scenes, and most undue influencers ensure that their nefarious actions remain unseen. By contrast, Holland was very public in his devotion to Moses and seemed completely unabashed about the land deal and his access to her comparatively small checking account, because he used the money left over from the land deal to buy his father a tractor: the kind of sentimental act that any sharp lawyer would have realized would taint his actions with the suspicion of undue influence. There is no evidence on record that he is the cunning and devious playboy conjured up in the chancellor’s findings. This is the very problem with undue influence, because the same facts that might indicate Holland was trying to take advantage of Moses also support a far different story: a story of a wealthy and powerful woman sharing her largesse with her younger beau. Because courts can never see the truth of a testator’s relationships – only a limited slice of people’s private lives – we should exercise caution in raising the presumption of undue influence, especially when a beneficiary occupies two roles: one as (arguably) a fiduciary, and the other as a natural object of the testator’s bounty. See, e.g., O’Bannon, 4 So.2d.

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

In re Will of Moses

61

But assuming, for the purposes of this analysis, that the previous confidential relationship did justify a presumption of undue influence in this case, that is not the end of the matter. In Mississippi, as in other states that recognize such a presumption, that presumption is always rebuttable, the proponent of the will having the burden – but therefore also the opportunity – of proving the lack of undue influence throughout the transaction. Once the presumption of undue influence has been raised, the burden of rebutting the presumption falls upon the proponent of the will, who may overcome that presumption by clear and convincing evidence of two things: full deliberation on the part of the testator, and abundant good faith on the part of the beneficiary. Meek, 36 Miss. at 258–59. Moses did just this. Unlike the testator in Alder, who was eighty-seven years old, Moses was only fifty-four years old – no older than the most junior of justices on this court – when she executed her will. She went alone to the law office of an independent, capable, and experienced attorney whom she had selected. She herself told him how she wanted to devise her property. After she had pointed out an error in the first draft, her attorney corrected and rewrote the will, and he mailed it to her on May 21, 1964. She went alone to his office on May 26, 1964, and signed her last will in the presence of two disinterested witnesses. Almost two months had elapsed between her first conference with her attorney and the actual execution of the will. The dissent’s argument that Moses’ lawyer did not inquire deeply enough into the details of the transaction is based on the same faulty assumption outlined above: to wit, that Moses did not know exactly what she was doing, that she needed protection, and that she was somehow a tool of Holland’s charm, giddily acquiescing to his desires like an adolescent schoolgirl. There is no reason, as discussed in detail above, to believe that she actually was so vulnerable – certainly not by her nature and not under these facts. And although women traditionally may have relied on a fabricated vulnerability to deceive and manipulate men, there is simply no evidence to suggest Moses did so in this case. There is really no evidence at all that Moses’ will was influenced by anything but her own desire, other than the arguable unlikeliness of Holland’s attraction to her. There is, however, much evidence to the contrary, as she continued to affirm and assert the wishes reflected in the 1964 will until her death. In January 1967, about one month before her death, six years after the land deal, and some two years and eight months after she had made her will, she called W. R. Patterson, an experienced, reliable, and honorable attorney who was a friend of hers, and asked him to come by her home for a few minutes. Patterson testified:

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

62

In re Will of Moses

She said, “Well, the reason I called you out here is that I’ve got an envelope here with all of my important papers in it, and that includes my last will and testament,” and says, “I would like to leave them with you if you’ve got a place to lock them up in your desk somewhere there in your office.” . . . (A)nd she said, “Now, Dan Shell drew my will for me two or three years ago,” and she says, “It’s exactly like I want it,” and says, “I had to go to his office two or three times to get it the way I wanted it, but this is the way I want it, and if anything happens to me I want you to take all these papers and give them to Dan,” and she says, “He’ll know what to do with them.”

While the passage of time does not by itself remove a lawyer from his confidential position with regard to a client, nothing in the Canons of Ethics (enacted by the Mississippi State Bar in 1914) precludes attorneys from having social relationships – even romantic relationships – with their clients, and we are skeptical that Holland is the only lawyer to pursue a romantic relationship with a former client. The only significant thing that differentiates Holland’s situation from more readily acceptable scenarios is that he and Moses did not become engaged or marry before her death, but this omission is open to interpretation. The dissent claims that Moses entertained a pathetic hope that Holland would marry her, but the evidence available makes it seem equally probable that Holland entertained a pathetic hope that Moses might marry him. Moses was well known for her strong personality and for her business acumen, and she was perfectly well off as a widow. Holland’s reputation, while stellar, is not that of a powerful deal-maker or of a conniving and deceitful man. The facts and circumstances surrounding their relationship support equally well an argument that Moses was the dominant personality and that Holland was her dependent, smitten lover. She had the wealth. She had the business experience. She left him a wedding ring from a previous marriage. The deep mistrust courts have of bequests to those in a confidential relationship with a testator is based fundamentally on the domination of one party and the reliance of the other. Meek, 36 Miss at 247. The presumptions work as intended when we are confident which is which. O’Bannon, 4 So.2d at 209. But when the facts point to an equally plausible alternative, courts should take that into consideration as well. Id. Holland was not a powerful and wealthy lawyer whose expertise dominated his relationship with Moses and left her powerless to act except in reliance on his judgment. She knew other lawyers and knew how to use them. The dissent’s argument that Moses was dependent on Holland hinges primarily on the dissent’s belief that Moses’ history of breast cancer, when coupled with her age, her heart trouble, and her drinking, made her a woman that no reasonable man would touch, except for nefarious reasons. Moses was no longer a young woman, but she was no older than the

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

In re Will of Moses

63

youngest of the justices hearing this case. The dissent’s deeply condescending (and distastefully rude) detailing of Moses’ health issues reveals more about their own values than those of Holland, whose loyalty to Moses never seemed to waver through all these difficulties. See, e.g., O’Bannon, 4 So.2d. Regardless of the dissent’s obsession with her health, Moses clearly knew how to woo and win a man: She did so no less than four times, and she outlived three of them. It is possible our dissenting colleagues actually believe that no man could love a woman who has lost a breast to cancer, that no man would ever find an older woman attractive, that no man could stomach a woman like Fannie – but it is far more likely that the dissent simply cannot stomach the fact that Moses decided not to leave her estate to her siblings, particularly Nettie Ree Traylor, Fannie’s well-known, deeply religious, never-married sister. Holland and Moses flouted societal expectations and lived as they wished, which might be offensive enough, but Moses’ decision to craft an estate plan that might be deemed “unnatural” seems to have persuaded the dissent that she overstepped the traditional limits of a woman’s right to control her property. Like the strong-willed Hester Prynne in The Scarlet Letter, she apparently had to be banished to the margins of the law for her unconventional choices. As we noted in Jamison, “[W]hile a testator has the abstract power of disposing of his estate by will according to his settled convictions or caprice, yet a will, producing results as those now under judicial scrutiny, is the object of sharp solicitude and jealousy in the courts.” Jamison, 51 So. at 131. Nevertheless, as in O’Bannon, there is no evidence indicating that the testator “was under any obligation, legal or otherwise, to devise his property to [her siblings].” O’Bannon, 4 So.2d at 209. She “therefore had the absolute right to devise [her] property to whomseoever [she] wished.” Id. See also Grant, 161 So.2d at 190. In this case, the facts make obvious the most natural explanation in the world: Moses left Holland everything because he made her happy, because he did not see her as damaged property, because he remained devoted to her when other men – as so acutely expressed in the dissent – would have left her alone and unloved. The fact that she chose to leave most of her property to the man she loved in preference to her sisters and brother is not such an unnatural disposition of her property as to render it invalid. O’Bannon, 4 So.2d at 209. The evidence is undisputed that Fannie Moses executed her last will after the fullest deliberation, with full knowledge of what she was doing, and with the independent consent and advice of an experienced and competent attorney whose sole purpose was to advise with her and prepare her will exactly as she wanted it. What else could she have done? She met all the tests that this court and other courts have carefully outlined and delineated. The dissent

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

64

In re Will of Moses

argues that this still was not enough, that there were “suspicious circumstances” and “antecedent agencies,” but even these were not connected in any shape, form, or fashion with the preparation or execution of her will. They had to do with her love life and her drinking habits and propensities. The language of the dissent conveys a deep belief not that Moses’ testamentary freedom was abrogated, but that the nature of their relationship required punishment, that Moses no longer deserved her testamentary freedom, and that therefore she did not have any. Such a studied paternalism undermines our declared devotion to testamentary freedom. If testators who happen to be women cannot overcome the presumption of undue influence by identifying, hiring, consulting, and directing another lawyer as to their testamentary wishes, it is the same as saying women’s testamentary wishes do not matter. If full knowledge, deliberate and voluntary action, and independent consent and advice have not been proved in this case, then they can never be proved. The petition for rehearing is denied. It is so ordered.

https://doi.org/10.1017/9781108860963.004 Published online by Cambridge University Press

4 Commentary on In re Estate of Wilson deborah s. gordon

background This consolidated case out of New York considered two independent appeals, both of which concerned testamentary trusts that awarded scholarships exclusively to male students. The first, Matter of Wilson, involved a 1969 testamentary trust (the “Wilson Trust”), which directed that trust income be applied to “[defray] the education and other expenses of the first year at college of five (5) young men who shall have graduated from the Canastota High School . . . as may be certified by the Superintendent of Schools.”1 The trustee, Key Bank of Central New York, administered the trust according to its terms for eleven years. In 1981, however, the Civil Rights Office of the US Department of Education received a complaint alleging that the school superintendent’s acts in connection with the Wilson Trust violated Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq., which prohibits gender discrimination in federally financed education programs. The school district agreed to stop providing the names of eligible students to the trustee, and the trustee filed an action with the Surrogate’s Court to determine the validity of the provision in the Wilson Trust that required a student to be certified by the school superintendent to be eligible to receive the scholarship.2 The Surrogate’s Court held that the school superintendent’s cooperation with the trustee under the terms of the Wilson Trust did not violate any federal statute or regulation prohibiting discrimination nor did it implicate the Equal Protection Clause of the Fourteenth Amendment. The Appellate Division, Third Department, affirmed the Surrogate’s finding that the testator intended to benefit male students but noted that the school district was under no legal obligation to comply with the trust’s terms. Finding that “administration of the 1 2

Matter of Wilson, 59 N.Y.2d 461, 469 (1983). Id.

65

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

66

In re Estate of Wilson

trust according to its terms is impossible,” the Appellate Division exercised its cy pres power to reform the trust and struck the certification requirement, but retained the gender restriction. Going forward, male scholarship candidates would apply directly to the private trustee.3 The second of the consolidated cases, Matter of Johnson, involved a 1978 testamentary trust (the “Johnson Trust”) directing income to be used “for scholarships or grants for bright and deserving young men who have graduated from” Croton-Harmon High School and “whose parents are financially unable to send them to college.”4 The trust specifically designated the school district, through its board of education, to select the scholarship recipients. Before the board of education, serving as trustee, awarded the first scholarships, however, the National Organization for Women filed a complaint with the Civil Rights Office of the US Department of Education. The complaint alleged that the school district’s involvement in the Johnson Trust constituted illegal gender-based discrimination. The parties, including the executor of the Johnson estate, the president of the board of education as trustee, and the New York Attorney General (responsible for overseeing administration of charitable trusts) entered into a stipulation agreeing to delete the word “men” in the trust instrument and replace it with the word “persons.” The Attorney General petitioned the Surrogate’s Court to determine if the language of the Johnson Trust permitted the action agreed upon by the parties. The Surrogate found that the trustee’s unwillingness to administer the trust, as evidenced by the stipulation, made its administration impossible. The Surrogate declined to use its cy pres power to reform the trust to conform to the dictates of the stipulation signed by the parties. Instead, the court held that the testator’s intent to benefit young men would be better effectuated by substituting a private trustee in place of the school district. The Appellate Division, Second Department, reversed that decision, holding that, under the Equal Protection Clause of the Fourteenth Amendment, a court cannot reform a trust in a manner that would deny equal protection of the law. Exercising its cy pres power, the Appellate Division reformed the trust to eliminate the gender restriction, essentially returning to the stipulated arrangement.5 Matter of Wilson and Matter of Johnson were appealed to the New York Court of Appeals to consider each testator’s intent in establishing the respective testamentary trusts, to evaluate the public policy implications of gender3 4 5

Id. at 470. Id. Id. at 471.

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

In re Estate of Wilson

67

restrictive trusts, and to determine whether the judicial reformation of each trust violated the Equal Protection Clause of the Fourteenth Amendment.

original opinion The Court of Appeals, in an opinion authored by Chief Judge Cooke, held that the Equal Protection Clause of the Fourteenth Amendment is not violated when a court permits the administration of private charitable trusts to finance the education of male students and not female students if doing so is consistent with the charitable donor’s intent. The Court of Appeals therefore affirmed the Appellate Division order in Matter of Wilson, approving reformation of the testamentary trust to eliminate certification by the school district and to instead allow male students to apply directly to the bank named as trustee in the will. The Court of Appeals reversed the Appellate Division order in Matter of Johnson, reinstating the Surrogate’s decision to reform the trust to substitute a private trustee, who would select male scholarship recipients, in place of the public trustee named by the testator but unwilling to act according to the discriminatory trust terms. In both instances, then, the trusts retained the gender-restrictive provision. To hold as it did, the Court of Appeals (the “Wilson court”) started by discussing the requirements for cy pres in New York, including that the trust have a charitable purpose and that “changed circumstances” have rendered its administration either “impractical or impossible.” Applying this test to the two trusts at issue, the Wilson court found that the testators “expressly and unequivocally intended” to benefit male students and that, “[s]o long as the subject high schools graduate boys with the requisite qualifications,” satisfying this intent was neither impracticable nor impossible.6 The Wilson court also discussed the public policy implications of the gender-restrictive trusts, including the importance of eradicating genderbased discrimination. More specifically, the court recognized that the New York legislature “has barred gender-based discrimination in education (see Education Law, §3201-a), employment (see Labor Law, §§194. 197. 220-e; General Business Law, §187), housing, credit, and many other areas (see Executive Law, §296),” and it concluded that, “[a]s a result, women, once viewed as able to assume only restricted roles in our society (see Bradwell v. State, 16 Wall [83 U.S.] 130, 141), now project significant numbers ‘in business, in the professions, in government and, indeed, in all walks of life where education is a desirable, if not always a necessary, antecedent’ (Stanton 6

Id. at 472.

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

68

In re Estate of Wilson

v. Stanton, 421 U.S. 7, 15).” Nevertheless, the Wilson court refused to strike the trust provisions in these private charitable testamentary trusts because prohibiting such gender restrictions would “operate with equal force towards trusts whose benefits are bestowed equally on women.”7 The court explained that “the focusing of private philanthropy on certain classes within society” may be consistent with public policy even if the restrictions in these trusts “run contrary to public efforts promoting equality of opportunity for women.”8 The Wilson court also reasoned that the gender restriction in the trusts did not frustrate a paramount charitable purpose because the trusts were not intended to benefit the school districts directly, but rather were designed to help to finance the college education of boys who attended the schools. Severing the school districts’ role in the trusts’ administration would not frustrate the testators’ charitable purposes. In fact, even though one trust named the school district as trustee, the court did not hesitate to deviate from this trust term, citing the familiar refrain that a “trust will not fail for want of a trustee.”9 Finally, the Wilson court rejected the argument that judicial facilitation of the continued administration of gender-restrictive charitable trusts violates the Equal Protection Clause of the Fourteenth Amendment.10 The court reasoned that private discrimination is permissible so long as it is not accompanied by “State participation in, facilitation of, and . . . acquiescence in the discrimination.” Distinguishing Shelly v. Kraemer,11 Barrows v. Jackson,12 and Moose Lodge No. 107 v. Irvis,13 the Wilson court explained that the State’s involvement must be more than its failure to prevent private discrimination, receipt by the private institution of some benefit from the State, and State regulation of the field in which the private institution operates. With the two gender-restrictive trusts at issue, the “coercive power of the State” was not “enlisted.” Although the Wilson court left open the possibility that a court’s exercise of its power over trusts might, under some circumstances, invoke the Fourteenth Amendment, “a trust’s discriminatory terms are not fairly attributable to the State when a court applies trust principles that permit private discrimination but do not encourage, affirmatively promote, or compel it.” That the court removed and replaced the State actors did not alter the result, because “[t]he courts’ power to replace a trustee who is unwilling to act as in 7 8 9 10 11 12 13

Id. at 473. Id. at 473–74. Id. at 475. Id. at 476–78. 334 U.S. 1 (1948). 346 U.S. 249 (1953). 407 U.S. 163 (1972).

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

In re Estate of Wilson

69

Johnson or to permit a deviation from an incidental administrative term in the trust as in Wilson is a part of the law permitting this private conduct and extends to all trusts regardless of their purposes. It compels no discrimination.”

feminist judgment In her majority opinion, Professor Camille M. Davidson, writing as Judge Davidson, agrees with the original New York Court of Appeals decision with respect to the Wilson Trust, but not the Johnson Trust, meaning that she affirms the decisions of both intermediate appellate courts. Davidson first observes that even though the trusts had gender-restrictive provisions, they were unquestionably charitable trusts because both promoted education. She then provides a detailed history of each trust, quoting the language establishing the respective trusts. This language is crucial because, as Davidson explains, trust law prioritizes individual donor intent as manifested in the trust’s language. Both trusts, by their plain language, show donors who wanted to use their private funds to benefit promising young male scholars. Davidson recognizes and empathizes with the fact that women have been discriminated against because of gender in the State of New York, but she refuses to recognize the court’s power to rewrite will language “simply because it does not include women.” Were a court to prohibit donors from benefiting men, a parallel trust designed to benefit promising young women likewise would fail, and, Davidson writes, “We would not want a future court suggesting that an individual could not provide exclusive scholarships for women.” Davidson further explains that private charitable trusts are encouraged, even though they may exclude persons based on race, gender, and religion, so long as they do not require State action to carry out their terms. Accordingly, a court must assess and weigh how donor intent and State involvement intersect. Using donor intent and State action as her guiding principles, then, Davidson discusses how the trust established by the eleventh article of Clark W. Wilson’s will (i.e., the Wilson Trust) was a lawful charitable trust, because the school board (the State actor in that case) had the limited responsibility of certifying the applicants. The school board did not play a critical role in carrying out the central purpose of the trust, which was to provide scholarships only for men. Because State action was not necessary to carry out the donor’s intent, the private gender restriction in the Wilson Trust was valid. Thus the court acted appropriately when it struck the perfunctory language using the cy pres doctrine. The Johnson Trust, though, was different because it named a public trustee to select the male recipients, thereby involving the State directly in the trust’s

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

70

In re Estate of Wilson

administration. Davidson notes that the executor, trustee, and State Attorney General agreed to remove the gender restriction because they recognized the discriminatory nature of the trust. The Surrogate’s rejection of this solution, replacing the public trustee with a private one, was more than a ministerial act and further involved the State in facilitating discrimination. As Davidson writes, “[T]he Surrogate ‘breathed life’ into a discriminatory trust” (quoting In re Estate of Johnson, 93 A.D.2d 1 (1983)). To support this conclusion, she relies on Pennsylvania v. Brown, 373 F.2d 771 (3d Cir. 1967), which rejected the Philadelphia Orphan’s Court’s attempt to replace a public trustee with a private trustee who could follow the trust’s direction to build a school for “poor white male orphans,” and Evans v. Newton, 382 U.S. 296 (1966), which rejected substitution of a private trustee for a mayor who was directed to build a segregated park. Because the trustee’s identity was central to administration of the trust created by the sixth article of Edwin Irving Johnson’s will (i.e., the Johnson Trust), the trust was discriminatory. The court’s use of its cy pres power to eliminate the gender restriction, Davidson concludes, allowed the trust to satisfy the law and the settlor’s intent.

feminist implications There are several implications of Davidson’s feminist judgment. First, Davidson’s recognizes that trustee identity lies at the heart of a trust. Legions of sources repeat the adage that a trust “will not fail for want of a trustee,”14 but a trustee is central to the effective functioning of a trust. By recognizing that the donor’s choice of a particular trustee is a key manifestation of the donor’s intent, Davidson shows that who is chosen as trustee matters not only on a trustby-trust basis, but also, by extension, because those choices can help to reveal, promote, or reinforce social patterns of discrimination and power more generally.15 By extension, if male trustees are the trustees of choice for certain types of trust, for example, this choice perpetuates decision-making by men and might continue existing patterns of dominance and even discrimination.16 Thus Davidson’s distinction between the language and design of the Wilson and Johnson Trusts is a nuanced and feminist look at how trustee identity can and does matter. 14

15

16

RESTATEMENT (SECOND) OF TRUSTS §2, cmt. i (AM. LAW INST. 1959); 1 Austin Wakeman Scott, William Franklin Fratcher & Mark L. Ascher, THE LAW OF TRUSTS §33 (4th ed. 1989 & Supp. 2002). See Deborah S. Gordon, Engendering Trust, 2019 WISCONSIN L. REV. 101, 116–19 (2019) (discussing the feminist implications of trustee identity). See Martha Chamallas, INTRODUCTION TO FEMINIST LEGAL THEORY 11–12 (3d ed. 2013).

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

In re Estate of Wilson

71

Second, echoing the original decision, Davidson recognizes how private funding sources may be equally as beneficial to women as they are to men. Both she and the original opinions do not want to interfere with these private means of allowing women to pay for their educations, although Davidson’s language shows greater empathy by recognizing the history of women’s diminished access to education. In contrast, the original decision cites sources that appear to support a growing private philanthropic support for women, including Grant Magazine, Directory of Financial Aids for Women, and a Ford Foundation publication (though there is no comparison between those sources and sources for male students). This argument that women should be treated the same as men is known as the “formal equality” school of feminism and derives from liberal democratic theory.17 Whenever formal equality arguments are made, however, it is worth asking if the “same” treatment is actually – substantively – equal treatment. In other words, the neutral rules and treatment that formal equality demands may not achieve substantive equality because women occupy a position that is entirely different from that of men in all respects – biologically, socially, and economically.18 Applying this argument in the context of charitable education trusts, women’s historically diminished access to education arguably means that private charitable trusts benefiting women are more necessary than private charitable trusts benefiting men, as a public policy matter, because they help to compensate for historic inequities. While this argument is theoretically appealing, Davidson did not make it in her feminist judgment, perhaps in part because data about who was setting up and benefiting from private trusts was scarce at the time the matter was before the court. While it is easy to show that women have struggled to attain equal education to men, unfortunately (but not surprisingly), it is much harder to find information about private scholarships available to women before 1983.19 There is one more observation to be made about substantive equality and the Wilson opinions – both the original and the rewrite. On the one hand, both decisions rely heavily on the primacy of donative intent, which is a natural 17

18

19

Id. at 19–20; see also Cynthia Grant Bowman et al., FEMINIST JURISPRUDENCE: CASES AND MATERIALS 115–16 (4th ed. 2011); Cynthia Grant Bowman & Elizabeth M. Schneider, Feminist Legal Theory, Feminist Lawmaking, and the Legal Profession, 67 FORDHAM L. REV. 249, 251–52 (1998). See generally Katharine T. Bartlett, Objectivity: A Feminist Revisit, 66 ALA. L. REV. 375 (2014); Catharine A. MacKinnon, Reflections on Sex Equality under Law, 100 YALE L.J. 1281 (1991). The results of studies that did exist gave a muddy picture on the availability of scholarship. Some said that men received the majority of scholarship dollars, while others suggested that there was parity. Sports scholarships, however, clearly skewed toward men. The Department of Education did not start giving statistics on scholarships based on gender until 1989.

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

72

In re Estate of Wilson

approach to take for a trusts and estates scholar. On the other hand, though, it might be worth asking if donative intent has the same meaning for men and women. For example, if men have more property to control and give away, prioritizing intent, by definition, prioritizes male intent. In this case, both settlors were male. The quest to carry out donor intent may disadvantage women because courts may be unknowingly reinforcing gender bias. For example, a settlor might mandate that his trust funds be used to provide scholarships to men because he does not believe that women should be educated. In the end, Davidson’s rewritten judgment is feminist because it recognizes and describes how insidious discrimination is and can be. It takes a place in the trusts canon as a decision that recognizes the power of private philanthropy – and one that acknowledges that, in some cases, the lack of direct State action may limit the courts’ ability to ensure that philanthropy is not used as a tool of discrimination.

I N R E E S T A T E O F W I L S O N , 5 9 N . Y . 2d 4 6 1 , 4 5 2 N . E . 2d 1 2 2 8 ( 1 9 8 3 )

judge camille m. davidson, delivering the opinion of the court This appeal consolidates two cases, In re Estate of Wilson, 87 A.D.2d 98; 451 N.Y.S.2d 891 (1982) and In re Estate of Johnson, 93 A.D.2d 1; 460 N.Y. S.2d 932 (1982). The lower courts used their cy pres power to reform the trusts, so that they might carry out the settlor’s intent to fund scholarships that financially benefited men and excluded women in a way that did not violate the Equal Protection Clause of the Fourteenth Amendment. This court must decide whether that reformation was sufficient State action to be classified as a violation of that Clause. In each case, we evaluate the testator’s intent when he established the trust and the public policy associated with gender-restrictive trusts. With respect to the Wilson Trust, we answer in the negative. We answer in the affirmative with respect to the Johnson Trust.

i Wilson and Johnson each created a private testamentary trust that provided scholarships solely to male students in a school district. There is no question

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

In re Estate of Wilson

73

about the charitable intent of each trust. Each promotes education. See Butterworth v. Keeler, 219 NY 446 (1916). The men-only limits of each trust do not negate the charitable nature of the trust. See 4 Scott, TRUSTS §370.6 (3d ed. 1967); Restatement of Trusts 2d. §370, comment j. The funds to establish each of the scholarships belonged to the individuals who executed the will. Although an individual may dispose of his property with few limitations, the State may not compel or enforce discriminatory conduct. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836 (1948). In each case, the Surrogate acted to modify the trust language so that the settlor’s intent could be carried out without the State being complicit in any type of gender discrimination. The difference in the dispositive facts of the two cases resulted in different findings by the Second and Third Judicial Departments of the New York Supreme Court as to whether the court action amounted to State action that deprived women of their equal protection rights under the Fourteenth Amendment. We agree with the decisions of the Third Department and the Second Department. A Clark W. Wilson died in 1969. Prior to his death, he executed a will with a testamentary trust. Specifically, the eleventh article of Wilson’s will disposed of his residuary estate as follows: The residue of my estate shall be held by my trustee as a permanent fund, the income from which is to be applied to defraying the education and other expenses of the first year at college of five (5) young men who shall have graduated from the Canastota High School, three (3) of whom shall have attained the highest grades in the study of science and two (2) of whom shall have attained the highest grades in the study of Chemistry, as may be certified to by the Superintendant [sic] of Schools for the Canastota Central School District. Wilson, 87 A.D.2d at 99; 451 N.Y.S.2d at 892

For the first eleven years after Wilson’s death, there were no complaints about how the trust was being administered. The trustee, First Trust and Deposit Company of Syracuse (now Key Bank of Central New York, N.A.) administered the trust according to its terms. In 1981, the District stopped certifying scholarship candidates after a complaint was filed with the Civil Rights Office of the US Department of Education alleging that the District discriminated based on gender and therefore was violating Title IX of the Education Amendments of 1972 (20 U.S.C. §1681 et seq.), which prohibits gender discrimination in federally financed education programs.

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

74

In re Estate of Wilson

The District thereafter refused to certify scholarship candidates, and so the trustee did not have the information that it needed to administer the trust. The trustee sought court guidance with regards to the next steps it should take. In order to eliminate State action through certification of male graduates by the District, the Surrogate approved a modification to the trust that removed the certification requirement, thus permitting scholarship applicants to apply directly to the trustee. Wilson, 87 A.D.2d at 101; 451 N.Y.S.2d at 893. The Third Department affirmed the Surrogate’s modification. It disagreed with the appellants, who argued that the removal of the gender restriction was the best method to perpetuate the testator’s general intent: [A]lthough a gender-neutral educational trust is preferable on public policy grounds to one which imposes a gender restriction, there is another competing public policy consideration, namely, preserving the right of the testator to dispose of his property as he wishes. This rule becomes even more compelling when applied to the area of private charitable trusts, for one of the very reasons for the rule is to encourage bequests for charitable purposes. Wilson, 87 A.D.2d. at 102; 451 N.Y.S.2d at 894

B Edwin Irving Johnson died in 1978. His 1975 will established a private charitable trust to provide scholarship for “deserving young men” who matriculated in the Croton-Harmon Union Free School District. The language was as follows: I give, devise and bequeath my entire residuary estate to Croton-Harmon Union Free School District, the principal of which shall be invested and held for the purposes hereof, and the net income of which shall be used and applied, each year to the extent available, for scholarships or grants for bright and deserving young men who have graduated from the High School of such School District, and whose parents are financially unable to send them to college, and who shall be selected by the Board of Education of such School District with the assistance of the Principal of such High School. Johnson, 93 A.D.2d at 4; 460 N.Y.S.2d at 935

The executor distributed the entire residuary estate to Croton-Harmon Union Free School District in its capacity as trustee. When the District’s Board of Education announced the inaugural scholarship in April 1979, it invited only male students to apply. After receiving a complaint from the National Organization for Women Legal Defense and Education Fund, the Civil Rights Office of the US Department of Health, Education, and Welfare

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

In re Estate of Wilson

75

opened an investigation to determine whether the District was violating Title IX of the Education Amendments of 1972, US Code, tit 20 §1681, subd [a] et seq., and engaging in sex-based discrimination. Before awarding any scholarships, the District, the executor of the Johnson estate, and the Attorney General of New York agreed to modify the trust language by changing the word “men” to the word “persons,” and the Attorney General petitioned the Surrogate to ratify the change. In re Estate of Johnson, 108 Misc.2d 1066, 439 N. Y.S.2d 250 (Sur.Ct. 1981). The Surrogate refused. It reasoned that “the decedent had a right to restrict the beneficiaries of his largess to ‘deserving young men’ even though in doing so, his action discriminated against deserving young women.” Id. at 1072. The Surrogate ordered that a private trustee be appointed to carry out the terms of the bequest. On appeal, a divided Second Department in a three-totwo decision, reversed the decision of the Surrogate. The majority concluded that the replacement of a public trustee with a private one to administer the men-only scholarship violated the Equal Protection Clause of the Fourteenth Amendment and granted the Attorney General’s petition to modify the trust by removing the gender restriction. The dissent agreed with the Surrogate’s decision to permit the appointment of a private trustee: “[T]he Surrogate . . . did nothing more than perform the judicially neutral or ministerial act of substituting a willing trustee for an unwilling one, or one who was disqualified from serving, did not deny or deprive young women in the subject school district of equal protection of the laws or in any other way violate the Constitution.” Id. at 48. The State’s role is not to eradicate all private discrimination; however, the State should not perform actions that facilitate that discrimination. Nonetheless, the focus in this case is on the Surrogate’s action and not on whether the private trust was discriminatory.

ii Wilson and Johnson each created a testamentary private charitable trust for the education of male students. There are very few limitations that bar an individual from disposing of his or her property as he or she desires, and there are no laws that prohibit private discriminatory conduct. Private charitable trusts are encouraged and may exclude persons based on race, gender, or religion. It is only when a private trust that excludes protected classes of individuals requires State action to carry out its terms that it violates the Equal Protection Clause of the Fourteenth Amendment. The Wilson Trust

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

76

In re Estate of Wilson

did not violate the Fourteenth Amendment; the Johnson Trust did violate the Fourteenth Amendment. A The Wilson Trust was a lawful charitable trust. The Surrogate’s modification to strike school board certification language was an appropriate use of cy pres. The Johnson Trust was unconstitutional. The Surrogate’s modification to strike gender-restrictive language was appropriate. Cy pres is a common law doctrine applied by courts when it is impractical or impossible to comply with the strict terms of a testamentary bequest. Sherman v. Richmond Hose Co. No. 2, 230 N.Y. 462, 473 (1921). The doctrine instructs courts to modify testamentary language as little as possible, and with any change the court should be mindful to preserve the ultimate intent of the donor. Since the intent of the testator was to provide support to certain needy male students, and the only thing preventing the trustee of the Wilson Trust from carrying out the testator’s intent was the certification by the superintendent, striking the requirement of the superintendent was an appropriate use of cy pres. When applying cy pres, a court must “closely approximate the expressed intent of the testator.” Wilson, 87 A.D.2d. at 101; 451 N.Y.S.2d at 894. Since the testator’s dominant purpose was to provide scholarship to needy young men, the reformation was appropriate, Third Department acted appropriately in affirming the Surrogate’s use of cy pres to strike the language requiring school board certification. In doing so, the Surrogate eliminated the possibility of State action. It was not appropriate to strike the gender-restrictive language because providing scholarships for men was the settlor’s dominant intent: “[T]he court’s power over the disposition of other people’s assets is limited to removing restrictions only if they are incompatible with the testator’s dominant purpose.” Cf. In re Syracuse Univ., 3 N.Y.2d 665, 171 N.Y.S.2d 545, 148 N. E.2d 671 (1958). Mr. Wilson outlined the requirements and eligibility for the scholarship in his will. Involvement of the school board, though named in the will as the certifying agency, was not absolutely necessary to carry out the testator’s intent. However, when the school board refused to certify scholarship applicants, the trustee was not able to administer the trust according to its terms. The Third Department first determined that, without the District’s cooperation, it was impossible to comply with the literal terms of the testator’s bequest. Because strict compliance with the language of the bequest had become impossible, the Surrogate applied cy pres and removed the school board certification

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

In re Estate of Wilson

77

requirement, thereby allowing applicants to apply directly to the trustee. The Third Department affirmed the actions of the Surrogate Court. Since State action was not necessary to carry out the testator’s intent – the applicants could apply directly to the trustee – this modification was appropriate. We do not accept, however, the arguments that the gender restrictions should have been stricken as a violation of Title IX. We understand and empathize with the fact that women have been discriminated against in this state because of sex, and we believe in gender equality, especially in education. While it is important to support women, we will not overstep our authority to rewrite testamentary language where a testator has chosen to exclude women as beneficiaries of a private charitable trust. It is clear to us that the dominant purpose of Wilson’s trust was to provide for male students. This purpose must be preserved by the retention of the gender restriction. We find it hard to believe that if a woman had established a trust with the same scholarship provisions for women, to the exclusion of men, there would have been any question about such trust’s constitutionality. We would not want our decision in this case to impact negatively on that individual or organization’s ability to assist women. We would not want a future court suggesting that an individual cannot provide scholarships exclusively for women, as long as there is no State action. A testator should be able to dispose of his or her estate as he or she desires. See In re Kelley, 225 A.D. 29, 232 N.Y.S. 84 (App. Div. 1928). Charitable bequests are encouraged, and judicial interference with charitable bequests is not consistent with public policy, even when a particular category of people is favored. While New York remains committed to the elimination of the systemic gender imbalance, this court does not have the power to rewrite will language simply because it does not include women. Disposition of property for religious, charitable, educational, or benevolent purposes that prefers one gender over another is not contrary to the public policy of New York and does not violate the Constitution. Our finding is different in Johnson. Unlike Wilson, the individual facts of Johnson suggest that the public trustee’s role in selecting recipients of a discriminatory trust makes the discriminatory conduct “fairly attributable to the state.” See Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744 (1982). It is not possible to effectuate the settlor’s intent by changing the trustee. Although Mr. Johnson could have disposed of his property as he desired, his error was appointing a State agency as trustee of his gender-restrictive trust. That trustee’s role was to determine the scholarship recipients: “By naming the

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

78

In re Estate of Wilson

Croton-Harmon Union Free District, a public agency, as trustee to receive, invest, administer and dispense scholarship funds and to select scholarship recipients, the bequest required substantial state involvement, thereby triggering the guarantees of the Fourteenth Amendment.” Johnson, 93 A.D.2d at 6. In other words, Mr. Johnson intended that a specific trustee administer the trust, but the involvement of that trustee is incompatible with the gender restriction in the trust. As between the two, the selection of the trustee is of prime importance and cannot be disturbed without thwarting the testator’s intentions. As such, the Surrogate Court should have eliminated the gender restriction only. “Historically, state action was defined as that action taken in the name of the state, and for the state, which was clothed in the state’s power.” See Ex parte Virginia, 100 U.S. 339, 347 (1880). There is not a formal test outlined by the US Supreme Court to determine what constitutes State action. But even the Wilson court acknowledged that a situation such as Johnson would most likely be unconstitutional. In Wilson, the Third Department stated, “There is no obligation, contractual or otherwise, on the part of the district to supply the trustee with the necessary list, and any such direction by a court would raise serious questions as to the constitutional and statutory legality of such an order.” Wilson, 87 A.D.2d at 100. Discrimination is “the unjust or prejudicial treatment of different categories of people or things, especially on the grounds of race, age, or sex.” Discrimination, OXFORD ENGLISH DICTIONARY (1976). Recognizing the discriminatory nature of the trust, the executor, trustee, and State Attorney General agreed to remove the gender restriction in the trust. The Surrogate should have affirmed this modification because a public trustee cannot administer a discriminatory trust. Instead, the Surrogate replaced the public trustee with a private one, which was inconsistent with the settlor’s stated preference for the named trustee. Although the Second Department agreed with the Surrogate that some trust modification was warranted, it disagreed with the reformation that the Surrogate effected. When the Surrogate replaced the public trustee with a private one, it used its power to encourage discriminatory conduct on the part of a private actor. The Supreme Court introduced the concept of the judicial enforcement doctrine as State action in Shelley v. Kraemer, 334 U.S. 1 (1948). A court may not use its power to enforce private discrimination. Instead, the court should have eliminated the gender restriction in the trust. Generally, a trust does not fail if there is no trustee. Also, replacement of one private trustee with another is ministerial. However, in Johnson, the judicial

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

In re Estate of Wilson

79

act of replacing this public trustee with a private trustee was more than a standard ministerial act. We agree with the Second Department that the Surrogate “breathed life” into a discriminatory trust. Johnson, 93 A.D.2d. When a trustee is unwilling or unable to perform, a successor may be appointed. However, in Johnson, the trustee was unwilling to perform because doing so was discriminatory. The facts of Johnson are like those in Pennsylvania v. Brown, 392 F.2d 120, 125 (3d Cir. 1968), in which the Third Circuit stated that removing a public trustee and replacing it with a private trustee so that racial discrimination could occur was “nonobvious involvement of the state” and “significantly encourage[d] and involve[d] the State in private discriminations.” Id. (quoting Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 1634 (1967)). In Pennsylvania, Mr. Girard executed his will in 1831. He left money to the Commonwealth of Pennsylvania to build a school for “poor white male orphans.” Girard College was established. Various city agencies administered the trust and, “in 1869, by State law, a local board of trusts was established to oversee and administer the institution.” Pennsylvania, 373 F.2d at 778. In 1954, two black men sought admission to Girard College. The Orphan’s Court of Philadelphia replaced the board of trusts with a private trustee in an attempt to continue the race restrictions. Even though the black men had no right to be beneficiaries under the will, the Third Circuit held that substituting the public trustee with a private one “involve[d] the state in private discriminations.” Id., at 783. The same is true in Johnson, in which the Surrogate held that the “private trustee could receive and consider recommendations from the district.” Johnson, 93 A.D.2d. at 31. We agree with the Second Department: “While the boundaries of unconstitutional state action may be imprecise, we are convinced that the Surrogate’s decree in this case fell well within their embrace.” The public trustee in Johnson was “central to the bequest,” and, “without input from the school district, the selection process would be substantially impaired.” Id. at 17. While courts have addressed equal protection in the context of race, we have not seen the same serious analysis applied to gender cases. In Shelley, the US Supreme Court stated that there could be no judicial enforcement of a racial restrictive covenant. Shelley, 334 U.S. at 68. When white property owner Kraemer sued to deny black owner Shelley his right to enjoy his property, any judicial conduct to enforce the covenant violated the Fourteenth Amendment. The Supreme Court furthered weakened racial restrictive covenants in Barrows v. Jackson, 346 U.S. 249 (1953) when it held that a white person could not be sued when she sold her property to a black

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

80

In re Estate of Wilson

person despite the racially restrictive covenant attached to such property. In Evans v. Newton, 382 U.S. 296 (1966), the Court held that the Fourteenth Amendment was violated when land was willed to the mayor to build a segregated park. In Newton, removal of the public trustee did not negate the fact that the park was municipal in nature. Id. at 299.

iv The Fourteenth Amendment states, “[No] State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Although there is no formula for determining unconstitutional State action, we have looked carefully at the facts of each case. We find that there was no unlawful State action in Wilson and that it was appropriate for the court to reform the trust to eliminate involvement of the District in recommending beneficiaries to the trustee. We affirm the order of the Third Department of the Appellate Division. There is no need to modify the trust to strike gender-restrictive language in a private trust. We find that there was unlawful State action in Johnson when the Surrogate Court substituted a private trustee for the District. Instead, the appropriate remedy is to eliminate the gender-restrictive language in the trust. We affirm the order of the Second Department of the Appellate Division to this extent and reform the language of the trust to include women. It is so ordered.

https://doi.org/10.1017/9781108860963.005 Published online by Cambridge University Press

5 Commentary on O’Neal v. Wilkes First Commentary on O’Neal v. Wilkes

ayelet blecher-prigat and benedetta faedi duramy

background Intestacy laws, which provide for the disposition of a decedent’s estate when no valid will has been executed,1 are commonly described as being designed to reflect the presumed intent of the deceased.2 Other goals of intestacy schemes reflect social policy considerations and include providing for dependents of the deceased, promoting fairness by rewarding or reimbursing family members for their contributions to the wealth of the deceased or to the deceased’s well-being, and easing administration of the probate system.3 With regard to children as intestate heirs, originally only blood-related “marital” children could inherit.4 Once adoption was more formally recognized, adopted children were included as their parents’ heirs, although the intestacy rights of adopted children remained a contentious and complicated issue throughout the twentieth century.5 Generally, only formally adopted children were recognized as having inheritance rights. While these rules may correspond to the family life of some decedents in the United States, and thus reflect their presumed intent and afford fairness to their successors, the rules fall short of achieving the goals of intestacy for both children and adults who live together in informal family relationships. In the United States, millions of children are raised and cared for by adults who are neither their biological nor their formal adoptive parents, and the rate of these informal adoption relationships is especially high in some 1 2

3

4 5

Jesse Dukeminier & Robert H. Sitkoff, WILLS, TRUSTS, AND ESTATES 64 (10th ed. 2017). See, e.g., Adam J. Hirsch, Default Rules in Inheritance Law: A Problem in Search of Its Context, 73 FORDHAM L. REV. 1031, 1033–37 (2004). See, e.g., Susan N. Gary, The Parent–Child Relationship under Intestacy Statutes, 32 U. MEM. L. REV. 643, 651–53 (2002). Susan N. Gary, Adapting Intestacy Laws to Changing Families, 18 LAW & INEQ. 1, 2 (2000). Naomi Cahn, Perfect Substitutes or the Real Thing?, 52 DUKE L.J. 1077, 1126–39 (2003).

81

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

82

O’Neal v. Wilkes

racial or ethnic minority communities.6 Informally adopted children belonging to these minority communities are therefore the most likely to be disadvantaged by existing intestacy laws. Some courts have used their equitable powers to provide remedies to children who were never formally adopted by the adults who cared for them. Such courts have developed the doctrines of “equitable adoption,” “virtual adoption,” “de facto adoption,” and “adoption by estoppel” to address such cases. Nonetheless, the way in which courts have constructed and applied these doctrines raises questions as to whether they meet the interests and needs of the families they intend to serve. The case of O’Neal v. Wilkes7 provides a telling example. Hattie O’Neal was born in 1949 to Bessie Broughton, an unwed African American woman.8 O’Neal’s biological father never recognized her as his daughter, did not provide any financial support for her, and had no relationship with her throughout her childhood.9 When her mother died in 1957, O’Neal was sent to live in New York City with her maternal aunt, Ethel Campbell, with whom she stayed for four years.10 In 1961, Ms. Campbell brought O’Neal to Savannah, Georgia, and gave physical custody of O’Neal to Louise, a woman (unrelated to O’Neal) who wanted a daughter.11 O’Neal stayed with Louise for only a little while because Louise could not care for her, and so Louise took O’Neal to the Savannah home of O’Neal’s paternal aunt, Estelle Page. Shortly thereafter, Page heard that Roswell Cook and his wife (both also unrelated to O’Neal) wanted a daughter; she contacted them and told them about O’Neal, and the Cooks came to Savannah to take O’Neal to their home.12 From the time O’Neal came into their home, Mr. Cook treated O’Neal as a daughter, although he never formally adopted her. He raised her and provided for her education; O’Neal continued to reside with him after he and his wife divorced, until O’Neal’s marriage in 1975. Mr. Cook referred to O’Neal as his daughter and identified her children as his grandchildren. 6

7 8

9 10 11 12

See Michael J. Higdon, When Informal Adoption Meets Intestate Succession: The Cultural Myopia of the Equitable Adoption Doctrine, 43 WAKE FOREST L. REV. 223, 247–48 (2008). See generally Gary, supra note 4 (describing the failure of adoption laws to meet changing definition of family). 439 S.E.2d 490 (Ga. 1994). Id. at 491. The fact that Bessie Broughton was African American is not mentioned by the court, but rather only in subsequent scholarship. See, e.g., Higdon, supra note 6, at 269. O’Neal, 439 S.E. 2d at 491. Id. Id. Id.

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

O’Neal v. Wilkes

83

In 1991, Mr. Cook died without leaving a will, and Firmon Wilkes was appointed administrator of Cook’s estate. It should be noted that we have no information about who Wilkes was or what was the nature of his relationship to Mr. Cook. The decision contains no such information, although Wilkes does not appear to be an intestate heir. Attempts to gain access to court briefs and transcripts to gain more information have been unsuccessful. Whoever Wilkes was, he refused to acknowledge O’Neal’s assertions that she was entitled to a portion of Cook’s estate, so she filed a suit in equity requesting that the court recognize her as Cook’s equitably adopted daughter, which would entitle her to the property she would have inherited had Cook formally adopted her. A jury found that O’Neal was indeed virtually adopted by Cook. However, after reviewing posttrial motions, the Superior Court issued a judgment notwithstanding the verdict in favor of Wilkes, on the ground that Page, O’Neal’s paternal aunt, did not have the legal authority to enter into an adoption contract with Cook. The Supreme Court of Georgia affirmed that decision.

original opinion A majority of the Supreme Court of Georgia refused to recognize Hattie O’Neal as the equitably adopted child of Roswell Cook. Justice Fletcher, writing for the majority, started his decision by telling the story of O’Neal’s life, the frequent changes of homes until she came to live with the Cooks, and her close relationship with Roswell Cook. Nonetheless, Justice Fletcher made no mention of the fact that both O’Neal and Cook were African American, and he took no notice of the cultural or racial background in which this case arose. He described O’Neal’s moves between several households in negative terms. Rather than paint a picture of caring relatives and nonrelative individuals, who had sought the best caring arrangement for O’Neal, Justice Fletcher chose to describe the adults involved as either indifferent or irresponsible. Thus, for example, instead of saying that Campbell “placed” O’Neal with Louise, Justice Fletcher says Campbell “surrendered physical custody of O’Neal to a woman identified only as Louise.”13 Likewise, according to Justice Fletcher, after a short while, Louise “determined” that she could not care for O’Neal, which again gives the impression of irresponsible and careless behavior. While Justice Fletcher stated that he sympathized with O’Neal’s plight, after telling her story, he rendered a very formalistic decision. His decision takes no notice of the fact that a jury did find that O’Neal was virtually adopted 13

Id. at 491. On the significance of using the term “place” rather than “relinquish” or “surrender,” see Carol Sanger, Placing the Adoptive Self, in NOMOS XLIV: CHILD, FAMILY, AND STATE 58, 84 (Stephen Macedo & Iris Marion Young eds., 2003).

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

84

O’Neal v. Wilkes

by Cook. Justice Fletcher embraced a strict contract theory of equitable adoption, which requires a valid contract to adopt as a basic element of the doctrine.14 According to Justice Fletcher, “[T]he first essential of a contract for adoption is that it be made between persons competent to contract for the disposition of the child.”15 In O’Neal’s case, her mother had died, and although her biological father was alive at the time, Justice Fletcher conceded that O’Neal’s father had no legal authority as a parent. The alleged contract for O’Neal’s adoption had been made between her paternal aunt, Page, and the Cooks. However, Justice Fletcher held that Page had no legal authority to consent to O’Neal’s adoption: “[T]he obligation to care and provide for O’Neal, undertaken first by Campbell, and later by Page, was not a legal obligation but a familial obligation resulting in a custodial relationship properly characterized as something less than that of a legal custodian. Such a relationship carried with it no authority to contract for O’Neal’s adoption.”16 Therefore Justice Fletcher held that there was no valid contract to adopt O’Neal, and therefore no basis for recognizing her as the equitably adopted daughter of Cook. Justice Sears-Collins dissented. She emphasized the equitable principles of equitable adoption and argued that they should outweigh strict contractual principles.17 Sears-Collins first pointed to the grave injustice of rejecting an equitable adoption claim in inheritance cases based on failures to comply with contract requirements, since the adopting parents (and probably their heirs) know of the relevant failures and yet voice no objection to the absence of a contract that the child fully performs and of which the adopting parents enjoy the benefits.18 Second, Justice Sears-Collins addressed the requirement of consent to the child’s adoption by a person with legal authority. She stated that this requirement is aimed at protecting the child, the adopting parents, and the person with that legal authority.19 However, in the context of an equitable adoption claim, the adopting parents have died, and only the child’s interests are at stake. This is particularly true in cases such as O’Neal’s, in which there was no person with legal authority to consent to her adoption. In such a context, insisting on consent to the adoption by a person with legal authority causes detriment to the very person this requirement was designed to

14 15 16 17 18 19

O’Neal, 439 S.E. 2d. Id. at 491. Id. at 492. Id. at 493. Id. Id.

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

O’Neal v. Wilkes

85

protect: the child. According to Sears-Collins, such a result is markedly inequitable, since the child had no ability to act or to otherwise affect the validity of the contract when the contract was made.20 Justice Sears-Collins argued that O’Neal’s claim should be accepted in the particular circumstances of the case and also argued more broadly for abandoning the contract basis for equitable adoption altogether. Instead, she argued for adopting a more flexible theory that would focus on the relationship between the adopting parents and the child, asking whether the adopting parents led the child to believe that the child was their legally adopted child.21 Although she dissented, Justice Sears-Collins paralleled the majority in that she, too, did not make any reference to O’Neal’s African American identity or to the informal caretaking arrangements that are more common in African American communities. In fact, in her decision she does not address the story of O’Neal’s life and her relationship with Cook. Instead, Sears-Collins’s dissent relies primarily on the appropriate basis of equitable adoption as a doctrine rather than on the specific circumstances of the relationship between Cook and O’Neal. Justice Sears-Collins also does not address the fact that a jury did find that O’Neal was virtually adopted by Cook. This disregard for the jury’s decision by both Justice Fletcher, writing for the court, and by Justice Sears-Collins, in dissent, are worth noting in light of feminist and critical theory scholarship on juries. Juries, on the one hand, can be a source of community knowledge, challenge the experts’ understanding of the law, and connect the law to the community.22 Historically, however, women, African Americans, and Native Americans could not serve on juries, so their experiences and normative understandings were excluded from this alleged community knowledge.23 Members of these disadvantaged groups had no opportunity to influence the law, which was in the control of the white male experts. There is no available information on the makeup of the jury that heard O’Neal’s case. We can only assume from the decision that it was a jury of O’Neal’s peers – at least in the sense that its members understood the reality of her life and of Cook’s.

feminist judgment and implications Professor Browne Lewis, writing as Justice Lewis for the majority of the Supreme Court of Georgia, reverses the Superior Court’s decision. In 20 21 22 23

Id. Id. See Phoebe Haddon, Rethinking the Jury, 3 WM. & MARY BILL RTS. J. 29, 30–31 (1994). Id.

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

86

O’Neal v. Wilkes

describing the factual background of the case, Lewis places the case in a broader social and cultural context right from the start by explicitly referring to the African American identity of O’Neal and her mother. The language and terminology used by Lewis when describing the frequent changes of residency and caretaking figures in O’Neal’s life is far less disparaging than the language used by Justice Fletcher (although it is not sentimental). Lewis states that informal adoption arrangements are relatively common and blood ties are less significant in African American communities than in predominantly white communities. By highlighting the different significance attached to blood ties and the prevalence of informal caretaking arrangements in African American communities, Lewis exposes the implicit biases of intestacy schemes and their alleged rationales. In other words, the “presumed intent” of the “average” decedent is reached without taking account of decedents whose family ties generally, and parent–child relationships in particular, are not centered on biology or formalities. Providing for dependent family members, promoting fairness, and rewarding succeeding family members are likewise policy considerations that overlook informal family relationships. The fact that such informal parent–child relationships are more common among racial, ethnic, or other minority communities suggests that any decedents and successors belonging to such minority groups are the ones likely to be disadvantaged by the application of existing formal intestacy rules. The first part of Lewis’s opinion discusses the existing contract law approach to equitable adoption. Lewis presents the elements of equitable adoption and acknowledges that, under a contract law approach to this doctrine, O’Neal’s claim depends upon the question of whether an agreement for her adoption was made between persons competent to do so. Lewis agrees with Justice Fletcher that O’Neal’s biological father did not have legal authority with regard to her adoption, so his consent was not required. Lewis also concedes that none of the persons who cared for O’Neal before she arrived at the Cooks’ home had legal capacity to consent to her adoption, so she was not “equitably adopted” under a contract theory of equitable adoption. Nonetheless, unlike Justice Fletcher, Lewis argues that justice requires a more nuanced consideration of equitable adoption here. In other words, the conclusion that O’Neal was not equitably adopted under a contract-based analysis should not end the inquiry. The equity power of the court, according to Lewis, must be applied toward the goal of reaching a “fair” decision. And the fair and equitable decision in this case, Lewis writes, “mandates that a child in O’Neal’s situation receive the equivalent from Cook’s estate as she would have gotten if he had legally adopted her.” Lewis’s nuanced decision focuses on the specific remedy asked for in this case.

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

O’Neal v. Wilkes

87

Lewis asserts that Cook received the benefits of a parent–child relationship from O’Neal, who provided him with affection and companionship (from her own children as well). It is therefore unfair to deny O’Neal the benefits from this relationship. Lewis considers O’Neal’s interests in her decision and also addresses the underlying rationale of intestacy laws, which is to carry out the presumed intent of the deceased. In this case, Cook had no biological or formally adopted children and no spouse, since he and his wife had divorced a few decades prior to his death. Since he referred to O’Neal as his daughter and to her children as his grandchildren, it is most likely that he preferred that O’Neal, rather than a distant relative, inherit his estate. This part of Lewis’s opinion reflects the understanding that different factual, social, or cultural contexts might call for a different resolution, thus taking a feminist approach of practical reasoning.24 In contrast to the general and abstract contract theory of equitable adoption, in applying the equity power of the court, Lewis emphasizes that a fair and just decision must apply the rationales of intestacy laws, as well as evaluate the relationship and behavior of Cook and O’Neal in a contextual manner.25 As such, Lewis’s analysis offers a more inclusive and flexible scheme, which can be adapted to diverse family situations. Lewis’s opinion also acknowledges the normative dimension of intestacy rules generally, and the concept of the deceased’s presumed intent in particular, when she explains that we can assume that Cook’s presumed intent was to have O’Neal as his heir only if “we let ourselves reimagine a more expansive definition of family and kinship instead of being tied to the traditional paradigm.” Lewis’s focus on continuous care and affection as key elements in addressing both Cook’s interests, as the deceased, and O’Neal’s interests, as potential heir, challenges the patriarchal roots of both inheritance law and adoption law. Historically, adoption’s primary goal was to perpetuate the male familial lineage, and the primary beneficiary of adoption was the adopter.26 Likewise, inheritance laws were designed to keep the family’s property intact and transfer it along male dynastic lines.27 In recognizing O’Neal as Cook’s equitably adopted daughter and as his female successor, Lewis’s opinion challenges these traditional values and perceptions. O’Neal did not take Cook’s name, but Lewis’s opinion clarifies that, in interpreting the presumed intent of the 24 25

26

27

See Katherine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829, 832 (1990). Cf. Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 VA. L. REV. 543, 605 (1986). Jan Ellen Rein, Relatives by Blood, Adoption, and Association: Who Should Get What and Why, 37 VAND. L. REV. 711, 714 (1984). See, e.g., Carole Shammas, Marylynn Salmon, & Michel Dahlin, INHERITANCE IN AMERICA: FROM COLONIAL TIMES TO THE PRESENT 16–17 (1987).

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

88

O’Neal v. Wilkes

deceased, relational values of affection and care matter more than patriarchal values of perpetuating the family name. Finally, Lewis’s opinion challenges traditional gender roles of men and women as parents. As noted in Lewis’s opinion, it was Cook as a father figure with whom O’Neal maintained a parent–child relationship after the Cooks divorced. Lewis’s feminist judgment ratifies this relationship for intestate succession purposes. Lewis maintains that a fair decision that recognizes O’Neal’s just interests and Cook’s presumed intent can be reached by adopting an estoppel approach to equitable adoption. Under an estoppel approach, those claiming through an intestate deceased are estopped from asserting that a child does not occupy the status of an adopted child of that deceased when the acts and conduct of the deceased were those of a parent vis-à-vis the child. According to Lewis, in this particular case, if Wilkes were close enough to Cook to be appointed administrator of Cook’s estate, he should have known of Cook’s parent–child relationship with O’Neal, and he should therefore be estopped from challenging her status as Cook’s adopted child for intestate inheritance purposes. The estoppel framework offered by Lewis is both relational and contextual: It focuses on specific relationships – between Cook and O’Neal, between Cook and Wilkes, and between Wilkes and O’Neal. As such, it follows a body of feminist scholarship that emphasizes that legal reasoning must pay attention to the details and specific circumstances of the situation.28

SECOND COMMENTARY ON O’NEAL V. WILKES

benedetta faedi duramy background In 1949, Bessie Broughton, an African American woman, gave birth to a nonmarital daughter, Hattie O’Neal.29 Hattie, whom her biological father never recognized as his daughter, met her father for the first time in 1970. When Bessie Broughton died in 1957, Hattie moved to New York City to live with her maternal aunt, Ethel Campbell.30 In 1961, Ms. Campbell sent her niece to Savannah, in Georgia, to live initially with a woman named Louise and eventually with Estelle Page, the sister of Hattie’s biological father.31 Shortly 28 29 30 31

See generally Martha Minow & Elizabeth V. Spelman, In Context, 63 SO. CAL. L. REV. 1597 (1990). See O’Neal v. Wilkes, 263 Ga. 850, 439 S.E.2d 490 (1994). Id. Id.

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

O’Neal v. Wilkes

89

thereafter, Ms. Page learned that a couple from Riceboro, Georgia, named Mr. and Ms. Cook, wanted to adopt a little girl and gave consent for Hattie, who was about twelve years old at the time, to go live with them.32 After the Cooks divorced during the 1970s, Hattie kept living with Mr. Cook, until her marriage in 1975.33 Although she was never formally adopted and retained her own last name, O’Neal, Hattie was raised by Mr. Cook, and he held her out to the world as his daughter. Mr. Cook also referred to Hattie’s children as his own grandchildren. In November 1991, Mr. Cook passed away without a will. Firmon Wilkes – who was appointed administrator of Mr. Cook’s estate, but whose relationship to Cook is not otherwise identified – refused to recognize Hattie O’Neal’s right to a portion of the inheritance.34 A month later, the appellant, Hattie O’Neal, filed an equity petition asking the court to recognize that she had been virtually adopted by the decedent, Mr. Cook, and thus had an interest in the estate. The jury determined that a virtual adoption had taken place; no information is available about the jury’s composition. On posttrial motions and notwithstanding the jury verdict, the trial court found that Ms. Page, the appellant’s paternal aunt, who had allegedly entered into the adoption “contract” with Mr. Cook, had no legal authority to do so.35 In 1994, the Supreme Court of Georgia reviewed the case and concluded that the trial court had correctly determined that no valid adoption agreement had been executed, and it therefore held that O’Neal had no rights to Mr. Cook’s estate.36

original opinion In O’Neal v. Wilkes, the Supreme Court of Georgia focused on whether the trial court had correctly decided that Ms. Page had no legal authority to execute the adoption contract of the appellant with Mr. Cook. If not, O’Neal could not be treated as Mr. Cook’s intestate heir. In its decision, the court followed a strict contract law approach that an adoption agreement is valid when it is executed between persons “competent to contract for the disposition of the child,” as previously stated in Winder v. Winder.37 To be competent, persons must have the legal authority to consent to the adoption of the child. According to Georgia law, persons who have the right to contract for the adoption of a child include the parents or the guardian of the child.38 The 32 33 34 35 36 37 38

Id. Id. Id. Id. Id. 218 Ga. 409, 412, 128 S.E.2d 56, 58 (1962). OCGA 15–11-43, Code 1933.

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

90

O’Neal v. Wilkes

court agreed with the appellant that the consent of her biological father was not necessary for the valid execution of the agreement given that, at the time, he had neither met the appellant nor did he ever legitimize her or provide support for her throughout her life.39 Likewise, the consent to the adoption could have not been provided by the appellant’s mother, who had already died. Thus the issue was whether Ms. Page, who had physical custody of O’Neal after her mother’s death, could be considered her legal guardian and, as such, entitled to contract for her adoption. The court found that there was no evidence that any petition for guardianship had been filed after O’Neil’s mother passed away; both Ms. Campbell and Ms. Page had merely fulfilled a family obligation, rather than a legal obligation, by taking care of O’Neal; and, finally, Ms. Page’s custodial relationship with O’Neal did not carry with it any legal authority to contract for her adoption.40 Therefore the court concluded that, since Ms. Page had no legal authority to enter into an adoption contract with Mr. Cook, such contract and any related ramifications should have no legal effects. The dissenting opinion reasoned, instead, that an adoption contract should be enforceable in equity when the child has fully performed it over the course of many years or a lifetime and its existence can be sufficiently established.41 The Georgia rule recognizing only those adoption contracts entered into by a person legally entitled to consent to the adoption of the child is intended to protect such person, the child, and the adoptive parents.42 Given that equitable adoption cases are likely to arise only when adoptive parents have already died, however, the sole interest to be protected at that stage is the child’s interest in the estate of the decedent. Thus holding that the adoption contract has no validity because it was executed by a person who had no legal authority to consent to adopt ends up jeopardizing the very interest that the rule aims to protect. It harms the child, whose life has been forever changed by the adoption contract and who was too young when such contract was made to act to ensure its validity. To avoid such an unfair outcome, equity must intervene on behalf of the child to make sure that the adoption contract is enforced. The dissenting opinion further argued that, in these types of case, the strict contract law approach should be abandoned in favor of a more equitable approach. Instead of assessing the validity of the adoption contract, the court 39 40 41 42

See O’Neal v. Wilkes, 263 Ga. 850, 439 S.E.2d 490 (1994). Id. Id. Id.

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

O’Neal v. Wilkes

91

should focus on the relationship between the child and the adoptive parents, and it should attempt to discern whether the adoptive parents led the child to believe that the child had been legally adopted.43 The dissenting opinion thus would have reversed the ruling of the lower court because it would be unfair and inequitable to deny O’Neal a portion of the estate on the ground that her paternal aunt did not have the legal authority to consent to O’Neal’s adoption.

feminist judgment The feminist opinion of Professor Browne Lewis, writing as Justice Lewis, employs the doctrine of adoption by estoppel to provide equitable relief to the applicant’s claim of being recognized as Mr. Cook’s equitably adopted daughter and, as such, of being entitled to inherit a portion of his estate. Historically, in the United States, only the decedent’s biological and marital children were considered legal heirs because “for centuries laws tied inheritance to bloodline and legitimacy.”44 Currently, all states have intestate succession laws that allow not only biological children of married parents but also nonmarital and adopted children to inherit from a decedent who died without a will. However, such statutes fail to protect the interests of children, such as Hattie O’Neal, who have not been formally adopted by the intestate decedent. The doctrine of adoption by estoppel – also known as equitable adoption, virtual adoption, and de facto adoption – has been used by courts to adjudicate these cases by treating such children, for the purposes of intestate succession, as though they were formally adopted by the decedent and thus entitled to a portion of the estate.45 Lewis stresses that Georgia courts have used equitable remedies in virtual adoption cases since the early 1900s. The main elements of an equitable adoption include: (1) the execution of a contract between the adopting parents and a person who has the legal authority to consent to the adoption; (2) the handover of physical custody of the child to the adopting parents; (3) the adopting parents’ acceptance of the child; (4) the fact that the child resides in the adopting parents’ home; and, finally, (5) the fact that the adopting parents have died intestate.46 In O’Neal v. Wilkes, the only requirement that was not met was the valid adoption agreement. Contrary to the original opinion that 43 44

45 46

Id. Michael J. Higdon, When Informal Adoption Meets Intestate Succession: The Cultural Myopia of the Equitable Adoption Doctrine, 43 WAKE FOREST L. REV. 223, 224 (2008) (citing Susan N. Gary, Adapting Intestacy Laws to Chancing Families, 18 LAW & INEQ. 1, 37 (2000)). Higdon, supra note 44, at 225. See Rhodes v. Quantrell, 227 Ga. 761, 183 S.E.2d 207 (1971).

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

92

O’Neal v. Wilkes

strictly applied contract law to the case, ruling that O’Neal was not equitably adopted by Mr. Cook, Lewis follows the dissent’s equitable approach to protect the rights and interests of the appellant. In her reasoning, however, Lewis emphasizes the presumed intent of the decedent, the benefits of the parent– child relationship for Mr. Cook under the estoppel theory, and the need for a more expansive interpretation of family. Lewis reasons that the ultimate purpose of the intestacy system is to distribute the decedent’s estate in the same way as the decedent presumably would have done, had the decedent died with a will.47 In O’Neal v. Wilkes, given that Mr. Cook had no other children and had already divorced his wife by the time of his death, it is more likely that he wanted his property to be inherited by O’Neal than by distant relatives. To fulfill Mr. Cook’s intent and reach a fair decision for the appellant, his only surviving child, Lewis adopts an estoppel approach to equitable adoption. Adoption by estoppel provides that children who have not been formally adopted can be legally recognized as the adopted children of the decedent if a parent–child relationship has been established between the parties.48 To assess whether such a relationship exists, a court must examine pertinent facts, circumstances, conduct, and admissions of the parties involved.49 If such a parent–child relationship exists, the court must impede by estoppel any person who claims that the child was not legally adopted and should not be entitled to inherit through and from the adopted parent. In O’Neal v. Wilkes, Mr. Cook and O’Neal maintained a parent–child relationship until Mr. Cook died. Key facts that support this conclusion include that: Although she never changed her family name, O’Neal was raised and supported by Mr. Cook throughout her life; he held her out to the world as his daughter; she lived with him until her marriage in 1975; and, finally, Mr. Cook considered O’Neal’s children to be his own grandchildren. Therefore both parties invested in and benefited from a parent–child relationship by sharing support, affection, duties, and companionship with each other. Moreover, Mr. Cook’s actions plausibly led O’Neal to believe that she would inherit his estate after his death. Lewis further argues that Wilkes must have known the nature of their relationship, given that he was close enough to Mr. Cook to have been appointed the administrator of his estate. Thus Lewis concludes that Wilkes must be estopped from denying O’Neal’s rights and interests in the decedent’s inheritance. 47 48 49

See Nunnally v. Trust Co. Bank, 261 S.E.2d 621, 624 (Ga. 1979). See Edward W. Bailey, Adoption “By” Estoppel, 36 TEX. L. REV. 30 (1957). See Malone v. Dixon, 410 S.W.2d 278 (Tex. Civ. App. – Eastland 1996).

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

O’Neal v. Wilkes

93

feminist implications The feminist judgment provides a fair and important decision not only for Hattie O’Neal, but also for the many African American families that do not mirror the traditional paradigm of the nuclear family, but rather conform to the extended family model. In his 1949 book, Social Structure, sociologist George Murdock defined the term “nuclear family” as “a social group characterized by common residence, economic cooperation, and reproduction. It includes adults of both sexes, at least two of whom maintain a socially approved sexual relationship, and one or more children, own or adopted, of the sexually cohabiting adults.”50 Under the extended family model, the term “family” encompasses kinships based on blood and marriage ties and other relationships that do not depend on birth, marriage, or descent.51 As noted by sociologist Shirley Hill, “[T]he social construction of the ideal family as a twoparent nuclear unit with a breadwinner father and a homemaker mother . . . was never a tradition among Black families.”52 In fact, research studies have found that 25 percent to 85 percent of African American families follow the extended family model.53 Informal adoption, defined as “the process by which dependent children are informally reared by adults who are not their natural or formal adoptive parents,”54 is one of the most common examples of extended kinship relationships within the African American community. The practice originated during slavery, when slave children, whose parents had been often sold as chattel, were informally adopted by grandparents, aunts, distant relatives, or other members of the slave community.55 Even after slavery, African American children, who were often excluded from child welfare programs, continued to be informally adopted by extensive networks of kin and friends in an effort to withstand discrimination and other ordeals.56 Statistics from the 1990s show that, in 50 51 52

53

54

55

56

Quoted in Higdon, supra note 44, at 226. Id. at 229. Shirley A. Hill, Class, Race, and Gender Dimensions of Child Rearing in African American Families, 31 J. BLACK STUD. 494, 495–96 (2001); see also Higdon, supra note 44, at 231 (citing and discussing Hill’s work). See Rubye W. Beck & Scott H. Beck, The Incidence of Extended Households among Middle-Aged Black and White Women, 10 J. FAM. ISSUES 147, 150 (1989); see also Jaqueline Marie Smith, The Demography of African American Families and Children at the End of the Twentieth Century, in CHILD WELFARE REVISITED: AN AFRICENTRIC PERSPECTIVE 15, 23 (Joyce E. Everett et al. eds., 2004). Higdon, supra note 44, at 230 (quoting Robert B. Hill, INFORMAL ADOPTION AMONG BLACK FAMILIES 9 (1977)). Lynda Richardson, Adoptions That Lack Papers, Not Purpose, N.Y. TIMES, NOV. 25, 1993; see also Hill, supra note 54. Richardson, supra note 55 (discussing Hill, supra note 54).

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

O’Neal v. Wilkes

94

40 percent of African American households, three generations were living together,57 and that 23 percent of African American children were living in extended families compared to 10 percent of white children.58 In contrast to the original judgment, Lewis emphasizes that, since informal parenting arrangements have been not only historically common but also necessary for the continuity of the African American community, true justice cannot be served for the many orphaned and unprivileged children like Hattie O’Neal without expanding the definition of family beyond blood ties and adequately dealing with its legal ramifications. Despite the prevalence of extended families in the United States, inheritance laws and policies have continued to apply the nuclear family model as the norm. Lewis’s feminist vision of O’Neal v. Wilkes provides a more equitable and progressive approach to inheritance rights, intestate succession, and equitable adoption. Indeed, her opinion urges courts and legislators to interpret intestate succession statutes and the doctrine of equitable adoption under a theory that looks to protect both the rights and interests of surviving children and the wishes of decedent property owners who die without wills.

O ’ N E A L V . W I L K E S , 4 3 9 S . E . 2d 4 9 0 ( Ga. 1 9 9 4 )

justice browne c. lewis, delivering the opinion of the court i procedural posture The relevant issue in this case is whether Hattie O’Neal was equitably adopted by the decedent, Roswell Cook. A jury answered this question in the affirmative. However, after reviewing posttrial motions, the Superior Court issued a judgment notwithstanding the verdict in favor of Firmon Wilkes, the courtappointed administrator of Cook’s estate. The Superior Court based its ruling on the finding that O’Neal’s paternal aunt did not have the legal authority to enter into a contract with Cook to adopt O’Neal. After a complete review of the record, we find that the Superior Court was correct in its determination that there was not a valid agreement for Cook to adopt O’Neal. Nonetheless, in the interest of fairness, we conclude that Wilkes is estopped from denying the existence of a parent–child relationship between O’Neal and Cook. That

57 58

Id. Higdon, supra note 44, at 237.

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

O’Neal v. Wilkes

95

relationship was sufficient to render O’Neal Cook’s equitably adopted child for the purposes of the Georgia intestacy statute.

ii relevant facts The following facts tell the narrative of O’Neal’s journey. In 1949, Bessie Brougton, a single African American woman, gave birth to O’Neal. When O’Neal was about eight years old, her mother died. At that time, O’Neal did not have a relationship with her birth father. That man never recognized O’Neal as his child. He also failed to take any action to legitimize her or to provide financial support for her. In fact, O’Neal did not meet her biological father until she was twenty-one years old. Following her mother’s death, O’Neal lived with Ethel Campbell, her maternal aunt, until she was twelve years old. Then, Campbell took O’Neal to Savannah, Georgia, and gave physical custody of her to Louise, a nonrelative who wanted a daughter. O’Neal resided with Louise for only a short period of time because Louise was unable to care for her. Louise gave physical custody of O’Neal to Estelle Paige, O’Neal’s paternal aunt. Shortly thereafter, Paige heard that Roswell Cook and his wife wanted a daughter. Therefore, she gave them physical custody of O’Neal. After Cook welcomed O’Neal into his home, he treated her as if she were his daughter. In addition to providing O’Neal with an education and the basic necessities, Cook held O’Neal out as his daughter. When the Cooks divorced, instead of leaving with Mrs. Cook, O’Neal chose to continue living with Cook. O’Neal lived with Cook until she got married in 1975 at the age of twenty-six. Cook and O’Neal maintained a relationship after her marriage. Cook recognized O’Neal’s children as his grandchildren. Cook died without a will in November of 1991. At that time, he was survived by neither a wife nor biological or legally adopted children. When Firmon Wilkes was appointed administrator of Cook’s estate, he did not acknowledge O’Neal’s assertion that she was entitled to an interest in the estate. Consequently, O’Neal filed a suit in equity requesting that the court affirm her as Cook’s equitably adopted daughter. On that basis, she sought the estate property she would have received had Cook statutorily adopted her.

iii discussion Georgia courts have recognized the equitable remedy of “virtual adoption’ for almost a century. See Crawford v. Wilson, 139 Ga. 654, 78 S.E. 30 (1913). Courts may apply this equitable remedy only after the person who agreed to adopt the

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

96

O’Neal v. Wilkes

child has died without completing a statutory adoption. The child, who is usually an adult, may invoke the equitable adoption doctrine “to avoid an unfair result from the application of intestacy statutes.” Williams v. Murray, 239 Ga. 276, 276, 236 S.E.2d 624 (1977). The main elements of an equitable adoption are: (1) an agreement between a person who is legally authorized to consent and the adopting parents; (2) the relinquishment of custody of the child to the adopting parents; (3) the acceptance of the child by the adopting parents; (4) the residing of the child in the home of the adopting parents; and (5) the intestacy of the adopting parents. See Rhodes v. Quantrell, 227 Ga. 761, 183 S.E.2d 207 (1971). All of these requirements were met except the first one. The two theoretical approaches that courts may take when evaluating an equitable adoption claim are both based in contract law. One approach focuses on a strict application of contract law; the other approach is grounded in equity. See Jan Ellen Rein, Relatives by Blood, Adoption, and Association: Who Should Get What and Why (The Impact of Adoption, Adult Adoptions, and Equitable Adoptions on Intestate Succession and Class Gifts), 37 VAND. L. REV. 711, 770 (1984). In light of the relationship that O’Neal shared with Cook, we think that equity is the most appropriate route to take. A Contract Law Approach The contract law approach treats a contract for adoption like any other type of contractual agreement. Therefore, in order for an unfulfilled contract to adopt to be valid, there must be evidence of an agreement between persons “competent to contract for the disposition of the child and be based upon a sufficient legal consideration.” Winder v. Winder, 218 Ga. 409, 412, 128 S.E.2d 56, 58 (1962). The resolution of this case turns on whether there was a “competent” person to contract for O’Neal’s adoption. To be considered competent, the person must have had the legal authority to enter into an adoption agreement with Cook. Courts will typically find a virtual adoption contract only if an agreement was entered into with the child’s father or mother or ratified by one of them. Rucker v. Moore, 186 Ga. 747, 199 S.E. 106 (1938). In this case, O’Neal did not meet her father until she had been living with Cook for a number of years; hence he was not a party to the agreement to place O’Neal in Cook’s home. Likewise, O’Neal’s mother could not have authorized or ratified the placement because she was deceased at the time physical custody of O’Neal was given to Cook. Page, O’Neal’s paternal aunt, is arguably the only person who may have had the legal authority to agree to O’Neal’s adoption.

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

O’Neal v. Wilkes

97

The fact that Page received physical custody of O’Neal from Louise did not give her the legal right to consent to O’Neal’s adoption. Even if O’Neal’s mother had been alive and had given physical custody of her to Page, that would not have given Page the legal authority to consent to the adoption. Skipper v. Smith, 239 Ga. 854, 238 S.E.2d 917 (1977). When she surrendered custody of O’Neal to Cook, Page was probably not even thinking about adoption; she just wanted to ensure that O’Neal received a good home. These types of informal parenting arrangement are relatively common in the African American community. Historically, in the African American community, blood ties have been less significant to the definition of family than they have been for other Americans. See Lynda Richardson, Adoptions That Lack Papers, Not Purpose, N.Y. TIMES, Nov. 25, 1993, at C1 (discussing the history and prevalence of informal adoptions in the African American community). Other than the parents, as a legal custodian of the child, the County Department of Family and Children Services has the authority to consent to the adoption of a child whose parents have had their parental rights terminated or surrendered. Drummond v. Fulton County Department of Family and Children Services, 237 Ga. 449, 228 S.E.2d 839 (1976). No social service agency was ever involved in the placement of O’Neal. As a child, O’Neal was transferred from home to home until she went to live with Cook. None of the persons in that chain had the legal authority to give Cook permission to adopt her. Consequently, the Superior Court correctly ruled that O’Neal was not equitably adopted under the contract law theory. However, justice and equity dictate that not be the end of the story. B Equitable Approach This case involves a request for the recognition of an equitable adoption. If we strictly require adherence to the mandates required for a statutory adoption, we are ignoring the “equity” portion of the petition. The awarding of an equitable adoption is an equitable remedy. Equity, which considers that done which ought to be done, mandates that a child in O’Neal’s situation receive the equivalent from Cook’s estate as she would have received had he legally adopted her. Jones v. O’Neal, 194 Ga. 49, 52, 20 S.E.2d 585 (1942). Previous cases have acknowledged the equity powers this court possesses. See Cook v. Walker, 15 Ga. 457 (1854); Emory University v. Dorsey, 207 Ga. App. 808, 429 S.E.2d 307 (1993). If equitable interference is necessary for the rights and interests of the parties to be protected, we should act accordingly. Jones v. Head, 185 Ga. 857, 196 S.E.2d 725 (1938); Lee v. Lee, 260 Ga. 356, 392 S.E.2d 870 (1990). Thus we must take steps to reach a fair decision in this case.

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

98

O’Neal v. Wilkes

When a person dies without leaving a validly executed will, the person’s estate is distributed based on the provisions of the intestacy system. The main purpose of the intestacy system is to carry out the presumed intent of the decedent. Nunnally v. Trust Co. Bank, 244 Ga. 697, 261 S.E.2d 621, 624 (Ga. 1979). When it comes to distributing the estate, the system gives preference to children because it is presumed that the decedent would support that result. Ga. Code Ann. §53–3-1(3). In this case, there is no evidence that Cook had biological or adopted children at the time he received O’Neal into his home. According to Page’s testimony at trial, prior to transferring physical custody of O’Neal to Cook and his wife, Page was told that they wanted a daughter. Because he divorced his wife in the 1970s, a spouse did not survive Cook. Thus it is conceivable that Cook’s estate may go to distant relatives. This is probably not the outcome Cook wanted or anticipated. Cook provided financial support to O’Neal until she got married. Therefore, it is reasonable that he would want her to inherit his property. This supposition makes sense if we let ourselves reimagine a more expansive definition of family and kinship instead of being tied to the traditional paradigm. See Mary Patricia Treuthart, Adopting a More Realistic Definition of “Family,” 26 GONZAGA L. REV. 91 (1990/1991). We may be able to fulfill Cook’s wish by adopting an estoppel approach to equitable adoption. This approach has been taken by courts in other jurisdictions. See Edward W. Bailey, Adoption “by” Estoppel, 36 TEX. L. REV. 30 (1957). According to one court: The descriptive phrases, “equitable adoption,” “adoption by estoppel,” and “adoptive status,” are used in decided cases strictly as a shorthand method of saying that because of the promise, acts and conduct of an intestate deceased, those claiming under and through him are estopped to assert that a child was not legally adopted or did not occupy the status as an adopted child. Heien et al. v. Crabtree, 369 S.W.2d 28, 30 (Tx. 1963)

Adoption by estoppel is an equitable doctrine intended to protect the child’s right to inherit by adoption as if the adoption were legally completed. It applies even when a biological parent does not give consent to the adoption. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951). An agreement to adopt is a critical component of adoption by estoppel. The existence of the agreement may be established by analyzing the acts, conduct, and admissions of the parties. The court may also consider other pertinent facts and circumstances. Id. A key component of the doctrine is the establishment of a parent– child relationship between the parties. Malone v. Dixon, 410 S.W.2d 278 (Tex. Civ. App. – Eastland 1996).

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

O’Neal v. Wilkes

99

Cook maintained a relationship with O’Neal and her children until his death. Under an estoppel theory, if a parent has received the benefits of the parent–child relationship, it is unfair to deny the child the benefits of that relationship. Cook clearly benefited from his relationship with O’Neal because he got the daughter that he wanted. Although O’Neal did not change her last name to Cook, he referred to her as his daughter and considered her children to be his own grandchildren. Cook’s behavior thus indicates that O’Neal fulfilled her bargain of providing Cook with affection, companionship, and the other benefits of a parent–child relationship. As previously indicated, Cook represented that O’Neal was his child in words and actions. That conduct reasonably led O’Neal to believe that, as Cook’s only child, she would inherit his estate when he died. Cook undoubtedly shared that belief. If he thought that his estate would go to someone other than the person he considered to be his daughter, Cook may have engaged in some type of estate planning. If Wilkes were close enough to Cook to be named the administrator of his estate, it is conceivable that Wilkes was aware of Cook’s relationship with O’Neal. He should not now be permitted to treat O’Neal as if she were a stranger to Cook. Therefore, Wilkes is estopped from refusing to acknowledge O’Neal’s asserted interest in Cook’s estate. Reversed.

https://doi.org/10.1017/9781108860963.006 Published online by Cambridge University Press

6 Commentary on Via v. Putnam eloisa c. rodriguez-dod

background It is the unknown we fear when we look upon death and darkness, nothing more. – J.K. Rowling, Harry Potter and the Half-Blood Prince

Joann Putnam went to her grave with the comfort of knowing she had entered into a binding contract with her husband, Edgar Putnam, to protect and provide for her son, Robert Blackburn, and the couple’s five children. In November 1985, six months before Joann’s death, Joann and Edgar had executed mutual wills. These were not simply mirror wills. The mutual wills contained clear and unambiguous contractual language binding Joann and Edgar to very detailed terms for the distribution of their assets. Unfortunately, the best-laid plans often go awry, and, in this instance, Edgar’s subsequent remarriage in October 1988 to Mary Rachel Putnam (Rachel) triggered the unraveling of Joann’s carefully designed contract and estate plan. Edgar’s remarriage alone, however, did not cause a breach of the contract. Rather, Edgar’s breach was remarrying without obtaining a waiver from Rachel regarding the assets covered by his contract with Joann. Edgar’s breach became apparent upon his death in March 1992. During the relevant years, in the late 1980s and early 1990s, Florida law regarding a surviving spouse’s elective share rights were in transition. Florida had already disavowed dower, but had yet to embrace an augmented estate system for determining a surviving spouse’s rights to an elective share. Originally, Florida’s common law dower provided a widow with a one-third life estate interest in real property of which her husband had been seized. In 1933, common law dower was codified and modified such that the widow’s one-third interest would be in fee and would attach to the real and personal property owned by the husband at his death. The dower statute expressly 100

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

Via v. Putnam

101

provided that dower superseded any debts of the husband and any expenses of the estate. In 1974, the Florida legislature abolished dower and replaced it with a spousal elective share statute, which provided the surviving spouse a onethird interest in the decedent’s Florida probate estate and expressly made the spouse’s rights net of creditors’ claims. In 1975, the Florida legislature reduced the elective share from one-third to 30 percent, but maintained the requirement that it apply to the decedent’s Florida probate estate net of claims. It was this limited statutory spousal elective share scheme that applied in Via v. Putnam. During that time period, nonprobate assets of the decedent, such as property held in joint tenancies, property held in pay-on-death accounts, retirement and life insurance benefits, and even property the decedent held in revocable trusts, were not included for purposes of the spousal elective share. Accordingly, spouses who wanted to circumvent the spousal elective share could easily do so by using one or more of these nonprobate methods of property ownership. Although too late for surviving spouses at the time that Via v. Putnam was decided, the Florida legislature made a major revision to spousal elective share yet again in 1999 and adopted an augmented estate system. Even though the Florida legislature kept the 30 percent share amount, the elective share was revised to apply to an augmented estate that includes probate and various nonprobate assets, although still net of creditors’ claims. In addition, during the same period as that of Via v. Putnam, Florida provided a pretermitted share to a surviving spouse who had been unintentionally omitted from a decedent’s premarital will. Under the law then in effect, which continues today, a pretermitted spouse is entitled to a share of the decedent’s probate estate equal to the amount the surviving spouse would have obtained had the decedent died intestate. The pretermitted share has always been and still is net of creditors’ claims. In Florida, a surviving spouse may claim a pretermitted share when the deceased spouse had executed a will prior to the marriage, unless any of three exceptions apply: A surviving spouse cannot take a pretermitted share if the surviving spouse was provided for in a marital agreement or in the will, if the spouse waived such rights in a marital agreement, or if the will discloses an intent not to provide for the spouse. Florida law has – and had at the time of Via – two very restrictive rules as to devise of homestead. First, if a decedent is survived by a minor child, the homestead cannot be devised at all. Second, if the decedent is not survived by a minor child, but is survived by a spouse, the decedent’s devise of the homestead is valid, but only if it is devised entirely to the spouse. If the owner attempts to devise the homestead without complying with these restrictions, the homestead descends, by statute, as a life estate to a surviving spouse, with a vested remainder to the decedent’s descendants. When a decedent is

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

102

Via v. Putnam

survived by a spouse, Florida law allows a deviation from this system only when the surviving spouse has signed a waiver. If the surviving spouse properly waived and the homestead owner was not survived by a minor child, then the decedent’s devise of the homestead to whomever the decedent chose would be valid. Upon Edgar’s death, the contractual will he had executed while married to his first wife, Joann, was admitted to probate. That will provided, in essence, that, since Joann had predeceased him, upon his death Edgar’s estate would be distributed in its entirety to the six children, pursuant to a very specific distribution plan. It also expressly provided that Edgar would not do anything to negatively affect the distribution of the estate to the children. Edgar’s second wife, Rachel, filed petitions in probate court against Edgar’s will, seeking a family allowance, exempt property, homestead, and both the pretermitted and spousal elective share. In response, the six children, including Joann’s son Robert, filed claims as third-party beneficiaries under their parents’ will contract. The Florida probate court made several rulings in favor of Rachel. The court granted Rachel’s petitions for family allowance, exempt property, and homestead, because those rights are independent of the terms in a will. In addition, the probate court found that Rachel was a pretermitted spouse. The probate court, however, also made very significant rulings in favor of the children. First, the probate court found that the mutual wills “constituted a binding contractual agreement” and that the children were “third party beneficiaries.”1 Second, the court found that Edgar had breached the contractual will that he made with Joann when he married Rachel “without taking appropriate steps to protect the interests of the third party beneficiaries under said will.”2 Third, the court determined that the children, as third-party beneficiaries, had “valid claims” to Edgar’s estate under their parents’ will contract and that the claims would be deemed obligations of Edgar’s estate.3 Fourth, the court determined that, under the applicable Florida statutes, the children’s claims superseded any spousal rights to elective share or pretermitted share because those rights are net of claims. Specifically, the court ruled that “any pretermitted spouse share or elective share that Rachel Putnam may have is subject to the class 7 obligations of this estate.”4 1

2 3

4

Order Granting Summ. J., 2, Putnam v. Via (In re Estate of Putnam), No. 92–1071-ES (Cir. Ct. Pinellas County, Fla.). Id. at 3. Id. at 4 (finding claims to fall into “class 7,” which included “[a]ll other claims, including those founded on judgments or decrees rendered against the decedent during his lifetime”). Id.

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

Via v. Putnam

103

Rachel appealed. The Florida Second District Court of Appeal reversed the decision as to the children’s priority over Rachel’s spousal elective share and pretermitted share, stating that “the statutes of Florida pertaining to a surviving spouse’s elective share or pretermitted share and cases discussing those rights and their predecessor, dower, suggest a strong public policy in favor of protecting a surviving spouse’s right to receive an elective share or a pretermitted share.”5 Moreover, the court added that “this strong public policy requires that the surviving spouse’s elective share or pretermitted share be given priority over rights arising under an antenuptial contract of the deceased spouse.”6 The Florida Second District Court of Appeal recognized that its decision conflicted with the decision of the Florida Third District Court of Appeal in Johnson v. Girtman, 542 So.2d 1033 (Fla. Dist. Ct. App. 1989), which found that contractual rights regarding a will take precedence over the spousal elective share. The Johnson court explained that “the elective share statute requires that all claims and liens against the estate be deducted prior to calculating an elective share. Elective share statutes evince a clear intent to limit the elective share to the net probate estate.”7 Despite Johnson, the court found for Rachel and, in reaching its conclusion, cited with approval and adopted the reasoning of a Maryland case, Shimp v. Huff, which gave the spouse priority over mutual will claimants.8 The six children appealed. Citing the conflict between the Florida District Courts of Appeal, the Florida Supreme Court found it had jurisdiction and agreed to hear the case.

original opinion Never ascribe to malice that which can adequately be explained by incompetence. – Napoleon Bonaparte

Justice Overton, writing the opinion, in which all the justices concurred, affirmed the Florida Second District Court of Appeal’s decision in favor of Rachel, the surviving spouse. Although holding for Rachel, the court did not negate the validity of the contract between Joann and Edgar or the children’s rights as third-party beneficiaries, and therefore claimants, to Edgar’s estate. The court appeared troubled not so much with the children’s claim against 5 6 7 8

Putnam v. Via, 638 So.2d 981, 984 (Fla. Dist. Ct. App. 1994) (citations omitted). Id. Johnson v. Girtman, 542 So.2d 1033, 1037 (Fla. Dist. Ct. App. 1989). Shimp v. Huff, 556 A.2d 252 (Md. 1999).

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

104

Via v. Putnam

Edgar’s estate, but rather with the possibility that the remedy for Edgar’s breach of the contract could block Rachel from receiving from Edgar’s estate anything other than family allowance, exempt property, and a homestead interest. Accordingly, the court crafted a narrow exception to the applicable statutory scheme for claimants. Curiously, the court posits two different formulations of its narrow exception. Both formulations reach the same result of subrogating the rights of the children of the first spouse to the rights of the second spouse. In its first formulation of the narrow exception, the court would deny the children status as creditors when their claims would adversely affect the surviving spouse. This version of the exception states that “the children, as third-party beneficiaries under the mutual wills of their parents, should not be given creditor status . . . when their interests contravene the interests of the surviving spouse . . . .”9 The second formulation of the narrow exception does not deny the children creditor status, but rather changes the priority scheme for the children as claimants. In this later formulation, the court states that, in its view, “the legislature did not intend . . . to allow creditors’ claims by third-party beneficiaries of previously executed mutual wills to take priority over the statutory rights of a pretermitted spouse and deny the pretermitted spouse any share in the decedent’s estate.”10 Regardless of the formulation, the court-created exception is flawed. The exception applies only when (1) the claimant is a third-party beneficiary under a mutual will, and (2) the surviving spouse is asserting pretermitted or spousal elective share rights. If the court’s goal was truly to protect surviving spouses, the exception is too limited because it applies only to mutual will claimants; other claimants continue to have priority. For example, a general contract creditor’s claims to a decedent’s estate continues to have priority over a surviving spouse’s interests despite the court-created exception. In explaining its prioritizing of the surviving spousal rights over claimants under a mutual will, the court devotes several passages to a discussion of the strong public policy supporting the institution of marriage, citing with approval language from a prior case stating that “[t]he institution of marriage has been a cornerstone of western civilization for thousands of years and is the most important type of contract ever formed.”11 More specifically, the court focuses on the policy of protecting “the surviving spouse of the marriage in existence at the time of the decedent’s death.”12 The court also spends 9 10 11 12

Via v. Putnam, 656 So.2d 460, 461 (Fla. 1995). Id. at 464 (original emphasis). Id. at 465 (citations omitted). Id. at 461; see also id. at 465.

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

Via v. Putnam

105

a significant portion of the opinion discussing the history of dower, spousal elective share, and pretermitted share. Most of that history highlights dower, to which the court refers seventeen times. Although the court expressly recognizes that the revised spousal elective share statute, unlike dower, was designed to apply only to net assets, the court uses policy to override the express terms of the elective share statute. In addition to policy arguments, the court supports its reasoning by relying on its prior judgment in Tod v. Fuller, which was decided at a time when dower applied. Under the then applicable dower statute, a surviving spouse took before claims, not net of claims. Thus Tod interpreted dower as prioritizing a surviving spouse’s rights over mutual will claimants.13 The Via court’s use of Tod as support is even more ironic when it applies the Tod prioritizing scheme, which was based on dower, to interpreting pretermitted share, a totally unrelated statute with a different goal and which has always been net of claims.

feminist judgment and implications Where there’s a will, there’s a way. – Proverb

Feminists could interpret Via v. Putnam in different ways, with some championing the majority opinion, which prioritized the rights of a surviving spouse. Other feminists could critique it, as did Dean Elena Maria MartyNelson, writing a dissent as Justice Marty-Nelson. The majority opinion superficially appears to be a feminist opinion because the court goes to great lengths – including disregarding the express language in the applicable statutes – to prioritize a surviving spouse’s elective share and pretermitted share rights over the claims of others to the decedent’s estate. Marty-Nelson, however, systematically demonstrates that, in reality, by subjugating the contractual rights of the first wife, the opinion is far from feminist. In the court’s desire to help one woman, Rachel, the majority silences another woman, Joann. Marty-Nelson’s feminist practical reasoning, use of storytelling, and nuanced intersectional approach reveal that the majority opinion’s arguments based in public policy – regarding the protection of a surviving spouse and the institution of marriage, while at the same time disregarding the partnership theory of marriage and devaluing women’s contractual rights – do not empower women, but rather are standard paternalistic means of subordinating women.

13

Tod v. Fuller, 78 So.2d 713 (Fla. 1955).

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

106

Via v. Putnam

Unlike Marty-Nelson’s dissent, the majority opinion is devoid of the facts regarding Joann and Edgar’s blended family, even though those underlying facts are critical to understanding their mutual wills and their promises to each other. Although it notes that Edgar was contractually bound by a mutual will with his first wife Joann, the court fails to include any of the language from the body of the wills that illuminates the detailed estate plan for Joann’s son Robert, the relationship among the children, and the parties’ intent to prohibit any deviation from their contractual plan. Reading only the sanitized and truncated version of the facts set forth in the majority opinion, the decision to prioritize Rachel and discount Edgar’s breach of contract with Joann may seem reasonable. It is only when the facts are developed through MartyNelson’s storytelling that the inequity of the court-created prioritizing system is revealed.14 Marty-Nelson’s dissent interweaves the missing facts to bring Joann’s voice to life. Marty-Nelson includes critical passages from the mutual wills demonstrating the parties’ concern for Joann’s son Robert. It is only through language in the dissent that it becomes clear that Joann’s son Robert was not Edgar’s son, that Joann and Edgar had expressly contracted to give him a larger share of the residuary estate than that devised to the other children, and thus that Joann had been deliberate and thoughtful in planning for and protecting Robert’s interest. In stark contrast, the majority opinion does not refer to Robert by name or even mention his relationship to Joann. In fact, the reference to Robert in the majority opinion appears only in a footnote, where he is referred to simply as a “stepson.”15 Moreover, the dissent is the only place where it becomes clear that the majority opinion is, ironically, harsher on Joann’s son Robert than on the other children with regard to homestead. The dissent explains that, because Edgar remarried without a waiver and the majority prioritized Rachel’s rights over the third-party beneficiaries’ claims, the homestead descended by operation of law. Thus, instead of Joann’s son Robert sharing in the remainder of the homestead as he would have under the mutual will, Robert received no interest in the homestead at all, because he was Joann’s son, not Edgar’s. Marty-Nelson’s use of feminist storytelling, which humanizes the parties and shines a light on the significant negative consequences of the majority opinion to the individuals involved, makes the dissent particularly compelling.16 She ensures that Joann’s voice is heard and that her son Robert is not simply relegated to a footnote. 14

15 16

See Margaret E. Montoya, Mascaras, Trenzas, Y Grenas: Un/masking the Self While Un/ braiding Latina Stories and Legal Discourse, 17 HARV. WOMEN’S L.J. 185 (1994) for an example of scholarship that vividly illustrates the power of storytelling. Via v. Putnam, 656 So.2d at 461 n.2. See, e.g., Montoya, supra note 14.

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

Via v. Putnam

107

Marty-Nelson’s dissenting opinion also demonstrates that the majority’s dismissal of Joann’s voice in her mutual will continues the patriarchal tradition of devaluing contracts entered into by women.17 The majority opinion quieted Joann, refusing to acknowledge the carefully drafted contents of the mutual will, despite clear contractual language and proper execution. MartyNelson incisively notes that this disregarding of Joann’s contract with Edgar is reminiscent of cases applying law prior to the Married Woman’s Emancipation Act, enacted in Florida in 1943, where wives had no capacity to enter into binding contracts with their husbands.18 The majority’s refusal to provide a remedy for breach of a mutual will is also troubling more universally. Individuals who may not be able to afford more expensive estate planning, such as inter vivos trusts, cannot count on their mutual will estate plan even though they include binding contractual language and comply with all statutory execution requirements. As Kimberlé Crenshaw has noted, “Intersectional subordination need not be intentionally produced; in fact, it is frequently the consequence of the imposition of one burden that interacts with preexisting vulnerabilities to create yet another dimension of disempowerment.”19 Moreover, in an in-depth empirical and analytical study of the dynamics of wills and sociodemographics, Alyssa A. DiRusso explains how, when an individual executes a will, she is empowered, as opposed to submissively accepting intestacy.20 DiRusso states that the “law of wills aims to grant power and control to the individual, with solicitude toward idiosyncratic and individualistic desires and goals.”21 DiRusso’s feminist view of the ability of a will to empower suggests how “intestacy and testacy may be compared [as] that of recognized/disregarded, which includes seen/ invisible and heard/silenced.”22 When an individual’s will is given effect, the “testator is recognized as a unique person whose individual choices are seen, heard, and recognized. Deference is given to the testator with respect to how property should be distributed, largely without regard to how society as a whole expects most individuals or families to operate.”23 DiRusso further suggests that “[w]ills have an expressive function and tell the story of the testator; a will 17

18 19

20

21 22 23

Mary Louise Fellows has described how women’s property rights and testamentary freedom have been subverted by “patriarchal power.” Mary Louise Fellows, Wills and Trusts: “The Kingdom of the Fathers,” 10 LAW & INEQ. 137, 142 (1991). See, e.g., Nock v. Wayble, 59 So.2d 875 (Fla. 1952). Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color, 43 STAN. L. REV. 1241, 1249 (1991). Alyssa A. DiRusso, Testacy and Intestacy: The Dynamics of Wills and Demographic Status, 23 QUINNIPIAC PROB. L.J. 36 (2009). Id. at 61. Id. Id.

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

108

Via v. Putnam

can express love or anger, or disgust or praise. The will gives permanent voice to the testator’s wants.”24 In dying without having done anything to disrupt the mutual will contract with Edgar, Joann made the mutual will contract irrevocable. The majority opinion, however, condones Edgar’s breach of that contract with impunity, implying that he had power over Joann. By denying a remedy for the breach, the majority takes away one of the few things that Joann carefully arranged to protect her children after her death. Disregarding Joann’s mutual will not only results in what DiRusso suggests is a silencing of her final voice, but also disregards Joann’s role in her marriage to Edgar. Marty-Nelson’s dissent laments that the majority opinion did not consider the partnership relationship of the first marriage – the one between Edgar and Joann. The partnership theory of marriage recognizes that the success of the marital partnership is a result of the efforts and contributions of both spouses. In executing her mutual will contract with Edgar, Joann tried to ensure that, after her death, her contributions from the partnership of her marriage to Edgar would flow to her children. The majority opinion effectively rejects Joann’s role in her marriage and her contribution to the marital relationship. Marty-Nelson’s dissent does agree with the majority, however, in insisting that Rachel’s marital partnership to Edgar, and her status as surviving spouse, be recognized and valued. Marty-Nelson accomplishes the goal of recognizing Rachel’s contribution to the second marriage in a subtle way that does not silence Joann’s voice or ignore Joann’s value in creating the assets acquired during the first marriage. Her dissent reaches this goal by explaining the proper remedy for Edgar’s breach. The dissent makes clear that the majority’s primary mistake in Via, beyond questionable statutory interpretation, is its belief that the only remedy available to the third-party beneficiaries under the contract would be for the children to receive the entire estate at Edgar’s death. If that were indeed the only remedy, the majority would be correct in its view that the remedy would entirely block Rachel’s surviving spousal rights. The dissent suggests, however, that the appropriate remedy would be to use equitable powers to impose a trust pursuant to the terms of the contractual will upon the assets obtained from the first marriage, but not on the assets of the second marriage. Pursuant to this more nuanced remedy, Rachel would still be entitled to surviving spousal rights on the assets that arose from her marriage to Edgar. The dissent’s equitable remedy is inherently intersectional. The remedy, which bifurcates the assets, provides a means of identifying each woman not 24

Id.

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

Via v. Putnam

109

only as the wife of Edgar, but also as an individual, with her many traits. By insisting on recognizing Rachel’s rights to assets from the second marriage, the dissent’s remedy empowers Rachel and celebrates her individuality and separateness. The dissent’s remedy of an equitable trust also empowers and recognizes the various identities of Joann. The trust would give voice to Joann’s wishes and reveal her as a mother, a wife, a woman.25 Marty-Nelson’s dissent notes the irony in the majority’s concern for the rights of the surviving spouse at a time when spouses could easily be disinherited under Florida’s then-existing probate-only spousal elective share system. If Marty-Nelson’s feminist-oriented dissent had been included with the majority opinion, perhaps the Florida legislature would have moved more quickly in adopting an augmented estate system for its spousal elective share. In addition, the inclusion of the dissent’s biting criticism of the majority’s prioritization scheme may have led the legislature to amend its claimant statute to clarify that the majority was misinterpreting the legislative scheme. Such an amended statute may have clearly provided that all claimants, whether general contract creditors or third-party beneficiaries under mutual wills, have the same priority and that one is not lesser than the other.

V I A V . P U T N A M , 6 5 6 So.2d 4 6 0 ( Fla. 1 9 9 5 )

justice elena maria marty-nelson, dissenting I respectfully dissent. The majority’s opinion not only violates the express legislative scheme, but also, by elevating one marital relationship over another, ultimately undermines marriage and undervalues women. At first blush, it appears that this case is about competing public policies. On the one hand, the State has a public policy interest in ensuring that intended third-party beneficiaries – here, children – may bring an action for breach of a contract between spouses – in this case, a contract between a husband and his first wife, who predeceased him. On the other hand, the State has an interest in protecting the rights of a surviving spouse – in this case, the husband’s second wife – to take an elective share or a pretermitted share. While I sympathize with the majority’s concerns for the second wife, Mary Rachel Putnam (Rachel Putnam), the majority’s end-run around the clear legislative scheme fails to respect rights in the estate of Edgar Putnam that derive from the contract between the husband and his first wife, Joann 25

See, e.g., Montoya, supra note 14.

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

110

Via v. Putnam

Putnam. If the majority were not impinging on a wife’s right to contract and if the Florida legislature had not expressly addressed the question of which of two claims prevail under the probate scheme – a contract claimant’s or a surviving spouse’s – the majority’s opinion, relying in large part on the laws of other states, could be attractive. That is not the situation, however. The Florida probate statutes expressly provide that a surviving spouse’s rights to a spousal elective share or a pretermitted share are net of all creditors’ claims. Interestingly, the majority does not assert that the probate court in this case was wrong in finding that the husband and first wife’s agreement was a binding contract. Nor does the majority repudiate the probate court’s determination that the husband breached that contract. Rather, the majority simply does not agree with the legislative design and singles out one type of claimant who would not be given statutory preference, even though the statutes require it. The only claimant that the majority excludes is a thirdparty beneficiary under a will contract. In fact, the majority creates the following narrow exception: “[C]hildren, as third-party beneficiaries under the mutual wills of their parents, should not be given creditor status under section 733.707, Florida Statutes (1993), when their interests contravene the interests of the surviving spouse . . . .” Singling out these creditors for less respect than other general creditors may be the consequence of a maledominated lens, which perhaps views a contract with a first wife as less worthy than other contracts because of the wife’s age or status. More broadly, the majority view may be infected by paternalism, which regards women generally as subordinate and less capable of negotiating and entering into meaningful contracts and, accordingly, views their contracts as less valid. I question not only the majority’s ultimate decision to disregard the children’s rights as claimants, but also the majority’s interpretation of the relevant case law and statutes. In designing its carve-out to the legislative scheme for certain narrowly defined claimants, the majority relies on old cases interpreting now-abolished dower rights, which are inapposite because dower rights attached prior to creditors’ claims. In addition to the dower cases, the majority also relies on a Maryland case, Shimp v. Huff, 556 A.2d 252, 263 (Md. 1989), which, although applying a spousal elective share statute, also relied in turn on cases interpreting dower. Curiously, the majority does not give as much weight to a more recent case from the Supreme Court of Arkansas, Gregory v. Estate of Gregory, 866 S.W.2d 379, 382 (Ark. 1993), which, like this case, required harmonizing “the right of a couple to contract to make mutual wills that are irrevocable and that dispose of both estates to third-party beneficiaries, and the right of a surviving spouse to take an elective share.” The Gregory court noted that “states are divided on this issue although the majority view appears to favor

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

Via v. Putnam

111

the third party beneficiaries.” Id. (emphasis added). If, instead of creating ex nihilo an exception to the legislative scheme, the majority had properly interpreted and applied the statutes, case law, and equitable principles, it could have obtained a result that would validate and recognize the contributions of both Joann Putnam and Rachel Putnam in their respective marital partnerships with Edgar Putnam. By carving out a poorly designed and unsupported exception, and thereby gutting the effect of valid will contracts, the majority also significantly hampers one of the few estate planning mechanisms that is accessible to those of lesser means. One consequence of the majority’s decision is that will contracts, even when expressly and deliberately drafted and properly executed, would fail to accomplish the contracting parties’ goals. This simple estate planning mechanism between spouses will no longer be effective to effectuate their intent – a result that is particularly troubling today with the increasing prevalence of blended marriages. Perhaps some spouses of greater independent means might use other estate planning tools, such as a trust or outright gift, to protect their children or other intended third-party beneficiaries from subsequent marriages. But such a luxury may not be available to other women. For these many reasons, as further detailed below, I respectfully dissent.

i the family dynamics A Marriage and Agreement with the First Wife On November 15, 1985, Joann Putnam and her husband, Edgar Putnam, executed mutual wills in which they made binding promises. The distribution plan for their assets is detailed. The mutual wills provide that the surviving spouse receives the other’s estate and that, upon the death of the surviving spouse, the residuary is divided into seven equal shares, even though there are only six children. The couple’s five children receive one share each, and Joann Putnam’s child, Robert Blackburn, receives two shares. The mutual wills made a further distinction between Robert Blackburn’s two shares and the single shares of the other children. The mutual wills provide that, should Robert Blackburn predecease without descendants, his two shares would be given to Joann Putnam’s collateral relatives, not to Robert Blackburn’s halfsiblings. By contrast, the provision of the shares to the five other children, should they predecease without descendants, would be shared among the other beneficiaries. The extra share for Robert Blackburn suggests that Joann Putnam and Edgar Putnam formed a deliberate plan regarding the children.

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

112

Via v. Putnam

The mutual wills expressly provide that neither party would circumvent the agreement in any way. Edgar Putnam’s will states as follows: I acknowledge that this is a mutual Will made at the same time as my wife’s Will and each of us have executed this Will with the understanding and agreement that the survivor will not change the manner in which the residuary estate is to be distributed and that neither of us as survivors will do anything to defeat the distribution schedule set forth herein, such as disposing of assets prior to death by way of trust bank accounts, trust agreements, or in any other manner. (Emphasis added)

Joann Putnam’s will contains the same language restricting the ability of the survivor to do anything to defeat the distribution for the children. Joann Putnam died shortly thereafter on April 9, 1986, without having done anything to alter the terms of their agreement. B Marriage to the Second Wife and the Death of the Husband Slightly more than two years after Joann Putnam’s death, on October 20, 1988, Edgar Putnam married Rachel Putnam without first obtaining from her a waiver of surviving spousal rights. Edgar Putnam died on March 13, 1992. C Procedural History Edgar Putnam’s mutual will with Joann Putnam, which left his estate to the children, was admitted to probate. Rachel Putnam, as the surviving spouse, filed petitions for family allowance, homestead, exempt property, and a pretermitted share, and also filed an election to take a spousal elective share. Edgar and Joann Putnam’s five children and, individually, Joann Putnam’s child, Robert Blackburn, filed claims as third-party beneficiaries under the express terms of the agreement between Joann Putnam and Edgar Putnam. After Rachel Putnam filed objections to their claims, the children brought independent actions in civil court for breach of contract. The actions were subsequently consolidated and transferred back into the probate court. The probate court made several findings. It found that Edgar Putnam had “breached his joint and mutual will that he made with Joann Putnam when he married Rachel Putnam without taking appropriate steps to protect the interests of the third party beneficiaries under said will.” The probate court also determined that the children had valid claims against Edgar Putnam’s estate and classified those claims as “class 7 obligations pursuant to §733.707, Florida Probate Code.”

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

Via v. Putnam

113

With regard to Rachel Putnam, the probate court granted her petitions for family allowance and exempt property. As Edgar Putnam’s surviving spouse, Rachel Putnam also obtained a life estate in the homestead. In addition, the probate court determined that Rachel Putnam was a pretermitted spouse under Florida Statutes, section 732.301. The probate court specifically stated, however, that “any pretermitted and elective share that Rachel Putnam may have is subject to the class 7 obligations of the estate.” Rachel Putnam appealed the probate court’s decision as to the children’s claims under Florida Statutes, section 733.707. The Second District Court of Appeal reversed, finding that Rachel Putnam’s right to receive a pretermitted share or elective share has priority over the children’s claims, and remanded with instructions that judgment be entered entitling Rachel Putnam to an intestate share as a pretermitted spouse. The children appealed.

ii children’s claims based on binding contract A The Contract The majority’s ambivalence with regard to the children’s third-party beneficiary claims under their parents’ contract appears to stem from the contract’s directive regarding the parents’ disposition of assets at their respective deaths. Although the parents’ contract affects residuary assets within a will, the agreement is still a contract. Admittedly, not all mutual, joint, or reciprocal wills create a contract. Even when spouses’ wills contain parallel or identical devises, those provisions alone are insufficient to give rise to a contract. However, clear language of contractual intent can bind the parties. As our courts have long recognized, “While the act of making a joint will, standing alone, is not in itself evidence of a contract, the terms of such will may disclose so clearly that it is the product of a contract between the parties that the will itself is sufficient evidence to establish a contract.” Weiss v. Storm, 126 So.2d 295, 298 (Fla. Dist. Ct. App. 1961). Thus, where there is express contractual language binding the parties, a contract can be formed in a will as long as it also complies with the execution requirement of Florida Statutes, section 732.701(1). That statute requires the agreement be “in writing and signed by the agreeing party in the presence of two attesting witnesses.” Fla. Stat. §732.701(1) (1991). It is well established that “[m]utual wills are ambulatory like other wills . . . . Thus it is not the wills, which are made in pursuance of a contract, that are irrevocable, but the contract upon which they are

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

114

Via v. Putnam

made that stands and may be enforced . . . .” Keith v. Culp, 111 So.2d 278, 281 (Fla. Dist. Ct. App. 1959). In this case, there is no doubt that Joann Putnam and Edgar Putnam entered into a binding contract. The probate court expressly found that the mutual wills “constituted a binding contractual agreement.” The mutual wills contained express contractual language. Each will provides that it was executed “with the understanding and agreement that the survivor will not change the manner in which the residuary estate is to be distributed and that neither . . . will do anything to defeat the distribution schedule . . .” (emphasis added). In addition, each of the mutual wills was executed in accordance with the requirements of Florida Statutes, section 732.701(1). No allegation of fraud in the inducement, undue influence, or mistake was made regarding Joann Putnam’s and Edgar Putnam’s contract. Moreover, neither spouse repudiated the contract prior to the death of the first. Accordingly, the contract became irrevocable upon Joann Putman’s death and the survivor, Edgar Putnam, was estopped from making a different disposition after Joann Putnam’s death. The probate court found that the children have interests as third-party beneficiaries under their mother’s binding contract with Edgar Putnam. B The Breach The only question remaining is whether Edgar Putnam breached the contract. Both the District Court of Appeal and the majority raise a straw man argument that the breach in this case is the marriage to Rachel Putnam. Under this fallacy, the contract would appear to be a restriction of marriage in contravention of public policy. But that assertion is disingenuous. Even courts that question contractual wills as possibly restraining remarriage uphold contractual wills when the contract is between spouses and when the third-party beneficiaries are children. See Restatement (Second) of Property, Donative Transfers §6.3 cmt. c (1983). Both apply in this case. Moreover, it is imperative to recognize that Edgar Putnam’s second marriage alone is not the breach. Rather, the breach occurred because Edgar Putnam did not obtain from Rachel Putnam a waiver of her surviving spousal rights. As the probate court determined here, “Edgar J. Putnam breached his joint and mutual will that he made with Joann Putnam when he married Rachel Putnam without taking appropriate steps to protect the interests of the third party beneficiaries under said will.” Florida has long recognized premarital agreements and waivers related to probate. In fact, Florida Statutes, section 732.702 (1991), expressly provides the execution requirements for such waivers. In enacting this statute, the

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

Via v. Putnam

115

legislature recognized the need for such waivers to protect children from prior marriages. The legislative history provides: Many times when there is a second marriage, one spouse may wish to protect the children or the estate of the first marriage. Presently court decisions vary as to the enforceability of such contractual arrangements. Under this bill, the waiver of [surviving spousal rights] are valid if in writing regardless if they were made before or after the marriage. If executed after marriage, there must be full disclosure. If before marriage, no disclosure. Judiciary Comm., HB 4050 (1974) Staff Summary

As enacted, the statute allows for waiver of the: . . . right of election of a surviving spouse, the rights of the surviving spouse as intestate successor or as a pretermitted spouse, and the rights of the surviving spouse to homestead, exempt property, and family allowance, or any of them . . . . [A] waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse . . . is a waiver of all rights to elective share, intestate share, pretermitted share, homestead property, exempt property, and family allowance . . . . Fla. Stat. §732.702(1) (1991)

The legislature’s adoption of this easy method for waivers demonstrates that a mutual will contract is not a true impediment to remarriage and thus negates the straw man argument. Thus, simply by obtaining a waiver, Edgar Putnam would not have breached his contract with Joann Putnam and could have protected the children’s interests in the residuary. The marriage to Rachel Putnam without a waiver detrimentally affected the interests of the children under the contract and disturbs the carefully designed plan that Joann Putnam and Edgar Putnam established. This disruption in the plan is particularly evident when we consider the effect of homestead on Joann Putnam’s son, Robert Blackburn. Because there was no waiver, Rachel Putnam received a life estate in Edgar Putnam’s homestead property and Edgar Putnam’s five children received the remainder pursuant to article X, section 4(c) of the Florida Constitution and Florida Statutes, section 732.401 (1991). Had Rachel Putnam waived her homestead rights, Edgar Putnam’s residence would have been included as part of the residuary, and Robert Blackburn would have obtained two shares and the other children one share each. Instead, Edgar Putnam’s failure to obtain a waiver from Rachel Putnam had the effect of cutting Robert Blackburn out of receiving any interest in Edgar Putnam’s residence, although Joann Putnam and Edgar Putnam had contracted to ensure that Robert Blackburn would obtain two shares. In City National Bank of Florida v. Tescher, 578 So.2d 701, 702 (Fla. 1991), we recently

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

116

Via v. Putnam

upheld the validity of homestead waivers by spouses. Edgar Putnam could have easily protected Robert Blackburn’s interest, and therefore Joann Putnam’s careful planning for her son, by asking Rachel Putnam to waive homestead.

iii spousal elective share and pretermitted share A The Statutory Scheme The Florida Probate Code has a very definite scheme for determining priority between creditors and surviving spouses in an estate. Certain surviving spousal rights have greater priority than others. A surviving spouse is entitled to exempt property before payment to certain creditors pursuant to Florida Statutes, section 732.402 (1991). That statute is “intended to protect the surviving spouse . . . by preserving a portion of the decedent’s estate against the claims of unsecured creditors.” In re Estate of Grant, 558 So.2d 208, 209 (Fla. Dist. Ct. App. 1990). Therefore, Rachel Putnam has priority to exempt property over the children as third-party beneficiary claimants. Similarly, family allowance under Florida Statutes, section 732.403 (1991), is available to surviving spouses and a decedent’s dependents over certain creditors. Rachel Putnam, as Edgar Putnam’s surviving spouse, has priority over the children for that amount. In addition, homestead is protected from all but three types of defined creditor pursuant to article X.4 of the Florida Constitution. Thus Rachel Putnam’s homestead rights apply despite Edgar Putnam’s breach of contract and the children’s claims thereunder. By contrast, creditors take priority with regard to a pretermitted share under Florida Statutes, section 732.301 (1991). The pretermitted share has been, since its inception, net of creditors. See Solomon v. Dunlap, 372 So.2d 218, 219 (Fla. Dist. Ct. App. 1979). Therefore, the claims of the children, as third-party contract beneficiaries, would have priority over any claim Rachel Putnam may have as a pretermitted spouse. The children also have priority in regards to Rachel Putnam’s claim to an elective share under Florida Statutes, section 732.207 (1991). The elective share statute expressly provides that the elective share is net of claims. It states as follows: The elective share shall consist of an amount equal to 30 percent of the fair market value, on the date of death, of all assets referred to in s. 732.206, computed after deducting from the total value of the assets:

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

Via v. Putnam

117

(1) All valid claims against the estate paid or payable from the estate; and (2) All mortgages, liens, or security interests on the assets.

Fla. Stat. §732.207 (emphasis added) Claims are defined as “liabilities of the decedent, whether arising in contract, tort, or otherwise, and funeral expenses.” Fla. Stat. §731.201(4) (1991). When the legislature abolished dower and replaced it with the elective share, it expressly reversed the priority between surviving spouses and creditors. Under dower, the spouse had priority. By contrast, under the elective share statute, the spouse’s rights are net of creditors’ claims. The legislative history explains some of the reasoning behind this change as follows: The term and concept of elective share will replace dower. Last year the legislature extended the concept of dower to include the husband and this is retained in the elective share. If the surviving spouse is dissatisfied with the share under the will, the spouse may take ⅓ of the net estate. This is a change since under present law the ⅓ is free and clear of creditors. Thus many estates are reduced as far as the residuary estate and the children are concerned. The spouse would take ⅓ off the top and the others would have to bare [sic] the creditor’s claim etc. Under the elective share, claims, creditors, expenses of administration and taxes are paid before the ⅓ is computed. Judiciary Comm., HB 4050 (1974) Staff Summary

Both the plain language and the legislative history of the spousal elective share statute clearly prioritize the children’s third-party beneficiary claims over the spouse’s elective share. The majority, however, is dissatisfied with the result that obtains when applying the legislative scheme. The majority states that if third-party beneficiary claimants – here, the children – are given priority as required under the spousal elective share statute, “the second wife would receive only a family allowance, the exempt property, and a life estate in the homestead.” In trying to fashion a better result for the second wife, the majority points to Tod v. Fuller, 78 So.2d 713, 714 (Fla. 1955), in which we held that “a thirdparty beneficiary of a mutual will does not have priority over the statutory rights of a surviving spouse.” The majority glosses over the children’s argument that reliance on Tod is inapposite because Tod was applying dower, not the spousal elective share that replaced dower in 1974. Inexplicably, the majority divines that, notwithstanding the amendment and the clear legislative history to the contrary, the legislature would continue to apply the Tod dower analysis.

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

118

Via v. Putnam

Moreover, the majority suggests that its rearranging of the statutory priorities would be blessed by the legislature for both spousal elective share and pretermitted share, explaining: While it is clear that the legislature intended for the residuary beneficiaries and the surviving spouse to share the burden of the expenses of the estate after the 1974 amendment of the elective share statute, it is our view that the legislature did not intend for this modification to allow creditors’ claims by third-party beneficiaries of previously executed mutual wills to take priority over the statutory rights of a pretermitted spouse and deny the pretermitted spouse any share in the decedent’s estate. (Original emphasis)

In this assertion, the majority conflates the elective share with the pretermitted share. Particularly jarring is the majority’s expansion of its creditor exception beyond the spousal elective share to pretermitted share, which has always been net of creditors. B Ex Nihilo Exception In attempting to enhance Rachel Putnam’s rights beyond family allowance, exempt property, and homestead, the majority creates out of whole cloth an exception to the legislative scheme. The majority finds that the spousal elective share has priority over certain creditors, even though the legislature deliberately designed the spousal elective share to be net of creditors. Even more troubling, the majority disallows claims by arguably the most compelling creditor while leaving other creditors’ claims intact. There are no exceptions by the legislature, and the statute makes no distinction as to whether the creditor claims are made by one particular creditor or another. The legislature itself distinguishes among creditors, but all creditors take priority over the spouse under the language of both the elective share statute and the pretermitted share statute. Moreover, the legislature expressly asserts the right to decide among creditors when it prioritizes the order of payment of expenses and obligations in Florida Statutes, section 733.707, which provides as follows: 733.707 Order of payment of expenses and obligations. (1) The personal representative shall pay the expenses of the administration and obligations of the estate in the following order: (a) Class 1. Costs, expenses of administration, and compensation of personal representatives and their attorneys’ fees.

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

Via v. Putnam

119

(b) Class 2. Reasonable funeral, interment, and grave-marker expenses, whether paid by a guardian under s. 744.441(16), the personal representative, or any other person, not to exceed the aggregate of $3,000. (c) Class 3. Debts and taxes with preference under federal law. (d) Class 4. Reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending him. (e) Class 5. Family allowance. (f) Class 6. Debts acquired after death by the continuation of the decedent’s business, in accordance with s. 733.612(22), but only to the extent of the assets of that business. (g) Class 7. All other claims, including those founded on judgments or decrees rendered against the decedent during his lifetime, and any excess over the sums allowed in paragraphs (b) and (d). (2) After paying any preceding class, if the estate is insufficient to pay all of the next succeeding class, the creditors of the latter class shall be paid ratably in proportion to the irrespective claims.

The majority’s exclusion of only “third-party beneficiaries under previously executed mutual wills” does not apply to other creditors. Accordingly, the majority would allow other general contract creditors, including credit card companies and casinos, to prevail over a spousal elective share claim. The majority carves out only one particular type of contract claimant, third-party beneficiaries of a will contract (typically, former spouses and children), as subordinate to the spousal elective share. By demoting such claimants and refusing to conform to the legislative scheme, the majority ex nihilo denies a claim to an eligible claimant who has suffered damages as a result of a breach. Does the majority carve out the exception because it views contract claimants, such as descendants of a deceased spouse, as somehow less deserving than general contract creditors? More troubling, is the majority’s carve-out based on a remnant of the now-abhorrent view that a wife’s contract with her husband is invalid? By diminishing the rights of Joann Putnam’s third-party contract beneficiaries, the majority, in effect, reverts to the days before Florida adopted the Married Woman’s Emancipation Act. Before 1943, “a married woman could not make a binding contract with her husband.” Nock v. Wayble, 59 So.2d 875, 876 (Fla. 1952). In Nock, we invalidated a mutual will contract between a husband and wife made prior to 1943, and disregarded the rights of a third-party beneficiary child under that contract, reasoning that the wife had no capacity to enter into such a contract. Id. While

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

120

Via v. Putnam

the majority here does not go so far as to claim that Joann Putnam had no capacity to enter into the mutual will contract, the carve-out that blocks her children pulls us back toward that patriarchal view. Moreover, this carve-out may have the detrimental effect of discouraging remarriage by widows with children. A widowed parent may feel constrained from remarrying if a prospective spouse’s rights would supersede those of her children under a prior mutual will contract with her deceased spouse. I suspect, instead, that the majority was focused not on the contractual rights of the first spouse or her children, but rather on the rights of the second spouse. The majority appears concerned that surviving spouses’ rights would be radically diminished by third-party beneficiary claimants under a mutual will. But this signifies a mistaken view between Edgar Putnam’s breach and the children’s status as third-party beneficiary claimants, on the one hand, and the appropriate remedy for the breach, on the other.

iv remedy A Inappropriate Remedy The majority states that applying the statutory scheme – which gives the children, as claimants, priority over the surviving spouse – would have the result of leaving Rachel Putnam with only exempt property, family allowance, and homestead. In fact, the majority raises a concern that if we follow the statutory scheme for creditors in this case, “the surviving spouse would be entitled to no interest in the deceased spouse’s probatable estate if the thirdparty beneficiaries’ claim consumed the estate.” This explanation suggests that the majority assumes that the only remedy for the children as creditor claimants is to give them the entire residuary estate. To avoid that result, the majority creates, in effect, a quasi-statutory exception to Florida Statutes, section 733.707, excluding from priority status “third-party beneficiaries under . . . mutual wills . . . .” The majority justifies its solution by stating that “we have no authority to judicially modify the public policy protecting a surviving spouse’s interest in the deceased spouse’s estate by adopting this creditor-theory approach as an exception to the pretermitted spouse statute.” Ironically, the majority is concerned with modifying public policy, but not with its lack of authority to, in effect, amend a statute. The majority fails to consider other more appropriate remedies for the breach that would be far more consistent with the legislative scheme. With proper interpretation and application of the statutes, case law, and equitable principles, the majority could have fashioned a remedy that would allow the

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

Via v. Putnam

121

children to maintain their priority status as creditor claimants while also providing Rachel Putnam spousal rights to a portion of Edgar Putnam’s estate. B Ubi Jus Ibi Remedium The appropriate remedy that balances both interests and complies with the legislative scheme requires us to recall that, upon the death of the first wife, Joann Putnam, the contract became irrevocable. Thus, from then on, Edgar Putnam held the marital assets pursuant to the terms of that contract. In light of Edgar Putnam’s subsequent breach, we have broad powers to enforce the contract under equitable trust principles. Under our equitable powers, on the one hand, assets that can be traced to Edgar Putnam’s marriage to his first wife, Joann Putnam, would be impressed with an equitable trust in favor of the children. On the other hand, assets that arose from Edgar Putnam’s second marriage to Rachel Putnam would not be deemed part of the equitable trust. Those assets would be part of the probate estate for the purposes of Rachel Putnam’s surviving spousal rights. See Gregory v. Estate of Gregory, 866 S.W.2d 379 (Ark. 1993). This equitable division takes into account the partnership theory of marriage. The partnership theory of marriage recognizes each spouse’s efforts in the marriage as contributing equally to the economic success of the partnership, whether or not both are earning wages. One spouse’s nonmonetary contributions are just as significant to the success of the partnership as the wage-earning spouse’s contributions. The partnership regime allows the spouses the flexibility to determine their roles in the marriage in ways that are optimal to the success of the family, even when such a division might otherwise be economically detrimental to one of the spouses. Protecting the validity and sanctity of marriage, and the commitment inherent in marriage, requires us to safeguard both marriages equally. The first marriage is protected by respecting the mutual will contract and all the property it covered. The second marriage is respected by giving Rachel Putnam surviving spousal rights to those assets that were a product of her partnership with Edgar Putnam, which existed between 1988 and 1992.

v disposition Given the foregoing, I would reverse the holding of the Second District Court of Appeal. I would also remand the case to the probate court to determine which assets in the estate of Edgar Putnam would be deemed part of the

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

122

Via v. Putnam

equitable trust and which assets arose out of the second marriage and would be available for satisfying surviving spousal rights. I should note that, even though this case can be equitably resolved under our current statutory scheme, other cases are much more difficult – especially those in which there appear to be deliberate attempts to deprive, through illusory transfers, surviving spouses of assets acquired during marriage. The Third District Court of Appeal recently noted the following concerns under our current system. [I]t would be legal for a spouse to place all of the assets into a revocable trust and thereafter fail to provide for the surviving spouse. Indeed, the amicus brief stated that a citizen has “a constitutional right to be a mean-spirited, no good curmudgeon” and that there are no “statutory impediments to developing an estate plan that cuts out the spouse”. Although we believe this to be a manifestly unfair result and poor public policy, we recognize that we are not the appropriate forum to correct the same. We encourage the legislature to revisit the issue. Friedberg v. Sunbank/Miami, N.A., 648 So.2d 204, 205–06 (Fla. Dist. Ct. App. 1994) (footnote omitted)

I too suggest that the legislature consider revising the elective share statute in light of these developments and changing family dynamics. I would also remand for a factual determination as to Rachel Putnam’s status as a pretermitted spouse. Joann Putnam’s and Edgar Putnam’s mutual wills expressly state that neither would do “anything” to defeat their detailed plan of distribution. Florida Statutes, section 732.301 (1991), provides three exceptions to a surviving spouse’s entitlement to a pretermitted share: when “(1) [p]rovision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement; (2) [t]he spouse is provided for in the will; or (3) [t]he will discloses an intention not to make provision for the spouse.” Although Rachel Putnam neither executed a marital agreement nor was provided for in Edgar Putnam’s will, there is a factual question as to whether the will discloses an intent not to provide for a future surviving spouse. See Perkins v. Brown, 27 So.2d 521 (Fla. 1946). For the foregoing reasons, I respectfully dissent.

https://doi.org/10.1017/9781108860963.007 Published online by Cambridge University Press

7 Commentary on In re Estate of Myers danaya c. wright

history, the elective share, and valuation The law of trusts and estates has a gendered history that helps to put Estate of Myers into context. Under the law of England, adopted by most states in this country, husbands and wives were deemed to be one person: the husband. As William Blackstone explained: By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover she performs every thing; and is therefore called in our law-french a feme-covert . . . Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.1

The law of coverture provided that all personal property a woman brought to a marriage was owned by her husband, and all real property she brought to the marriage was to be managed and possessed entirely by him. All real or personal property the husband brought to the marriage remained his, as did all property acquired during the marriage. Today, most married couples think of their property as being his, hers, and theirs; 300 years ago, it was his, his, and mostly his. Married women could not make decisions about any property, could not write a will, could not sue or be sued, and could not enter into contracts.2 A contract between a husband and

1

2

William Blackstone, commentaries on the laws of england ch. XV, at iii (St. George Tucker ed., 1803). John Baker, introduction to english legal history 484–89 (4th ed. 2005).

123

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

124

In re Estate of Myers

wife was void because the law treated it as though a person had contracted with himself. Because of this disparity in the legal authority to control property, men and women were quite differently situated at death. If a wife died, the husband retained all personal property she had brought to the marriage and all property they had acquired together. And, so long as a child was born of the marriage, the husband was also entitled to a life interest in the use of all real property the wife had owned prior to the marriage. This life interest was called curtesy, and it allowed him to continue to manage and possess the real property, taking all profits and making all decisions about it that he had been making prior to his wife’s death. Because the husband essentially owned or controlled the family wealth, the wife’s death caused virtually no financial change to the husband’s standard of living. A surviving wife, however, often suffered a significant change in wealth status at her husband’s death. If she had brought real property to the marriage and if it had not been sold during the marriage, she would regain full ownership and control of that property in her widowhood. But if it had been sold and other real property purchased, she would be entitled to a life interest in only one third of the real property owned by her husband. This was called her right to dower. Unfortunately for many widows, dower rights in land were often waived prior to marriage through a strict settlement: an agreement between the wife’s father or brother and her husband that released her dower interest in her husband’s land in exchange for an income stream through an annuity. The land would thus descend immediately to the couple’s children – usually, the eldest son – leaving the wife with a lifetime annuity, which would end, as would her dower, if she were to remarry. And because only husbands could make wills, he could devise the rest of his real and personal property as he chose, disinheriting his surviving spouse of all except her legal dower or annuity – property that the law viewed as supporting her in her widowhood so that she would not fall upon the charity of the parish. Coverture, dower, and curtesy were brought to the United States and prevailed here until the twentieth century, when states began to equalize the rights of surviving spouses in each other’s estates. However, even as late as 1974, the Supreme Court held that states could treat wives and husbands differently under state probate laws because men and women were so differently situated in terms of their access to wealth.3 But since the 1980s, states have repealed dower and curtesy laws, and most have replaced them with statutes giving 3

Kahn v. Shevin, 416 U.S. 351 (1974) (finding constitutional state property tax exemption that applied to widows and not widowers).

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

In re Estate of Myers

125

surviving spouses a statutory minimum in the decedent spouse’s estate – often called an elective share or a forced share.4 Notably, although states could have modeled their elective share statutes on the curtesy model, thus giving the surviving spouse a life interest in all of a decedent spouse’s estate, no state opted for such a generous provision. Instead, they all opted for some percentage – between 30 percent and 50 percent – of a decedent spouse’s estate, allowing the remainder to pass however the decedent spouse had dictated. In the late twentieth century, two theories of marital wealth have informed elective share statutes. The partnership model is based on the idea that husbands and wives form a partnership, property acquired during the marriage should be split equally, and even if all the property is titled in the name of one spouse, the survivor should have full ownership and control of at least half of it because that spouse helped to acquire and manage the property. In many respects, the partnership model is based on curtesy, because it acknowledges the role of both parties in acquiring and managing property. The support model, however, is more like dower and grants surviving spouses only enough property to support them in their last years of life, with the bulk of the property passing to any children or as the decedent spouse chooses, with a generous deference to testamentary freedom. Under the support model, a life estate, or trust interest that gives only a life income stream, will satisfy the elective share. Under the partnership model, the surviving spouse receives absolute ownership of a share of the marital wealth and has control over the ultimate disposition of that property. Therein lies the rub: absolute ownership versus a mere life interest with no control over the property at death. Elective share statutes allow a surviving spouse to elect against a decedent spouse’s will only if the latter did not make appropriate gifts to the survivor. One important difference between elective share laws in the various common law states is the role of renunciation. In some states, a surviving spouse must renounce all gifts made in the will or other nonprobate instruments to claim an elective share. In these states, if a decedent spouse has an estate worth US$6 million and the surviving spouse is entitled to $3 million as elective share, but the decedent left the survivor property in his will worth $1 million, his surviving spouse would have to renounce the $1 million in gifts to receive her $3 million. Thus, if the $1 million gift were to consist of a favorite painting or beach house, the survivor would still have to renounce that particular gift 4

States fall into two basic groups: common law and community property states. Common law states based their laws on those of England, as described above, and tend to ensure that a surviving spouse receives support through an elective share. Community property states deem all marital property to be jointly owned regardless of title, seeing marriage more as a partnership.

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

126

In re Estate of Myers

and settle for whatever property the executor gives her so long as it totals at least $3 million. She would have no right to demand that she get the painting or the beach house as part of her elective share. In other states, the spouse does not have to renounce the gifts and can still demand her elective share, but the value of the gifts will be offset against the elective share. Renunciation is problematic, however, because it not only forces the survivor to potentially give up property that may have special meaning, but also puts her in the position of rejecting the decedent spouse’s overall testamentary plan and perhaps forcing the survivor to disregard the priorities and judgment of the decedent spouse. Nebraska adopts an “offset” model, and this model can put the surviving spouse to something of a Hobson’s choice. On the one hand, if she chooses to renounce any gifts, then she receives whatever property the executor chooses to give her so long as it is valued at the appropriate amount. If there are particular items of property that she wants, she risks not getting them, even if they were specifically devised to her. On the other hand, if she does not renounce, she runs the risk that the executor or the court might value the gifts she was given at a higher value than she thinks they are worth, ultimately reducing the shortfall. And for property that is particularly difficult to value, she runs the risk of it being valued so high that there is no shortfall, so that she gets nothing further for her elective share. Most property (like a painting or beach house) can be easily valued, but other property is notoriously slippery to value, such as an ongoing business, future profits, a thoroughbred race horse, which could either break its leg or win the Kentucky Derby tomorrow, or nonownership rights such as the right to live in an apartment for life. Is the right to the apartment valued at the rental amount it would receive on the market, or a percentage of the value of the entire building, or the replacement value to the recipient, who would have to find another place to live? And how do we know the value of a life interest, given that the surviving spouse might die next week or live to be 110? How property is valued is therefore of critical importance in elective share cases.

background Fast forward to 1999 and the case of Lesley and Harold Myers. Harold’s estate plan provided that his tangible personal property (clothing, furniture, etc.) would pass to Lesley, his wife, outright on his death. The remainder of Harold’s estate (ultimately worth more than $6 million) poured into the Harold S. Myers Trust. The trust provided that Lesley would be entitled to the income during her life, but that, at her death, the trust corpus would pass to

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

In re Estate of Myers

127

their three children. Although Lesley likely would have left any property she acquired from Harold to their children anyway, she was not given that option. Once the children knew they were going to receive the trust principal, they might neglect Lesley, borrow against their trust interests, or face a tort judgment that would wipe out their future gift. If Lesley owned the property outright, she could wait until her death – hopefully, far in the future – to determine which children were most in need or most deserving, or whether special circumstances justified putting some of the property into another trust for one or more of her children, to protect the child and to protect the property from dissipation. It is almost always preferable to postpone making decisions about bequests to children until their life circumstances are better known. Under Nebraska law in 1996, Lesley was entitled to an elective share equal to half of her husband’s entire “augmented” estate.5 But to determine if Lesley were entitled to take an elective share, the court would offset the value of any property that passed to her under Harold’s will or through his trust if she did not renounce the property. One question before the court was how much Lesley’s life estate in the $6 million trust was worth. Obviously, Lesley would rather have had $3 million outright, which she could fully control as she chose, over the income from $6 million, which she could not fully control or devise. Although the trust allowed the trustee to invade the principal for her health and maintenance, Lesley argued that she was entitled to $3 million outright, plus her life interest in the trust, since the assets in the trust would remain intact to pass to their children and never truly be hers.

original opinion Lesley first argued that the trust income should not be offset at all against her elective share because a trust interest that terminated with the death of the life tenant was not really property that passed to her, since she could not control it. The Nebraska Supreme Court disagreed with Lesley, holding that since an income interest in an inter vivos trust is property for purposes of determining the elective share offsets, so should be an income interest in a testamentary trust. More importantly, the court noted that the purpose of including all of a decedent’s property in the augmented estate for calculating the elective share is to ensure that the surviving spouse gets her fair share of the decedent’s property, but no more. It would be unfair, the court noted, to calculate the elective share only on a portion of his property, such as only the property 5

neb. rev. stat. §30–2312 (defining augmented estate to include joint tenancy property, revocable trust property, and property passing outside probate through a beneficiary designation).

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

128

In re Estate of Myers

passing under the will, because that would enable a decedent spouse to disinherit the surviving spouse by having all of his estate pass through nonprobate mechanisms. At the same time, however, the court noted that it also would be unfair for a surviving spouse to receive extensive property through nonprobate mechanisms, such as joint bank accounts, life insurance, or beneficiary designations, and still be able to claim an elective share in half of the remaining property. Explaining that “the dual purposes of the elective share provisions of the Nebraska Probate Code are to prevent a spouse from being denied a fair share of the decedent’s estate, but also to prevent the surviving spouse from obtaining more than a fair share of the estate when he or she has already received a share of the estate through some other means,”6 the court held that the value of Lesley’s trust interest should be offset against her elective share. The second issue was how to value Lesley’s life interest in the trust. Certainly, income from $6 million is unlikely to add up to the full $3 million to which Lesley was entitled, especially when many of the assets in the trust were not paying dividends at all. Even assuming the trust paid out income at 5 percent annually, that would yield only $300,000 per year. The trust would need to pay out for at least ten years for Lesley to receive $3 million and, with inflation, even if she were to save every penny, $3 million ten years from now would not be worth as much as $3 million today. With the combined effects of inflation and the time delay in receiving her elective share, the difference in value between receiving that share outright and receiving only the income off the trust would be more than $1.5 million after just ten years. Any economist, financial advisor, or actuary would counsel Lesley to demand the money now, outright, rather than to accept only a life interest in the trust. Money in hand is always more valuable than income in the future. The court used an Internal Revenue Service (IRS) valuation method that assumed a 7.6 percent return for Lesley’s expected life and valued Lesley’s trust interest at $5.2 million. Never mind that if she were to receive $3 million, invest it herself at 7.6 percent, and live for forty years, she would have $56 million! Because, over her lifetime, Lesley was likely to receive at least $3 million, the court held that she could not claim any elective share in Harold’s estate. The court rejected Lesley’s contention that it should not have used the IRS valuation method and that 7.6 percent interest was not reasonable, given that much of the stock in the trust was not paying dividends at all. In the absence of a different metric, the court affirmed the IRS valuation method, recognizing 6

256 Neb. at 823.

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

In re Estate of Myers

129

“that this method is at best imperfect . . . and at best a matter of educated guesswork,” but accepting the method because “[t]he courts cannot demand perfection in an area so fraught with speculation and uncertainty.”7 What is not uncertain, however, is that Lesley would always be better off receiving half the money outright rather than income off the full amount. But the court decided otherwise, in a case that fully embodies the support model of dower rather than the partnership model of marital wealth equality. Not only would Lesley not receive half of Harold’s estate, but neither would she have the power to make decisions about how to invest that half or how to devise it at her own death, even though she may have significantly contributed to Harold’s ability to acquire that property. In a partnership model, she would be entitled to receive half outright because whatever she did during the marriage, whether it was working to earn a salary, raising the kids and taking care of the home, fetching Harold’s laundry, or investing her time and labor in renovating the family home, her labor would be recognized. Following the support model, the court reaffirmed the English law of coverture, which gave the husband full control over all the marital property, and told wives in Nebraska that property is still his, his, and mostly his.

feminist judgment In her rewritten majority opinion, Professor Karen Sneddon, writing as Justice Sneddon, provides a brief history of curtesy and dower, and their abolition in Nebraska in 1907, to put into perspective the gendered origins of spousal elective share claims. She also judicially affirms the state’s commitment to the partnership theory of marriage, which entitles a surviving spouse to a portion of her deceased spouse’s estate – a history and a commitment to equality that are absent in the original opinion. This embracing of the partnership theory of marriage is important for future probate cases because it provides a theoretical basis for interpreting the terms of ambiguous statutes, wills, or trusts. Sneddon then acknowledges that Lesley did not renounce her interest in the trust, meaning that the value of the trust would have to be offset against her elective share unless the trust was not considered property at all under the elective share statute. Lesley’s argument that the trust should not be considered property for the purposes of calculating the elective share offset is both weak and compelling at the same time. It is weak because trust interests are regarded as property even though they do not entail full control over the trust 7

Id. at 828.

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

130

In re Estate of Myers

corpus. Beneficial interests in trusts are identified as property rights, they are protected by law as property rights, and they are alienable as property, so to say that they are not property is a stretch. It is not a stretch, however, to argue that when a state adopts the partnership theory of marriage and marital property, and then does not clearly identify the property to be offset against the elective share, it really means only property that is fully and completely given to the surviving spouse, not an interest that terminates on the recipient’s death. Although the Nebraska statute used the term “property” when it identified gifts that should be offset against the elective share, it arguably meant outright gifts, rather than conditional or limited gifts. Lesley argued that, in the context of marital property and the elective share, only outright gifts should be deemed property to offset against the elective share, even if scholars would consider more limited interests technically to be property rights. Unfortunately for Lesley, another part of the Nebraska elective share statute included as property a “beneficial interest of the surviving spouse in a trust created by the decedent during his or her lifetime.”8 Lesley argued that because the trust she received was not created during Harold’s life, but was created only after his death, it should not count as property and the court should not look at the inter vivos trust statute for guidance. But the express inclusion of inter vivos trust interests in the elective estate provided further support for the court’s conclusion that testamentary trust interests would also count as property for purposes of the offset. And Sneddon reasonably concludes in her rewritten opinion that although trust interests are inconsistent with the partnership theory of marriage, Lesley’s failure to renounce the trust interest resulted in consequences that she must bear: The trust interest was considered property and would be offset. The only remaining question was the valuation method. Unlike those of some other states,9 the Nebraska statutes do not assign a particular value to a trust interest, so the court had to adopt a valuation method. Sneddon, in her revised opinion, notes that valuation is a recurrent question and is crucial in determining a fair valuing of trust interests for elective share purposes. She then explains that, although the IRS method should be the presumptive method, it should not be the final word. If the IRS method is likely to result in inequity, the burden should shift to the challenger (i.e., Lesley) to show that the method is inappropriate. In this case, Lesley argued that valuing the trust by assuming a 7.6 percent rate of return was inappropriate when 83 percent of the trust assets were stocks that paid no 8 9

neb. stat. §30–2314(2)(i). See, e.g., me. rev. st. tit. 18-A, §2–207(a); fl. stat. §732.2095(2)(d)(3).

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

In re Estate of Myers

131

dividend. Sneddon agrees with Lesley that the circumstances of this trust did not justify a blind adherence to the IRS method, but rather required a more individualized assessment. Going even further, Sneddon recognizes that the IRS method did not account for the nature and marketability of the trust property, trustee compensation, broker commissions, or tax consequences of the trust’s property and administrative arrangements. Sneddon also notes that the health of the surviving spouse, medical history of her family, and relationship between the trustee and the surviving spouse are also relevant to the valuation, since the trustee has the sole discretion to invade the principal for the surviving spouse’s health or maintenance. These variables, she explains, “make fixing an appropriate valuation problematic.” Sneddon also observes, however, that if valuation is likely to result in severe overvaluation of the offsetting property, the surviving spouse always has the choice of renunciation. Sneddon finds that the county court did not make reasonable findings to provide for a fair and equitable valuation, and she remands the case back to the lower court to take a second look at valuing the trust interest, given the unique circumstances of this trust. The rewritten feminist judgment thus gives Lesley Myers a second chance to argue that the unique arrangement of this trust does not adequately compensate her for her share of marital property. Perhaps Lesley should have renounced her trust interest, but hindsight is always twenty–twenty. Sneddon recognizes that a just and equitable legal system needs to balance the importance of finality and certainty in the law with the equitable and tempering values of second chances. The feminist judgment recognizes that giving second chances is important in cases of first impression – especially when the law and the history have been so heavily weighted against the interests of women.

feminist implications There are numerous feminist implications to this decision. First, elective share trusts, used primarily by men to limit women’s access to wealth during life and at death, exacerbate the gender wealth gap that many scholars have identified.10 Second, affirming the use of limited property interests not only violates the partnership model, but also reinforces and continues the cycle of female dependence and exacerbates women’s inexperience in handling financial matters – especially when the valuation of those property interests is not 10

See, e.g., Gwendolyn Griffith, The Evolution of Women’s Wealth: Implications for Wealth Planners, aspatore, 2014 WL 4160088. *3–6 (July 2014); Mariko Lin Change, shortchanged: why women have less wealth and what can be done about it (2010); Carmen Diana Deere & Cheryl R. Doss, The Gender Wealth Gap: What Do We Know and Why Does It Matter?, 12 feminist econ. 1 (2006).

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

132

In re Estate of Myers

fair and equitable. Third, the Nebraska court did not recognize the gendered nature of the choice Lesley faced: renounce and thereby reject Harold’s plan, authority, and judgment; or do not renounce and give up her own property entitlements. Fourth, women who do not have control over property are usually at the mercy of male trustees, who often decide that women’s choices are not valid. Women who want to use their money to make charitable donations, to make gifts to family and friends, or to engage in political causes often find themselves constrained by male trustees who do not always appreciate the value of women’s choices.11 It is possible that elective share statutes attempt to do too much: They protect a surviving spouse from destitution by providing a minimum share of a decedent spouse’s estate, but they also try to rebalance the property imbalances that are a result of many social and economic factors. And they try to do that with a onesize-fits-all formula that does not take into account unique family circumstances, the changing demographics of the modern family, or tax and investment incentives. Allowing trust interests to satisfy the elective share (and valuing those trust interests in a one-size-fits-all manner) reaffirms traditional views that women are poor stewards of property. When women’s control over property that they helped to create, and to which they are entitled, is subordinated to the control of male spouses and male trustees for whatever reason, women’s autonomy and independence are denied. Those states that reject the partnership theory of marriage and estate planners who limit women’s control over marital property still see the property relation as his, his, and mostly his.

I N R E E S T A T E O F M Y E R S , 2 5 6 Neb. 8 1 7 , 5 9 4 N . W . 2d 5 6 3 ( 1 9 9 9 )

justice karen j. sneddon, delivering the opinion of the court

i nature of the case The issues before the court are issues of first impression. The court must determine: (1) whether the elective share must be offset by the value of the surviving spouse’s beneficial interest in an inter vivos trust; and (2) if an offset 11

See, e.g., Finch v. Wachovia Bank & Trust Co., 577 S.E.2d 306 (N.C. Ct. App. 2003) (describing how a corporate trustee denied a trust beneficiary’s request for principal distributions to make “substantial gifts” to church, charities, and family members).

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

In re Estate of Myers

133

applies, the appropriate valuation for the surviving spouse’s beneficial interest in the inter vivos trust. The use of gender-neutral language in the statute does not address the historical disparities of earning capacity and property accumulation between spouses. These issues thus have gendered dimensions that the court must acknowledge. For the reasons stated herein, we affirm in part and reverse in part the judgment of the county court. We remand as to the valuation issue.

ii factual background Lesley C. Myers was aged forty-four when her spouse died on December 26, 1999. Harold S. Myers, who was not yet fifty when he died, was survived by Lesley and five children. The three youngest children, all of whom were minors at the time of Harold’s death, are children of both Harold and Lesley. The Amended Inventory reveals that Harold died owning interests in the following property: Harold’s will directed that his tangible personal property be given outright to Lesley. The residuary clause in Harold’s will was a “pour over” provision. This provision directed that Harold’s residuary estate, valued at $6,041,722.95, be distributed to the Harold S. Myers Trust (the trust). A significant portion of the property in the trust consisted of stock in Transcrypt International, Inc., which, at present, is not producing any dividends. 1.

Stocks and Bonds

2.

Mortgages, Notes, and Cash

$8,168,271.18 $147,868.21

3. Property held jointly with Lesley

$400,000.00

4. Other Miscellaneous Property Total

$158,352.46 $8,874,491.85

The trust is an inter vivos trust managed by professional trustee Norwest Bank, Nebraska, N.A. (Norwest). The trust instrument provides for the creation of two separate trusts, a family trust and a marital trust, each funded according to a formula used to minimize the payment of federal estate taxes. These components could also be characterized as a credit shelter trust, which in this case received $600,000 of Harold’s assets, and a qualified terminable interest property (QTIP) marital trust, which received the remaining (and thus vast majority) of Harold’s estate assets. A QTIP marital trust is able to minimize tax liability because the assets are deemed to pass to the surviving spouse under

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

134

In re Estate of Myers

the Internal Revenue Code (IRC), section 2056(b)(7) and thus can take advantage of the estate tax marital deduction, although the surviving spouse’s rights to those assets are significantly circumscribed. Here, Lesley receives from the marital trust all income, at least quarterly, during her lifetime. Lesley may receive principal in the trustee’s sole discretion for Lesley’s health, care, support, and maintenance. Upon Lesley’s death, the remaining property in the marital trust, after payment of estate taxes, is added to the family trust. From the family trust, Lesley receives all income annually or more often during her lifetime at the discretion of the trustee. Principal may be distributed in the trustee’s sole discretion if necessary for the health and support of Lesley to maintain the manner of living to which she was accustomed during Harold’s lifetime. Upon her death, Lesley has a special power of appointment to distribute any remaining family trust property to any of Harold’s lineal descendants who are then living. Upon Lesley’s death, any remaining family trust property not so appointed will be distributed equally among Harold and Lesley’s joint children. The three minor children who survived Harold are Harold and Lesley’s joint children. If a child has reached the age of thirty-five at the time of Lesley’s death, the child shall receive a share outright. If a child has not reached the age of thirty-five at the time of Lesley’s death, the child’s share will be held in continuing trust. One third of the remaining trust principal will be distributed to the child at the age of twenty-five, one half of the remaining trust principal will be distributed to the child at the age of thirty, and the remaining principal will be distributed to the child at the age of thirtyfive. During the term of the continuing trust, the trustee may distribute as much income and principal as necessary for the child’s welfare.

iii procedural history Eight days after Harold’s death, Lesley filed in the county court an application for informal probate and appointment as personal representative. The county court granted the application on the same day, on January 3, 1997. Eight months later, Lesley timely filed her petition for the elective share on September 24, 1997. The Amended Elective Share Worksheet presented the computation for the net elective share in the amount of $2,752,356.47. The parties later stipulated the value of the augmented estate as $6,578,712.95. At the time she filed her petition for her elective share, Lesley did not renounce any benefit that she was gifted under any provisions of Harold’s will or the trust. To avoid any allegation that it was breaching its fiduciary duty, Norwest filed a motion for the appointment of a guardian ad litem for the three minor

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

In re Estate of Myers

135

children who had an interest in the trust. As remainder beneficiaries, the three minor children had interests potentially adverse to Lesley. With no objection filed, the guardian ad litem was appointed to represent the interests of the three minor children. Harold’s two other children, who are not Lesley’s children and who are adults, were intentionally omitted from the will and the trust. Neither of the adult children is a party to this action. Lesley and the guardian ad litem dispute the amount Lesley is entitled to receive under Nebraska’s elective share provision. The guardian ad litem filed a report asserting that Lesley’s beneficial interest in the trust should first offset the amount of the elective share. It should be noted that the role of the guardian ad litem is to act as an advocate for the best interests of the person or persons for whom that guardian was appointed. A guardian ad litem may favor the individual’s financial interests rather than the interests of the family as an economic unit or the dynamics of a particular family. That the guardian ad litem disputes Lesley’s claims should not be taken as evidence of family disharmony or that Lesley is uninterested in protecting the interests of her minor children. Put simply, the resolution of these issues may reduce the value of the property ultimately received by the minor children upon the trust termination. Such financial consequences affect how the guardian ad litem proceeds in this matter. Lesley asserted that she was entitled to receive 50 percent of the augmented estate under the elective share provisions and to retain her beneficial interest in the trust, which, she argued, should not be offset against her elective share because the beneficial interest did not “pass” to her, as the plain language of the statute requires. Assuming that the trust interest was an offset to the elective share, the guardian ad litem proposed that the trust interest be valued based on Internal Revenue Service (IRS) guidelines for determining the present value of a life estate for tax purposes. Based upon this valuation, the guardian ad litem maintained that Lesley’s trust interest was more than 50 percent of the augmented estate, so she was not entitled to receive any additional amounts under the elective share provisions. Lesley countered that even if the beneficial interest in the trust were to be offset against her elective share amount, the court should value the interest based on a projection of actual trust income and not the overly generous amount produced using the tax valuation method. As noted, the stock in Transcrypt International, Inc., which comprised a significant portion of the trust property, was not paying any dividends at that time. The county court issued a ruling in accordance with the position of the guardian ad litem. The county court determined that Lesley’s beneficial interest in the trust passed to her subject to the provisions of Nebraska

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

136

In re Estate of Myers

Revised Statute, section 30–2319. The elective share was then offset by the present value of Lesley’s interest in the trust. The value of the trust was determined using standard mortality tables, treasury regulations, and Nebraska inheritance tax regulations. Based upon this calculation, the county court determined that Lesley’s elective share was satisfied by her unrenounced beneficial interest in the inter vivos trust. Lesley timely appeals. Pursuant to Nebraska Revised Statute, section 30–601, Lesley’s appeal was taken directly from the county court to the Nebraska Court of Appeals and moved to our docket. The move was pursuant to this court’s authority to regulate its caseload and the caseload of the Court of Appeals.

iv standard of review Probate cases are reviewed by an appellate court for error appearing on the record made in the county court. In re Estate of Foxley, 254 Neb. 204, 207, 575 N.W.2d 150, 153 (1998). See also In re Estate of Disney, 250 Neb. 703, 704, 550 N.W.2d 919, 922 (1996). In contrast, statutory interpretation is a matter of law. An appellate court has an obligation to reach an independent conclusion – regardless of the determination made by the court below. Central States Found. v. Balka, 256 Neb. 369, 373, 590 N.W.2d 832, 836 (1992).

v analysis A Protections for the Surviving Spouse Marriage is a civil contract, Neb. Rev. Stat. §42–101, that results in a status. See, e.g., Creason v. Myers, 217 Neb. 551, 350 N.W.2d 526 (1984). The status creates a legal relationship, which delivers benefits and obligations. Creason, 217 Neb. at 553, 350 N.W.2d at 527. States recognize that the marriage partners derive both benefits and obligations from marriage and at the conclusion of marriage – whether that conclusion is by dissolution proceeding or death. Historically, the protections extended to the surviving spouse upon the death of the decedent spouse were gendered in construction and application. See generally Sheldon F. Kurtz, The Augmented Estate Concept under the Uniform Probate Code: In Search of an Equitable Elective Share, 62 iowa l. rev. 981, 982–88 (1977) (summarizing historical approaches to protecting the surviving spouse from disinheritance by the decedent spouse). Male surviving spouses were entitled to curtesy if issue were born of the marriage.

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

In re Estate of Myers

137

Curtesy referred to the husband’s right as a tenant in all lands of which the deceased wife was seised, whether in fee simple or fee tail, at any time during coverture. Female surviving spouses were entitled to dower. Dower referred to the life estate in one third of the lands of which the deceased husband was seised, whether in fee simple or in fee tail, at any time during coverture. The purpose of dower was support. In Nebraska, dower and curtesy have been abolished since 1907. Neb. Rev. Stat. §30–104 (abolished by 1907 Neb. Laws c. 49, §4). Legislative abolishment of dower occurred for two reasons. The first reason was the recognition that a fractional share of real estate holdings provided inadequate protection for surviving spouses when the bulk of property interests transitioned from real property to personal property (e.g., the intangible assets such as stocks and bonds). The second reason was the changing understanding of marriage from a legal relationship focused on providing financial support during the lifetime of the married individuals to a legal relationship that created a partnership in which both members of the union are equal. In the 1970s, the Nebraska legislature responded to changes in the understanding of marriage by enacting provisions relating to divorce and succession. In the divorce context, the legislature adopted “no fault” divorce and equitable distribution. L.B. 820, 1972 Neb. Laws 246. See also Campbell v. Campbell, 202 Neb. 575, 276 N.W.2d 220 (1979). In the succession context, the legislature adopted portions of the 1969 Uniform Probate Code. See generally David H. Kelley, The Nebraska Probate Code: Its Background and Development, 9 creighton l. rev. 454 (1976). As relates to the elective share provisions, the Nebraska legislature adopted, without change, the 1969 version of Uniform Probate Code, section 2–207(a). See Appellee’s Br. at 12. Viewed together, both of these legislative adoptions reflect the more evolved understanding of marriage as an economic partnership. This economic partnership – also called marital sharing – views the spouses as equal partners in the economic alliance known as marriage. Each partner is entitled to an equal share of the value of the partnership when the partnership is terminated – whether by dissolution proceeding or death. As a common law property jurisdiction, Nebraska’s approach to ensuring that the surviving spouse receives an equal share of value from the economic partnership is to provide for an elective share unless expressly waived by written contract. Neb. Rev. Stat. §30–2316(a). Nebraska’s first elective share provision was enacted in 1943. See Neb. Rev. Stat. §30–101, §30–107 (repealed 1974). Under this statutory scheme, the surviving spouse could elect to take under the terms of the decedent spouse’s

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

138

In re Estate of Myers

will or elect to receive the elective share amount. See Neb. Rev. Stat. §30–101, §30–107 (repealed 1974). The surviving spouse’s decision to petition for an elective share was thus a renouncement of the testamentary provisions of the decedent spouse’s will. In 1974, the Nebraska legislature adopted the elective share provisions from the Uniform Probate Code. Neb. Laws 1974, LB 354. It should be noted that, since the Nebraska legislature enacted its elective share statutes, the elective share provisions of the Uniform Probate have been altered several times – notably, in 1975, 1990, and 1993. The number and extent of the revisions evidence the challenges in drafting elective share statutes that both appropriately balance competing policy considerations and provide sufficient guidance to courts, given the various factual circumstances that may arise. In Nebraska, the surviving spouse may (1) accept the testamentary gifts under the terms of the decedent spouse’s will, (2) accept the property received from the decedent spouse via nonprobate devices, and (3) petition for an elective share amount. It should be noted that some surviving spouses may feel compelled to petition for an elective share based upon economic need. Whether or not the surviving spouse petitions for the elective share, the surviving spouse is entitled to the homestead allowance, exempt property, and family allowance. Neb. Rev. Stat. §30–2318 (b). The question becomes, if a petition for an elective share is filed, how to calculate the elective share amount. B The Elective Share In Nebraska, the surviving spouse has the right of election. Neb. Rev. Stat. §30–2313. The surviving spouse must exercise the right of elective by filing a petition for the elective share in the court or by delivering a petition for the elective share to the personal representative. Neb. Rev. Stat. §30–2317(a). The filing or delivering, as the case may be, must be done within the later of (1) nine months after the decedent spouse’s death or (2) six months after the probate of the decedent spouse’s will. Id. The court will determine the amount of the elective share after notice and hearing. Id. at (d). If required, the court will order the payment of the elective share from the augmented estate or by appropriate contribution. Id. The right of election is statutory. Billiter v. Parriott, 128 Neb. 238, 258 N.W. 395, 397 (1935). The statute provides that the surviving spouse is entitled to an elective share that is not in excess of one half of the augmented estate. Neb. Rev. Stat. §30–2313(a). The augmented estate is defined as the decedent

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

In re Estate of Myers

139

spouse’s probate estate, less certain allowances such as the homestead allowance and family allowances, plus the value of property interests the surviving spouse received from the decedent spouse without full consideration. Neb. Rev. Stat. §30–2314. The augmented estate includes several categories of inter vivos transfers by the decedent spouse. See generally David G. Wondra, Comment on Widow’s Election under the Augmented Estate, 57 neb. l. rev. 147, 174 (1978) (“The augmented estate offers more protection for the surviving spouse’s right of election; however, the augmented estate also takes away by forcing the surviving spouse to account for property received from the decedent”). The purpose of the augmented estate is summarized in comment 83 to Nebraska Revised Statute, section 30–2314, as twofold: (1) to prevent the owner of wealth from making arrangements which transmit his [or her]12 property to others by means other than probate deliberately to defeat the right of the surviving spouse to a share, and (2) to prevent the surviving spouse from electing to a share of the probate estate when the spouse has received a fair share of the total wealth of the decedent either during the lifetime of the decedent or at death by life insurance, joint tenancy assets and other nonprobate arrangements.

As the court has stated: The combined effect of the statutory elective share and augmented estate concepts is intended to protect the surviving spouse of a decedent against donative inter vivos transfers by devices which would deprive the survivor of a “fair share” of the decedent’s estate and at the same time prevent the surviving spouse from receiving more than such share by allowing the acceptance of certain transfers and insurance proceeds and also yet elect against the will. In re Estate of Carman, 213 Neb. 98, 100, 327 N.W.2d 611, 613 (1982) (abrogated on other grounds in Disney, 250 Neb.)

The augmented estate concept recognizes that the decedent spouse may make certain lifetime transfers and pass property via nonprobate devices. Without a concept like the augmented estate, lifetime gifts and nonprobate devices could be used by the decedent spouse to avoid spousal protections based exclusively upon probate property. The elective share thus combines the decedent spouse’s probate property, certain nonprobate property, and some lifetime gifts to create a total estate upon which to calculate a fair elective share for the surviving spouse. 12

The terms of the statute apply both to female spouses and to male spouses. For that reason, gender-neutral language should be used in the statute and the comments.

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

140

In re Estate of Myers

The surviving spouse’s election does not affect the share of the surviving spouse under the provisions of the decedent spouse’s will or nonprobate devices unless the surviving spouse expressly renounces such provisions. Neb. Rev. Stat. §30–2319(a). A surviving spouse may renounce all or part of an interest by filing a written instrument of renunciation nine months after the later of (1) the date on which the transfer is made or (2) the date on which the person with the right to renounce reaches the age of twenty-one. Neb. Rev. Stat. §30–2352 (a)(1), (b). Property that is “passed” to the surviving spouse will be “applied first to satisfy the elective share and to reduce the amount due from other recipients of portions of the augmented estate.” Id. If the surviving spouse is receiving more than one half of the augmented estate via provisions in the decedent spouse’s will or nonprobate devices, the surviving spouse will not receive any additional benefit from an elective share award. Id. Lesley did not renounce her beneficial interest in the trust. Lesley did not waive her right to the elective share, homestead allowance, or family allowance through written contract. Lesley asserts that she is entitled to both the beneficial interest in the trust and the elective share. Lesley also asserts that the elective share amount should not be offset by the value of the retained interest in the trust. The question therefore is whether the beneficial interest in the trust interest should be included in the augmented estate and then offset the amount of the elective share award. C The Augmented Estate and Offset of the Elective Share Amount Harold used a standard method of minimizing payment of federal estate taxes with the residuary clause in his will and the trust. The parties agree that the decedent spouse’s residuary estate, which is to be added to the trust, is part of the augmented estate. The court recognizes that a beneficial interest in the trust does not afford the surviving spouse control over the interest. Similarly, the court recognizes that a restricted interest in property acquired during marriage is not consistent with the partnership theory of marriage, in which both spouses are entitled to an equal, outright division of the marital property. Nonetheless, Lesley has not renounced her beneficial interest in the trust. The issue becomes whether Lesley’s beneficial interest in the trust should offset, or be “charged,” against the elective share amount. Nebraska Revised Statute, section 30–2319(a), provides as follows: “Property which is part of the augmented estate which passes or has passed to the surviving spouse by testate or intestate succession or by other means and which has not been renounced . . . is applied first to satisfy the elective share

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

In re Estate of Myers

141

and to reduce the amount due . . . .” Property is defined to include real property, personal property, and “any interest therein and means anything that may be subject of ownership.” Neb. Rev. Stat. §30–2209(36). Lesley asserts that her present interest in the trust is not a property interest that, as phrased in the elective share statute, “has passed to the surviving spouse.” The court is presented with an issue of first impression in interpreting this statutory provision. In the Appellant’s Brief, Lesley contends that the trust property “has not ‘passed’ to her.” Appellant’s Br. at 10. The Appellant’s Reply Brief expands upon this argument by asserting that a beneficial interest in the trust does not grant the trust beneficiary control over the trust property. Appellant’s Reply Br. at 2. Furthermore, Lesley asserts that “[a] plain reading of the statute does not indicate that it includes a beneficial interest in a trust.” Both parties draw the court’s attention to In re Estate of Fischer, 545 A.2d 1266 (Me. 1988). The Maine Supreme Court in Fischer did indeed consider whether a surviving spouse’s trust interest was to be offset against the elective share. Fischer, 545 A.2d at 1272. It should be noted that although the court in Fischer was interpreting a statute adopted from the Uniform Probate Code, the applicable section is not the same version that has been adopted by the Nebraska legislature. Specifically, the Maine legislature adopted the 1975 version of Uniform Probate Code, section 2–207. The section provides that the augmented estate includes property “which pass or have passed to the surviving spouse, or which would have passed to the spouse but were renounced.” Id. In other words, the elective share is offset by property that has nevertheless been renounced by the surviving spouse. Not only is this language expressly included in the Maine statute, but also the October 1978 Report of the Maine Probate Law Revision Commission’s Study and Recommendation Concerning Maine Probate Law presents a side-by-side comparison that acknowledges the treatment of renounced shares. Comm. Study at 2–73, 785 (asserting that “[t]he whole tenor of these provisions of Uniform Probate Code §2–206 and §2–207 is to make election against the will less attractive to a spouse who is actually well taken care of in the testator’s total estate plan”). By including the value of the renounced property in the augmented estate, the surviving spouse is effectively discouraged from renouncing any property because the surviving spouse would not receive the financial benefit from the renounced property, but nevertheless would be credited as having received the renounced property. We again stress that the Nebraska legislature did not adopt such language. The Maine Supreme Court expressly held that a beneficial interest in a trust – whether testamentary or inter vivos – was included in the augmented

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

142

In re Estate of Myers

estate. Fischer, 545 A.2d at 1273. The Appellant’s Brief points out that the Maine version of the statute explicitly includes a provision regarding valuation of a beneficial interest in a trust or life estate. Appellant’s Br. at 10. Appellant thus contends that the omission of such language is an affirmative decision by the Nebraska legislature to exclude beneficial interests in trust property from the augmented estate. Appellant’s Br. at 11. The foregoing authority informs the court’s own interpretation of section 30–2319. But the Nebraska statute itself also directs the court’s analysis. In construing a statute, the court must determine and give effect to the purpose and intent of the legislature. Becker v. Neb. Accountability & Disclosure Comm’n, 249 Neb. 28, 33, 541 N.W.2d 36, 40 (1995). In doing so, we must consider the entire language of the statute. Id. As phrased in the Appellant’s Brief, the elective share statute is “to protect the surviving spouse’s share of the estate from its diversion or control by decedent.” Appellant’s Br. at 12. Appellant argues that offsetting the elective share amount by the value of a renounced life estate would run counter to the intent of the Nebraska legislature. Here, the statutory objective is to ensure that the surviving spouse receives a “fair share” of the decedent spouse’s total estate. A fair share will account for property that the surviving spouse has or will receive as result of the decedent spouse’s death. In Nebraska, a surviving spouse is not charged with property the surviving spouse chooses to renounce because, in contrast to Fischer and the Maine statute the court interpreted, no such language is included in section 30–2319. The surviving spouse’s “fair share” includes property accepted under the terms of the decedent spouse’s will or received via a nonprobate device that are part of the decedent spouse’s augmented estate. To fail to offset, or credit, such property interests would give the surviving spouse a windfall. The issue then becomes what beneficial interest in a trust “passes or has passed” to the surviving spouse consistent with the definition of the augmented estate. Neb. Rev. Stat. §30–2352 (a)(1), (b). The phrase “passes or has passed” could be interpreted as meaning that the surviving spouse has full control of the property received. Under that interpretation, a beneficial interest in trust property would not satisfy the meaning of “passes or has passed.” The trust beneficiary has no control over the management of the trust assets. The trust beneficiary has no control over the number and amount of trust distributions. The trust beneficiary may have no power, or only a limited power, to direct the ultimate disposition of the trust assets. But to hold that a beneficial interest in a trust does not “pass” to the surviving spouse would create issues with the federal estate tax unlimited marital deduction. Property held in a QTIP marital trust qualifies for the unlimited federal estate tax marital

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

In re Estate of Myers

143

deduction, which gives the decedent spouse’s estate beneficial tax savings. Indeed, both the federal estate tax marital deduction and the QTIP provisions were enacted as part of the Economic Recovery Tax Act of 1981, evidencing the legislative understanding that both provisions were interrelated. The surviving spouse, as a trust beneficiary, will have limited access to the property held in a QTIP marital trust. The rationale that supports such an approach, at least in part, is that the decedent spouse is encouraged to increase the amount of property allocated to the QTIP marital trust. While the surviving spouse does not receive full ownership autonomy over the trust property, the surviving spouse would have more access to assets that could be available for the surviving spouse’s support. See, e.g., Joseph M. Dodge, A Feminist Perspective on the QTIP Trust and the Unlimited Marital Deduction, 76 n. c. l. rev. 1741 (1998). Although gender-neutral in language, the majority of surviving spouses will be women. See generally Wendy C. Gerzog, The Marital Deduction QTIP Provisions: Illogical and Degrading to Women, 5 ucla women’s l.j. 301, n.11 (1995) (reciting statistics gathered by the US Bureau of the Census and estimates produced by the US Treasury Department about life expectancies of married partners). Accordingly, QTIP trusts are more likely to be created by male decedent spouses for female surviving spouses. See Mary Louise Fellows, Wills and Trusts: “The Kingdom of the Fathers,” 10 law & ineq. j. 137 (1991). While the court may disagree with the premise underlying the QTIP marital trusts, the court declines to take the broad position that a beneficial interest in a trust does not “pass” to the surviving spouse. While a beneficial interest in a trust will be considered to “pass or have passed” to the surviving spouse, the surviving spouse certainly may renounce such interest. Forcing the surviving spouse to accept a beneficial interest in a trust under penalty of charging would be a modern representation of dower, and dower has been abolished in Nebraska for almost 100 years. Property that the surviving spouse decides not to renounce, however, should be offset, or “charged,” against the amount of the elective share. The appellant notes that “[r]enouncing the interest in the trust would cause the imposition of a substantial federal estate tax and negate the estate planning intended by the use of trusts.” Appellant’s Br. at 12. The surviving spouse has the choice to renounce or not. The surviving spouse will bear the consequences of that choice, whether legal, economic, or social. The court is sensitive to the inequities of forcing a surviving spouse to accept a beneficial interest in the trust. Nonetheless, allowing the surviving spouse to receive a beneficial interest in the trust without offsetting the interest would not result in a fair allocation of property, because the surviving spouse would end up with too much property. The court notes that requiring the surviving spouse to

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

144

In re Estate of Myers

choose may appear to conflict with the partnership theory of marriage, which posits that both spouses are equal partners. Decedent spouses have control over the disposition of their estates and can select which property interests will pass to their surviving spouses. Surviving spouses, however, have the right to accept such interests and have them offset against the elective share amount or renounce such interests. In the end, we hold that a beneficial interest in a trust – whether testamentary or inter vivos – is “property which passes or has passed to the surviving spouse” within the meaning of subsection (a). Such an interest that is not renounced by the surviving spouse should offset the amount that the surviving spouse is entitled to receive via the elective share provisions. D Valuation of Trust Interest Having determined that the beneficial interest in the trust will offset the elective share amount, the question arises as to the appropriate valuation of the trust interest. Valuation will be required when the surviving spouse has not renounced property received via a will or nonprobate device and seeks an elective share. Valuation of partial interests, both present and future, is a recurrent question in inheritance law, and the valuation method chosen can have a significant economic impact on beneficiaries depending on whether the method overvalues or undervalues the interests in question. See, e.g., Ira Mark Bloom, The Treatment of Trust and Other Partial Interests of the Surviving Spouse under the Redesigned Elective Share System: Some Concerns and Suggestions, 55 Alb. L. Rev. 941 (1992). All methods pose risks of overvaluing and undervaluing. Again, our attention is directed to the Maine Supreme Court case of Fischer. The version of Uniform Probate Code, section 2–207, that the Maine legislature adopted creates a rebuttable presumption as to valuation of the trust interest. The statute expressly provides that the surviving spouse’s beneficial interest in a trust “shall be computed as if worth one-half of the total value of the property . . . of the trust estate.” Id. at 1271 (quoting §2–207 as adopted by the Maine legislature). This language has not been adopted by the Nebraska legislature, and, in fact, the Nebraska legislature does not mandate a particular method of valuation. The question for us today, then, is, Who should bear the risk of overvaluation or undervaluation in Nebraska’s elective share provisions? If the trust interest is overvalued and that value is offset against the surviving spouse’s elective share amount, the stated purpose for our elective

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

In re Estate of Myers

145

share – that the share is fair and reflects a partnership share of the decedent’s property – will be undermined. For the reasons discussed below, we hold that the tax valuation method should presumptively govern valuation of trust interests, but that the surviving spouse may overcome that presumption by showing that another valuation method is more appropriate for the trust in question. In other words, the person challenging the presumptive rule for valuation may introduce evidence about actual value, including, but not limited to, a trust holding assets that do not generate much income, trustee compensation and/or broker commissions detracting from expected earnings, or a surviving spouse’s health and medical history predicting a shorter life expectancy, to prove, by a preponderance of the evidence, that the tax valuation method does not work. The surviving spouse would then provide a valuation method, such as the Maine method, that is more appropriate to the particular circumstances. Valuation, even of a future income stream, aims to establish “fair market value.” Neb. Rev. Stat. §77–2008 (stating that “property or interests therein shall be appraised . . . at what was the fair market value thereof at the time of the death of the decedent”). The Internal Revenue Code and its applicable regulations provide one option for valuation and serve as a starting point. 316 Neb. Admin Code, ch. 17, §001.01 (1984). The county court valued Lesley’s beneficial interest in the trust according to the regulations that would be used to calculate, for tax purposes, the present value of a life estate in the trust property. Although the trust provides for the discretionary distribution of principal to Lesley, it is mere speculation to include such hypothetical distributions in the valuation of the interest. As acknowledged in the guardian ad litem’s brief, in the absence of any evidence that principal distributions will be made, “it is better to err on the side of the surviving spouse by not including . . . principal that may be disbursed to the surviving spouse by reason of the [discretionary] provisions of the trusts.” In pertinent part, 26 C.F.R. §20.2031–7 at 313 (1998) provides: “[T]he fair market value of . . . life estates . . . is their present value by use of standard of special section 7520 actuarial factors. These factors are derived by using the appropriate section 7520 interest rate and, if applicable, the mortality component for the valuation date of the interest that is being valued.” Under 26 C.F.R. §20.7520–1(b)(1)(i)(1998), the rate of return to be used, rounded to the nearest two-tenths of 1 percent, is equal to 120 percent of the applicable federal midterm rate, compounded annually, for the month in which the valuation date falls. The date of valuation for estate tax purposes is the decedent’s date of death. 26 C.F.R. §20.7520(b)(1)(ii). As a result, the

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

146

In re Estate of Myers

appropriate interest rate for December 1996, as published in the monthly Internal Revenue Bulletin, was 7.59 percent. Rev. Rul. 96–57, 1996–2 C.B. 82. Rounded to the nearest two-tenths of 1 percent, the rate is 7.6 percent. See 26 C.F.R. §20.7520–1(b)(1)(i). Based on this rate and measured by the life of a forty-four-year-old person, the single life remainder factor is 0.13873. See 26 C.F.R. §20.2031–7(d)(6), table S. The correlative single life remainder factor is subtracted from 1.000000, and the resulting actuarial factor is multiplied by the value of the property to determine the present value of a life estate. 26 C.F.R. §20.2031–7(d)(2)(iii). The resulting actuarial factor in the present case is 0.86127. See id. See also 26 C.F.R. §20.2031–7(d)(5) (example). For estate tax purposes, the present value of Lesley’s interest in the trust based upon that actuarial factor, rounded to the nearest cent, is US$5,230,546.11. Using this figure, the county court determined that Lesley’s beneficial interest in the trust exceeded 50 percent of the augmented estate. As a consequence, Lesley’s elective share amount was fully satisfied by the beneficial interest in the trust. Lesley asserts that the tax valuation method is inadequate, however, because that method overvalues the beneficial interest in the trust. Lesley did not offer an alternate method for valuation, which could have been provided by introducing expert testimony. Instead, Lesley asserts that the county court did not properly consider all of the relevant circumstances. In her Reply Brief, Lesley asserts that “the evidence is clear that the trust will not realize a return of 7.6% annum when 83% of the trust assets are stocks paying no dividend.” Appellant’s Reply Br. at 4. In addition to considering the nature and marketability of the trust property, Lesley posits that trustee compensation, broker commissions, and tax consequences should also be a component of the valuation. Id. at 4–5. Although not raised in the briefs, other relevant circumstances include the health of the surviving spouse, the medical history of the surviving spouse’s family, and the relationship between the trustee and the surviving spouse. Such variables make fixing an appropriate valuation problematic. We recognize that the tax valuation method is imperfect because the valuation relies upon standard mortality tables and “educated guesswork.” McMurtry v. Commission of Internal Revenue, 203 F.2d 659, 666 (1st Cir. 1953). “The courts cannot demand perfection in an area so fraught with speculation and uncertainty.” Id. Yet, given that the purpose of the elective share statute is to ensure fairness, we determine that the tax valuation is the presumptive valuation method, while acknowledging that another method may be appropriate. The parties may suggest alternative methods that are more appropriate given the particular circumstances. In addition, the surviving spouse may avoid the risk of valuing the beneficial interest in the trust by renouncing the

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

In re Estate of Myers

147

trust interest entirely. See Neb. Rev. Stat. §30–2352(c). In any event, the risk of overvaluation is not “minimal.” Bloom, supra (1992) (expressing concern that the surviving spouse is “undercompensated” when the beneficial interest in the trust is over-valued); cf. Lawrence W. Waggoner & John H. Langbein, Reforming the Law of Gratuitous Transfers: The New Uniform Probate Code, 55 Alb. L. Rev. 871, 883 (1992) (“We see the prospect of persistent overvaluation as minimal”). The county court has a responsibility to make reasonable findings that provide for a fair and equitable valuation. We find that the county court has not done so. As noted above, fairness is at the heart of the elective share statute. When recognizing this goal, we must be conscious about the potential overvaluation of beneficial interests in trust property and who will bear the consequences of such overvaluation. Given the gendered history related to so-called protections for the surviving spouse, we are cautious about the issue of valuation. Ranging from the historical use of dower to the modern use of QTIP trusts, widowed female spouses have not been afforded full autonomy and control over inheritances. Statistically, female spouses are more likely to be a surviving spouse, and male spouses are more likely to be a decedent spouse. Historically, male spouses have had greater opportunity for increased earning capacity and property accumulation. Spousal protections, such as the elective share, aim to balance testamentary freedom and marital obligations. The elective share statute seeks to provide options to the surviving spouse. The surviving spouse will have made a number of contributions to the marital partnership – both financial and nonfinancial contributions. Ensuring that a decedent who was the higher wage earner or acquired more property during the marriage does not avoid the surviving spouse’s option to receive a fair share of the estate is a goal of the augmented estate. Overvaluation of property – particularly a beneficial interest in a trust – will undermine the goal of the elective share statute. Despite the gender-neutral language in the statute, property transfers have gendered dimensions. We urge courts to be deliberate as to valuation rather than simply adopting the tax valuation method without question. E Conclusion The county court correctly concluded that when the surviving spouse did not renounce a beneficial interest in an inter vivos trust established by the decedent spouse, the value of the beneficial interest will offset the elective share amount. The county court did commit reversible error in its valuation of Lesley’s beneficial interest in the inter vivos trust. The matter is remanded to

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

148

In re Estate of Myers

the county court to recalculate the value of the beneficial interest in the trust, taking into consideration facts that may justify deviating from the tax valuation method. Therefore, we affirm the judgment in part, and in part we reverse it and remand it to the county court for further proceedings consistent with the views expressed herein. Affirmed in part, and in part reversed and remanded on the issue of valuation. It is so ordered.

https://doi.org/10.1017/9781108860963.008 Published online by Cambridge University Press

8 Commentary on Egelhoff v. Egelhoff donna litman

background The case of Egelhoff v. Egelhoff began as a family dispute in the State of Washington, between two children from a first marriage and an ex-wife from a second marriage, involving $81,000. The case reached its apex in the Supreme Court of the United States because it involved employee welfare and pension plan benefits under the Employee Retirement Income Security Act of 1974, as amended (ERISA), and it affected the administration of ERISA plans throughout the country. It was decided based on ERISA, its purpose, and its preemption of state law, and it generated many friends (amici) of the Court on both sides.1 In 1988, David Egelhoff was hired by the Boeing Company, and he designated Donna, his newlywed wife, as his beneficiary under the company’s group life and accidental death insurance plan. She was listed by name, Donna R. Egelhoff, and her relationship was listed as “wife.” The life insurance form he signed stated: “This designation shall remain in effect until I revoke it in writing.”2 In 1988, David also designated Donna as the beneficiary of his 401(k) defined contribution profit-sharing plan. The 401(k) plan was called a “voluntary investment plan” (VIP), and the plan or summary plan description stated: The VIP Office will only recognize beneficiary designations and changes that are filed on the official VIP beneficiary designation form and received before your death. You may not designate or change a beneficiary by using other documents such as divorce decrees . . . . If you have . . . an invalid beneficiary 1

2

See, e.g., U.S. & Wash. Sup. Cts. Amici Briefs from AARP; for former spouse – Boeing Co., et al., Sheet Metal Workers’ Nat’l Pension Fund, & U.S. Secy. of Labor; for children – Nat’l Conf. of State Legislators, Nat’l Gov’rs Assn., et al., States of Wash. Ark., Colo., Mass, Mont., Okla., Utah, Vt., & W.Va., & Wash. St. Trial Lawyers Assn. Egelhoff v. Egelhoff, 532 U.S. 141, 161 (2001) (Appendix to J. Breyer’s Dissenting Opinion).

149

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

150

Egelhoff v. Egelhoff

designation, or your beneficiary is no longer living, benefits will be paid in the following sequence: 1. To your surviving spouse. 2. If there is no surviving spouse, to your children in equal shares. 3. To another relative designated by the Voluntary Investment Plan Committee, or to your estate.3

While David was married to Donna, ERISA would have prohibited him from designating another beneficiary for the 401(k) profit-sharing plan without Donna’s formally witnessed, written consent.4 In 1994, David and Donna’s marriage was dissolved. As part of the “equitable division of their community property” set forth in their divorce decree, David was awarded “100% of his Boeing retirement 401K and IRA [individual retirement account],” and Donna received an IRA along with other property.5 The decree was not a qualified domestic relations order (QDRO) that named Donna or any of David’s children as alternate payees of any benefits under his 401(k) plan or which assigned any portion of his benefits to them.6 The life insurance proceeds were not mentioned.7 Thus David retained the right to designate the beneficiary of his life insurance and 401(k) plan. Two-and-a-half months after the divorce, David died from injuries suffered in an automobile accident. During that two-and-a-half-month period, David did not change his beneficiary designations on file with the plan administrator. What was the legal significance of David’s failure to change the beneficiaries? Did Donna remain the beneficiary, as she and the plan contended? Or were the beneficiary designations revoked by operation of state law when the marriage was dissolved, as argued by his children from his first marriage? David was survived by an adult son8 and a minor daughter, represented by her guardian and mother, David’s ex-wife. David had been paying child support before he died. 3

4

5

6

7

8

Egelhoff v. Egelhoff (In re Estate of Egelhoff), 989 P.2d 80, 85 n.39 (Wash. 1999); see also www .boeing.com/assets/pdf/companyoffices/empinfo/benefits/savings/spd/spd_76.pdf for Boeing’s updated 2006 Voluntary Investment Plan Summary Plan Description. See generally 29 U.S.C. §1055, as amended by Retirement Equity Act of 1974. Id. §1055(b)(1)(C), (c)(1), (2). Egelhoff v. Egelhoff (In re Egelhoff), 968 P.2d 924, 925 (Wash. Ct. App. 1998); Brief for Respondents, 2000 WL 1369495, at *3. 29 U.S.C. §1056(d)(3)(B) (requiring that the QDRO clearly specify name and mailing address of each alternate payee, amount or percentage to be paid, number of payments or periods, and each plan to which the order applies). See Brief for Respondents, 2000 WL 1369495, at *3 (“The contingent life-insurance benefit, as a mere expectancy, was not included in the property required to be divided and the rights to it therefore remained with David”). His son was David A. Egelhoff, Jr.

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

Egelhoff v. Egelhoff

151

A Washington statute applied to a provision for payment to a spouse of a “nonprobate asset,” such as a “life insurance policy” or an “employee benefit plan.” The statute specified that the beneficiary designation was revoked upon dissolution of marriage and that the former spouse was treated as having failed to survive the decedent (i.e., the insured or plan participant). Based on this statute, the children argued that (1) the life insurance proceeds should pass to them as their father’s heirs under Washington law, and (2) the profit-sharing plan benefits should pass to them as his “children in equal shares” pursuant to the provisions of the plan.9 The issue before the Supreme Court was whether the Washington statute was expressly preempted by ERISA as it relates to the two employee benefit plans or was pre-exempted under traditional principles of conflict preemption. The Supreme Court accepted the case to resolve a conflict on the preemption issue among several federal circuit courts and the Supreme Court of Washington. The preemption issue would resolve the legal significance of David not having expressly and formally changed these beneficiary designations between the date of the dissolution of his marriage and the date of his death, without considering factually whether David would have preferred to benefit his ex-wife from his second marriage or his children from his first marriage. A basic understanding of the meaning of some of the terms used in ERISA is helpful when considering the preemption issue. ERISA governs “employee benefit plans” established by an employer, such as Boeing, engaged in interstate commerce, and this term includes (1) “welfare plans” that provide employees with benefits, such as health or life insurance, and (2) “pension plans” that provide retirement income to employees or which defer income during employment.10 The term “welfare plan” includes a group life and accidental death insurance plan. The term “pension plan” includes a profitsharing plan with 401(k) provisions, which may permit employer contributions and employee contributions by elective deferral and which defines an employee’s benefit based on the employee’s account balance from those contributions. This type of plan is a “defined-contribution plan,” which defines the annual contributions permitted or required and differs from a “defined-benefit plan” which defines the retirement benefit payable.11 A defined-contribution plan is also an “individual account plan.”12 In addition, ERISA was amended by the Retirement Equity Income Act of 1984 (REA), which contains special rules to protect spouses and certain former 9 10 11 12

Egelhoff, 532 U.S. at 155 (J. Breyer, dissenting). 29 U.S.C. §1002(1)–(3). Id. at (34), (35). See, e.g., id. at (34).

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

152

Egelhoff v. Egelhoff

spouses under ERISA pension plans, but not welfare plans. Thus, while both Boeing employee benefit plans were governed by ERISA, the extra protection that REA provided to spouses and former spouses applied to Boeing’s 401(k) profit-sharing plan, but not its group life and accidental death insurance plan. One of the goals of REA was to “provide for greater equity under private pension plans for workers and their spouses and dependents by taking into account . . . the status of marriage as an economic partnership, and the substantial contribution to that partnership of spouses who work both in and outside the home.”13 Generally, REA requires a qualified joint and survivor annuity for a married participant and surviving spouse and a qualified preretirement survivor annuity for a surviving spouse. Individual account plans, such as the Boeing 401(k) profit-sharing plan, may provide that the surviving spouse will receive the participant’s vested accrued benefit in the plan instead of a survivor annuity.

original opinion Egelhoff was decided in 2001, with Justice Thomas delivering the majority opinion for the Court in a seven-to-two decision.14 The Court reviewed (1) the ERISA provision that preempts state law, (2) the express provisions of ERISA regarding payment of benefits, (3) the goals of ERISA regarding uniform administration with minimized burdens, and (4) the effect the Washington statute would have on ERISA plans. The following summarizes these four components of the opinion. (1) ERISA’s Preemption Provision. Section 1144(a) of ERISA provides that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by ERISA. According to the Court, “a state law relates to an ERISA plan ‘if it has a connection with or reference to such a plan.’ ”15 Further, “to determine whether a state law has the forbidden connection,” the Justices “look both to ‘the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,’ as well as to the nature of the effect of state law on ERISA plans.”16 13 14

15 16

S.R. 98–575 at 1; H.R. 98–655, Pts I & II, at 1 (accompanying H.R. 4280, REA) (1984). Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, Souter, and Ginsburg joined Justice Thomas in his opinion. Justice Scalia filed a concurring opinion, joined by Justice Ginsburg. Justice Breyer filed a dissenting opinion, joined by Justice Stevens. Egelhoff, 532 U.S. at 146 (emphasis added). Id. at 147 (citing California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325 (1977).

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

Egelhoff v. Egelhoff

153

(2) ERISA’s Express Provisions Affected by the Washington Statute. ERISA requires a plan to “specify the basis on which payments are made to and from the plan.”17 In addition, ERISA requires the plan fiduciary to administer the plan “in accordance with the documents and instruments governing the plan” and to make payments to a “beneficiary” who is “designated by a participant, or by the terms of [the] plan.”18 The Court considered “the payment of benefits” to be “a central matter of plan administration” that the Washington statute was attempting to govern.19 (3) ERISA Objectives or Goals. The Court focused on two goals of ERISA. The first is “[o]ne of the principal goals of ERISA,” which “is to enable employers ‘to establish a uniform set of standard procedures to guide processing of claims and disbursement of benefits.’ ”20 The Court noted that “[u]niformity is impossible, however, if plans are subject to different legal obligations in different States.”21 The second goal is the “congressional goal of ‘minimiz[ing] the administrative and financial burden[s]’ on plan administrators – burdens ultimately borne by the beneficiaries.”22 The Court noted that “[r]equiring ERISA administrators to master the relevant laws of 50 States and to contend with litigation would undermine” this congressional goal.23 (4) State Law’s Effect on ERISA Administration. One significant effect of the Washington statute is that plan “administrators must pay benefits to the beneficiaries chosen by state law, rather than to those identified in the plan documents” and “must familiarize themselves with state statutes so that they can determine whether the named beneficiary’s status has been ‘revoked’ by operation of law.”24 This “burden is exacerbated by the choice-of-law problems that may confront an administrator” and the “conflicting legal obligations” that may arise when the employer, a plan participant, and a former spouse live in three different states.25 Thus, the effect of the Washington statute is that it “interferes with nationally uniform plan administration” and undermines the

17 18 19 20 21 22 23 24 25

29 U.S.C. §1102(b)(4), 29 U.S.C. §§1104(a)(1)(D), 1002(8). Egelhoff, 532 U.S. at 148. Id. at 148 (citing Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 9 (1987)). Egelhoff, 532 U.S. at 148. Id. at 150 (citing Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142 (1990)). Egelohoff, 532 U.S. at 149. Id. at 147–49. Id. at 149.

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

154

Egelhoff v. Egelhoff

congressional goal of minimizing plan administrators’ administrative and financial burdens. The Court held that the Washington statute “directly conflicts with ERISA’s requirement that plans be administered, and benefits be paid, in accordance with the plan documents” and that the statute has a “connection with” ERISA plans. Therefore, ERISA preempts and supersedes the Washington statute so that it does not apply to the ERISA plans, and Donna Egelhoff, the former spouse, remained the designated beneficiary of the life insurance and profitsharing plan. Although there is a presumption against preemption in areas traditionally regulated by state law,26 this presumption can be overcome when “Congress has made clear its desire for pre-emption,” as it did in ERISA.27 Thus ERISA may regulate payment of ERISA benefits to surviving spouses and former spouses that might otherwise be governed by state law in a family law proceeding or in a probate proceeding when the estate is the default beneficiary.28 Because the Court concluded that ERISA expressly preempted the Washington statute, it did not need to address whether the statute would have been preempted under traditional principles of conflict preemption.29 Further, the Court did not address whether ERISA also preempts state “slayer” statutes that prevent a person who is a beneficiary under a life insurance policy or pension plan from collecting the death benefits if that beneficiary murdered the insured or plan participant – although it noted that those statutes predate ERISA and “are more or less uniform nationwide.”30 Consistent with Egelhoff, employer-provided benefits governed by ERISA are treated differently than individually owned assets. First, a surviving spouse may have certain rights to benefits under an ERISA pension plan even if the participant does not designate a beneficiary; however, the surviving spouse will lose those ERISA rights upon dissolution of marriage. Second, during the 26 27 28

29

30

Id. at 151 (citing Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979)). Egelhoff, 532 U.S. at 151. This case did not involve any probate assets; however, if the Washington statute had revoked the beneficiary designations, the life insurance proceeds would have been paid to David Egelhoff’s heirs, determined by the Washington laws of intestacy. Justices Scalia and Ginsberg would interpret ERISA’s “relate to” clause “as a reference to our ordinary pre-emption jurisdiction”; Justices Breyer and Stevens would apply “normal conflict pre-emption and field pre-emption principles” to a statute for “ERISA and non-ERISA documents alike.” See Egelhoff, 532 U.S. at 153 (concurring and dissenting). Slayer statutes also are based on public policy that murderers should not benefit financially from murder. By contrast, laws governing nonprobate assets are based on a legislative assumption that the owner would not want the former spouse to receive the asset, unless the owner expressly provides otherwise.

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

Egelhoff v. Egelhoff

155

dissolution process, the spouse may acquire rights through a qualified domestic relations order (QDRO) that he or she is to receive ERISA plan benefits during the participant’s life or upon the participant’s death. Third, if a participant affirmatively designates a spouse as the beneficiary of a life insurance policy or a retirement plan governed by ERISA, that beneficiary designation will remain in effect after the marriage is dissolved unless the participant changes the beneficiary in a manner that complies with ERISA and the plan. These results are consistent with ERISA preemption and can be viewed as consistent with the aims of REA, discussed in Cahn’s rewritten opinion, to protect spouses and former spouses. Further, if Congress decides that dissolution of marriage should revoke an ERISA beneficiary designation for a former spouse, it can amend ERISA to provide a nationally uniform rule. By contrast, each state may enact legislation to protect spouses and provide them with rights in nonprobate assets other than ERISA benefits when a spouse dies. And each state may enact legislation if it wants the dissolution of marriage to revoke beneficiary designations for nonprobate assets, such as individually owned life insurance policies and individually created individual retirement accounts (IRAs) that are subject to that state’s jurisdiction.

feminist judgment and implications Naomi R. Cahn, writing as Justice Cahn, has rewritten the majority opinion holding that ERISA preempted the Washington statute from revoking beneficiary designations for ERISA plans when the participant’s marriage to the beneficiary is dissolved. Cahn finds that the Washington statute related to the ERISA plans because it had a connection with the plans. Cahn’s feminist judgment is consistent with the original majority opinion in result. It is also consistent with the Court’s interpretation of the ERISA preemption statute and the applicable tests to determine whether the Washington statute had an impermissible connection and effect upon ERISA. Cahn’s rewritten opinion highlights issues of gender equity and the importance of protecting ERISA benefits from state statutes that may negatively impact women more than men – and it would have had the same effect whether rewritten as the majority or a concurring opinion. Cahn’s feminist judgment expands the majority opinion in two important ways. First, her rewritten opinion considers not only the original provisions and goals of ERISA in 1974, but also an additional goal when ERISA was amended in 1984. Second, it explores the history and effects of probate and nonprobate statutes, such as the Washington statute, and considers whether

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

156

Egelhoff v. Egelhoff

those goals are consistent with those of ERISA. Both of Cahn’s expansions involved women, aiming at gender equity and gender-based impact. Cahn provides a brief conceptual history of changes that occurred at the state level to the institution of marriage and the process of divorce during the history of the United States. She also considers how, at the federal level, REA and ERISA position retirement plans and survivorship benefits for married participants within the context of the “community nature of marriage and the economic interdependence of spouses.” Cahn raises the important possibility that a plan participant who does not change a beneficiary designation after divorce may in fact want to continue to provide for the named beneficiary, even though they are not married. Both the Washington statute and ERISA permit this result; however, lack of action may have the opposite effect under these two laws. Under ERISA’s preemption of the Washington statute, a participant who has designated a spouse as the beneficiary of an ERISA plan must affirmatively revoke that designation in order to remove the former spouse as a beneficiary; for a non-ERISA, nonprobate asset, that same person must affirmatively make a new beneficiary designation to add the former spouse as a beneficiary (or have included that intent in the original designation). Although Cahn references “the nineteenth-century treatment of separate spheres for home and work, women and men that enshrined the subordination of women,” Cahn’s rewritten opinion does permit separate federal and state spheres without this negative effect. Federal law may regulate employee benefits without disadvantaging women, while individual states may adopt laws that govern personal estate planning. The workplace offers an environment that supports awareness of changes in marital status and the resulting effect on the employee and the employee’s benefits. Divorce may affect health insurance coverage for an employee and former spouse, and may also affect the employee’s federal income tax withholding and filing status, flexible spending accounts and cafeteria plans, and beneficiary designations. The employer and its human resources (HR) department may provide the necessary forms and opportunities to make changes. In addition, plan sponsors provide summary plan descriptions to participants that are easier to understand than the plans’ legal documents and which help participants make choices. By contrast, states may feel more protective of individuals who fail to make or change their estate plans, providing rules of intestacy for individuals who do not make wills, community property or elective share rights to protect spouses, and revocation-on-divorce statutes that apply to wills and nonprobate assets.

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

Egelhoff v. Egelhoff

157

ERISA requires certainty for beneficiary designations, and a participant must comply with a plan’s provisions to change a beneficiary designation. By contrast, a state may prefer to provide for the majority of plan participants whose marriages are dissolved based on what it believes the majority of its state wants. While ERISA’s goal of uniformity is achievable, the goals of model and uniform laws governing marriage, divorce, and death are just goals. States want the right to choose whether to adopt a model or “uniform code.”31 For example in 2001, Washington was one of a minority of states with community property laws and revocation-on-divorce statutes for nonprobate assets. Cahn’s survey of laws governing probate and nonprobate assets reflects the lack of state uniformity – and noted champions of unification of the law of probate and nonprobate transfers, such as Lawrence Waggoner32 and John Langbein,33 were critical of the Egelhoff decision for thwarting this effort in relation to federal insurance and benefits. Cahn’s feminist judgment considers whether the Washington statute, which appears neutral on its face, has a disproportionate and negative effect on women. She states: “Gender equity inherently requires that even laws that are neutral on their face take into account the different realities of women’s lives so as not to disadvantage women.” This statement situates the opinion firmly within the feminist debate over formal versus substantive equality. Cahn’s rewritten opinion views ERISA as a legislative mechanism to equalize economic differences between men and women based on social reality. Based on the statistics that Cahn cites that would have been available to the Justices in 2001, more men had interests in pension plans, the value of their pensions were larger, and their life expectancies were shorter than women. Thus, if the Washington statute were to apply to ERISA plan benefits, it would potentially disadvantage women more than men “in frequency and quantity.” Cahn’s opinion considers this effect when determining whether preempting the application of this state statute would further the goals of ERISA and REA. Although both ERISA and the state 31

32

33

The children’s brief noted that, since 1990, when the Uniform Probate Case was revised, “no fewer than eighteen states have adopted a version of UPC § 2–804 or some other measure to regulate beneficiary designations in nonprobate assets after divorce.” Brief for Respondents, 2000 WL 1369495 (Sept. 19, 2000), at 23 and n.9. See Lawrence W. Waggoner, The Creeping Federalization of Wealth-Transfer Law, 67 VAND. L. REV. 1635, 1662–63 (2014) (the “Egelhoff and Hillman decisions . . . have thoughtlessly and needlessly barred the unification effort for federally authorized or regulated nonprobate transfers” and probate transfers). See John H. Langbein, Major Reforms of Prop. Rest. & the Unif. Prob. Code: Reformations, Harmless Error, & Nonprobate Transfers, 38 ACTEC L.J. 1, 20 (2012) (the Egelhoff “Court took the position that it would rather inflict unjust enrichment [on a former spouse] than ‘burden’ the plan administrator with looking up local law on the point”).

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

158

Egelhoff v. Egelhoff

revocation-on-divorce statute embody formal gender equality by applying to both men and women, Cahn sees ERISA as furthering the goal of substantive equality by ensuring that wives (in the case of different-sex marriages) receive the economic benefits of marriage even if they were stay-at-home spouses or spouses who earned less than their partners. She notes that the state statute would undermine ERISA’s substantive equality goals by automatically depriving women of the economic benefits of marriage upon divorce. In this vein, Cahn’s feminist judgment expands the congressional goals considered in the original Egelhoff opinion. She considers Congress’s goal to promote gender equity when it enacted REA in 1984 and the additional protection that Congress provided for spouses and former spouses upon death or divorce in ERISA pension plans. These goals support the Court’s original holding that ERISA preempts the statute as it applies to ERISA pension plans and plan administrators. The reasons why Congress might want to include a former spouse as a designated beneficiary when employee benefits are involved may differ significantly from the reasons why a state legislature might want to exclude a former spouse from receiving personal or investment assets, probate or nonprobate. Congress may consider uniform plan administration and documents, the role of plan administrators, and gender equity as important factors, while state legislatures may be concerned with protecting and assuming the intent of former spouses for estate planning purposes. Further, Cahn’s feminist judgment also explores the historical context for the Washington statute and the probate and nonprobate rights based on gender. Both the original opinion and the rewritten opinion considered only two options for the beneficiary designation. The first is that the designation remains in effect until it is expressly revoked in the manner required by the plan and the plan administrator is notified. The second is that it is revoked by operation of law upon the event of divorce and a new beneficiary designation is required. Neither opened the door for a factual determination based on parol evidence as to whether the decedent wanted the former spouse to be the beneficiary. Cahn’s feminist judgment also foreshadows the Windsor decision, which recognized same-sex marriages.34 While Windsor would require the Washington statute to apply to all marriages, including same-sex marriages, ERISA would still preempt the Washington statute from applying to ERISA plan benefits. 34

United States v. Windsor, 570 U.S. 744 (2013).

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

Egelhoff v. Egelhoff

159

EGELHOFF V. EGELHOFF, 532 U.S. 141 (2001)

justice naomi r. cahn, delivering the opinion of the court This case raises issues of domestic relations, probate, and gender, although it arrives at this Court through a preemption challenge. We are asked to determine whether the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. section 1001 et seq., preempts a Washington statute providing that the designation of a spouse as the beneficiary of a nonprobate asset is revoked automatically upon divorce. We hold that it does. The ERISA preemption issues allow the Court the opportunity to consider the role of federal law in the realms of family and trusts and estates law – two areas that have, rhetorically, been traditionally left to state control, but which have become increasingly subject to federal regulation.

i There is no dispute as to the facts. David A. Egelhoff was married to Kate Breiner, and they had two children, Samantha and David Egelhoff. After Egelhoff and Breiner divorced, he married Donna Rae Egelhoff on November 4, 1988, in Tacoma, Washington. During that marriage, Mr. Egelhoff designated Ms. Egelhoff his beneficiary under his disability and life insurance plan and his defined-contribution profitsharing plan. The plans were provided through his employer, the Boeing Company, and were administered by Boeing’s employee benefit plans committee. The pension plan at issue, for example, plainly provided that, with respect to the beneficiary designation: The VIP office will only recognize beneficiary designations and changes that are filed on the official VIP beneficiary designation form and received before your death. You may not designate or change a beneficiary by using other documents such as divorce decrees, prenuptial agreements, wills or trusts. In re Estate of Egelhoff, 139 Wash. 2d 557, 566 n.39 (1999), as corrected (Dec. 7, 1999)

The Egelhoffs separated on October 1, 1993, and Ms. Egelhoff filed a pro se petition for dissolution of marriage in December 30, 1993. A divorce decree was entered on April 22, 1994. In a document incorporated in the divorce decree, Mr. Egelhoff was awarded “100% of his Boeing retirement 401K and IRA [individual retirement

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

160

Egelhoff v. Egelhoff

account].” Id. at 561. The life insurance policy was not mentioned. Less than three months later, Egelhoff died from injuries sustained in a car accident. He died intestate and without having changed any of the beneficiary designations on his Boeing plans; Donna Rae Egelhoff remained the listed beneficiary of both. Respondents Samantha and David Egelhoff, the children of Ms. Breiner and Mr. Egelhoff, asserted two different sets of claims against Ms. Egelhoff in two courts. They filed a state-law conversion suit for the value of the life insurance in state probate court to recover the proceeds and benefits that had already been paid to Ms. Egelhoff, and they moved for a determination in the separate state probate proceedings that they were entitled to the pension plan benefits, which were being held by Boeing. The children (one of whom is still a minor) relied on a Washington statute that provides for the revocation upon divorce of the designation of a spouse as the beneficiary of a nonprobate asset, which includes a life insurance policy or employee benefit plan. The Washington law also provides that the beneficiary designation “be interpreted . . . as if the former spouse failed to survive the decedent” and had died at time of the divorce. Id. at 565. Based on such an interpretation, because Mr. Egelhoff did not have a will, the children, as Mr. Egelhoff’s statutory heirs under state intestacy law, would receive the proceeds. The parties stipulated that ERISA governs administration of the Boeing life insurance policy and the pension plan, notwithstanding the language in the divorce agreement concerning the pension plans. Id. at 561. The trial courts concluded that both the insurance policy and the pension plan should be administered in accordance with ERISA, even though the retirement plan was mentioned in the divorce decree. They granted Ms. Egelhoff summary judgment in both cases. The children appealed, and the Washington Court of Appeals consolidated the cases and reversed, concluding that the Washington state revocation upon divorce statute was not preempted by ERISA. The Washington Supreme Court affirmed, holding that the statute, although applicable to employee benefit plans, does not “refe[r] to” or have a “connection with” an ERISA plan that would compel preemption under that statute. Ms. Egelhoff then appealed to this Court. It bears emphasis that federal court jurisdiction is appropriate in this matter: The Domestic Relations Exception and its sister the Probate Exception to diversity jurisdiction do not preclude our consideration of this case. See Ankenbrandt v. Richards, 504 U.S. 689 (1992). Pursuant to these two wellentrenched, but poorly justified, doctrines, we do not entertain suits of divorce, child custody, child support, or probate, even when the requisite diversity of

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

Egelhoff v. Egelhoff

161

citizenship is met. Although this case raises issues concerning a marriage, a divorce, and a domestic relations settlement agreement in which the respondent retained rights to his retirement benefits (but did not mention the life insurance plan at issue in this case), the drafting of that settlement agreement and the potential malpractice of Mr. Egelhoff’s lawyer (if he had one) in not advising him to change beneficiary designations is not before us. Even though this case does concern a divorced wife’s entitlement to property acquired through pension and life insurance plans – a significant issue for many middleclass families – the question of entitlement depends on a matter of federal law. Were ERISA not central to this case, however, the arbitrary nature of the Domestic Relations Exception would preclude us from considering it, even assuming the requisite diversity of citizenship. See Judith Resnik, “Naturally” Without Gender: Women, Jurisdiction, and the Federal Courts, 66 N.Y. U. L. REV. 1682, 1721–30, 1743–44, 1746–47 (1991). It is to that central question of ERISA preemption that we now turn.

ii ERISA’s preemption provision states that it “shall supersede any and all State laws insofar as they . . . relate to any employee benefit plan” that is covered by the statute. ERISA §514(a); 29 U.S.C. §1144(a). As we stated in Boggs v. Boggs, which presented comparable issues of conflict between state domestic relations and probate laws and ERISA, “We can begin, and in this case end, the analysis by simply asking if state law conflicts with the provisions of ERISA or operates to frustrate its objects.” Boggs v. Boggs, 520 U.S. 833, 841 (1997). The state law at issue here both conflicts with the provisions of ERISA and operates to “frustrate its objects” of protecting employees, spouses, and women. We discuss each of these prongs further below. Before doing so, it is important to point out that we have consistently recognized that ERISA’s preemption provision is “clearly expansive.” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995). While Travelers held that state-imposed surcharges on hospital bills covered by commercial insurers were not preempted, because the surcharges had only an indirect economic impact on employee benefit plans, we nonetheless reaffirmed our previous rulings that state laws that mandate benefit structures, alter plan administration, or provide plan participants and beneficiaries with alternate civil enforcement mechanisms interfere with ERISA’s goals. Id. at 658. But Travelers also noted that where federal law is said to bar state action in fields of traditional state regulation, there will be no preemption unless there is

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

162

Egelhoff v. Egelhoff

clear congressional intent otherwise. Id. at 655. In such fields of traditional state regulation, we have observed that courts “[work] on the ‘assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” Id. (citation omitted). Respondents phrase this test even more strongly, referring to pre-Travelers law to argue that, particularly in the areas of family law and family property law, the presumption against preemption is especially strong, and such state law “must do ‘major damage’ to ‘clear and substantial’ federal interests before the Supremacy Clause will demand that state law be overridden.” Resp. Brief at 20 (citation omitted; emphasis added); see Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting United States v. Yazell, 382 U.S. 341, 352 (1966)). Of course, this Court has not hesitated to override state statutes that are contrary to the federal interest, even in the family law and inheritance areas. Almost 100 years ago, in McCune v. Essig, 199 U.S. 382 (1905), we held that state inheritance laws in favor of a daughter were preempted by federal homestead law protecting a widow’s right. And just more than fifty years ago, in Wissner v. Wissner, 338 U.S. 655, 658 (1950), we recognized that state law establishing community property could not override a beneficiary designation on a federal life insurance plan. We have consistently recognized that contrary state law must yield to federal dictates and policies when “state law stands as an obstacle to the full purposes and objectives of Congress.” Boggs, 520 U.S. at 844 (internal quotation marks and citation omitted). While Travelers represented a departure from our prior textual literalism with respect to preemption, even the Travelers’ standard requires courts to look to Congress’s objectives “as a guide to the scope of the state law that Congress understood would survive” preemption. Indeed, as the Travelers Court noted, the domestic relations/probate presumption can be overcome where Congress has made clear its desire for preemption. And, as we have previously stated, “ERISA certainly contemplated the preemption of substantial areas of traditional state regulation.” California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U.S. 316, 330 (1997). This expansive approach includes “the regulation of employee welfare benefit plans,” which “[Congress] inten[ded] to establish . . . ‘as exclusively a federal concern.’ ” Travelers, 514 U.S. at 656 (citation omitted). We look at the “objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive” section 514 preemption. Id. at 645. Our method for determining those congressional objectives requires us to “begin as we do in any exercise of statutory construction with the text of the

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

Egelhoff v. Egelhoff

163

provision in question, and move on, as need be, to the structure and purpose of the Act in which it occurs.” Id. Consequently, “we look both to ‘the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,’ as well as to the nature of the effect of the state law on ERISA plans.” Dillingham, 519 U.S. at 325 (quoting Travelers, 514 U.S. at 656 (citation omitted)). Thus we find that, under the Boggs test, there is a direct conflict between ERISA and the state law at issue when it comes to the language of both statutes, as well as the “objects” of the statute, and so too is there evidence – even under Travelers – that the Washington statute does “ ‘major damage’ to ‘clear and substantial’ federal interests.” Under any preemption test that requires an analysis of congressional objectives, the Washington statute fails.

iii Under the first prong of the Boggs analysis, whether the state law conflicts with ERISA, ERISA requires that the plan administrator operate pursuant to a “prudent man standard of care.” 29 U.S.C. §1104 (emphasis added). Under that standard, the administrator must comply with the “documents and instruments governing the plan,” id., at (a)(1)(D), and here the plan requires the payments be made to the plan beneficiary, Donna Egelhoff: She is the ERISAdefined “beneficiary” who is “designated by a participant, or by the terms of [the] plan.” 29 U.S.C. §1002(8). The Washington state law is directly contrary to these requirements. The statute would require the plan administrator to ignore the employee’s beneficiary designation where there has been an intervening divorce, causing the administrator to violate its fiduciary duties to pay benefits to the beneficiary designated according to the terms of the plan. The Washington statute clearly “concerns” and is “connected to” ERISA. Indeed, the law “binds ERISA plan administrators to a particular choice of rules for determining beneficiary status,” thus implicating “an area of core ERISA concern.” It “governs the payment of benefits, a central matter of plan administration.” Since the Washington law would require plan administrators to “pay benefits to the beneficiaries chosen by state law, rather than to those identified in the plan documents,” its “connection with” ERISA plans is obvious to the Court. Moreover, revocation-on-divorce statutes interfere with the uniformity of a nationalized plan administration. Through ERISA, Congress sought to ensure that plans “would be subject to a uniform body of benefits,” to prevent

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

164

Egelhoff v. Egelhoff

against “the potential for conflict in substantive law . . . requiring the tailoring of plans and employer conduct to the peculiarities of the laws of each jurisdiction. Travelers, 514 U.S. at 656–57 (quoting Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142 (1990)). Travelers also cited to statements from the legislative history showing the goals of uniformity and preemption. Travelers, 514 U.S. at 657. Indeed, in the absence of preemption, plan administrators would be required to consult the laws of each decedent’s state, thus causing the variation in administration that ERISA preemption was designed to avoid. Applying this framework, we find congressional intent that the state law at issue here yield to ERISA’s preemptive reach. We believe such revocation-on-divorce statutes interfere with the objectives of ERISA and have an effect on ERISA plan administration that is directly contrary to those goals. Even under the most stringent test of whether upholding the state revocationon-divorce statute inflicts “major damage” to clear and substantial federal interests, it does so. As conventional conflict preemption principles require, it is “where compliance with both federal and state regulations is a physical impossibility, . . . or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” that the state statute must give way to the federal law. Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 98 (1992) (internal quotation marks and citation omitted). ERISA preemption must be construed expansively – even under Travelers and all of its progeny, and even in the area of domestic relations and probate – when state and federal law conflict. The next section addresses the federal statute’s remedial and historical objectives.

iv The second prong of the Boggs test requires an examination of whether the state statute operates to frustrate ERISA’s objectives. The Washington statute clearly does so. ERISA was originally enacted to ensure protection of employees and their beneficiaries. 29 U.S.C. §1001(a). It protects retirement benefits for millions of pension plan participants and their beneficiaries. Id. at (b). Finding that the stability of retirement benefits directly affects the national economy, id. at (a), Congress acted to ensure that accrued benefits remain unaltered by individuals and states alike. It accomplished this goal by prohibiting participants from assigning or alienating their own benefits, id. at §1056(d)(1), and, with limited exceptions, superseding state laws that “relate to any employee benefit plan.” Id. at §1144(a).

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

Egelhoff v. Egelhoff

165

ERISA was amended in 1984 to provide further protection for women and for employees’ spouses through the Retirement Equity Act (REA). REA was designed to address concerns about ERISA’s impact on women’s work patterns, as well as to protect surviving and divorced spouses. Edmund T. Donovan, The Retirement Equity Act of 1984: A Review, 48 SOC. SEC. BULL. 38 (1985). President Reagan’s signing statement noted that “a top priority for [his] administration” had been seeking to “[end] inequities in the provision of pension benefits to women” and that the legislation “clarifies that each person in a marriage has a right to benefit from the other’s pension.” Statement on Signing the Retirement Equity Act of 1984 (Aug. 23, 1984), www.presidency.ucsb.edu/ws/index.php? pid=40284. Congress was concerned that pensions were often treated as the sole property of the person who held the pension, and were not necessarily treated as marital property upon divorce. Rept. 98–655, Retirement Equity Act of 1984 87 (1984); 129 Cong. Rec. Sen. 34356 (Nov. 1983) (statement of Sen. Heinz). The legislation reinforces obligations that accrue during marriage. It provides substantial protection before an employee spouse can alienate various interests belonging to the nonrecipient spouse. When one spouse dies, the other spouse receives half the assets of an ERISA-governed account unless the surviving spouse has completed a spousal waiver and another person or entity (such as an estate or trust) is listed as a beneficiary. Indeed, while participants may unilaterally waive benefits or designate beneficiaries, participants are powerless to “defeat a . . . surviving spouse’s statutory entitlement to an annuity.” Boggs, 520 U.S. at 843. Without the spouse’s written consent expressly acknowledging the effect of the waiver or new beneficiary designation, a participant can neither waive nor alter the survivor annuity in any way. 29 U.S.C. §1055(c)(2). Thus the participant needs the spouse’s permission to change the beneficiary of retirement accounts and to select a payment option that will not give the spouse at least half of those benefits for life if the pensioner dies first. As further recognition of the importance of marriage, one exception to ERISA’s antialienation provisions rests on the fact that plan benefits are often considered marital property to be divided at divorce. As a result, Congress exempted a narrow category of state-court orders, known as qualified domestic relations orders (QDROs), from ERISA’s antialienation and preemption provisions. Id. at §1056(d)(3)(A), §1144(b)(7). A QDRO is a state-court decree regarding marital property that creates or recognizes an alternate payee’s right to ERISA-governed benefits – for instance, changing the plan beneficiary from a soon-to-be ex-spouse to a child.

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

166

Egelhoff v. Egelhoff

Congress was also concerned about the increasing “feminization of poverty.” Retirement Equity Act of 1983: Hearing before the S Subcomm. on Labor and Human Res., 98th Cong. 22 (1983) (statement by Congresswoman Geraldine Ferraro). More specifically, Congress noted that working women have “dramatically lower” incomes than men, that women represent 73 percent of the impoverished elderly people in the United States, and that women are the majority of the retired population, but not the majority of pensioners. Id. at 24–25. Ultimately, many women were left without financial support upon retirement or old age. In the next three sections, we explain how the Washington statute frustrates these aspects of congressional objectives: protecting (formally recognized) spouses and promoting gender equity. A The recognition of the importance of distributing assets, such as pension and insurance plans, acquired with the spouses’ earnings during marriage, is in accord with changing views of the institution of marriage and of women’s role within marriage. Marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns – but by the time of the nation’s founding, it was evolving to become more in the nature of a voluntary contract between a man and a woman. See Nancy Cott, Public Vows: A History of Marriage and the Nation 9–17 (2000). Pursuant to that contract, families were hierarchically organized, interdependent households, with the man as head. Anne C. Dailey, Constitutional Privacy and the Just Family, 67 TUL. L. REV. 955, 964–65 (1993). Indeed, under the doctrine of coverture, a married woman was subsumed into the identity of her husband, and he was responsible for her actions and her debts. See 1 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 430 (1765); Joan C. Williams, Married Women and Property, 1 VA. J. SOC. POL’Y & L. 383, 387 (1994). For these early American households, land was the principal source of wealth, income, and sustenance. Although most states did not adopt the same system of patrilineal descent as England, some did, with New York, for example, not changing its system until 1774. Moreover, regardless of the formal law, sons were more likely to be left property than daughters. Marylynn Salmon, WOMEN AND THE LAW OF PROPERTY IN EARLY AMERICA 42, 158 (1986). Women were protected through dower. Reva B. Siegel, Home As Work: The First Woman’s Rights Claims Concerning Wives’ Household Labor, 1850–1880, 103 YALE L.J. 1073, 1082 (1994).

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

Egelhoff v. Egelhoff

167

The manufacturing era, which began in the northeastern states before the Civil War, gradually resulted in alterations to these relationships and changed the patterns of accumulation of wealth. With industrialization, commercial production moved out of family households and into factories and offices. Wage labor, rather than land ownership, became the source of most families’ economic well-being. At the same time, the state slowly redefined women’s marital roles, allowing them to enter contracts and retain ownership of their own property within marriage through Married Women’s Property Acts and related legislation. Nonetheless, the Married Women’s Property Acts “were designed to protect family property from husbands’ creditors, not to achieve gender equality.” Williams, supra, at 389. The state continued to oversee marriage, promoting it as necessary to family stability and administering it in accordance with patriarchal norms that tied family well-being to a male wage-earner’s income. Yet, within this new system, marriage became less unitary and more dissoluble. The laws of coverture have slowly been abandoned. Marriage has evolved to ensure formal equality, although that formal equality does not yet translate to women’s full substantive equality before the law. Naomi Cahn, The Power of Caretaking, 12 YALE J.L. & FEMINISM 177, 186 (2000) (noting the differential treatment of marital rape from other forms of rape in approximately half of the states). At divorce, there is a presumption that assets acquired during marriage will be “equitably” distributed, regardless of which spouse has actually “earned” the money. In other words, under state law, all property acquired during a marriage, other than by gift, bequest, devise, or earnings paid out during the marriage such as to purchase an insurance plan, are deemed to be earned by the marital unit. Thus, in community property states, which have had more experience with such property acquired during a marriage, in the absence of federal preemption, “retirement benefits attributable to employment during marriage are community property.” Hisquierdo v. Hisquierdo, 439 U.S. 572, 591 (1979) (Stewart, J. dissenting). Consequently, premiums that one spouse pays out of community funds entitle the other spouse to an ownership interest in that asset: The insurance policy or pension plan becomes joint property, and either spouse can dispose of only their own property. McBride v. McBride, 11 Cal.App.2d 521, 523, 54 P.2d 480, 481 (1936); Prudential Ins. Co. of Am. v. Burke, 614 S.W.2d 847, 849 (Tex. Civ. App.), writ refused NRE, 621 S.W.2d 596 (Tex. 1981). These and other developments in the institution of marriage over the past centuries were not mere superficial changes, but help to explain the protections built into ERISA for spouses. A number of special provisions in ERISA serve to protect the interests of surviving spouses, divorced spouses, and

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

168

Egelhoff v. Egelhoff

beneficiaries. The antialienation provision, for example, ensures that pension benefits are not diverted before they are distributed to the participant or beneficiary for whom they are intended. Moreover, when a spouse is named as the beneficiary, the presumption is that the employee was married to that spouse at the time and that funds earned during the marriage were used to acquire the asset subject to ERISA; such assets are not always equitably divided upon divorce. Indeed, only a 401(k) and individual retirement account are mentioned in the document incorporated in the divorce decree filed in this case. We note that ERISA does not recognize similar protections for a participant’s heirs other than the surviving spouse. Boggs, 520 U.S. at 847. ERISA thus recognizes the community nature of marriage and the economic interdependency of spouses. We also note that just as marriage has changed, so too has the divorce process. California enacted no-fault divorce in 1969, and virtually all other states have followed suit, although some simply grafted no-fault onto the existing divorce grounds. Just as no-fault is an effort to remove the traditional acrimony associated with divorce from the process, so too the rise of the collaborative family law movement shows that the nature of divorce has changed, and parties are encouraged to retain ties – particularly where children are involved. Accordingly, while state statutes such as the Washington one at issue here are predicated on assuming that divorce severs all ties between the ex-spouses, ERISA’s approach to beneficiary designation recognizes that the decedent may have intentionally wanted an ex-spouse to inherit. Finally, we recognize that the ERISA spousal protections are available only to spouses whom the law formally recognizes (including common law spouses), but are not available to nonmarital couples and thus exclude the growing number of cohabiting same-sex and different-sex couples. Notwithstanding the importance of that increasing population, the issue of ERISA expansion is not currently before us, so must be left for another day. B A second congressional objective was to promote gender equity. The Washington statute frustrates this objective because even though revocationon-divorce statutes are neutral on their face, their histories are gendered. The development of revocation-on-divorce statutes in the United States reflects the gendered history of inheritance statutes, and enforcing such a statute as that in effect in Washington conflicts with the objectives of ERISA to support gender equality.

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

Egelhoff v. Egelhoff

169

Changes in family status, such as marriage or the birth of a child, have historically functioned to modify – or revoke – an individual’s estate plan. At common law, marriage served to revoke a woman’s premarital will, while marriage and the birth of children revoked that of a man. Robert Whitman, Revocation and Revival: An Analysis of the 1990 Revision of the Uniform Probate Code and Suggestions for the Future, 55 ALB. L. REV. 1035, 1053 (1992); W.A. Graunke & J.H. Beuscher, The Doctrine of Implied Revocation of Wills by Reason of Change in Domestic Relations of the Testator, 5 WIS. L. REV. 387, 388, 402 (1930). The doctrine of coverture rendered null married women’s legal acts, while men were presumed to intend to benefit their children. Both of these marriage-based will-revocation doctrines continued in some states into the twentieth century. For example, like many other states, Alabama explicitly revoked a woman’s will upon marriage, while the analogous provision for a man was a limited revocation upon birth of a child: The will of “a testator” who had a child “born after the making of his will” and not otherwise provided for under the will served to revoke the will so that child could “take the same share of the estate of the testator as if he had died intestate.” Alabama Code (1928) §10584 (women), §10585 (men) (emphasis added). The casual presumption was that a “testator” was male – a presumption made explicit in New Jersey’s law, which addressed the revocation of will of a “testator” under certain conditions, including when he “le[ft] his wife enceinte of a child.” New Jersey Comp. Stats. (1910), p. 5865 §20. Consequently, until well into the twentieth century, married women faced restrictions on their ability to make wills. For example, New Jersey’s 1910 Code stated that any will concerning real property “by any woman covert . . . shall not be held or taken to be good or effectual in law.” Comp. Statutes of New Jersey (1910), p. 5862 §3 (also cited in Graunke, supra, at 402). Divorce, perhaps because it was less frequent, did not serve to revise a husband’s estate plan (and it was irrelevant in most states for wives, whose wills were revoked upon marriage). Some states enacted statutes providing for revocation upon divorce. Wills – Revocation – Will Held Revoked by Divorce Accompanied by Property Settlement, 52 HARV. L. REV. 332 (1938) (“MINN. STAT. (Mason, Supp. 1938) §8992–40 (divorce alone works revocation); WASH. REV. STAT. ANN. (Remington, 1932) §1399 (same)”). For example, Connecticut provided that “if, after the making of a will, the testator marries or is divorced or his marriage is annulled or dissolved or a child is born to the testator . . . such marriage, divorce, annulment, dissolution, birth or adoption of a minor child shall operate as a revocation of such will.” Whitman, supra, at 1053 (citing Conn. Gen. Stat. Ann. §45a–257(a)). The laws in other states evolved so that statutes which permitted changes in the testator’s circumstances to function as revocations of an earlier will were

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

170

Egelhoff v. Egelhoff

interpreted by courts to include either marriage or divorce. Thus, for example, in 1962, Maine’s Supreme Court interpreted the state will-revocation statute – which provided for revocation “by operation of law from subsequent changes in the condition and circumstances of the maker” – to revoke a predivorce will where there had been a property settlement. Caswell v. Kent, 186 A.2d 581, 581 (Me. 1962). The reasoning behind such holdings was “that the duty of providing for the wife has been entirely satisfied by the [divorce] settlement, and that she no longer has any claim on the husband’s bounty.” Elizabeth Durfee, Revocation of Wills by Subsequent Change in the Condition or Circumstance of the Testator, 40 MICH. L. REV. 406, 416 (1942) (emphasis added). In the absence of a property settlement, however, courts at that time were generally unlikely to revoke a predivorce will. Id. As one commentator summed up the status, “[A]part from the five states where statutes provide otherwise, it has been uniformly held that a testator’s divorce does not, without more, operate as an implied revocation of a prior will.” Case Update, 50 COLUM. L. REV. 531, 532 (1950); see 34 B.U.L. REV. 395; 5 WIS. L. REV. 387; 40 MICH. L. REV. at 412. In 1946, the American Bar Association developed a Model Probate Code (MPC) that included a provision revoking wills upon divorce. Lewis M. Simes, Problems in Probate Law: Including a Model Probate Code §53(1946), available at https://repository.law.umich.edu/cgi/viewcontent.cgi?referer=https://www.google .com/&httpsredir=1&article=1023&context=michigan_legal_studies; Alan Wilmit, Note: Applying the Doctrine of Revocation by Divorce to Lie Insurance Policies, 73 CORNELL L. REV. 653, 659 (1988). At that point, only a few states had such provisions, although other states had achieved the same result through common law opinions. States began to adopt such statutes. See, e.g., First Church of Christ, Scientist v. Watson, 286 Ala. 270, 273, 239 So.2d 194, 196 (1970); Lawrence H. Averill, Jr., An Eclectic History and Analysis of the 1990 Uniform Probate Code, 55 ALB. L. REV. 891, 895 (1992) (the MPC influenced “several” states). It was with the development of the 1969 Uniform Probate Code (UPC) that revocation-upon-divorce statutes became more widespread. Developed just before the first no-fault divorce statute became effective in 1970 in California, the UPC was grounded on a goal of effectuating a clean break in divorcing spouses’ estate plans. It provided that while marriage does not revoke a premarital will, divorce serves to revoke any provisions in a will concerning the ex-spouse.35 35

The 1969 version of the UPC provided that divorce “revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise.

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

Egelhoff v. Egelhoff

171

The 1969 UPC permitted the presumption to be rebutted only if the will expressly provided otherwise. The presumption thus served as something of a backup in case a separation agreement did not provide for a waiver of all rights. In jurisdictions with such revocation-upon-divorce statutes, courts typically did not extend their coverage to include nonprobate assets unless they were addressed explicitly in a property settlement agreement. Lawrence Waggoner, Spousal Rights in our Multiple-Marriage Society: The Revised Uniform Probate Code, 26 REAL PROP. PROB. & TR. J. 683, 690 n.12 (1992) (“Apart from statute, divorce decrees and separation agreements are usually held not to revoke life-insurance or similar beneficiary designations of a former spouse unless they say so specifically”). It was this type of statute that was extended to nonprobate assets. The 1990 UPC extended the broad revocation-upon-divorce policy to include the exspouse’s relatives and made the revocation effective for nonprobate assets. Today, in almost all US states, marriage does not revoke a will, although it still does so in a few states. In contrast, in almost all states, a final divorce settlement or annulment of a marriage revokes all provisions in the will in favor of the former spouse either via case law or statute. On the one hand, in the District of Columbia, “[D]ivorce alone of the testator (or testatrix) [may not be] enough . . . to cause revocation of the will by implication”; the spouses must have “settled their respective rights in each other’s assets.” Estate of Reap v. Malloy, 727 A.2d 326, 329 (D.C. 1999). On the other hand, “The existence of a property settlement agreement or court division of the property is . . . conclusive.” Id. at 330. Many states increasingly apply this same rule of revoking probate-related gifts and appointments to nonprobate transfers, such as revocable trusts and beneficiary designations, as does the statute at issue here. Susan Gary, State Statute Does Not Revoke Beneficiary Designation after Divorce, 28 EST. PLAN. (forthcoming 2001) (draft at 2); see also Restatement (Third) of Prop.: Wills and Other Donative Transfers §4.1 cmt. p (1999) (stating that revocation by dissolution of marriage principles “also apply to a donative transfer in the form of a will substitute”). This includes transfers of property, rights to determine who receives property, and nominations to serve in fiduciary roles such as executor Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator’s remarriage to the former spouse. . . . A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section.” UPC §2–508 (1969). This form of the revocation statute is still in effect in some states. See, e.g., Ky. Rev. Stat. Ann. §394.092 (West).

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

172

Egelhoff v. Egelhoff

of the will or trustee of a testamentary trust. Only provisions relating to the exspouse (and family members) are revoked; the will otherwise remains intact. The property passes as if the spouse had predeceased the testator. The presumption can be rebutted, but only in limited circumstances. Many commentators take the position that the (almost irrebuttable) presumption of revocation represents the appropriate outcome, serving as a desirable rule of construction, because it both effectuates the decedent’s intent and increases efficiency by decreasing transaction costs associated with probate. See, e.g., Whitman, supra, at 1054; Gary Spitko, The Expressive Function of Succession Law and the Merits of Non-Marital Inclusion, 41 ARIZ. L. REV. 1063, 1084 (1999) (observing that such provisions express an approach that “the property owner is unlikely to wish to benefit her former spouse and, had she thought about it, probably would have revoked the pre-divorce beneficiary designation”). The revocation-upon-divorce inferences “may be related to the presumption against absurd or unreasonable testamentary intentions . . . although they may also reflect the independent public policy of protecting the family.” Adam J. Hirsch, Inheritance and Inconsistency, 57 OHIO ST. L.J. 1057, 1162 (1996). There is little empirical evidence for (or against) the presumption. Yet there is some variation throughout the states not only in which beneficiary designations are revoked,36 but also with respect to the application of the presumption itself: (1) Some states have explicit revocation-on-divorce statutes that apply either rebuttable or irrebuttable presumptions, Cal. Prob. Code Sec. 6227 (1990); (2) in other jurisdictions, courts have used more general revocation statutes as the basis for achieving the same result, e.g., Luff v. Luff, 359 F.2d 235, 236 (D.C. Cir. 1966); and (3) at least one state has no revocation-on-divorce statute and no implementation of implied revocation-on-divorce, using instead a contextual analysis that considers the post-divorce facts and circumstances. See Rasco v. Estate of Rasco, 501 So.2d 421 (Miss. 1987). In addition, states vary on whether the revocation applies to nonprobate transfers and covers the ex-spouse’s family members. See Restatement (Third) of Property (Wills & Don. Trans.) §4.1 (1999). The underlying assumption is that revocation-upon-divorce statutes reflect the decedent’s intent to terminate all connections with the ex-spouse and, more recently, the ex-spouse’s relatives. See, e.g., Gary, supra, at 101. Professor Gary notes that the emergence of a “multiple marriage society means that ever greater numbers of decedents may die following divorce and remarriage without changing beneficiary designations . . . after the divorce.” Id. 36

See Restatement (Third) of Property (Wills & Don. Trans.) §4.1 (1999). For example, Virginia provides for revocation of any “revocable beneficiary designation” except for those in a trust. Va. Code Ann. §20–111.1 (1993) (concerning “Revocation of death benefits”).

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

Egelhoff v. Egelhoff

173

That termination, under the UPC and an increasing number of state laws, includes both probate and nonprobate designations. The decedent’s intent is presumed to be the removal of an ex-spouse as a beneficiary in a will. The divorce revocation presumptions developed in a context that assumed not only that divorce is messy, see Whitman, supra, at 1054, but also that women were the economically dependent spouses. First, as Lawrence Waggoner, who worked as a Reporter on the revisions, explained: “The rationale is that the divorce process severely weakens any ties between the transferor and the former spouse’s relatives.” Waggoner, supra, at 695; see also Lawrence W. Waggoner, The Multiple-Marriage Society and Spousal Rights under the Revised Uniform Probate Code, 76 IOWA L. REV. 223 (1991). The UPC provides that the presumption can be rebutted in a narrow range of circumstances, including if the will “expressly provide[d] otherwise.” Second, both the original will divorce revocation statutes and the more recent nonprobate asset revocation statutes have developed in a context in which women were either limited from making wills or in which women had fewer assets and in which the likelihood of an ex-husband dying first was higher. With respect to nonprobate assets, the type at issue in this case, courts consistently applied a gender-based common law approach: “[T]he majority rule [was] that a decree of divorce in no way affects the rights of the divorced wife as a beneficiary in a husband’s life insurance policy.” O’Toole v. Cent. Laborers’ Pension & Welfare Funds, 299 N.E.2d 392, 394 (Ill. 1973) (emphasis added); Annotation, Divorce Decree Purporting to Award Life Insurance to Husband as Terminating Wife-Beneficiary’s Rights Notwithstanding Failure to Formally Change Beneficiary, 70 A.L.R.3d 348, 349 (1976). Even attempts to phrase the rule in a gender-neutral fashion failed; “the general rule is that divorce in no way affects the rights of an ex-spouse as a beneficiary of a husband’s nonprobate assets.” James F. Walsh, Note: The Effect of Divorce on the Beneficiary Rights to a Nonprobate Asset, 7 CONN. PROB. L.J. 163, 164 (1992). Michigan, which was an early adopter of a statute providing for revocation of life insurance proceeds upon divorce, was similarly gender-based. Michigan’s statute provided that “every decree of divorce shall determine all rights of the wife in and to the proceeds of any policy or contract of life insurance . . . unless otherwise ordered in said decree such policy or contract shall thereupon become and be payable to the estate of the husband or to such named beneficiary as he shall affirmatively designate.” 1939 Mich. Pub. Act. No. 220 (codified at Mich. Comp. Laws. Sec. 552.101 (noted in Minnesota Mut. Life Ins. Co. v. Hendrick, 25 N.W.2d 189, 191 (Mich. 1946)); Prudential Ins. Co. of Am.

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

174

Egelhoff v. Egelhoff

v. Irvine, 61 N.W.2d 14, 15 (Mich. 1953). As the Sixth Circuit explained, the statute “represents legislative action to end the confusion with respect to the rights of a divorced wife in a policy insuring the life of the former husband.” Ne. Life Ins. Co. of New York v. Cisneros, 392 F.2d 198, 200 (6th Cir. 1968) (emphasis added). Few states had enacted similar statutes until the 1990 revision of the UPC, although some had done so, and some courts had decided cases, addressing other nonprobate assets. Mark Davis, Life Insurance Beneficiaries and Divorce, 65 TEX. L. REV. 635, 648 (1987)(“Currently, only Michigan has a statute explicitly mandating revocation”); James F. Walsh, The Effect of Divorce on the Beneficiary Rights to a Nonprobate Asset, 7 CONN. PROB. L.J. 163, 174 (1992). And – perhaps ironically in light of the strong state interest in marriage – the presumption applies only to divorce; when relationships dissolve between nonmarital couples, there is no impact on beneficiary designation – although some couples in registered domestic partnerships or civil unions are covered in some states. E. Gary Spitko, An Accrual/Multi-factor Approach to Intestate Inheritance Rights for Unmarried Committed Partners, 81 OR. L. REV. 255, 345–49 (forthcoming 2002). This may constitute an economic penalty for choosing to marry rather than cohabit or otherwise not formalize an intimate relationship. Thus, under the Washington statute, a beneficiary designation for a woman who chooses to get married is revoked when the relationship ends, while a designation for a woman who does not marry remains in place even after the end of the relationship. This anomaly puts former unmarried partners in a superior economic position vis-à-vis former spouses. C Moreover, the gender equity objective of ERISA is infringed in a second way through application of the Washington statute. Gender equity inherently requires that even laws that are neutral on their face take into account the different realities of women’s lives so as not to disadvantage women. Equality for women is guaranteed by the Equal Protection Clause, but it was only relatively recently recognized by this Court as a constitutional mandate. Indeed, we noted, in United States v. Virginia, 518 U.S. 515, 532–33 (1996), that not until 1920 did women gain a constitutional right to the franchise. And, for half a century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any “ ’basis in reason’ could be conceived for the discrimination. . . . In 1971, [in Reed v. Reed, 404 U.S. 71], for the first time in our Nation’s history, this Court ruled in favor of

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

Egelhoff v. Egelhoff

175

a woman who complained that her State had denied her the equal protection of its laws.” Although revocation-on-divorce statutes appear gender-neutral on their face, that appearance is deceptive. First, as we have just shown, their origins are gendered. Consider that the 1969 UPC revocation-on-divorce provision was adopted before this Court’s 1971 Equal Protection decision in Reed v. Reed. Second, such statutes have a disparate impact on women: (1) The assets that the statutes target are unevenly distributed between men and women, so women are the disproportionate losers from such statutes, both in frequency and quantity; and (2) women are statistically more likely to outlive men, leading to considerably skewed effects because such statutes affect the disposition of assets that would have gone to benefit widows more often and in greater amounts than they affect ex-husbands. Over the past century, statistics show that women live about two to five years longer than men. In 2000, while there were 14.4 million men aged sixty-five and over, there were 20.6 million such women, and almost twice as many women as men aged seventy-five and older. U.S. Census Bureau, THE 65 YEARS AND OVER POPULATION: 2000 2, 4 (draft 2001). Women, then, will have larger financial needs than men. Older women are thus more likely to be living alone and lose the advantages of pooled incomes. U.S. Administration on Aging, A PROFILE OF OLDER AMERICANS: 2000 5 (2000). And their median income is under 60 percent of that for men: US$19,079 for men compared to $10,943 for women. Id. at 9. Indeed, compared to men over the age of sixty-five, women of the same age are almost two times as likely to be living in poverty, although the percentage varies by race. Phillip B. Levine, Olivia S. Mitchell, & James F. Moore, WOMEN ON THE VERGE OF RETIREMENT: PREDICTORS OF RETIREE WELLBEING, IN FORECASTING RETIREMENT NEEDS AND RETIREMENT WEALTH 167, 167 (Olivia S. Mitchell et al. eds., 2000). Women incur higher medical and nursing home costs and are more likely than men to need nursing homes. Brenda C. Spillman & James Lubitz, The Effect of Longevity on Spending for Acute and Long-Term Care, 342 NEW ENGL. J. MED. 1409 (2000). Second, consider the assets at issue in this case: pensions and life insurance. Pensions are available to workers; women’s employment has lagged behind men’s, and their pension accumulation reflects that reality. For example, in 1950, the labor participation rate of men aged between twenty-five and fiftyfour was 96.5 percent, while for women, it was 36.8 percent; even in 1999, the labor participation rate for men was still 15 percentage points higher. Patrick J. Purcell, Older Workers: Employment and Retirement Trends, MONTHLY

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

176

Egelhoff v. Egelhoff

LABOR REV. 19, 21 (Oct. 2000). Moreover, women’s median earnings are far behind those of men. Social Security Admin., ANNUAL STATISTICAL SUPPLEMENT 2000 146–47 (2000), www.ssa.gov/policy/docs/statcomps/supple ment/2000/supp00.pdf. Similar trends exist for other nonprobate assets affected by revocation-ondivorce statutes, such as pensions. In 1979, male pension coverage was 58 percent, while for women, it was 38 percent; although the coverage for women has increased since then, they still have lower coverage rates. William E. Even & David A. MacPherson, The Changing Distribution of Pension Coverage, 39 INDUSTRIAL RELATIONS 199, 202 (2000). Even though more women now have coverage, they have accumulated far less than men. In 1998, the average defined-contribution balance for women was US$25,020, while for men it was more than double, at $57,239, so women had accumulated only 44 percent of men’s balances. Vickie L. Batjelsmit & Nancy A. Jianakoplos, Women and Pensions: A Decade of Progress?, EBRI ISSUE BRIEF 227, 5 (Nov. 2000). According to one analysis of 1998 data, while the average IRA balance for men was $26,576, for women it was $17,053, or less than two-thirds of the men’s balance. Id. at 6. Life insurance disparities are also relevant to retirement income security: While 38 percent of women and 45 percent of men have life insurance policies, the face value of men’s insurance policies was more than double that of women’s. ACLI, LIFE INSURANCE FACT BOOK 1999 15 (2000). There are a number of reasons women tend to have fewer resources as they age. Women earn less than men throughout their working lives, during their careers, and then – because income during retirement is based on salary – they receive less once they stop working. Women also spend more time out of the workforce in caregiving roles – for both children and elder family members – which results in even greater disparities in lifetime earnings. Certainly, the gap has narrowed somewhat with the enactment of the Equal Pay Act and Title VII and as a result of this Court’s equal employment decisions, but women’s lifetime earnings still lag far behind men’s. Moreover, women are still less likely to be eligible for employer-sponsored retirement plans, largely because of a higher incidence of part-time employment. The gender inequality in resources and retirement security leaves women in a particularly precarious financial position compared to men. And the situation is even worse for divorced women: Divorce can result in financially devastating consequences for women. Studies have repeatedly shown that women who are divorced lose economically, either when compared to men or in absolute terms. Pamela J. Smock, Wendy D. Manning, & Sanjiv Gupta, The Effect of Marriage and Divorce on Women’s Economic Well-Being, 64 AM. SOC. REV. 794, 810 (1999). When they divorce, women experience an average

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

Egelhoff v. Egelhoff

177

27 percent decline in their standard of living, while men experience an average 10 percent increase in their standard of living after divorce. Felicia Lee, Influential Study on Divorce’s Impact Is Said to Be Flawed, N.Y. TIMES, May 9, 1996. Others have suggested that the impact may be even worse. Penelope E. Bryan, Reasking the Woman Question at Divorce, 75 CHI.-KENT. L. REV. 713, 713 n.2 (2000). Even women who are represented may be encouraged to accept inadequate settlements, and any award of alimony may be insufficient. Id. at 716, 718. Compared to other groups, older divorced women have an unusually high rate of poverty and incidence of serious health problems. David A. Weaver, The Economic Well-Being of Social Security Beneficiaries, with an Emphasis on Divorced Beneficiaries, 60 SOCIAL SECURITY BULLETIN 17 (1997). Divorced older women are four times as likely as married older women to live in poverty. Kilolo KijakazI & Wendell Primus, OPTIONS FOR REDUCING POVERTY AMONG ELDERLY WOMEN BY IMPROVING SSI INCOME (2000). As a result, revocation-on-divorce statutes increase the vulnerability of elderly divorced women. Such an impact is contrary to the goal of ERISA to protect women and divorced spouses. The Washington statute thus can be distinguished from, for example, slayer statutes that provide that a murdering heir cannot inherit. Contrary to the respondents’ argument that ERISA preemption in this case would similarly preempt state statutes such as slayer statutes, those statutes do not present the same federal interests as the revocation-on-divorce statutes. While there are strong federal interests in promoting employees’ interests, those of their spouses, and women’s equality, there is no strong federal interest in protecting murderers. It is much easier to presume that the employee would not have wanted the employee’s killer to inherit than to presume that the employee would not have wanted the ex-spouse to inherit; moreover, ERISA is not designed to protect the interests of killers.

iv Because existing doctrine so clearly supports ERISA preemption, we do not need to address directly the troubling deference that past opinions have shown to state decision-making in the areas of family and family property law; such special treatment denigrates those areas and is reminiscent of the nineteenth-century treatment of separate spheres for home and work, women and men, that enshrined the subordination of women. The outcome of cases involving such deference in other circumstances must await further elaboration in the courts.

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

178

Egelhoff v. Egelhoff

Not only does the Washington statute purport to override ERISA plan beneficiary designations and to direct payment of plan benefits to a statedesignated beneficiary, but also the statute is contrary to the objectives of ERISA to promote employees’ interests and, derivatively, to protect their spouses’ interests. It interferes with the clear and substantial federal interest in promoting the status of women evident in the history of ERISA, as well as throughout our constitutional order. The judgment of the Supreme Court of Washington is reversed, and this case is remanded for further proceedings consistent with this opinion. It is so ordered.

https://doi.org/10.1017/9781108860963.009 Published online by Cambridge University Press

9 Commentary on Drevenik v. Nardone elizabeth r. carter

background This case began with a relatively common factual scenario: a mother of two minor children seeking child support from the children’s father. Nicole Drevenik and John Nardone had two children together: Joseph Drevenik (born September 18, 1986) and Jason Drevenik (born November 29, 1987).1 Nicole was awarded support in the amount of US$200 per month following her 1996 request.2 In 2000, after John successfully filed for a modification, the amount was reduced to $140 per month and $20 per month in arrears.3 John failed to pay any support for more than a year, and, as a result, Nicole sought satisfaction of John’s outstanding support obligation of about $2,500 from assets held in a trust for his benefit.4 John agreed that he owed child support and was willing for trust funds to be used for that purpose.5 Rather, it was John’s brother Dominick, who was the trustee of the trust, who resisted using the trust funds to pay the child support obligation. In her will, Inez L. Nardone split her estate into two equal shares to be divided between her two sons, Dominick and John. In addition to receiving his portion of his mother’s estate outright, Dominick was named trustee of that portion of the estate which was left for the benefit of his brother John. As trustee of the spendthrift trust established for John’s benefit, Dominick had broad discretionary power over the trust property. In particular, the trust instrument provided that the trustee “shall have total control over this trust and apply such amount of income and principal as he, in his sole discretion, 1 2 3 4 5

Drevenik v. Nardone, 862 A.2d 635, 636 (Super. Ct. Pa. 2004). Id. Id. Id. Id.

179

https://doi.org/10.1017/9781108860963.010 Published online by Cambridge University Press

180

Drevenik v. Nardone

deems proper for the support, education, and welfare of my son.”6 Neither the trust instrument nor the opinion addresses Mrs. Nicole’s reasons for leaving her adult son’s interest in trust.7 At a hearing at the trial court, the trustee’s attorney explained: “There was a reason she left the money in trust; her son had a substance abuse problem and mental health issues and she put the money in trust with the brother because she knew he couldn’t handle it and would squander the life-time savings.”8 The trial court ordered the trustee to use the trust funds to pay the outstanding child support obligation to Nicole. The trustee appealed. In the trustee’s view, allowing the child support obligation to be satisfied from the trust property would be “manifestly unfair to John,” and that unfairness would outweigh any public policy considerations in favor of supporting one’s own children.9 In short, the trustee took issue with the court having the authority to demand that trust principal be used to satisfy John’s child support obligations when Mr. Nardone had no such right himself because the trust contained a spendthrift clause. On appeal, the Superior Court of Pennsylvania affirmed the lower court. The trust established in John’s favor was both a spendthrift trust and a discretionary trust. Generally, these types of trust insulate trust assets from the claims of creditors until (and unless) trust property is actually distributed to the beneficiary. Courts and legislatures have wrestled with whether (and to what extent) such creditor protection should apply to the claims relating to spousal support and child support. The issue involves conflicting public policy concerns. On the one hand, settlor intent in protecting trust assets is an important public policy concern. On the other hand, the legal obligations of spousal support and child support are also important policy concerns. A contemporary trend (and the position adopted by the Uniform Trust Code) allows courts to use trust property to satisfy various support obligations owed by a trust beneficiary. The nuances of this exception to spendthrift protection can vary considerably. Justifications for the exception also vary, and they can be either feminist or gendered in arriving at the same conclusion. One line of reasoning argues that child support (and/or spousal support) is a legal obligation imposed by law rather than a debt. As such, a spouse or parent owed support is not the type of creditor whose rights ought to be affected by a spendthrift or discretionary provision in a trust. Other courts have used creative interpretations of probable settlor intent to conclude that 6 7 8 9

Id. Appellant’s Brief at A16–A17. Id. at A19. Id. at 7–9.

https://doi.org/10.1017/9781108860963.010 Published online by Cambridge University Press

Drevenik v. Nardone

181

the settlor would have wanted the trust property to be used for the benefit of a child or the former spouse of a beneficiary. Some courts even conclude that the child or former spouse is actually a beneficiary of the trust. Finally, some courts and legislatures have concluded that public policy concerns relating to child support and spousal support simply outweigh any public policy concerns relating to settlor intent and spendthrift trusts. The characterization of those public policy concerns can take many forms – some of which embrace feminist thinking; some of which do not. A few years following the Drevenik decision, Pennsylvania enacted its versions of sections 503 and 504 of the Uniform Trust Code. Those provisions would have clearly authorized a judgment in Nicole’s favor.10 In the absence of that statutory authority, however, the Drevenik court resolved the issue using the existing jurisprudence.

original opinion At first glance, the Drevenik opinion appears to be gender-neutral. On its face, the opinion is not especially antagonistic to feminist thought. Writing for the unanimous court, Judge Popovich first disposed of the trustee’s unfounded argument that trust property was exempt from child support claims because trust principal could not be included in an obligor’s income when calculating a support award. Judge Popovich correctly and succinctly explained the distinction between the sources of income that should be considered when determining the amount of a child support obligation and the resources that could be used to satisfy an outstanding unpaid child support obligation. Turning to the availability of the funds in a spendthrift trust for satisfaction of an outstanding child support obligation, Judge Popovich relied heavily on In re Moorehead’s Estate – a 1927 Pennsylvania Supreme Court decision.11 His reliance on that case is hardly surprising: It appears to be the most relevant and recent case on the point. In Moorehead’s Estate, the court allowed assets held in a trust created by a husband’s grandmother to be used for the support of the husband’s wife after he deserted her without reasonable cause. To some extent, the Moorehead court utilized all of the popular methods and rationales for excluding spousal support from the protections of spendthrift trust language. For example, the court reasoned that the support obligation a husband owes to his wife arises by operation of law rather than by operation of a creditor–debtor relationship. Consequently, spendthrift language in a trust 10 11

20 PA. CONS. STAT. §7743–44. 137 A. 802 (Pa. 1927).

https://doi.org/10.1017/9781108860963.010 Published online by Cambridge University Press

182

Drevenik v. Nardone

will not protect trust assets from the claims of a spouse to support. The court further reasoned that the settlor’s probable intent in establishing the trust to support her grandson included an intent to support his wife. In addition, the Moorehead court used public policy to support its decision. Settlor intent, the court noted, should not be honored when it runs afoul of public policy. The court’s characterization of the relevant public policy issues was decidedly gendered. The Moorehead court focused on the husband’s failure to comply with societal norms and a man’s duty to “protect and provide for his family” rather than the financial needs or rights of the wife.12 To allow the trust to protect the husband’s assets from the claims of his “defenseless wife” would be in “direct antagonism to every recognized claim or morality and to every purpose of public policy.”13 In Drevenik, Judge Popovich essentially adopted the rationales of the Moorehead court – although, to his credit, he did not use similarly gendered language. First, he explained that the settlor’s stated intent of creating a trust to support her son necessarily included an intent to support his children because “parenthood carried with it an obvious economic responsibility to care for a child’s daily needs, which responsibility is conterminous with the parent’s need to support himself or herself.”14 Next, Judge Popovich pointed out that public policy was on his side. Moorehead allowed a wife to reach spendthrift trust funds on public policy grounds, and “society places an even greater obligation on a parent to support his or her children than on a spouse to support another spouse.”15 Finally, Judge Popovich (citing Moorehead) pointed out that although spendthrift trusts protected trust assets from the beneficiary’s debts, that protection did not apply to support obligations such as child support.

feminist judgment and implications At its heart, Drevenik is a public policy case. Where Judge Popovich looked to a gendered 1927 decision as the source of the relevant public policy, Professor Carrie Hagan’s opinion takes a very different approach. Writing as Judge Hagen, she essentially ignores Moorehead and looks instead to contemporary policy justifications. Hagan focuses on the rights of children to support and the struggles of single parents – decidedly feminist policy concerns. Hagan reaches the same ultimate conclusion reached by Justice Popovich. That 12 13 14 15

Id. at 806. Id. Id. Id.

https://doi.org/10.1017/9781108860963.010 Published online by Cambridge University Press

Drevenik v. Nardone

183

conclusion is also similar to the conclusion reached by the Moorehead court in 1927. The fact that Hagan, Popovich, and the Moorehead court all reach the same conclusion suggests that feminist reasoning and patriarchal reasoning can sometimes lead to the same outcomes. The paths to those conclusions, however, are often different. Hagan illustrates this notion. By incorporating feminist ideas, Hagan strengthens the overall reasoning of the opinion and recasts the various policies involved in a feminist light. First, Hagan wrote her opinion in a way that evidences a rejection of formal equality theory. The current child support enforcement regime appears to be neutral on its face. Child support is not awarded only to women; it usually goes to the custodial parent. Consequently, the law of the spendthrift trusts is not gendered. As trustee, Dominick’s decision to refuse to release the trust funds to Nicole to pay John’s child support obligation was not based on her gender. Dominick was acting in the confines of the law. It is probable that Dominick would not have willingly released the trust funds to his brother’s husband because he was trying to respect the wishes of his mother. Nonetheless, as Hagan shows in her opinion, men and women are not equal when it comes to child support enforcement, because men are typically the ones obligated to pay it, and women are the ones who rely on it as a financial resource. Therefore, a strict enforcement of spendthrift trust laws will disadvantage women more than men. To illustrate this theory, Hagan points to census data that was available at the time of the opinion to demonstrate the gendered dynamics of child support. Although child support laws are – as Hagan points out – written gender-neutrally, the reality is quite different. The reality is that women are significantly more likely than men to be custodial parents and are significantly more likely to be in need of child support. Second, Hagan looks closely at the details of this case, including the process for seeking support and the amounts at issue. By looking at the realities of the lives of single parents, Hagan makes the point that Nicole is not alone. Hagan implies that this case may have larger societal importance than the small sum of money involved might suggest. Indeed, some of the challenges faced by single parents are well highlighted by the facts of the case. John had failed to pay his paltry child support obligation for more than a year – despite being previously ordered by a court to do so. Nicole, in the meantime, was left raising and supporting two children on her own, without assistance. Her only recourse was to take the time to go (and probably bear the expense of going) to court to seek to be paid support for the couple’s children. Hagan’s description of the process drives home the point that seeking and enforcing child support obligations is too often demoralizing. Indeed, “victory” for Nicole was nothing more than the court ordering the trustee to pay her the small sum of $140 per

https://doi.org/10.1017/9781108860963.010 Published online by Cambridge University Press

184

Drevenik v. Nardone

month plus the outstanding obligation and arrearages. That small amount of money seems to add some measure of indignity and injustice to the process. Yet Nicole was luckier than some single parents. John was, in fact, the beneficiary of a trust that contained assets that could be used to defray his child support obligations. The trust established in John’s favor had assets exceeding $47,000 as a result of a recent real estate sale. John – unlike some parents – even consented to those assets being used to support his children. The obstacle was Dominick, the trustee. Hagan points out that the trustee’s stance was curious. The terms of the trust clearly would have allowed him to release funds to satisfy John’s child support obligation. The trust gave the trustee the sole discretion to pay out trust property for John’s “support, education, and welfare.”16 As Hagan points out, providing support for John should include providing support for his children. The trustee essentially took a position that did nothing but cause harm to his own nephews. Moreover, by refusing to provide funds to pay John’s child support obligation, Dominik placed an undue burden on Nicole. The fact that Hagan decided to not incorporate the Moorehead case in her opinion indicates an awareness of the economic and social implications of marriage for women. The legal status that women have in marriage impacts the ways in which they are treated. For example, the court in Moorehead concludes that a man has a social obligation to provide for his wife. Because of that responsibility, the court refused to treat the estranged wife of a spendthrift trust beneficiary as if she were just another creditor, and hence the trustee was ordered to invade the trust assets to provide the woman with the financial support that she needed. In the original Drevenik opinion, Judge Popovich relied on the Moorehead case to support his decision that the trial court had correctly ordered Dominick to release the trust funds to pay John’s child support obligations. He reasoned that, because a man is obligated to provide for his wife, he has an even greater responsibility to financially support his children. Hagan’s resolution of the case without relying on Moorehead avoided the narrative that a woman is reduced to a child when she gets married. Hagan reaches the same results as Judge Popovich. Nonetheless, she does it by focusing on the man’s obligations instead of the woman’s need. If Judge Popovich had taken a similar approach, when discussing the issue of spendthrift trusts, courts might have been reluctant to treat women like children by making paternalistic rulings.

16

Drevenik v. Nardone, 862 A.2d 635, 636 (Super. Ct. Pa. 2004).

https://doi.org/10.1017/9781108860963.010 Published online by Cambridge University Press

Drevenik v. Nardone

185

D R E V E N I K V . N A R D O N E , 8 6 2 A . 2d 6 3 5 (Super. Ct. Pa. 2 0 0 4)

justice carrie a. hagan, delivering the opinion of the court The question presented for our review is alleged to be complicated one, but it is instead rather easily stated and ruled upon. May Dominick (the Appellant), serving as trustee of a spendthrift trust that his mother Inez (the Settlor) created for the benefit of his brother John (the Trust Beneficiary) refuse to distribute trust funds to satisfy John’s current and past child support obligations, even if John wishes to make the payments? We would like to take a moment to rephrase this issue a bit less formally, stating instead: May a man, who has been put in charge of managing funds for another man, arbitrarily decide to deprive a mother and two children of the court-ordered funds they are entitled to receive for basic survival and necessities?17 Despite the Appellant’s unpersuasive arguments to the contrary and misplaced reliance on irrelevant case law, we think this question is not as complicated as it is alleged to be, and we thus answer this question unabashedly in the negative. Our reasoning is as follows.

i the purpose of child support The purpose of child support, from the very beginning, is to do just as its name suggests: to support a child or children of a relationship, so that they may have the same or similar quality of life and receive the same amount of parental support that they would have experienced if their parents were together providing for the children in a single household. See Pennsylvania Dept. of Human Services, PENNSYLVANIA CHILD SUPPORT HANDBOOK 5 (2003). Historically, children born to married couples have been the only ones afforded rights such as child support; however, as times have changed and society’s values have shifted, all children born out of relationships – be the parents married or unmarried – have the right to obtain and enforce child 17

A second question that we do not answer here is whether this same man may refuse (or at least not comply with) an order of the court directing a full accounting of said funds. The court is most concerned that not only is the Appellant refusing to issue said funds, but also that there is no record of whether the funds are being used as they have been directed to be used nor is there any accounting for payments and current balances. This court is not convinced that the best interests of the children or the mother are being served here, when monies are being withheld, and there is no transparency about said monies that has been provided to the parties or the court.

https://doi.org/10.1017/9781108860963.010 Published online by Cambridge University Press

186

Drevenik v. Nardone

support payments for expenses associated with their upbringing and quality of life. Nichols v. Horn, 363 Pa. Super. 301, 525 A.2d 1242 (1987); 23 Pa. C.S. §5102 There is strong public policy centered on the creation of, and enforcement of, child support orders for the care and custody expenses of children. This public policy stems from beliefs that children have a right to experience the same or similar quality of life that they would have had if their parents had remained together in one household. Child support, and the collection of such support on the children’s behalf, is also said to be in the “best interests of the child,” because again, with proper resources, the parent who receives the child support may care for the child or children accordingly. Oeler by Gross v. Oelerm 527 Pa. 532, 594 A.2d 649, 651 (1991); Yerkes v. Yerkes, 573 Pa. 294, 824 A.2d 1169, 1171 (2003). Child support laws have the potential to perpetuate inequalities between women and men, because the laws created and the systems put in place to ensure payment of child support require the custodial parent to take affirmative steps to get money from the noncustodial parent. Consequently, the fact that child support is the right of the child often gets lost in the debate over child support enforcement. For instance, states have adopted policies requiring parents who receive certain state benefits (such as food stamps or cash assistance) to establish paternity (where none has been established) and pursue income from all other eligible sources available, including income received as child support. See PENNSYLVANIA CHILD SUPPORT HANDBOOK, supra, at 9. The rationale for this approach is that, when a state provides financial support to children whose parents need assistance, the assisted parents must attempt to collect income from any other available sources so that the state has the resources to support all who need financial assistance. If child support is truly designed to promote the best interests of the child, the state should do more to collect the payments and refrain from putting the burden on the custodian parent. The issues faced by parents waiting to receive financial support are many and multifaceted, because they often do not have adequate resources to provide for their children. More troubling is the gender imbalance that exists because men are frequently the ones ordered to pay child support, and women are forced to try to collect the ordered amount. Briefly exploring this disparity further, we consulted the most recent data provided by the US Census Bureau in its Custodial Mothers and Fathers and Their Child Support Report, that data having been collected in 1999 and published in October of 2002. See US Census Bureau, CUSTODIAL MOTHERS AND FATHERS AND THEIR CHILD SUPPORT 1999 REPORT (2002). According to that data, “Custodial parents numbered 13.5 million in 2000. In the spring of 2000, an estimated 13.5 million parents

https://doi.org/10.1017/9781108860963.010 Published online by Cambridge University Press

Drevenik v. Nardone

187

had custody of 21.7 million children under 21 years of age whose other parent lived somewhere else. Of all custodial parents, 85.0 percent were mothers and 15.0 percent were fathers, proportions statistically unchanged since 1994.” Id. Additionally, the Appellee is not alone in being a mother seeking to receive these benefits: “About 62.2 percent of custodial mothers and 39.2 percent of fathers had child support agreed or awarded to them.” Id. With the exception of the added third party controlling the funds relevant to the parent relationship in this case (i.e., the Appellant), the circumstances here are representative of the same gendered support relationship as is reflected in the national averages, in that the Appellee (the mother of the children) has been ordered to receive funds from the Trust Beneficiary (their father).

ii relevant facts The Trust Beneficiary and the Appellee have two minor children together, both of whom reside with the Appellee on a full-time basis. On August 15, 1997, the court ordered the Trust Beneficiary to pay US$200.00 per month in child support. Later modification petitions reduced this amount, by order of March 16, 2000, to $140.00 per month in support and $20.00 per month in arrears. Subsequently, because the Trust Beneficiary did not pay any child support for more than a year, a petition was filed to show cause why the assets of a trust held for his benefit should not be used for the financial support of his children. As is often the consequence of a noncustodial parent failing to meet his financial obligations, the Appellee was forced to support two children with no financial assistance from the Trust Beneficiary for more than a year. This situation placed an undue burden on the Appellee and reenforced the power imbalance between the Trust Beneficiary and her. The only way in which the Appellee could obtain the support that she not only presumably needed, but also had been legally ordered to receive for the best interests of the two children, was to file a petition in court to enforce the child support order. On March 3, 2004, when the Trust Beneficiary appeared before the trial court, he owed more than $2411.00 in child support. He acknowledged that he owed the child support, wished to pay it, and was willing to cooperate with the Commonwealth to the fullest extent. The only funds that the Trust Beneficiary had available to pay his obligation were being held in a spendthrift trust created by his mother, Inez, and managed by his brother, the Appellant. By her last will and testament, Inez left 50 percent of her net estate to the Appellant and 50 percent to the Appellant, held in trust for the Trust Beneficiary. Contrary to the Trust Beneficiary’s wishes, the Appellant refused to release the trust funds necessary to provide financial support for the

https://doi.org/10.1017/9781108860963.010 Published online by Cambridge University Press

188

Drevenik v. Nardone

Trust Beneficiary’s two minor children, even though the Appellant is their uncle.

iii standard of review The Appellant argues that, in ordering that the funds of the trust be used to pay the Trust Beneficiary’s current and past child support obligations, the trial court abused its discretion. We disagree with this contention for the following reasons. Our review of the Appellant’s issue is governed by the following standard: In our appellate review of child support matters, we use an abuse of discretion standard. We will not disturb a support order on appeal unless the trial court failed to consider properly the requirements of the Rules of Civil Procedure governing actions for support . . . or abused its discretion in applying these Rules. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will . . . discretion is abused. This is a limited role, and, absent a clear abuse of discretion, the appellate court will defer to the order of the trial court. We do not make a finding of abuse lightly but only upon a showing of clear and convincing evidence. Dennis v. Whitney, 844 A.2d 1267, 1269 (Pa. Super. 2004) (citations omitted)

iv discussion The Appellant contends that the trial court abused its discretion when it ordered him to invade the trust’s principal and income to pay the Trust Beneficiary’s child support arrears. He relied on the Pennsylvania Supreme Court’s decisions in Humphreys v. DeRoss, 567 Pa. 614, 790 A.2d 281 (2002), and Maher v. Maher, 575 Pa. 181, 835 A.2d 1281 (2003), to support the proposition that trust principal cannot be utilized as “income” for support purposes. We disagree. The decisions in Humphreys and Maher are inapplicable to the present case. The courts in Humphreys and Maher held that the corpus of an inheritance cannot be included as “income” by the trial court when it calculates a support obligation pursuant to the Child Support Guidelines. In the present case, as noted by the trial court, the Appellee is not seeking a greater support award or a recalculation of the Trust Beneficiary’s income in light of his trust assets. Rather, the Appellee seeks payment of accrued support arrears.

https://doi.org/10.1017/9781108860963.010 Published online by Cambridge University Press

Drevenik v. Nardone

189

Accordingly, neither Humphreys nor Maher offer guidance in this case. Those decisions would apply only if the trust assets were considered when the court initially determined the amount of child support the Trust Beneficiary was responsible for paying. Therefore, the Appellant’s argument fails. In this case, the Trust Beneficiary wants to use the assets in the spendthrift trust to pay his child support payments. Public policy dictates that this court affords him that opportunity by requiring the Appellant to release the trust assets, so that the Trust Beneficiary can fulfill his obligation to his children without continuing to place the Appellee in the unfair position of debt collector – a position that may cause the Appellee to subjugate herself to get the financial resources she needs to provide for her children. We are satisfied that the trial court did not abuse its discretion. We thus affirm the decision of the trial court in its entirety, having found no abuse of discretion. It is so ordered.

https://doi.org/10.1017/9781108860963.010 Published online by Cambridge University Press

10 Commentary on Reece v. Elliott browne c. lewis

background Reece v. Elliott involved the enforceability of an antenuptial agreement that Bonnie Reece signed prior to her marriage to Eugene Reece. Under the provisions of the agreement, the real and personal property that Bonnie and Eugene had acquired before they were married would be classified as separate property. By signing the agreement, Bonnie and Eugene intended to maintain their separate property and to relinquish marital property rights in each other’s property. Bonnie and Eugene signed the agreement because they each wanted to provide for children from their previous marriages. Bonnie and Eugene affirmed the language in the agreement stating that they had each (1) discussed the agreement with an attorney, (2) comprehended the significance of the agreement, and (3) fully disclosed the extent of their assets. After consulting an attorney, Bonnie signed the agreement and had a member of the attorney’s staff notarize her signature. When Eugene died, Bonnie filed an action against Linda Elliott and Diane Dempsey, as individuals and co-executors of Eugene’s estate, seeking to have the antenuptial agreement declared invalid. Bonnie argued that the agreement should be nullified because, at the time that she signed it, Eugene had failed to make a full disclosure regarding his assets and financial condition. The assets at issue in the case were Eugene’s 1,687 shares of JH Routh Packing Company stock. Bonnie acknowledged that she knew that Eugene owned the shares as separate property and that she would not be entitled to receive the stock when he died. Nonetheless, Bonnie contended that she did not enter into the agreement with full knowledge of the value of Eugene’s assets because he did not disclose the value of the stock he owned in Routh Packing. 190

https://doi.org/10.1017/9781108860963.011 Published online by Cambridge University Press

Reece v. Elliott

191

original opinion In their answer to Bonnie’s complaint, Linda and Diane maintained that the agreement was valid. They relied on the defenses of estoppel, laches, release, and waiver to support their position. The trial court dismissed Bonnie’s case and held that the agreement was enforceable. Because Bonnie testified that she had reviewed the list of Eugene’s property prior to signing the agreement, the trial court reasoned that Bonnie had entered into the agreement knowingly. The trial court also noted that Bonnie and Eugene had a clear idea of the nature and extent of each other’s assets. Bonnie appealed the decision to the Tennessee Court of Appeals. The Court of Appeals framed the issue as “whether failure to disclose the value of the stock would render the antenuptial agreement invalid and unenforceable.”1 In Tennessee, antenuptial agreements are favored by public policy, so the courts will enforce them. However, the enforceability of an antenuptial agreement turns on whether the parties enter into the agreement “voluntarily and knowledgeably.”2 As long as the parties enter into an antenuptial agreement “freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse,” the court is bound by the agreement.3 The Court of Appeals in Reece v. Elliott relied on the definition of “knowledgeably” set out in Randolph v. Randolph.4 In Randolph, the Tennessee Supreme Court concluded that, to satisfy the “knowledgeably” requirement, the proponent of the agreement had to prove “that a full and fair disclosure of the nature, extent and value of the party’s holdings was provided, or that such disclosure was unnecessary because the spouse had independent knowledge of the same.”5 The Court of Appeals in Reece agreed with the trial court’s determination that, because Eugene did not mislead Bonnie, the agreement was enforceable. The fact that Eugene did not tell Bonnie the full value of his stocks was immaterial. Prior to signing the agreement, Bonnie knew that Eugene was a wealthy man because she saw the assets that he listed. Furthermore, after consulting an independent attorney, Bonnie admitted that she understood that signing the agreement meant that she would not be entitled to receive any of the assets Eugene listed in the agreement. She also did not take 1 2 3 4 5

Reece v. Elliott, 208 S.W.3d 419, 421 (Tenn. Ct. App. 2006). Wilson v. Moore, 929 S.W.2d 367 (Tenn. Ct. App. 1996). Tenn. Code Ann. §36–3-501. 937 S.W.2d 815 (Tenn. 1996). Id. at 821.

https://doi.org/10.1017/9781108860963.011 Published online by Cambridge University Press

192

Reece v. Elliott

advantage of the opportunity to ask Eugene about the value of the stock or to conduct an independent investigation into the matter. The prenuptial agreement met the requirements set forth in Randolph, so the trial court’s decision was affirmed.

feminist judgment In this opinion, Elizabeth Sparks, writing as Justice Sparks, and Browne Lewis, writing as Justice Lewis, rewrite the decision by the Court of Appeals to reach the opposite result. Sparks and Lewis first conclude that the antenuptial agreement may be unenforceable depending on whether Bonnie knew the “nature, extent, and value” of Eugene’s assets – an issue that requires additional fact-finding. Sparks and Lewis express concern that Eugene may have been advantaged over Bonnie because she disclosed all of the pertinent information about her assets to him before he signed the agreement. To the contrary, Bonnie may have been unable to make an informed decision with regards to signing the agreement because she lacked all of the relevant information about Eugene’s assets. By not disclosing the specific value of all of his assets, Eugene may not have provided Bonnie with the “clear idea of the nature, extent and value” of the property that is mandated by state law. Consequently, Sparks and Lewis remand the case to the trial court so that it can make that determination. If the evidence gathered by the trial court indicates that Eugene failed to meet his obligation, Sparks and Lewis would invalidate the agreement. On its face, the issue in this case may be simply the enforcement of a contractual agreement. Nevertheless, the authors of the feminist judgment assert that fairness dictates that the Court of Appeals consider the ramifications of enforcing antenuptial agreements, especially in cases involving women who may be disadvantaged. Therefore, Sparks and Lewis do not end the opinion after they determine that the case should be remanded: To provide guidance to future courts, they examine the inequities that may result from judicial enforcement of prenuptial agreements in general. Sparks and Lewis acknowledge that Tennessee’s public policy favors the enforcement of antenuptial agreements. Nonetheless, the justices are troubled by the fact that such agreements may result in adverse economic outcomes for women. Sparks and Lewis attribute those negative economic consequences to several factors. Initially, they opine that contract law gives preferential treatment to men. Contract law developed at a time when women were excluded from the marketplace because they were not permitted to own property or to enter into contracts. Sparks and Lewis rely on scholarship produced by

https://doi.org/10.1017/9781108860963.011 Published online by Cambridge University Press

Reece v. Elliott

193

Professor Debra L. Threedy to support the argument that using a market-based framework centered on the idea of an arm’s-length transaction to validate antenuptial agreements may put women at a strategic disadvantage.6 The authors of the feminist judgment reason that, as a result of the inequity ingrained in the contract law regime, antenuptial agreements are frequently created in an environment in which there may be unequal bargaining power. Thus, by enforcing the provisions of those types of agreement, courts may ratify gender inequality. Sparks and Lewis point out that antenuptial agreements signed in situations involving – in opposite-sex unions – the man’s remarriage to a woman marrying for the first time can involve inequity. Men entering into second marriages have typically accumulated more wealth than the women they plan to marry. As a result, it is not surprising that men are frequently the ones who want to have antenuptial agreements in place prior to the marriage. Women may feel pressured to sign the agreements to prove that they are not marrying for financial gain. Relying on an article written by Gail F. Brod, Sparks and Lewis contend that the man’s wealth and the woman’s sense of obligation may lead to the creation of a one-sided antenuptial agreement.7 The problem may be exacerbated in situations involving widows like Bonnie, who may end up deprived of property at the time they most need that money. Because women have less earning power than men, they tend to be more economically dependent on their husbands. That reliance makes the enforcement of an antenuptial agreement like that in this case even more unacceptable. For that reason, Sparks and Lewis would remand the case to the trial court for additional fact-finding, with the instruction that the trial court consider Bonnie’s knowledge and the relative bargaining positions of the parties.

feminist implications In this rewrite, Sparks and Lewis, as coauthors, analyze the relevant legal issue by looking at the facts surrounding disclosure in the context of an antenuptial agreement through a feminist lens. Examining the case through that lens leads the justices to reach a different outcome than the drafters of the original opinion even though they applied the same law. By viewing the case from a feminist perspective, the authors were able to scrutinize how women are treated in comparison to men. A critical review of the facts indicates the inequality that likely existed between Bonnie and Eugene. According to the 6 7

Debra L. Threedy, Feminists and Contract Doctrine, 32 IND. L. REV. 1247 (1998). Gail F. Brod, Premarital Agreements and Gender Justice, 6 YALE J. OF L. & FEMINISM 229 (1993).

https://doi.org/10.1017/9781108860963.011 Published online by Cambridge University Press

194

Reece v. Elliott

justices, to mitigate rather than reinforce the power disparity, the Court of Appeals needed to remand the case to the trial court with direction to consider all of the pertinent facts that were available to each of the parties at the time of signing. This position can be supported by the dominance theory – a feminist theory that focuses on the difference in power between women and men.8 According to dominance theorists, the inequalities women experience as a result of gender discrimination result from patterns of male domination; such theorists perceive men as privileged and women as subordinated. Male privileging receives support from most social institutions and a complex system of cultural beliefs. A consequence of that dominance is that women are not on an equal footing when they enter into contracts such as antenuptial agreements with men. The authors also recognize that this case presented the Court of Appeals with an opportunity to address the systemic inequities that may arise from the enforcement of antenuptial agreements. The original opinion misses out on the chance to describe and illustrate the connection between the financial inequalities in marriage and the unequal bargaining power of the parties negotiating antenuptial agreements. Women are often financially disadvantaged in marriage because they earn less than their husbands, and they frequently have unpaid primary caregiver responsibilities that limit the amount of time they can spend doing paid work.9 As a result of that financial vulnerability, women may have a greater need to marry or remarry than men. Thus they may be more willing to sign antenuptial agreements waiving state law protections designed to alleviate the financial hardship of an economically disadvantaged divorcing or surviving spouse.10 The feminist judgment makes these inequities clear to the trial court, which will need to consider them on remand. The authors of the rewritten opinion seek to change, or at least subvert, the public policy that favors the enforcement of antenuptial agreements. That public policy permits courts to become complicit in a system that treats women as socially inferior. Because Bonnie signed the antenuptial agreement under circumstances that may run counter to the mandates of Randolph, the law dictates that the agreement be scrutinized and invalidated if necessary. By recommending that the case be remanded to the trial court for additional information gathering, the justices are leaving open the possibility that facts 8

9

10

Catharine A. Mackinnon, TOWARD A FEMINIST THEORY OF THE STATE (1989) (the leading statement of dominance feminism). Margorie Engel, Pocket of Poverty: The Second Wives Club – Examining the Financial [in] Security of Women in Remarriage, 5 WM. & MARY J. WOMEN & L. 309, 315 (1999). Brod, supra note 7, at 240–42.

https://doi.org/10.1017/9781108860963.011 Published online by Cambridge University Press

Reece v. Elliott

195

may come to light that show that a formal equality approach is inappropriate in this case. If a disparity in bargaining power existed, any attempt to treat Bonnie the same as Eugene would be a fallacy. True equality cannot exist in a system designed to buttress male dominance. If the original court had approached the resolution of the case in a manner similar to that taken by Sparks and Lewis, the legislature might have put better safeguards in place to ensure that antenuptial agreements are fair to both parties involved.

R E E C E V . E L L I O T , 2 0 8 S . W . 3d 4 1 9 (Tenn. Ct. App. 2 0 0 6)

justices browne c. lewis and elizabeth v. sparks, writing for the court On December 4, 1999, Bonnie Reece (the Appellant) married Eugene Reece. Before their marriage, on November 29, 1999, both parties signed an antenuptial agreement (the Agreement), with the understanding that both came to the marriage with assets that they wished to preserve for their own children from previous marriages. Although it is undisputed that the Appellant had an opportunity to consult with counsel prior to signing the Agreement, the facts before us also demonstrate that no conversations occurred between the Appellant and her counsel regarding the value – potential or real – of Eugene Reece’s stock holdings in JH Routh Packing Company, an asset whose value he failed to disclose to the Appellant. It is this lack of information that causes us concern. The Defendants proffer that this information was irrelevant because the Agreement waived the Appellant’s claim to these assets, regardless of value. We note, however, that the Appellant told the decedent the values of all properties that she owned. Therefore, he had the requisite knowledge to make an informed decision as to whether or not to sign the Agreement. She did not. Consequently, a level playing field was absent, and the resultant harm to her is demonstrable: She forfeited her claim to a large sum, which she might not have done if there had been full disclosure. Tennessee law favors antenuptial agreements as an exercise of the parties’ freedom to contract. Furthermore, courts have long favored the enforcement of antenuptial agreements regarding property divisions after death See Brooks v. Brooks, 733 P.2d 1044, 1048 n.4 (Alaska 1987); In re Estate of Lopata, 641 P.2d 952, 956 (Colo. 1982) (en banc); In re Malchow’s Estate, 172 N.W. 915, 916 (Minn. 1919); Gross v. Gross, 464 N.E.2d 500, 504 (Ohio 1984). Unfortunately, these agreements have a tendency to disproportionately result in negative

https://doi.org/10.1017/9781108860963.011 Published online by Cambridge University Press

196

Reece v. Elliott

economic consequences for women. Gail Frommer Brod, Premarital Agreements and Gender Justice, 6 YALE J. OF L. & FEMINISM 229, 243 (1994). It is these concerns that we hope to address in our opinion today. Each party in this case had a previous marriage resulting in children. Eugene Reece had a variety of valuable assets and was a man of considerable wealth at the time of his remarriage to the Appellant. It seems likely that each of them was looking to enter into an “agreement that would order distribution of assets upon death” for the “financial interests of children from [their] previous marriage[s].” Sanford N. Katz, Propter Honoris Respectum: Marriage as Partnership, 73 NOTRE DAME L. REV. 1251, 2158 (1998). For the Appellant, that goal cannot be accomplished if the antenuptial agreement is enforced, because it waives her rights to property over which she may be able to claim ownership and thus pass on to her children. The previous jurisprudence on antenuptial agreements in Tennessee has been most concerned with the voluntary and knowledgeable nature of the consent to these agreements. Tenn. Code Ann. §36–3-501. In our case law, “knowledgeably” has been interpreted to mean full and fair disclosure, defined as a factor-based analysis, including the: . . . relative sophistication of the parties, the apparent fairness or unfairness of the substantive terms of the agreement, and any other circumstance unique to the litigants and their specific situation. While disclosure need not reveal precisely every asset owned by an individual spouse, at a minimum, full and fair disclosure requires that each contracting party be given a clear idea of the nature, extent and value of the other party’s property and resources. Though not required, a fairly simple and effective method of proving disclosure is to attach a net worth schedule of assets, liabilities and income to the agreement itself. Randolph v. Randolph, 937 S.W.2d 815, 821 (Tenn. 1996)

We draw attention to the language “each contracting party [must] be given a clear idea of the nature, extent and value of the other party’s property and resources.” The evidence appears to indicate that Mr. Reece may not have been forthcoming about the true value of his assets before the Appellant signed the Agreement. For example, Mr. Reece did not list a value for a particularly valuable asset, and the Appellant argues that she had no way of ascertaining the asset’s value without a disclosure from Mr. Reece. This fact alone would be sufficient to invalidate the Agreement. The question of the Appellant’s knowledge or lack of knowledge about this asset’s value necessitates a remand to permit the trial court to determine whether, in fact, she had a “clear idea of the nature, extent and value” of Mr. Reece’s property.

https://doi.org/10.1017/9781108860963.011 Published online by Cambridge University Press

Reece v. Elliott

197

Contract law developed out of market conditions and transactions with which women were not permitted to engage, reflected by the linguistic focus of “market” as that realm separate and distinct from “family”: The latter was considered the domain of women; the former, the area in which they were not permitted by law or custom to traffic. See generally Debra L. Threedy, Feminists and Contract Doctrine, 32 IND. L. REV. 1247 (1998). In other words, contract law was created out of the systems with which women had neither contact nor agency, and it also deliberately excluded them. It is no coincidence, then, that women were “not legally competent to make contracts in their own name,” because they were considered absorbed by their husbands in the union of marriage, thus resulting in “courts’ reluctance to enforce ‘contracts’ within marriage.” Id. at 1253. Thus, as Professor Threedy notes, “[t]he market-based paradigm [of contracts] is that of arm’s length, autonomous actors engaged in a discrete exchange.” Id. This theory does not readily apply to antenuptial agreements because they involve parties who are dependent on one another because of their domestic relationships. In addition to the unique context in which antenuptial agreements arise, there is a distinct correlation between the economic disparities between men and women and the unequal bargaining power that may exist in contract negotiations. For example, women often enjoy less earning potential than men, which holds true across professions and disciplines. See Janice F. Madden, The Persistence of Pay Differentials, in 1 WOMEN AND WORK: AN ANNUAL REVIEW 76, 76–77, 109–10 (1985). Those in higher earning brackets, such as medical and legal practitioners, generally experience an even wider income gap, with women in medicine earning “just over half as much as men,” while women in law are earning an average of 67 percent of the total income of their male counterparts. Shawn Hubler & Stuart Silverstein, Women’s Pay in State Lags 31% behind Men’s, L.A. TIMES (Dec. 29, 1992). In 1991, 13 percent of American families lived at or below the poverty line – yet, of families in which the head of household was a single mother, this number ballooned to 43 percent. US Bureau of the Census, US Dep’t. of Commerce, STATISTICAL ABSTRACT OF THE UNITED STATES (1993). It is this economic backdrop, in the aggregate, against which we must contextualize antenuptial agreements in order to provide a full and complete picture. The above-enumerated statistics suggest that, because of financial disparities, women negotiating prenuptial agreements are less likely to have economic bargaining power equal to that of their male counterparts. Furthermore, though the relative financial circumstances of the parties in this case are unknown, because men tend to marry women who are younger than they are, age is often a contributing factor to the relative bargaining

https://doi.org/10.1017/9781108860963.011 Published online by Cambridge University Press

198

Reece v. Elliott

disparity between the genders. For instance, age differences may result in differences in business acumen, life experiences, and wealth accumulation. Moreover, as is true of the case before this court, antenuptial agreements are statistically more likely to be at issue in situations of remarriage. Because women live longer and earn less money than men, they may have a greater need to remarry. Therefore, women are more likely to be confronted with antenuptial agreements. Charles W. Gamble, The Antenuptial Contract, 26 U. MIAMI L. REV. 692, 732 (1972). Men pursuing second marriages tend to have a higher accumulation of wealth than women seeking second marriages, which might also account for the fact that men seek antenuptial agreements at a higher rate than women. The reality of an uneven playing field between men and women who sign these agreements is an important factor to consider when determining whether the courts should enforce them. It also dictates that we carefully consider the parties’ respective knowledge of the assets they were signing away. It is for that purpose that remand is required in this case. A further consideration is that, while much of the data pertaining to antenuptial agreements reflects the realities for divorced women, the circumstances for widowed women are even grimmer. Economic hardships for widows as a class are severe, with widows experiencing, on average, a loss of half of their income, as well as a 64 percent chance of falling below the poverty line. Leslie A. Morgan, AFTER MARRIAGE ENDS: ECONOMIC CONSEQUENCES FOR MIDLIFE WOMEN (1991). “A premarital agreement can deprive an elderly widow of property when she needs it most.” Brod, supra, at 250. Consistent with this data, the Reeces were entering a second marriage in which both parties had adult children and assets of quite disparate amounts. The facts available indicate that Mr. Reece had more accumulated wealth than the Appellant; hence, when she was left widowed, she did not have access to those assets because of the provisions in the antenuptial agreement. A comparison of the postmarital economic conditions of men and women provides an important context for our claim that antenuptial agreements more negatively affect women. In middle income bracket couples, postmarital income levels for men average 75 percent of the marital income level, whereas postmarital incomes for women average 29 percent of their marital income level. Of the highest income bracket couples, women achieved 64 percent of the marital income in their postmarital period, but men achieved 222 percent in the same time period. Lenore J. Weitzman, THE DIVORCE REVOLUTION 329 (1985). All of these economic disparities resulting from antenuptial agreements should give us pause, but the judicial reality has been the inverse of this, with an increasing number of opinions supporting their enforcement.

https://doi.org/10.1017/9781108860963.011 Published online by Cambridge University Press

Reece v. Elliott

199

See, e.g., Posner v. Posner, 233 So.2d 381, 385 (Fla. 1970); Simeone v. Simeone, 581 A.2d 162 (Pa. 1990). To ignore the reality of women’s disparate bargaining power is an exercise in which this court does not wish to participate. “Some commentators, such as Marjorie Schultz and Lenore Weitzman, have taken the position that the law should encourage premarital contracting since women may fare better under a private agreement than they would under the patriarchal marriage and divorce law of most states.” Barbara Ann Atwood, Ten Years Later: Lingering Concerns about the Uniform Premarital Agreement Act, 19 J. LEGIS. 127 (1993). We consider this argument fully, but ultimately conclude that none of those options for contracting has yet provided an equal playing field nor adequately corrected for the disparate economic impact that women experience after marriage, divorce, and death of a spouse. It is important here to note that we do not intend to make a broad statement that contract law can never benefit women nor that the enforcement of antenuptial agreements will always disadvantage women. We intend, in the alternative, to draw attention to historical and cultural systems that cause women to be disadvantaged and to the fact that the law can and should do more to address these discrepancies. We are concerned that these discrepancies may have played a role in this case. In other words, it is inadequate to aim for simple formal equality in the enforcement of antenuptial agreements without acknowledging that the underlying foundation of contract law prevents women from being treated the same as men. Thus, even if the formalities in this case had been met – and we are not confident that they were – there would be reason to be suspicious of the antenuptial agreement as a class of contract that raises concerns about unequal bargaining power. So often, the law appears to be neutral. This is both a direct and indirect consequence of the language we use in policymaking and judicial opinions, as well as of our goals for our profession and the broader society in which it resides. Unfortunately, this perception means that law often does not do enough to remediate inequities. This case provides an opportunity to reflect upon the myriad moments in which even decisions in intimate relationships reveal inequities and ways in which they are inadvertently perpetuated by those tasked with granting relief. So often, we cleave to the legal fictions that we ourselves have manifested as truths so indisputable that there can be nothing to push us to the point of questioning them. We cannot affirm the lower court’s decision based on the existing record. A few short years ago, in Randolph v. Randolph, we set forth certain criteria by which we would evaluate the validity of an antenuptial agreement. In this case, the Appellant argues that she was not “given a clear idea of the nature, extent

https://doi.org/10.1017/9781108860963.011 Published online by Cambridge University Press

200

Reece v. Elliott

and value of the other party’s property and resources.” If this is determined to be an accurate depiction of the facts, the Agreement should be held to be unenforceable. We remand for a finding on this issue. If there was full and fair disclosure, the contract is valid. If not, it cannot be enforced. There is meager factual support to make an informed determination at this time. Factual issues that require further consideration include: the list of assets that the Appellant was given; whether or not she was able to ask questions about the missing data, as well as the context for potentially declining that information; and the relative ages, legal, and business acumen of the parties, including further examination of the Appellant’s own premarital assets. Having a better understanding of the potentially unequal bargaining power between the parties would allow the lower court, upon remand, to determine whether or not the concerns voiced herein were present in this case. As such, with respect to the philosophical and jurisprudential questions we have discussed, we send this matter back to the lower court to make a decision based on our opinion today. Reversed and remanded.

https://doi.org/10.1017/9781108860963.011 Published online by Cambridge University Press

11 Commentary on Khabbaz v. Commissioner melanie b. jacobs and browne c. lewis

background Khabbaz v. Commissioner, Social Security Administration involved the status of a posthumously conceived child. A posthumously conceived child is a child born through artificial reproductive technology (ART) using genetic material from a person who is dead. In contrast, a posthumously born child is in utero before the father dies and born after his death.1 Because postmortem sperm retrieval is not as invasive as postmortem oocyte extraction, most of the inheritance cases involve the creation of a child through ART using the sperm of a deceased man. To resolve the Khabbaz case, the New Hampshire Supreme Court had to determine whether a child conceived after the death of her father via artificial insemination was eligible to inherit from him as a surviving issue under New Hampshire intestacy law. In September 1989, Donna M. Eng and Rumzi Brian Khabbaz married. They had a son together in 1995. Unfortunately, in April 1997, doctors informed the couple that Khabbaz had a life-threatening illness. Although the couple already had one child, Khabbaz banked his sperm and executed a consent form authorizing Eng to use the sperm to conceive his child. He also indicated in writing that he wanted to be acknowledged as the legal father of any children Eng had using his sperm. On May 23, 1998, Khabbaz died. Approximately two years later, in the summer of 2000, Eng gave birth to a child, Christine, who was conceived using Khabbaz’s sperm. Eng applied for social security survivor’s benefits for Christine. The Social Security Administration (SSA) Commissioner denied Eng’s application for benefits based upon a determination that Christine was not eligible to inherit from 1

A child can also be in utero prior to the mother’s death if the child is carried by a third-party gestational carrier or the mother is declared brain dead.

201

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

202

Khabbaz v. Comm’r Soc. Sec. Admin

Khabbaz under New Hampshire’s intestate distribution law. The administrative law judge (ALJ) and the SSA Appeals Council affirmed the Commissioner’s decision.

original opinion Eng filed an appeal with the US District Court for the District of New Hampshire. The District Court certified the matter to the New Hampshire Supreme Court because it involved an interpretation of New Hampshire’s intestacy statutes. Eng made several arguments before the Supreme Court. First, Eng argued that Christine should be classified as a “surviving issue” based on the language of the intestacy statute. The Supreme Court rejected that argument because of its interpretation of the meaning of the word “surviving.” Relying on the definition from Webster’s Dictionary, the Supreme Court reasoned that, under a plain-meaning analysis, to be considered a survivor, Christine had to be alive or in existence when her father died. Consequently, because Christine was not conceived until after her father’s death, she could not be legally recognized as his survivor. The Supreme Court went so far as to declare that no “posthumously conceived child is a ‘surviving issue’ within the plain meaning of the [New Hampshire] statute.”2 Eng’s second argument was that Christine was a nonmarital child because, at the time of her conception, Eng was no longer married to Khabbaz. Eng wanted Christine to be treated as a child born out of wedlock so that she could avail herself of the process the legislature had established for nonmarital children to have the opportunity to inherit from their fathers. The Supreme Court found Eng’s argument to be without merit for two reasons. First, the Supreme Court opined that the legislature intended the intestacy statute addressing nonmarital children to deal with children whose parents were not married prior to the children’s births. Because they were a married couple, Eng and Khabbaz were not among the class of persons to which the New Hampshire legislature intended the intestacy statute to apply. Second, the Supreme Court concluded that Christine could not be categorized as a nonmarital child because, under New Hampshire’s statutory scheme, children conceived by the artificial insemination of a married woman are considered marital children. Eng’s final argument was based on public policy. She asserted that a posthumously conceived child who was born within a reasonable time after a father’s death should be permitted to inherit from the father’s estate. 2

Khabbaz v. Commissioner, 930 A.2d 1180, 1184 (N.H. 2007).

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

Khabbaz v. Comm’r Soc. Sec. Admin

203

In putting forth this argument, Eng urged the Supreme Court to adopt the rationale of the Massachusetts Supreme Judicial Court in Woodward v. Commissioner of Social Security.3 The Supreme Court sympathized with Eng, but noted that setting public policy was the job of the state legislature and not the courts. As a result, the Supreme Court concluded that, based on the New Hampshire statute as written, Christine could not inherit from Khabbaz’s estate. Because receipt of social security benefits turns on whether the child is considered an intestate heir of the deceased parent for state law purposes, the Supreme Court certified back to the District Court that the SSA’s decision denying Christine survivor benefits should be upheld.

feminist judgment In a dissenting opinion, Lynda Wray Black, writing as Justice Black, concludes that the Supreme Court incorrectly decided that Christine was ineligible to inherit from her deceased father’s estate. Black starts her opinion with a plainlanguage argument asserting that the majority incorrectly framed the issue that needed to be resolved. The question should have been whether a posthumously conceived issue was the decedent’s issue. According to Black, Christine’s eligibility to inherit should not be based on her surviving Khabbaz; if Christine is determined to be Khabbaz’s issue, she should be deemed an eligible intestate heir. Black supports her analysis by noting that the intestacy statute does not define the word “surviving” and that the relevant provision of the statute does not contain the word “surviving.” The plain language of the provision states simply that any part of the decedent’s estate not passing to the surviving spouse passes to the “issue of the decedent.” Christine’s disqualification as Khabbaz’s heir is a consequence of the majority’s erroneous insertion of the word “surviving” before the word “issue.” Therefore, under a correct plain-meaning analysis, Christine would have been entitled to inherit simply by virtue of being Khabbaz’s issue. Black also reasons that the majority incorrectly answered the question it posed because it gave the phrase “surviving issue” too narrow a definition. The majority determines that a person cannot be a “surviving issue” unless alive or in utero before that person’s ancestor dies. Black suggests that the majority would have reached a different conclusion if it had focused on “the people affected by the statutory words rather than only on the words themselves.” Advances in ART have made posthumous reproduction possible. Thus a more expansive interpretation of heirship is necessary to protect the interests of 3

760 N.E.2d 257 (Mass. 2002).

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

204

Khabbaz v. Comm’r Soc. Sec. Admin

families formed using these new technologies. Black opines that instead of waiting for the legislature to react to the impact ART has on family formation, the Supreme Court needs to be proactive when interpreting intestacy statutes. Those statutes should be interpreted in a way that carries out the presumed intent of the decedent. To achieve that objective, the courts must “interpret these statutes inclusively.” Black expresses concern that the majority opinion creates a two-tier system that advantages children born posthumously over those conceived and born posthumously. She believes the majority’s action is wrong for several reasons. First, Black explains that giving posthumously conceived children inferior inheritance rights conflicts with actions the legislature has taken to give children created using ART the same rights as children conceived through sexual intercourse or as adopted children. For example, she points to section 168-B:9 of the New Hampshire Statutes, which mandates that those children have the right to inherit from parents who die intestate. Likewise, section 169-B, the statute at issue in this case, should be construed to be inclusive enough to benefit all classes of children, including those conceived posthumously. Second, Black reasons that a decision that prevents Christine from inheriting from her deceased father ignores the steps that Khabbaz took to acknowledge his potential posthumously conceived children. Khabbaz’s actions are evidence that he wanted to have more children even if he did not survive his illness. After he knew he was suffering from an incurable disease, Khabbaz had his sperm harvested and frozen, and he consented in writing to having the sperm used to conceive his child in the event that he did not survive. Lastly, Black maintains that the majority’s action implicates the Equal Protection Clause of the Fourteenth Amendment. Black believes that a narrow reading of the statute that discriminates against posthumously conceived children creates the possibility of an “as applied” challenge. The majority opinion does not classify posthumously conceived children as “illegitimate.” Nonetheless, its narrow interpretation of the statute creates a group of children who are deemed to be “ineligible” to inherit because of the manner in which they were conceived. That classification places posthumously conceived children on a par with how “illegitimate” children were treated in the past. However, “illegitimate” children had a pathway to inheritance through the marriage of their parents. Posthumously conceived children do not have that option, and hence their inferior status is a permanent condition. Consequently, the law has even more of an obligation to avoid disadvantaging those children. Moreover, Black notes that the state’s interest in the

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

Khabbaz v. Comm’r Soc. Sec. Admin

205

orderly administration of intestate estates does not justify the harm unequal treatment may cause to this class of children. Black contends that the discriminatory treatment of posthumously conceived children like Christine violates the Equal Protection Clause and infringes on her mother’s right to procreate using ART. By tying the child’s right to inherit to the time at which the child is conceived, the court is seeking to dictate the manner in which the parents choose to create their family.

feminist implications Instead of rewriting the opinion, Black decided to dissent. In her opinion, Black considers the widespread adverse impact the majority’s opinion could have on posthumously conceived children and their mothers. The approach Black takes is supported by Margaret Radin’s pragmatic feminist legal theory.4 According to pragmatic feminism, there is no uniform route to equality.5 Thus, to achieve a fair objective, the decision-maker should evaluate the situation on a case-by-case basis.6 Black advocates for this methodology when she asserts that the Supreme Court should have used “societal context in interpreting who shall be considered an heir.” Moreover, the pragmatic feminist approach is reflected in Black’s contention that the majority should have broadly defined “surviving issue” to include children conceived before and after the death of the person contributing the genetic material used to create them. The practical consequence of that tactic would be to treat all children as if they are deserving of support from the estates of their deceased parents (and therefore, as a practical matter, entitled to social security survivor benefits). Black’s equal protection analysis focuses on the inequality of treating children differently because of the circumstances of their birth. Nevertheless, Black acknowledges that she is also troubled by the fact that the disparate treatment of posthumously conceived children may indirectly harm women by infringing on their right to decide when and how to procreate. The majority’s handling of this case adversely impacts women because most of the posthumously conceived children are created using the frozen sperm of dead men. This is the case because egg freezing was considered experimental 4 5

6

Margaret Jane Radin, The Pragmatist and the Feminist, 63 S. CAL. L. REV. 1699, 1706–07 (1990). See Mary Becker, Strength in Diversity: Feminist Theoretical Approaches to Child Custody and Same-Sex Relationships, 23 STETSON L. REV. 701, 714 (1994) (“[P]ragmatism suggests that we need to be concerned primarily with real world consequences, and that only on a case-by-case basis is it useful to try to determine what goals and strategies are likely to be particularly important or effective or dangerous”). Id. at 703.

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

206

Khabbaz v. Comm’r Soc. Sec. Admin

until 2012.7 Thus, at the time of the Khabbaz case, it would not have been a viable option for a man wanting to conceive a child using his dead wife’s eggs.8 Therefore, the task of providing financially for the child would fall on the widow. The child’s eligibility for social security benefits depends on that child being classified as an intestate heir. Accordingly, when a court interprets the statute in a way that makes the posthumously conceived child ineligible to inherit under the intestacy system, it takes away a valuable financial resource from the family. The majority takes a gender-neutral approach to resolving the case without recognizing how the result disadvantages women, who bear a disproportionate financial burden when such survivor benefits are denied. Black’s equal protection analysis likewise illustrates the way in which a court’s seemingly neutral interpretation of a statute can result in the unfair treatment of women and children. By taking this more nuanced approach, Black’s dissent helps to uncover hidden gender biases in the law.

KHABBAZ V. COMMISSIONER, SOCIAL S E C U R I T Y A D M I N I S T R A T I O N , 9 3 0 A . 2d 1 1 8 0 (N.H. 2007)

justice lynda wray black, dissenting We are asked to answer a seemingly simple question certified by the US District Court for the District of New Hampshire – namely: “Is a child conceived after her father’s death via artificial insemination eligible to inherit from her father as his surviving issue under New Hampshire intestacy law?” Majority Opinion at 1181 (emphasis added). This question (which, for the majority, turns upon the dictionary definition of the word “surviving”) is, however, much more than an exercise in semantics. To so limit the question is to ignore an important and timely inquiry into alternative means of family creation that have challenged the easy boundaries of a nine-month reproductive process. While it may be tempting to quickly resolve this case and defer to the legislature to consider the broader issues of reproductive rights and equal respect for traditional and nontraditional forms of family creation, failing to address some other shortfalls of the majority opinion diminishes the significance of assisted reproductive technology 7

8

Caitlin Hagan, Experts: Egg Freezing No Longer “Experimental,” CNN Health (Oct. 19, 2012), www.cnn.com/2012/10/19/health/egg-freezing/index.html (describing a American Society for Reproductive Medicine report upgrading egg freezing from experimental to standard). Susan B. Apel, Disposition of Frozen Embryos: Are Contracts the Solution?, 27 MAR. VT. B.J. 29, 29 (2001).

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

Khabbaz v. Comm’r Soc. Sec. Admin

207

(ART) and, more importantly, ignores the bias implicit in the majority’s reading of the New Hampshire law of intestate succession as applied to posthumously conceived children. To ignore the complexities and needed expansion in inheritance rights resulting from a more inclusive understanding of the family relationship is to deny reproductive rights to many with reproductive disabilities and to assign a lesser value to some children based upon the timing of their conception. I choose, therefore, to focus my dissent on the people affected by the statutory words rather than only on the words themselves. The time has come to take active measures to effectuate change surrounding the legal recognition of posthumously conceived children. Rather than passively call on our legislature to examine the state’s intestacy laws, I choose to go one step further by rejecting a reading of the intestacy statute that creates artificial (and constitutionally improper) differences among children on the basis of the timing of their conception. To conclude, as the majority does, that, under New Hampshire law, a posthumously born child is the surviving issue of the deceased biological parent, but a posthumously conceived (and born) child is not that parent’s surviving issue, introduces into the statute a form of linedrawing that both violates the Equal Protection Clause of the US Constitution and reinforces an outdated understanding of family. The majority’s view also undermines the reproductive rights of the parents, although such concerns are outside the scope of the issues presented in this case. With that introduction and with an understanding that I will return later in this dissent to the deeper issues of equality in family creation that the majority fails to address, I begin my opinion with an examination of the words of the New Hampshire intestacy statute. Each state’s intestacy statute sets the parameters for inheritance from a deceased parent. In turn, these parameters are adopted without challenge by the Social Security Administration (SSA) for determining a child’s entitlement to insurance benefits from the deceased parent (so-called survivor benefits). Consequently, an heir under the New Hampshire intestacy statute will also be a beneficiary at the federal level of survivor benefits based upon the earnings record of the heir’s deceased parent. So, while the property interest at issue is a federal benefit, the entitlement turns upon a child’s inclusion within a state-created class. The majority demarcates this determinative class to be “surviving issue” and proceeds to examine whether Christine Eng Khabbaz is within the class. With the assistance of Webster’s Third New Dictionary, the majority engages in a plain-meaning analysis. Accepting the dictionary definition of “surviving” as “remaining alive,” the majority reasons that a child conceived after a parent’s death by means of artificial insemination is not that parent’s “surviving” issue. This interpretation is pure semantics without reference to context. A child not

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

208

Khabbaz v. Comm’r Soc. Sec. Admin

alive as of a date certain cannot, by definition, remain alive after said date. So I agree with the majority that, under our current interpretation of the law, a posthumously conceived child is not the deceased parent’s “surviving” issue. However, such a child is that parent’s issue. Given a plain-language reading of the relevant section of the New Hampshire intestate succession statute, RSA 561:1, II(a), the question we should be answering – and answering in the affirmative – is whether Donna Eng’s daughter, Christine Eng Khabbaz, is the issue of her deceased biological father, Rumzi Brian Khabbaz, even though his life ended two years before Christine’s began. Because I believe the majority opinion both poses the wrong question and answers it wrongly under its plain-language analysis, I dissent. I do, however, agree with the frustration expressed within Chief Justice Broderick’s concurrence in that I, too, “feel particularly confined by our construction of the word ‘surviving’.” Majority Opinion at 1187.

i Nowhere in the New Hampshire intestacy statute is the term “surviving” actually defined; therefore, this court is free to adopt a more inclusive understanding of the class of heirs designated by the intestacy statute. Put simply, I disagree with the majority’s static, plain-language interpretation of “surviving issue.” The court should instead use societal context in interpreting who shall be considered an heir. Before reaching that analysis, however, I note that the majority fails even in its attempted adherence to a plain-language approach. Here, I explain the flaws in the majority’s reading of the statute. The majority opinion correctly summarizes the relevant section of the New Hampshire intestacy statute, RSA Chapter 561 (2007), which sets forth a comprehensive scheme for estate distribution. RSA 561:1, in particular, governs the devolution of the real and personal estate upon intestacy. RSA 561:1, I prescribes the devolution of the real and personal estate upon which a surviving spouse may take from the estate. RSA 561:1, II, in turn, describes the procedure for distributing that portion of the intestate estate not passing to the surviving spouse: The part of the intestate estate not passing to the surviving spouse under paragraph I, or the entire intestate estate if there is no surviving spouse, passes as follows: (a) To the issue of the decedent equally if they are all of the same degree of kinship to the decedent, but if of unequal degree, then those of more remote degree take by representation.

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

Khabbaz v. Comm’r Soc. Sec. Admin

209

(b) If there are no surviving issue, to the decedent’s parent or parents equally.

RSA 561:1, II (emphasis added) The majority states correctly that this court is the final arbiter of the legislature’s intent, as expressed in the words of the statute considered as a whole. See Chase v. Ameriquest Mortgage Co., 921 A.2d 369 (N.H. 2007). However, the majority then inserts the word “surviving” into RSA 561:1, II(a), which places no such qualifying term upon the demarcated class “issue of the decedent.” The fact that the subsequent subsection of RSA 561:1, II includes the phrase “surviving issue” does not alter the fact that the relevant section – the one that determines “child” status relative to the Social Security Act – refers simply to “issue.” The insertion of a word into a statute is simply inconsistent with a plain-language analysis. Undertaking a true plain-language analysis reveals the freedom embedded within the intestacy statute to accommodate expanding methods of procreation by which the parent–child relationship is established. By reading RSA 561:1, II(a) exactly as the statute is written, the only qualification for a child’s entitlement to inheritance rights from a deceased parent is that the child is the decedent’s “issue.” Christine Eng Khabbaz is, without a doubt, her father’s issue. Christine is therefore entitled to a portion of her father’s estate under New Hampshire law. Because the Social Security Act relies upon state law to determine the right of a child to receive social security benefits from a deceased parent, Christine is entitled to receive such benefits, regardless of when she was conceived and born. With subparagraph (a) of the New Hampshire intestacy statute having designated “issue” as the primary class for inheritance after the rights of the surviving spouse are accounted for, why then does subparagraph (b) not simply use a null set of that class (i.e., “no issue”) as the precondition for inheritance flowing down to the next level of kinship? Stated differently, why does subparagraph (b) not read, “If there are no issue, to the decedent’s parent or parents equally”? The reason is quite simple. Inheritance statutes disfavor distribution of property to the estates of now-deceased heirs. The word “surviving” guarantees a living class of takers in subparagraph (b) to inherit in the event that the issue previously designated by subparagraph (a) are not living to receive and personally enjoy the inheritance. The default rules of intestacy are policy-based rules seeking to replicate how average decedents probably would have wanted their property to pass. These default rules prioritize simplicity of estate administration by favoring living beneficiaries over the distribution of assets through the estates of predeceased ones. In the case before us, no

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

210

Khabbaz v. Comm’r Soc. Sec. Admin

analysis of subparagraph (b) is required because subparagraph (a) is populated with living takers who meet the definition of “issue” of the deceased, Rumzi Brian Khabbaz. Perhaps because the court is tasked with a determination of socalled survivor benefits under the Social Security Act, the majority focuses upon the word “survivor.” However, the operative provision of New Hampshire’s intestacy statute does not require or even mention “survivorship” of the issue. Because Christine Eng Khabbaz is her father’s issue, but she is not, according to the majority, her father’s surviving issue, it is the majority’s seemingly innocuous misreading of the New Hampshire’s intestacy statute that deprives Christine of the survivor benefits to which she (alongside her siblings born prior to her father’s death) is entitled. Having pointed out the significant flaw in the majority’s “plain language” analysis, which wrongly inserts the limitations of the word “surviving” into New Hampshire’s intestate distribution statute, my dissent could be complete. I choose, however, to use the lens of this case to discuss the broader issue of the protection of families created by alternative means of reproduction. Even if the terms of a state intestacy stature were to require survivorship of an heir, survivorship should be understood broadly to accommodate advances in family creation. By moving from the words on the page to the context of inheritance rights as applied to families created through ART, I find that Christine, and all other posthumously conceived children, are properly understood as surviving issue of their deceased biological parents under our intestacy laws and the policies on which they are founded. Advancements in reproductive technology have made real the possibility a child who is both conceived and born after a parent’s death. With that understanding, such a child should not be classified any differently from a child who is conceived and/or born while the parent is still living. “Surviving” should be understood as including children conceived prior to a parent’s death and those later conceived in fact as the result of artificial insemination using the cryopreserved eggs, sperm, or embryos genetically linked to the decedent. Scientific advancements in procreation necessitate a broader interpretation of heirship. This broader interpretation of heirship will then entail broader protection of children under the Social Security Act, consistent with the Act’s purpose of replacing the financial support of the deceased parent. See Califano v. Jobst, 434 U.S. 47, 52 (1977) (describing the purpose of the Social Security Act as providing a wage earner and dependent family members “with protection against the hardship occasioned by . . . loss of earnings”). In 1965, Congress removed legitimacy as a condition for benefits eligibility, recognizing that previously excluded extramarital children should be treated equally with their legitimate siblings. See Social Security Act Amendments of 1965, Ch. 666, Pub. L. No. 89–97

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

Khabbaz v. Comm’r Soc. Sec. Admin

211

(codified at 42 USC §416(h)). Now is the time for this court to recognize that posthumously conceived children should be treated equally with traditionally conceived siblings. Many procreational disabilities have been solved by ART. When ART is paired with an untimely illness or death of a would-be parent, however, previously unimaginable scenarios present new questions for our courts. Individuals once unable to reproduce may now reproduce even in the face of death. Old definitions do not always fit newly conceived facts. Assumptions built into some statutory language, such as the assumption that a biological parent must be alive to procreate, become untrue. Prior to the advent of ART, the intestacy statute of one state using only the word “issue” for inheritance would have yielded the same result as a state requiring “surviving issue” for inheritance. But, given the majority’s approach, those two states might now arrive at conflicting conclusions regarding a posthumously conceived child’s right to inherit, depending on the statute’s language. For that reason, we prefer a more contextual analysis. The ability to create a family notably has been expanded by reproductive technologies; the only way in which all states will fully recognize this new dimension of the parent–child relationship, short of rewriting their laws, is if courts interpret these statutes inclusively.

ii The majority opinion also fails to give sufficient weight to other provisions of New Hampshire law and the underlying facts of the Khabbaz family. First, the passive acceptance of inferior inheritance rights in children born through ART, under the majority’s reading of the intestacy statute, is inconsistent with the action of this state’s legislature, which, in 1990, codified the rights of children conceived by their parents using methods other than traditional sexual intercourse. See generally N.H. Rev. Stat. Ann. 168-B (2002). Parentage through artificial insemination, pre-embryo transfer, and surrogacy have been specifically considered by the New Hampshire legislature. There is no justification for concluding that the legislature sought to discriminate against these children. To the contrary, the legislature has recognized that children born through ART have the rights of all children with respect to their parents. Acknowledging a different statute, RSA 168-B:9, further buttresses the view that the legislature intends no categorical difference between children born through ART and children born naturally for the purposes of inheritance laws. RSA 168-B:9 governs artificial insemination, in vitro fertilization, pre-embryo transfer, and surrogacy. It takes the inclusive view that any child born through those methods is eligible to inherit from a deceased parent if that parent died

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

212

Khabbaz v. Comm’r Soc. Sec. Admin

intestate. RSA 168-B:9 is further evidence that the law is not static; rather, it adapts as science and technology advance. It further informs this court that our state fully intends to ensure that children born through nontraditional means enjoy equal rights and benefits as traditionally born children. Contrary to the majority’s claim, I do not need to find that RSA 168-B:9 creates a different distribution scheme from RSA 561:1, II. Both create schemes inclusive of children who are products of ART. RSA 168-B:9 is simply specifically referencing unique issues of ART. Accordingly, interpreting “surviving” more broadly would not be reading words into a statute that the legislature never intended, but rather acknowledging what the statute is meant to accomplish. After examining the meaning of RSA 169-B, I find it quite clear that the purpose of the statute at issue was to encompass every child of the decedent – posthumously conceived or not. Second, the majority opinion fails to place sufficient weight on the choices of the Khabbaz family. Mr. Khabbaz affirmatively participated in the creation of his daughter, Christine. Not only did Mr. Khabbaz and Ms. Eng attend “counseling sessions to learn more about the implications of artificial insemination prior to taking steps to bank Mr. Khabbaz’s sperm,” but also Mr. Khabbaz “signed a document acknowledging his paternity and intention to support any child born to his wife through the use of his sperm.” Appellant’s Br. at *21. He “did everything possible in advance of his untimely death to preserve the legal relationship between himself and his potential children born to his wife.” Id. “To deny the legal link and support Mr. Khabbaz clearly intended to create through his writing would be unjust and contrary to the intention of the law, the purpose of which is to legitimize children born through artificial means and treat them equally.” Id. The fact that Mr. Khabbaz did not live to see the conception of his daughter does not undermine the parent–child relationship he created.

iii The New Hampshire intestacy statute can be read either inclusively (so that any ART after-conceived children are heirs of the deceased parent) or narrowly (as the majority interprets the statute, to exclude children like Christine from inheriting regardless of her deceased parent’s intent). The inclusive reading of the statute avoids equal protection scrutiny by treating all children of the deceased equally for the purposes of inheritance, but the majority’s opinion triggers equal protection scrutiny of the New Hampshire intestacy statute.

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

Khabbaz v. Comm’r Soc. Sec. Admin

213

If we accept, for the sake of argument, the majority’s classification of “surviving issue” as excluding after-conceived children like Christine, this court is called upon to scrutinize closely this statutory classification under an equal protection analysis. Government classifications can either be “on their face” or “in effect.” Here, there is an “in effect” classification by the state of New Hampshire if one reads the statute narrowly. Even though the statute is neutral on its face, it effectively distributes burdens and benefits unequally by creating two classes of issue: one favored by the intestacy inheritance statute and one disfavored. Furthermore, the majority opinion creates a new category of “illegitimate” children in the context of inheritance rights, even though society has finally reached a position of viewing all children as “legitimate.” The majority uses the timing of reproduction as the test of the child’s legitimacy for inheritance purposes. Instead of using the terminology of legitimacy to describe children conceived posthumously, the majority describes them as “ineligible.” However, that less offensive wording does not alter the legal effect: These children are being classified as “illegitimate” in so far as they are denied the rightful inheritance of an issue of a deceased parent. Just as “illegitimate” children had no control over the marital status of their parents at the moment of their conception and birth, so too do posthumously conceived children lack control over the circumstances (and specifically the timing) of their conception. A posthumously conceived child’s classification as ineligible is an even more permanent classification than illegitimacy in general because there was, at least, a path to legitimacy through the marriage of the parents. The classification of Christine Eng Khabbaz as ineligible to inherit from her father, however, will never change. For these reasons, the New Hampshire intestacy statute effectively places a label of illegitimacy on posthumously conceived children. Early common law concerns of legitimacy rested upon a rigid requirement under the laws of England that an heir to property be born following a proper marriage of the mother and father. This led Blackstone, in his Commentaries, to note that the illegitimate child was fillius nullius, or “the son of nobody.” See John W. Ester, Illegitimate Children and Conflict of Laws, 36 INDIANA L.J. 163 (1961). Such laws, along with the regressive view of the family to which they were attached, took no account of the stigmatization of the child and the negative impact on the child’s social status or sense of belonging within the family. Thankfully, demarcations of illegitimacy have been left for history books. It is incumbent upon this court to disallow the modern class of illegitimacy into which the majority places Christine Eng Khabbaz.

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

214

Khabbaz v. Comm’r Soc. Sec. Admin

The classification at issue here – which hinges only on the timing of conception – also involves the fundamental right to procreate by the surviving parent. I will address this issue summarily, because Christine’s mother, Mrs. Donna M. Eng, in her individual capacity is not the Plaintiff-Appellant in this case. The right to procreate is a constitutionally protected fundamental right, often paired with the right to marry and rear children. Griswold v. Connecticut, 381 U.S. 479 (1965). But even as the definition of marriage has expanded to include formerly prohibited intimate relationships, the fundamental right to marry has remained. Loving v. Virginia, 388 U.S. 1 (1967). Likewise, just as the fundamental right to procreate will remain, that fundamental right must expand to encompass broader parameters of procreation. Far from being a singular application of statutory interpretation, the majority approach speaks volumes about society’s unwillingness to accord the same reproductive rights to those using advances in reproductive technology. Laws such as our state’s intestacy statutes, which dole out rights by degrees of relationship to the deceased, must be interpreted to accommodate an expansive view of procreation. To do otherwise is to create a false divide between traditional and less traditional forms of family creation. Under the majority’s reading of the statute, if the surviving parent of a child denied survivor benefits under the Social Security Act were to challenge the statute as impinging on the parent’s fundamental right to procreate, a strict scrutiny analysis of the statute would be required. To survive strict scrutiny, New Hampshire’s interest under the statute must be compelling, and the statute itself must be necessary as written to achieve that interest. That would mean that the discriminatory treatment of Christine as compared to the inheritance rights of her siblings conceived prior to their father’s death would need to be necessary for New Hampshire’s timely and orderly estate administration. Clearly, such is not the case. I acknowledge that the high standard of strict scrutiny has been reserved for particularly invidious discrimination and that illegitimacy on its own, as compared to procreation, has never been considered a suspect classification. Therefore, while I believe that the New Hampshire statute is prejudicial to Christine as applied and thus prejudicial to her mother, who, as a biological parent, is the natural guardian of Christine, I do not need to rely on the applicability of strict scrutiny to show the problems that emerge under the majority’s reading of the intestacy statute. Because the state of New Hampshire, through its laws of intestacy, creates a quasi-suspect class of ineligibility and because that classification touches on the fundamental right

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

Khabbaz v. Comm’r Soc. Sec. Admin

215

to procreate by limiting the financial resources available to the ineligible child, an intermediate scrutiny equal protection analysis is appropriate. Historically, intermediate scrutiny applies to discriminatory classifications such as illegitimacy, which is deemed a quasi-suspect classification. See, e.g., Clark v. Jeter, 486 U.S. 456, 461 (1988); Mathews v. Lucas, 427 U.S. 495, 505–06 (1976). Under intermediate scrutiny, “a statutory classification [such as ‘surviving issue’] must be substantially related to an important government objective.” Clark, 486 U.S. at 461. For the illegitimacy-based classification to be substantially related to its important governmental interest, two requirements must be satisfied: First, the classification must be a substantially effective method for achieving its important interests; second, the classification must be necessary. Here, the exclusion of posthumously conceived children from inheritance, when posthumously born children are not similarly excluded, does not survive intermediate scrutiny. Id. An inclusive intestacy statute could be based upon any of these important government interests: protecting children from being stigmatized by a classification of illegitimate, treating equally children born or conceived during the deceased parent’s lifetime with those born or conceived following a parent’s death, and ensuring that all children’s rights to receive support from their parents are effectuated. However, New Hampshire’s intestacy statute, if read to exclude Christine for failing to be her father’s surviving issue, fosters none of these. Instead, as the majority recognizes, the governmental objective that the statute serves to protect is the orderly and timely administration of estates. Excluding posthumously conceived children from inheritance, especially when posthumously born children are not similarly excluded, is not a substantially effective method for achieving orderly distribution of estates and is certainly not necessary. If the time to qualify as “issue” can be moved nine months past the parent’s date of death to accommodate issue in utero, the time frame could be extended an additional six or twelve months to accommodate children like Christine. A fifteen-month window for estate administration is no less “orderly” than a nine-month window. It is within the power of the legislature of this state to set a reasonable period for estate administration. Any such period, however, should not be tied to the nine months of biological gestation, because that would fail to accommodate some children, such as Christine Eng Khabbaz, born through ART. If we adopt the majority’s exclusive and narrow interpretation of the statute, the statute inevitably is unconstitutional because it violates the Equal Protection Clause. Categorically preventing posthumously conceived children from inheriting, regardless of the circumstances surrounding the child’s conception, is simply denying them the same rights granted to traditionally

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

216

Khabbaz v. Comm’r Soc. Sec. Admin

conceived children and even posthumously born children conceived during the decedent parent’s lifetime. Not only does this interpretation of the statute violate the Equal Protection Clause, thus rendering the statute unconstitutional, but also it violates society’s fundamental notions of morality. Children need their best interests to be protected. Denying them inheritance rights creates feelings of isolation, stigmatization, and confusion in children – and creating such feelings is, quite simply, not protecting their best interests. If the court were to partake in an inclusive and contextual interpretation of the statute, which would not single out posthumously born children as being ineligible to inherit from the deceased parent’s estate, the Equal Protection Clause would not be not triggered, and the statute would be constitutional as it currently stands.

iv Not only does the majority opinion violate the statute’s plain language, principles of statutory interpretation and intestacy law, and the Constitution, but also it marks a regression into what constitutes a family. Historically, when a child was born to a wife, paternity was assumed; when a child was not born to a wife, paternity had to be acknowledged. This distinction was important because inheritance passed only through the father. Additionally, under the common law right of primogeniture, the birthright of a firstborn son within marriage trumped the inheritance of both earlier-born female children and illegitimate sons. Fortunately, in 2007, inheritance laws are gender-neutral and unrelated to the parents’ marital status. Yet the majority chooses to create a new classification – a modern version of the legitimate–illegitimate dichotomy – by classifying children as “eligible” and “ineligible” children based upon the timing of conception. As a court, what is the question we should be asking? From reading the majority opinion, the question seems to be whether the legislators knew the meaning of the word “surviving.” I contend, however, that there is a bigger question – one that shapes our view of family creation: whether a child created in a nontraditional way deserves to be treated the same as any other child born out of the intentional procreative acts of her parents. In this case, after being diagnosed with a terminal illness, Rumzi Khabbaz and his wife, Donna Eng, actively tried to conceive a child naturally while Khabbaz was still alive. In addition, they decided together that Khabbaz would bank his sperm, so that his wife would be able to have another child if he were to pass away. Before doing so, Khabbaz expressly consented to having his sperm used by his wife, after his death, for the purpose of achieving pregnancy. He also pointedly stated that if

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

Khabbaz v. Comm’r Soc. Sec. Admin

217

his wife were to become pregnant by his sperm, it was “his desire and intent to be legally recognized as the father of the child to the fullest extent allowable by law whether I am alive or deceased at the time of use of the sperm . . . or birth of any child so conceived.” Appellant’s Br. at *4. The court’s analysis of the question becomes different when viewed from the family’s perspective. Khabbaz’s intent, and his wife’s intent, to have another baby was unquestionably in existence at the time of his death. When his wife made the decision to have a child after her husband’s death, she did so knowing that the child would have two parents, even though one parent was no longer living. In their minds, the child who was to be created in a nontraditional way would be no different from their child created traditionally. The undeniable fact that the Khabbaz– Eng family creation story may be different from other family creation stories does not mean that certain family members deserve unequal treatment. This case is no anomaly, either. It is one of many cases about modern families that share a common thread. What links these cases is not some crass desire for money, or fighting heirs, but rather a couple faced with a life-ending illness wanting to make a child. Consider Hart v. Shalala, a case in which the father was diagnosed with cancer. Hart v. Shalala, No. 94–3944 (E.D. La. Dec. 12, 1994). Wanting to create a child with his wife, the husband deposited sperm for his wife to use in case cancer took his life. Id. Cancer won that battle, and his wife successfully gave birth to a healthy baby girl after the husband’s death – made possible by a procedure called gamete intrafallopian transfer. Id. The case was settled, and the SSA granted relief to the daughter, so no legal precedent was created. Id. Similarly, in In re Estate of Kolacy, the husband was diagnosed with leukemia and banked his sperm for his wife to use. In re Estate of Kolacy, 332 N.J. Super. 593 (2000). After his death, the wife underwent in vitro fertilization and gave birth to twin daughters. Id. at 596. The court in that case, basing its reasoning on “simple justice,” allowed those children to inherit from their father. Id. at 602. Like Hart and Kolacy, the husband in Woodward v. Commissioner was diagnosed with leukemia and banked his sperm. Woodward v. Commissioner, 760 N.E.2d 257 (Mass. 2002). Following his death, his wife used artificial insemination and gave birth to twin daughters. Id. at 538. That court held that children born after a parent’s death are eligible to inherit in “limited circumstances,” including when the child is genetically linked to the decedent and when the decedent gave affirmative consent to posthumous conception and to supporting any resulting child. Id. at 557. Again, in Gillet-Netting v. Barnhart, the husband was diagnosed with cancer and banked his sperm for his wife’s future use in conceiving his child. Gillet-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004). After his death, his wife conceived and bore twin daughters. Id. at 595. The Ninth Circuit

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

218

Khabbaz v. Comm’r Soc. Sec. Admin

concluded that those children were entitled to inherit and therefore to survivor benefits. Id. at 599. Remembering and recognizing the human side of these cases makes the majority’s creation of a new illegitimate class of children all the more heartbreaking. These parents are making the decision to continue life in the face of a horrific, life-altering event, and we are denying the parents’ new life – their child – simple inheritance rights. Not allowing a child to inherit simply because of the timing of that child’s birth “would not only shock the testator himself [or herself], but would be contrary to the feelings of humanity.” See Bowen v. Hoxie, 137 Mass. 528 (1884).

v The final pillar to strengthen the argument that RSA 561:1, II(a) includes children born through ART comes as an appeal to raising society’s collective consciousness. The court cannot turn away from the harsh reality that this decision effectively excludes from the protection of our intestacy laws “an entire class of posthumous[ly conceived] children.” It is indecent of the court to cause such a child to question the intentional and physical bond she has with her deceased parent by labeling her ineligible to inherit. By not recognizing the posthumously conceived child as the decedent’s “issue,” the court limits procreative choices by awarding biological offspring vastly different inheritance rights. We must also remember that while this decision directly discriminates against a certain group of children in our state, it is also discriminating against a large group of parents in our state. It is discriminating against the LGBTQ community. It is discriminating against widows and widowers. And it is discriminating against those of us with reproductive disabilities. By the wonders of ART, it is possible for all of those individuals to experience the joy of being a parent. It is disheartening to know that the miracles produced – the children – will not be afforded the same legal rights and protections as those children born traditionally. We have come too far as a society to cut off legal recognition of an entire group of citizens. The court should not refuse an opportunity to broadly interpret a single statutory provision that would directly impact a substantial class of children living in our state.

vi I respect and will address the majority’s concern that broadly interpreting “surviving issue” to include children conceived and born after a parent’s death may “undermine the orderly distribution process clearly contemplated

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

Khabbaz v. Comm’r Soc. Sec. Admin

219

by the legislature.” Admittedly, foregoing any sort of “timely and orderly” distribution of estates would lead to unreasonable results. For the sake of heirs and creditors alike, estates must be administered according to consistent and predictable standards. Nothing prohibits our legislature from imposing a timely and orderly standard upon estate distribution. This standard, however, need not be tied to biological procreation. Consistent with orderly estate administration, I call upon the legislature to modify our intestacy statute to accommodate family creation via ART instead of potentially closing the class of heirs at a nine-month gestational window. By expressly defining issue to include posthumously conceived issue, the legislature could overrule the majority’s holding. Lengthening the period deemed to be timely for determining the class of heirs for purposes of estate administration does not require a complete forfeiture of timeliness and order. I am not blind to the emotional and physical toll of losing a loved one; I am not blind to the strength it takes to affirmatively make the commitment to raise a child without a certain loved one by your side; and I am not blind to the reality that successful artificial insemination may be a lengthy process. The choice to proceed with artificial insemination is an entirely personal choice. It rests neatly within society’s expectation of privacy surrounding reproduction decisions. Some accommodation of the elongated process of reproduction made possible through ART does not completely jettison the state’s interest in ensuring that a decedent’s estate is efficiently and equitably distributed. Such an accommodation would have no impact on most estates, because the possibility of procreation still passes away with most decedents.

vii I therefore dissent from the majority’s holding that a child conceived after her father’s death via artificial insemination is not eligible to inherit from her father as his issue, as required by the New Hampshire intestacy statute (or as his surviving issue, based upon the majority’s misreading of the New Hampshire intestacy law). For the foregoing reasons, I would answer the certified question in the affirmative and remand accordingly.

https://doi.org/10.1017/9781108860963.012 Published online by Cambridge University Press

12 Commentary on Karsenty v. Schoukroun kent d. schenkel

background American jurisdictions largely grant decedents freedom to transfer their property as they wish at death. Consequently, a surviving family member cannot generally claim entitlement to estate property contrary to a decedent’s intent as expressed in a will or in some other legally recognized manner. But for a married person who wishes to bypass a spouse in making transfers at death, things can get complicated. The American legal system increasingly accepts an economic view of marriage as that of an equal partnership between spouses. In this conceptualization, consent to marriage is also assent to the idea that each spouse makes an equal – albeit unique – economic contribution to the marriage. So if one spouse forgoes work in the marketplace to maintain the family household, while the other works outside the home bringing in earnings, the economic partnership view of marriage values each of these contributions equally. Yet only a handful of American states impose a legal structure on marital property ownership that fully corresponds to the economic partnership concept. These few states subscribe to a system under which most property earned or acquired during the marriage becomes “community property” of the marriage. Each spouse owns a one-half undivided interest in community property and can dispose of no more than that one-half interest during life or at death, but otherwise has unfettered freedom to make any such dispositions. The majority of US jurisdictions spurn community property rules in favor of “separate property,” a legacy of English common law. In these states, spouses own and are generally free to dispose of all property that remains in their own names, regardless of whether that property was earned or acquired before or after marriage. As either a concession to the economic partnership view of 220

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

Karsenty v. Schoukroun

221

marriage or to ensure maintenance to a surviving spouse, almost all of these separate property jurisdictions feature an elective share statute. Such a statute allows a surviving spouse to elect to receive a minimum forced share from a deceased spouse’s estate. Testators exercise their so-called freedom of disposition at death by naming beneficiaries of their choosing in a will. But today’s decedent also has access to other legal technology of disposition, coupled with the incentives to use it. These mechanisms include revocable trusts, jointly held assets with survivorship features, or any number of other devices that feature legally enforceable written designations of a death beneficiary. While many decedents use these will substitutes at least in part for their convenience or to avoid probate, in many jurisdictions they may also help a decedent to avoid exposure to the elective share. Traditional elective share statutes targeted the deceased spouse’s estate, often construed narrowly to mean “probate estate.” In such cases, avoiding exposure to the elective share was as easy as avoiding probate. Many jurisdictions and the Uniform Probate Code (UPC) responded by amending their elective share statutes and introducing concepts such as the “augmented estate,” which expand the reach of the elective share to include nonprobate assets. But where legislatures failed to act, litigation frequently ensued, and judicial tests were often developed for determining whether a decedent’s decision to employ nonprobate forms of transfer was an illegitimate attempt to avoid the surviving spouse’s elective share. Maryland, like some other jurisdictions, developed a concept that it called “fraud on the marital share.”

original opinion Nonprobate mechanisms are usually inter vivos transfers of future possessive interests in property that are fully realized only at the death of the transferor, coupled with retention of power in the transferor to revoke the inter vivos transfer. In Karsenty v. Schoukroun, the Maryland Court of Appeals (Maryland’s highest state court) faced a dispute over whether nonprobate interests created by a deceased spouse were subject to the elective share. The court framed the question as “whether . . . a decedent’s inter vivos property transfer is a per se fraud on her or his surviving spouse’s marital rights where the decedent retained dominion and control over the transferred property during her or his lifetime.”1 In other words, did a decedent’s nonprobate transfer that included the retention of dominion and control escape 1

Karsenty v. Schoukroun, 959 A.2d 1147, 1156 (Md. 2008).

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

222

Karsenty v. Schoukroun

the scope of Maryland’s elective share statute? The Karsenty court reversed the lower appellate court’s holding of “per se fraud on the marital share,” which was based on the lower court’s reading of the higher court’s precedent from a 1990 case. Ironically, the 1990 decision seemed to clear up decades of inconclusive case law regarding whether the lifetime transfer of an asset with retained control until death would be subject to a surviving spouse’s elective share rights. Indeed, it was the strength of the Court of Appeals’ language in the 1990 decision, Knell v. Price,2 that made its reversal of the intermediate court’s decision in Karsenty surprising. In Knell, the Court of Appeals held that where a lifetime conveyance by the deceased spouse “was not complete, absolute, and unconditional,” it was, as a matter of law, “fraud on the marital rights” of the surviving spouse.3 Nonetheless, almost two decades later, in Karsenty, it held that retention of control was not dispositive and that a nonprobate conveyance should be respected if it was “complete and bona fide” and not a “mere device or contrivance.” In a meandering, muddled, and often contradictory opinion, the court stressed that “reasonable and legitimate estate planning arrangements” were not to be disturbed in favor of an elective share and that a court should focus on the presence of factors relevant to determining whether the inter vivos transfer was intended to “be a sham.”4 The court maintained that it was carrying out the intent of the legislature in enacting the elective share statute, because the term “net estate,” as used in the elective share statute, referred to the probate estate. It noted that the legislature subsequently considered, but failed to adopt, a more expansive “augmented estate” concept for elective share purposes. What it failed to note, however, was that all of the legislative factors it cited were considered against the backdrop of the Knell decision, which had seemingly construed retention of control to be per se fraud on the marital rights of a surviving spouse. It also surveyed the pre-Knell case law, primarily early- to mid-twentieth-century cases, as precedent that failed to point toward an obvious resolution under the facts of Karsenty. It did attempt to provide guidance to lower courts in this and future cases, drawing fine distinctions among property rights, and positing a sort of balancing test between a decedent’s freedom of disposition and the “legal share” of a surviving spouse. But striking such a balance would involve implementing various subjective factors (e.g., Was there “retention of possession”? Was the transfer a “mere device or contrivance”? Did the decedent part with ownership “in form but not in substance”? Did the decedent have a “sound business reason”?) that could permit a court that had a particular 2 3 4

569 A.2d 636 (Md. App. Ct. 1990). Id. at 642. Karsenty, 959 A.2d at 1152.

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

Karsenty v. Schoukroun

223

sympathy for the predicament of one of the spouses to back into a resolution. In one case, the court pointed out that it held trust assets subject to the elective share “because of the degree to which they stripped the surviving spouse of property that otherwise would have been part of the decedent’s estate” – a factor not necessarily evident in any of these cases. In any event, the decision in Karsenty fueled ongoing uncertainty in determining whether a surviving spouse’s elective share would extend to nonprobate property. It also ensured that courts would ultimately exercise discretion in determining whether a claim for elective share rights against nonprobate property was valid.

feminist judgment and implications In the feminist rewritten majority opinion, Professor Allison Tait, writing as Judge Tait, restores the clarity given by Knell, holding that the retention of control over property transferred during lifetime violates a surviving spouse’s elective share rights under Maryland law. In a strong and clear opinion, Tait draws on historical events leading to the adoption of the elective share in Maryland and other common law jurisdictions. Tait restates the facts in a manner that eliminates judgmental language about the quality of the marriage, the surviving spouse’s role in it, and the way in which the spouses managed their money. Taking into account both historical work about dower and then-current scholarship about elective share reform, Tait’s opinion explores the historical gender implications of dower, the elective share, and contemporary practices involving the grant of judicial discretion in determining whether and to what extent a surviving spouse is entitled to a minimum share of the deceased spouse’s estate. Citing feminist scholarship offering a revisionist history of English land and property law, she offers a view of the historical record that shows how trusts were used to sidestep a widow’s dower rights dating back to fourteenth-century England, at least until the Statute of Uses in the sixteenth century. While elective share statutes have a long and oft-litigated history in US law, their pedigree reaches back to the English Middle Ages, when wealth was represented by ownership of real property, and real property was owned by men. At the death of the husband, a surviving wife was provided with support in the form of “dower” rights: a lifetime-only one-third interest in the deceased husband’s land. Men learned to avoid dower obligations not by attacking the concept directly, but rather by restructuring their ownership of property in a manner that eluded dower’s application. The English “use” was a kind of legal technology that involved the transfer of land to an intermediary (the precursor to the trustee under modern law), who held it for the benefit of the

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

224

Karsenty v. Schoukroun

landowner’s family. The use was developed to help the English landowner to avoid a number of inconvenient rules, including the requirement of dower. Land held as a use was not available for the assertion of dower rights. Eventually, the Statute of Uses limited the effectiveness of the use as a tool to avoid dower. Common law jurisdictions in the United States generally adopted dower, but as assets besides land became an increasing part of wealth, dower was likely to be inadequate. Eventually, dower was abandoned in favor of an elective share: a gender-neutral right of a surviving spouse to elect to receive a portion of the deceased spouse’s estate, whatever its makeup. Like dower, the elective share requires a surviving spouse to assert her right to a portion of the deceased spouse’s property and, in most cases, amounts to about one third of the decedent’s estate. In addition to pointing out the historical gender implications of efforts to avoid dower rights, Tait uses the historical record of judicial decisions to bolster her opinion. Tait shows how the Maryland court, over time, construed the law in a manner that gave it the ultimate discretion as to whether a particular nonprobate transfer would escape the surviving spouse’s claim under the elective share statute. But the courts’ historical construction of dower did not grant it this discretion. Tait points out that, as early as the turn of the nineteenth century, Maryland courts asserted that a surviving wife was entitled to one third of the husband’s estate, and that “the husband could not deprive her of the same by his will.” Lifetime transfers were permitted, but only if they involved an “absolute sale and transfer.” For Tait, the early case that embodied the law in Maryland was Hays v. Henry,5 dating from the middle of the nineteenth century. Hays and immediate successor cases stood for the rule that while a spouse could effect a complete transfer of all interests in particular property owned by that spouse during lifetime, a retention of rights indicating a failure to part with “the absolute dominion” would not defeat a right of dower. In making this point, Tait returns to the original purpose of the elective share, which is to give a surviving spouse a minimum right to a portion of all property disposed of at death by the deceased spouse regardless of the deceased spouse’s intent to the contrary. Tait’s opinion goes on to explain how, beginning several decades after Hays, the jurisprudence became “clouded,” conflicted, and “analytically confused.” In these cases, the courts began inquiring into the deceased spouse’s intent “rather than the fact of retained dominion and control.” Since American succession law is built around the policy of freedom of disposition, pointing 5

1 Md. Chan. 337 (1851).

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

Karsenty v. Schoukroun

225

out that a transfer was made with intent to accomplish other purposes, and only inadvertently and collaterally reduced the value of the elective share, has a superficial appeal. But Tait points out that such a question makes no sense in the context of the policy behind the forced share. Tait reminds us that the elective share has always been an explicit check on testamentary freedom and that therefore the intent of the decedent has no place in determining whether it should apply. To consider the decedent’s intent is to ignore the policy behind the provision. Tait is also dismissive of a degree test for determining whether an inter vivos transfer with retained rights is included in the property out of which the share should be determined. Focusing on the degree to which a spouse has been deprived of rights in the deceased spouse’s property makes no sense even in the context of a historical support purpose of a forced share, because support meant support “in a style befitting and according to [the husband’s] wealth and status.” The degree test is inapt because marriage represents a dividing of marital property between spouses, and this division occurs in the context of the wealth of the deceased spouse. Tait goes on to explain that, although Maryland case law purportedly continued to follow the rule set out in Hays, over time the rule was “conflated with an inquiry into [the transferring spouse’s] intent.” Eventually, this led to a mid-twentieth-century case called Whittington,6 in which the court seemed to give up on a straightforward test to determine whether a transfer constituted fraud on the marital rights of a surviving spouse. Instead, Whittington espoused looking into a number of factors, such as “relative moral claims,” “other provisions for the surviving spouse,” the presence of “independent means,” and “the interval of time between the transfer and the death of the transferee.” Under Tait’s reading, the court’s decision in Knell wisely abandoned these other tests. Instead, it reimposed the bright-line rule established in Hays that a transfer in which a spouse “retained dominion and control” and which was not “complete, absolute and unconditional” was a fraud on the marital rights of the surviving spouse. Tait’s rewritten feminist opinion implicitly weaves together several strands of feminist thought. Perhaps most importantly, it implicates the debate over formal versus substantive equality. Elective share law applies equally to both men and women – that is, it embodies formal equality. In opposite-sex marriage, both the husband and the wife have equal rights to claim an elective share, and both also may take advantage of the loopholes the law 6

Whittington v. Whittington, 205 Md. 1, 106 A.2d 72 (1954).

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

226

Karsenty v. Schoukroun

affords them to evade it. Nonetheless, the law’s formally equal treatment of men and women ignores the reality of many women’s economic lives, which can leave them disadvantaged in heterosexual marriage, especially if they have children. Although this was not the case for the surviving spouse in Karsenty, the statistical likelihood that the female spouse will sacrifice earning to raise any children is a factor leading to elective share law’s unequal effect on many women. Thus, as Tait’s opinion makes clear, a law that embodies formal equality can actually replicate inequality by ignoring inequalities between opposite-sex spouses embedded in a marriage. Tait’s opinion also implicates antisubordination feminism: it shows how laws that are neutral on their face can in fact reinforce power hierarchies. In the Karsenty case, an elective share law that is gender-neutral on its face and gives wide latitude for judicial interpretation as to whether nonprobate transfers are or are not a “mere device or contrivance” reveals its potential to reinforce gender hierarchy by depriving women of the material fruits of a marital partnership. As feminist views have gained influence, laws reflecting a patriarchal view of the family have largely yielded to those supporting marriage as an economic partnership, evidenced by the application of equitable distribution rules on divorce, joint filing of income tax returns, and the unlimited marital deduction for federal transfer tax purposes. The elective share is only a second-best solution to marital sharing, but elective share statutes in separate property jurisdictions at least roughly approximate the partnership ideal – at least (as Tait’s rewritten opinion makes clear) on their face. Older statutes, such as Maryland’s, generally defined the share as a percentage of the deceased spouse’s “estate.” Only later was it discovered that transfers made outside the decedent’s probate estate could arguably avoid the elective share. Judicial discretion was an unintended consequence, not an intended feature, of these original statutes. These statutes can be improved through jurisprudence or legislation (as has been accomplished in the Uniform Probate Code) or degraded, by ceding discretion to courts to determine, based on subjective factors, whether property qualifies. Tait’s opinion would change future jurisprudence in Maryland by restoring the original purpose and effect of the elective share in Maryland. If the Maryland legislature were to wish to exempt some nonprobate transfers from the reach of the statute, its hand would be forced. But unsurprisingly, given modern sentiment toward the institution of marriage, most newer elective share statutes, like that of the UPC, move a jurisdiction closer to the economic partnership model – a solution that puts marital partners on a more equal footing.

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

Karsenty v. Schoukroun

227

K A R S E N T Y V . S C H O U K R O U N , 9 5 9 A . 2d 1 1 4 7 (Md. 2 0 0 8)

justice allison a. tait, writing for the court We are asked, in this case, to decide whether an inter vivos transfer, in which a deceased spouse retained control over the transferred property during his lifetime, constitutes a per se violation of the surviving spouse’s statutory elective right to a percentage of the deceased spouse’s net estate under Maryland Code, Estates and Trusts Article, §3–203.1. The Circuit Court for Anne Arundel County held that it does not, concluding that the decedent did not intend to defraud his surviving spouse when he transferred assets to a revocable trust that he created for his daughter from a first marriage. The Court of Special Appeals reversed the trial court in a reported opinion, Schoukroun v. Karsenty, 177 Md.App. 615, 937 A.2d 262 (2007), in which it held that the decedent’s retained control of the transferred assets rendered the transfer a fraud per se on the surviving spouse’s marital rights. We granted the trustee’s petition for a writ of certiorari. Karsenty v. Schoukroun, 404 Md. 152, 945 A.2d 1270 (2008). We affirm the judgment of the intermediate appellate court. As we shall explain, the body of precedents forming the doctrine referred to as “fraud on marital rights” has a strong history in our state’s common law, and we shall take this opportunity to clarify how the doctrine was understood at its origin in this state, as well as how that meaning has been distorted and unnecessarily complicated over time. Doctrinal developments, as we will demonstrate, have not only rendered the case law perplexing and inconsistent, but also contravened our state’s public policy by stripping surviving spouses of some of their most basic and longstanding property rights.

i background facts Kathleen Sexton and Gilles H. Schoukroun married in Worcester County on July 3, 2000. The marriage was a second marriage for both – he was aged forty, and she was forty-five years old at the time – and both had children from previous marriages. Schoukroun, 177 Md.App. 615, 937 A.2d 262 (2007). During the marriage, the couple lived in Kathleen’s home in Crofton, Maryland, and both parties contributed to the mortgage. Like many married couples, they shared a joint account in addition to the separate accounts that they each maintained. Sadly, the couple was married for only four years before misfortune struck. In January 2004, Gilles was diagnosed with lymphoma, and

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

228

Karsenty v. Schoukroun

he immediately began chemotherapy and radiation treatment. During this time, Kathleen acted as his primary caretaker, frequently taking him to his medical appointments and providing other forms of help and support. Unfortunately, these treatments were not successful, and, in September of that same year, Gilles had a stem cell transplant. As a result of the operation, doctors declared that Gilles was cancer-free, but only two weeks later, on October 18, 2004, Gilles was rushed to the hospital in the middle of the night and subsequently died there. In between the time of his diagnosis and his death, and with the threat of Gilles’ ill health looming large, Gilles and Kathleen took care to finalize Gilles’ estate plan. Their estate planning had begun in anticipation of marriage, in the spring of 2000, when Gilles and Kathleen took out life insurance policies from Zurich Kemper. Gilles purchased a policy on his life in the amount of US$200,000, naming Kathleen as the beneficiary. Kathleen purchased a policy worth the same amount, but named her estate as her beneficiary, with the intention that the proceeds would then go to her son from her first marriage. After Gilles’ diagnosis, he drafted and executed a will, as well as a revocable trust, the Gilles H. Schoukroun Trust (the Trust). The will named his sister, Maryse Karsenty, as the personal representative of his estate. The will gave all “tangible personal property, together with any insurance providing coverage thereon,” to Kathleen. The residue of the estate went into the Trust. These documents were executed on June 23, 2004. The beneficiary of the revocable trust, which is the central focus of the case at hand, was Lauren, Gilles’ daughter from his first marriage, who was fourteen years old at the time of Gilles’ death.7 During his lifetime, Gilles was both the trustee and the settlor; upon his death, Maryse became trustee. In the event that Maryse could not serve as trustee, Kathleen was the successor trustee. During his lifetime, Gilles reserved to himself the right “to amend or terminate this trust from time to time by notice in writing delivered to the Trustee.” The Trust therefore did not become irrevocable until Gilles’ death. Gilles also reserved the right, during his lifetime, to the

7

On October 20, 1987, Gilles H. Schoukroun married Bernadette, his first wife. The marriage produced one child, Lauren. When Lauren was six years old, Gilles and Bernadette ended their marriage. A judgment of absolute divorce was rendered on September 5, 1995, by the Circuit Court for Anne Arundel County. Before the divorce, however, Gilles and Bernadette entered into a separation agreement whereby they agreed to share custody of Lauren and agreed to pay the expenses of her care. The agreement also required Gilles and Bernadette each to maintain a life insurance policy in the amount of at least $150,000, naming Lauren as the beneficiary. Gilles, however, did not purchase such a policy. The matter of the life insurance policy arose in the lower court cases and was resolved such that we do not address it.

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

Karsenty v. Schoukroun

229

net income from the Trust and “so much or all of the principal of the trust” as he needed. Gilles funded this revocable “living” trust with the assets from three financial accounts, transferred at the time the Trust was created: (1) an E*Trade Financial account, worth approximately $29,037.15; (2) a Fidelity Investments account, worth approximately $75,257.25; and (3) a second Fidelity Investments account, worth approximately $49,034.67. Several weeks later, on July 12, 2004, Gilles named the Trust as the beneficiary of two other accounts at Fidelity Investments: individual retirement transfer-on-death accounts worth approximately $257,863.31 and $14,069.51. Records do not indicate any distributions being made from either of these two accounts during Gilles’ lifetime, and, at the time of his death, the assets of all five financial accounts totaled approximately $422,000. When Gilles died on October 18, 2004, Lauren became the sole beneficiary of the Trust, which became irrevocable. Later testimony also revealed that Lauren began receiving approximately $900 a month in survivor benefits from Gilles’ US Air Force pension and approximately $1,200 a month from social security upon his death. As the recipient of all the property passing through Gilles’ will, Kathleen received his 2003 Toyota Highlander, which had no outstanding loan balance and was valued at $22,000. Outside of the will, Kathleen received the $200,000 of proceeds from the life insurance policy Gilles had purchased prior to their marriage. Kathleen also testified at trial that she received $12,680.91 as a death benefit from a thrift savings plan upon Gilles’ death and that, before Gilles died, he had paid the balance of her car loan, which was $17,000. At the time of Gilles’ death, Kathleen was working as the director of the admissions and records office at the Prince George’s Community College, earning approximately $74,000 annually. In the months after his death, she accepted a new position in the College’s continuing education division and began earning $79,519 annually. Kathleen receives a pension from the Maryland State Teachers Retirement Association, has a mutual fund account worth approximately $16,000, and owns a home worth an estimated $450,000 (subject to a mortgage of approximately $113,000). Approximately two weeks after Gilles’ death, on November 2, 2004, Kathleen’s lawyer sent a letter to Fidelity Investments, stating that Kathleen was claiming an interest in the Fidelity accounts that had belonged to Gilles. At the beginning of the next year, on February 2, 2005, Maryse filed a petition for administration of her brother’s estate with the Register of Wills for Anne Arundel County and was appointed personal representative of the estate on the same day. Almost exactly one month

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

230

Karsenty v. Schoukroun

after this filing, on March 1, 2005, Kathleen filed an election to take statutory share of her deceased husband’s estate.8 On May 5, 2005, the personal representative filed an inventory of Gilles’ estate with the Register of Wills for Anne Arundel County, in which the total value of the estate was appraised at $32,483.17, which was reduced to $20,758.11 in the first account of the estate after disbursements from the estate totaling $12,171.49. This latter amount would presumably have been the amount on which the elective share would have been based.

ii procedural history On March 22, 2005, several weeks after filing for her elective share, Kathleen filed a complaint claiming fraud on her marital rights and requesting that a constructive trust be imposed on the Trust assets. She filed this claim against Maryse, as personal representative, and Lauren’s mother, acting as guardian for her daughter.9 Kathleen’s complaint included the following claims: 15. That as the Husband of the Plaintiff, Kathleen Sexton Schoukroun, Gilles H. Schoukroun had both a legal and an equitable duty arising out of the marital relationship between the parties. A material part of said marital relationship was the trust and confidence placed by Kathleen Sexton Schoukroun in Gilles H. Schoukroun, which trust and confidence was accepted by Gilles H. Schoukroun. 16. That Gilles H. Schoukroun breached his legal and equitable duties and committed a fraud against the Plaintiff Kathleen Sexton Schoukroun, by his conveyance of all, or substantially all, of his assets to his revocable Trust during his lifetime. 17. That the transfer by Gilles H. Schoukroun of all or substantially all of his assets to the Trust was not a good faith transaction; it was a device to retain actual ownership, use and enjoyment of the property until death, and at

8

9

In Maryland, the right to the surviving spouse’s elective share is found in Md. Code Ann., Estates & Trusts Article, §3–203. This section provides, “Instead of property left to the surviving spouse by will, the surviving spouse may elect to take: (1) A one-third share of the net estate if there is also a surviving issue; or (2) A one-half share of the net estate if there is no surviving issue.” Id. at (b). On Lauren’s behalf, Bernadette filed a counterclaim against Kathleen, requesting that a constructive trust be imposed on the proceeds from Gilles’s Zurich Kemper life insurance policy. Bernadette alleged that the proceeds were properly Lauren’s because Gilles had an obligation, under the terms of the 1999 separation agreement, to purchase and maintain a life insurance policy for Lauren’s benefit and that he had failed to do so. The request was ultimately denied by the court.

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

Karsenty v. Schoukroun

231

the same time to defeat the right and interest of the Plaintiff under the law of descent and distribution in such property at death.

Schoukroun, 177 Md.App. at 622–23 She contended that the transfers into trust – which precluded the assets from being included in the elective share calculations – had the effect of “unlawfully depriving her of her statutory share of his net estate.” Id. And, because Gilles retained control over the assets in trust during his lifetime, she claimed that the transfers were per se fraudulent. To support her argument, Kathleen relied heavily on Knell v. Price, a case that invalidated a decedent’s inter vivos property transfer to his live-in companion because the decedent retained possession and absolute control of the property during his life. Knell v. Price, 318 Md. 501, 569 A.2d 636 (1990). Because much turns on the proper interpretation of this case, we set forth the details. William Knell, who had separated from, but not divorced, his wife of almost fifty years, attempted to take property out of her reach in order to give it to his female companion of twenty-seven years, Jesse Annabelle Price. William and Jesse “enjoyed a relationship akin to that of a marital status, but it was not imprinted with the legality which would have been bestowed by a marriage.” Id. at 502. Desirous that, when he died, Jesse should have the home in which they resided, William transferred the property to a trustee. The deed of transfer, which purported to create a life interest in William with a fee simple interest passing to Jesse upon his death, contained a habendum clause that reserved to William the power to “sell, mortgage, lease, convey and dispose [of that property] at any time he may deem expedient.” Id. at 503. At William’s death, Jesse claimed that the property passed to her in fee simple without being included as a part of his estate. William’s estranged spouse, however, claimed that the property should have been included in his estate for the purposes of the elective share calculation. The circuit court rejected the surviving spouse’s argument, and an appellate court affirmed that decision. Knell v. Price, 77 Md.App. 331, 550 A.2d 413 (1988). This court granted petition for writ of certiorari to answer the question: “Were the deeds executed by the deceased husband and trustee in December 1978 for [the] purposes of defrauding [Mrs. Knell] of her statutory share in her deceased spouse’s estate?” This court answered that question in the affirmative. We concluded at the time: [I]t is perfectly clear that Mr. Knell retained control of the property during his lifetime by establishing a life estate in himself with unfettered power in him,

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

232

Karsenty v. Schoukroun

while living (except by will), to dispose of all interests in the property in fee simple. The law pronounces this to be a fraud on the marital rights of Mrs. Knell. His reluctance to relinquish control over the disposition of the property during his lifetime defeated his intention. Knell, 318 Md. at 512

The surviving spouse, despite the circumstances of estrangement, was entitled to include the property in the estate, and her elective share take increased accordingly. In presenting her case in Schoukroun, Kathleen maintained that Knell created a bright-line rule: The transfer of any property that remains under the continuing control of a decedent in life is invalid and constitutes per se fraud on the marital share.10 The trial court was not persuaded by this argument. The trial court disagreed that Knell controlled the outcome, remarking that the facts in Knell, which concerned the deeding of real property away from the decedent, were very particular and that the holding referred “to that case and that case alone, those facts and those facts alone.” Schoukroun, 177 Md.App. at 627. The judge stated that the creation of a revocable trust was different: “I do not think that the creation of a revocable trust to the benefit of one’s child, and admittedly in derogation of the estate, and as a consequence of the wife, her one-third entitlement, is a per se act of fraud. If I’m wrong in that, it should be very easy to reverse me.” Id. at 628. Deciding against Kathleen, the trial court judge emphasized that the set of facts in Kathleen’s case did not sufficiently demonstrate the intent to commit fraud on Gilles’ part: Let me tell you that I find as a matter of fact that there is no fraud on the part of Mr. Gilles Schoukroun in the creation of this trust, actual or even constructive fraud. I find no actual fraud whatsoever. And I find no constructive fraud. I am impelled in that direction by a number of things. First of all, his actions took place at a time when he knew he was sick. . . . So that when – and when he sat down to draw this last will and testament and this trust, I have to find that he knew exactly what he was doing vis-à-vis his assets. It is apparent that what he was doing was setting up a trust for Lauren . . . Interestingly enough, when he drew both the trust and his will, he set up Ms. Karsenty as the trustee and the personal representative. But if she were unable to serve or declined to serve, he set up the plaintiff as the trustee and/or personal representative, which tells me that he certainly wasn’t trying to 10

Alternatively, she argued that, absent the per se rule, the factual circumstances of this case necessitated the conclusion that the Trust and two individual retirement transfer-on-death accounts with the trust as the beneficiary should be set aside as frauds on her marital rights. Kathleen sought to have the court impose a constructive trust on the funds in the Trust.

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

Karsenty v. Schoukroun

233

defraud Ms. Sexton. In fact, quite the contrary, he was in reliance on her. He relied on her. He intended to rely on her if he had to, if it became necessary, if his sister couldn’t serve. It doesn’t sound like the actions of somebody who is trying to defraud another. Id. at 626–27

Subsequent to this loss, Kathleen appealed to the Court of Special Appeals. Schoukroun v. Karsenty, 177 Md.App. 615, 937 A.2d 262 (2007). The court looked into two questions in evaluating Kathleen’s appeal. First, the court analyzed the question of whether Knell established a bright-line rule that, as a matter of law, a transfer in which the decedent retained control of the transferred property is per se fraud on the marital share. Id. at 629. The second question was whether, under a Whittington equitable analysis, Whittington v. Whittington, 205 Md. 1, 106 A.2d 72 (1954), the trial judge clearly was erroneous in not finding marital fraud. Schoukroun, 177 Md.App at 629. Addressing the question of Knell v. Price in order to determine, as a matter of law, whether a decedent’s transfer of property during marriage constitutes fraud on the surviving spouse’s marital rights whenever the decedent retains dominion and control, the appellate court agreed with Kathleen: “We are persuaded that Kathleen’s interpretation of Knell is correct.” Id. at 633. The court explained: “Mr. Schoukroun’s intent is simply of no consequence because the law pronounces a TOD [transfer on death] to be a fraud on the rights of the surviving spouse.” Id. at 632. The Trust assets were therefore includable for purposes of calculating Kathleen’s statutory share. Id. at 634. Persuaded by Kathleen’s interpretation of Knell, the court stated that it was unnecessary to look to Whittington to determine whether the transfer was invalid under an equitable analysis. Nevertheless, the court concluded that “the circuit court was not clearly erroneous in finding that Mr. Schoukroun had not acted with the intent to defraud his widow or his daughter.” Id. The appellate court therefore reversed the trial court decision and remanded the case for further proceedings. Following that decision, Maryse filed a petition for this court to determine whether the intermediate appellate court erred in holding that a decedent’s inter vivos property transfer is a per se fraud on the surviving spouse’s marital rights if the decedent retained lifetime dominion and control over the transferred property . We granted this petition, as well as Kathleen’s cross-petition to determine whether the appellate court erred in holding that the trial court was not clearly erroneous in finding that Gilles did not intend to perpetrate a fraud

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

234

Karsenty v. Schoukroun

on Kathleen’s marital rights. Karsenty v. Schoukroun, 404 Md. 152, 945 A.2d 1270 (2008).

iii questions presented The questions presented to this court on appeal are the following: 1. Whether Knell v. Price established a “bright line” or “per se” rule that, as a matter of law, every transfer with a retained interest is a transfer in fraud on marital rights? 2. If Knell does not establish a bright-line rule, was the trial court correct in finding that there was no marital fraud and declining to impose a constructive trust under a Whittington analysis? Appellee Brief, Karsenty v. Schoukroun, 404 Md. 152, 945 A.2d 1270 (2008) (No. 01689), 2007 WL 1899279, at *2

iv standard of review Both parties agree that Maryland r. 8–131 governs the standard of review. Due regard is given to the trial court’s judgment of the witnesses’ credibility, and the judgment of the trial court will not be set aside unless it is found to be clearly erroneous. Md. r. 8–131(c). When the trial court’s order involves the interpretation of Maryland case law or statutes, this court will determine whether the trial court’s conclusions are correct under a de novo standard of review. R Alan Banks, Jr. v. Ira R. Pusey, 393 Md. 688, 697, 904 A.2d 448 (2006).

v analysis A proper analysis of this question begins with a brief review of the history of the elective share, which underscores the extent to which surviving spouses have been subject to fraud on the marital share and the legal reforms that have attempted to stem this fraud. A Historical Background Dower – the conventional method for provisioning a widow in English law – dates back to the time of Magna Carta. Janet S. Loengard, “Of the Gift of Her Husband”: English Dower and Its Consequences in the Year 1200, in WOMEN OF THE MEDIEVAL WORLD 254 (Julius Kirshner & Suzanne F. Wemple, eds., 1985).

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

Karsenty v. Schoukroun

235

This property right, belonging to a widow, was “a moral obligation developed to secure maintenance for a wife upon her husband’s death.” Mary Louise Fellows, Wills and Trusts: “The Kingdom of the Fathers, 10 LAW & INEQ. 137, 146 (1991) (explaining that men had a right to curtesy and a life estate in all of the lands even if there were no child). Dower, stemming from a husband’s duty of support, vested on the husband’s death and was intended to sustain a widow through her old age. Susan Staves, MARRIED WOMEN’S SEPARATE PROPERTY IN ENGLAND, 1660–1833 45 (1990). Dower generally consisted of a life estate in one third of the husband’s estate, which was defined as the real and personal property forming the probate estate. Even in the fourteenth and fifteenth centuries, however, there was a rule that allowed husbands to cheat their wives out of their rightful dower: “No dower of a trust.” In other words, a husband could place his lands in trust, and thereafter the land was no longer subject to dower claims.11 This use of trusts was advantageous because some husbands – and especially landowners – sometimes considered a widow’s dower to be a “great clog to alienations.” Eileen Spring, LAW, LAND, AND FAMILY: ARISTOCRATIC INHERITANCE IN ENGLAND, 1300 TO 1800 48 (1997) (citing 2 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 137 (1753)); see also Staves, supra, at 32.12 Furthermore, some believed that removing assets from the probate estate was sensible because dower was “too generous to women.” Fellows, supra, at 147. The problem of husbands depleting their probate estates to the detriment of their widows was so widespread and severe that the Statute of Uses, enacted in 1535, directly addressed the problem by tightening the requirements for trusts (“uses”) and taxing the beneficiaries, thereby eliminating many sham transfers into trust. Fast-forward to the second half of the twentieth century and dower was replaced in the Uniform Probate Code (UPC) of 1969 and subsequently in most states by the gender-neutral elective share. The elective share provided surviving spouses with the statutory right to almost exactly what dower had: one third of the decedent spouse’s probate estate. 1969 UPC §2–113. Some states still have dower rights, but they are statutory. See Susan Gary, Marital Partnership Theory and the Elective Share: Federal Estate Tax Law Provides a Solution, 49 U. MIAMI L. REV. 567, 575 (1995). And, exactly as happened with dower rights in the fifteenth century, one spouse could still strip the other of

11

12

In the Preamble to the Statute of Uses (1535), concern for defrauded widows barred from dower by the rule concerning uses is mentioned as one reason for enacting the statute. Landowners argued that “dower made land titles uncertain because a purchaser was exposed to the risk that a widow of some remote prior owner would demand her dower from the subsequent purchaser upon that remote owner’s death.” Fellows, supra, at 147.

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

236

Karsenty v. Schoukroun

elective share property and rights by placing assets in trust, safely outside of the probate estate. The UPC drafters and UPC states have attempted to deal with spousal disinheritance, or “fraud on the spousal share,” through the concept of the augmented estate. The augmented estate consists of the probate estate “augmented” with certain nonprobate transfers, thereby allowing surviving spouses to include nonprobate assets in the decedent’s estate for the purposes of calculating elective share. The 1969 drafters stated very clearly that the augmented estate was “designed to protect a spouse . . . against donative transfers by will and will substitutes which would deprive the survivor of a ‘fair share’ of the decedent’s estate.” 1969 UPC §2–202. Not all states have adopted the UPC, however, and surviving spouses in non-UPC states do not benefit from the use of the augmented estate. Indeed, our own state of Maryland has declined to adopt the UPC. Nevertheless, this failure to adopt the UPC does not mean that our state is not concerned with protecting the property rights of the surviving spouse. As a matter of both law and public policy, our courts have long been concerned with the prevention of spousal disinheritance and fraud on the elective share. For almost as long as there has been either a dower or an elective share statute, Maryland courts have deployed the “fraud on the marital share” doctrine to preserve marital share rights and to counter spousal disinheritance. B Maryland’s Elective Share Since the enactment of the Statute of Uses in 1536, law has concerned itself with protecting a widow’s marital rights and ending the practice of fraud on the marital right of dower. Spring, supra, at 47. Maryland courts also have a longstanding history of protecting the surviving spouse and marital rights. One year after Maryland obtained statehood, “a serious controversy arose as to what portion of his personalty a husband could bequeath away from his wife, if she protested.” Domain v. Bosley, 242 Md. 1, 7, 217 A.2d 555, 559 (1966). The Maryland General Court held that, according to common law rules, “a wife was entitled, when there were children, to a ⅓ part of her husband’s personalty, after payment of debts and funeral expenses, and the husband could not deprive her of the same by his will.” Id. This decision, which was affirmed by the Court of Appeals in 1801, was a significant factor in the enactment of Maryland’s first dower statute providing for these same rights. Since that first enactment of the statutory dower right, our Maryland courts have refined and clarified the protections available to a surviving spouse whose husband or wife tries to defund the marital share by taking assets out of the

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

Karsenty v. Schoukroun

237

probate estate. By the middle of the nineteenth century, courts consistently held that “an absolute sale and transfer of an equitable interest in land, by the husband alone during his life, will bar all claim to dower.” Rabbitt v. Gaither, 67 Md. 94, 8 A. 744, 746 (1887). Similarly, “[i]f the disposition by the husband, be bona fide, and no right is reserved to him, then, though made to defeat the claim of the wife, it will be good against her, because an act cannot be denounced as fraudulent which the law authorizes to be done.” Hays v. Henry, 1 Md. Chan. 337, 338 (1851). Nevertheless, in the same breath, the Chancellor in Hays itself remarked: “But if it be a mere device or contrivance by which the husband, not parting with the absolute dominion over the property during his life, seeks at his death to deny his widow the share of his personal estate which the law assigns to her, then it will be ineffectual against her.” Id. at 339. In Hays, a case with circumstances strongly resembling those in Knell, the husband was separated from his wife and living in a marital-like relationship with another woman, who was the mother of his children. He conveyed property he owned to the woman with whom he was living, and she, after a turnaround of no more than a few days, conveyed the property back to him in trust. Moreover, the trust deed “contained a covenant that he should hold and use the property without hinderance [sic] from her, and he lived and died in the house.” The court declared: “One of the badges of fraud in such cases, is the retention of the possession of the property by the husband, after the transfer of the title, or keeping the deed in his hands after its execution.” Id. at 338–39. In Dunnock v. Dunnock, the High Court of Chancery reaffirmed the Hays holding, stating that “the law allows the husband to [defeat a wife’s claim] by gift, so far as his personal estate is concerned, provided there be no right reserved to himself, and it is not a mere fiction, by which, not divesting himself of the dominion over his property during his life, he attempts after his death to deprive her of her distributive share thereof.” Dunnock v. Dunnock, 3 Md. Chan. 140, 147 (1853). In Sanborn v. Lang, a widow filed a bill to vacate a deed of real and personal property that had, she claimed, been executed by her husband “with the avowed and express purpose of depriving her of her distributive share of his estate.” Sanborn v. Lang, 41 Md. 107, 108 (1874). Again, relying on Hays, the court concluded that the husband retained dominion and control over the property even after executing the deed. Therefore, the deed “was fraudulent, and cannot operate to deprive [the wife] of her legal rights as widow and distributee.” Id. at 118. Following this strong early statement of spousal protection in Hays – that retaining dominion and control over property and at the same time trying to take it out of reach of the surviving spouse is fraud on the marital share – the

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

238

Karsenty v. Schoukroun

question of fraud on the elective share has become clouded through a series of somewhat conflicting and analytically confused cases. In Brown v. Fid. Tr. Co., this court determined that a wife who had put her assets into a revocable trust and made her husband only a minor beneficiary after her death was not engaging in fraud on the marital share. Brown v. Fid. Tr. Co., 126 Md. 175, 94 A. 523 (1915). We reasoned that “[t]he deed from the grantor to the trust company was a complete and bona fide transfer of the property to the trustee, for the purposes named therein.” Id. at 526. We grounded this conclusion in the notion that “Mrs. Brown had an undoubted right and power to dispose of her personal property in her lifetime as she deemed wise and best, and there is nothing in the record to show that the deed was in any way in fraud of the legal rights of her husband, who survived her.” Id. This type of reasoning created a line of cases that departed from the Hays ruling by inquiring into the intent of the transferor rather than the fact of retained dominion and control. Ten years later, another marital rights case came before this court, and we affirmed the Hays rule while, at the same time, inquiring into the intention of the transferor. In Jaworski v. Wisniewski, the wife, Bronislawa Wisniewski, deeded real property to one Isabel Brady, who then “immediately reconveyed it to [Bronislawa].” Jaworski v. Wisniewski, 149 Md. 109, 131 A. 40, 43 (1925). Upon Bronislawa’s death, the husband asserted an interest in the property through the marital share, and the court agreed that he possessed such an interest because the transfer had not been a complete parting with the property. In so holding, we remarked: The conclusion is inevitable from the testimony that they were executed for the explicit purpose of preventing the appellee from receiving any portion of his wife’s estate. That she had the right to do that by actually selling or giving away her property cannot be questioned. But the conclusion is equally obvious that she never did part with it, sell it, or give it away, because under the deed from Isabel T. Brady to her she had every right and the same right to deal with that property that she had before she conveyed it to Isabel T. Brady. Id. at 118 (relying on Rabbitt, 67 Md., which reaffirms Hays, 1 Md. Chan.)

The Hays rule was therein conflated with an inquiry into the wife’s intent (“The conclusion is inevitable from testimony”), and because her intent was proven to be fraud on the marital share, this confirmed the outcome of the case. In Sturgis v. Citizens’ Nat. Bank of Pocomoke City, two years later, this court again grappled with trusts and the question of how to properly categorize a transfer made through trust. Sturgis v. Citizens’ Nat. Bank of Pocomoke City, 152 Md. 654, 137 A. 378 (1927). In that case, a husband who was unsure of how

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

Karsenty v. Schoukroun

239

best to gift money to his nieces made deposits in trust for their benefit at his local bank. He created a trust account in which he and his nieces were “joint owners,” the balance of which account would be paid to his nieces at his death. The decedent chose this arrangement after learning that he could not leave a check for them payable on his death. Id. at 656–57. Although the nieces could have drawn money out at any time, the bank never obtained signature cards from them, and the decedent never made any withdrawals from the account either. Despite the control retained by the transferor, this court categorized the transfer as a completed gift rather than a transfer with retained control, observing that “[p]erhaps it is well to reiterate that the references in these cases to reservations of right or dominion in the husband do not mean that such reservations to him as trustee prevent a gift being complete.” Id. at 660. Moreover, in so doing, we focused on the intent of the transferor, stating that “it was clearly [the decedent’s] desire and intention to make a legally effective gift to the grandnieces on this form.” Id. at 660. Swinging back in the other direction, in Mushaw v. Mushaw, this court held that there had been fraud on the marital share when a husband, immediately prior to his death, created trust accounts for his four sons from a prior marriage, depositing $9,103.08 for each in a separate account. Mushaw v. Mushaw, 183 Md. 511, 517, 39 A.2d 465, 467–68 (1944). As a trustee and beneficiary of the accounts, with the sole right to make withdrawals, the decedent retained complete control over the accounts during his lifetime. After these transfers were made, the husband’s account was basically depleted: At the time of his death, his net estate consisted of $90 in his solely owned account, a $100 government bond, and “the house and lot . . . where he resided.” Id. at 514–15, 466. Making matters worse for the wife, the decedent executed his will before marrying her, and it therefore did not mention her. Analyzing the question of whether these transfers constituted fraud on the surviving spouse’s marital share, the court compared the facts with which it was presented with those in Sturgis (“The case of Sturgis v. Citizens’ Nat. Bank, 152 Md. 654, 137 A. 378, is closely in point”). Mushaw, 183 Md. at 516. And, ultimately, we observed that the difference was only one of degree. The outcome consequently turned on the severity of result for the surviving spouse: “The salient fact is that the widow is completely stripped of her marital rights in the personal property of her husband.” Id. at 517. Even at the time, we somewhat lamented the lack of clarity in the case law: “This may be a matter of degree, but it appears to be the only basis on which the decisions can be reconciled.” Id. at 517. Intention did not appear in any meaningful way as an analytic lens nor did the completeness of the transfer; only the degree to which the transfer affected the surviving spouse.

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

240

Karsenty v. Schoukroun

Next, in Allender v. Allender, this court held that there was no fraud on the marital right when a husband transferred shares of stock that he owned to his children two years prior to his death. Allender v. Allender, 199 Md. 541, 87 A.2d 608 (1952). He surrendered the old certificates and had new ones created, each of which he owned jointly along with a different child. He never informed the children of the transfer of stock, and he continued to draw dividends and vote on the stock. Id. at 545. We held that “the donor retained no legal control over the devolution of the joint interest at his death and no power to revoke or undo what he had done, a factor stressed in many of the cases.” Id. We came to this conclusion, however, “[w]ithout relying solely on the test of degree,” and we expressed hesitation about using such a test; nevertheless, we remarked, the previous cases “could hardly be reconciled on any principle except that of degree.” Id. at 549. In Whittington, a case mentioned elsewhere in the briefs and previous decisions in connection with equitable analysis, we agreed with remarks made in Allender and stated: “No general and completely satisfactory rule to determine the validity or invalidity of transfers alleged to be in fraud of marital rights has yet been evolved in this State.” Whittington, 205 Md. at 14. Summing up the state of the doctrine, we remarked: “The subject is one of difficulty and, at the present time, of uncertainty.” Id. at 10. We recognized that the “test of degree” had many “shortcomings,” but concluded that “[i]t remains a very practical consideration among the facts and circumstances to be considered in connection with the completeness and genuineness of a transfer.” Id. at 14. In that case, a widow was seeking to include four savings/trust accounts that the decedent had created with himself and his sons as joint owners the year before his death. This court ruled that there was no fraud on the marital share – a decision we reached by inquiring into a variety of factors, including “the relative moral claims of the surviving spouse and of the transferees, other provisions for the surviving spouse, whether or not he or she has independent means and the interval of time between the transfer and the death of the transferor.” Id. at 14. The Hays test and rule were considered by this court to count as only one factor among many. A decade after Whittington, in Gianakos v. Magiros, we again declined to find fraud on the marital share, based primarily on decedent intent. Gianakos v. Magiros, 234 Md. 14, 197 A.2d 897 (1964). The decedent in Gianakos transferred restaurant property to his son, who was also his business partner, and retained a life estate, with power to “lease, mortgage, deed or in any other wise encumber the property absolutely.” Id. at 30. Despite this clear retention of control, we nevertheless concluded that, based on intention, this was not a violation of the surviving spouse’s property rights. We rhetorically asked

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

Karsenty v. Schoukroun

241

whether the underlying transaction was a “sham” and determined that the decedent set it up as he did because he “had a sound business reason” for doing so. Id. at 31. In this respect, we agreed with the trial court when it found that it was in the decedent’s “interest to retain control over [his son] in the business and over the real estate used therein by reserving to himself a life estate, with certain powers during his life.” Id. at 30, 905–06. We also considered the degree to which the decedent’s transfer to his son diminished the surviving wife’s marital share, based on our understanding that, “[i]n Whittington the most important single factor was the degree to which the widow’s share in the estate was reduced by the transactions under attack.” Id. at 24. Here, we concluded that the reduction in her share “[was] not so great as to amount to a fraud upon her rights.” Id. at 32. But, again, we expressed frustration with the doctrine as it stood at the time: “Maryland is by no means the only jurisdiction to have difficulty with this subject, and a number of different criteria are invoked here and elsewhere with varying emphasis on one criterion or another.” Id. at 29. Finally, in 1990, Knell was decided. That case, as discussed earlier in this decision, returned to a bright-line rule that any transfer made by a decedent in which the decedent retained dominion and control was a violation of marital share rights. Relying on the established line of precedent beginning with Hays, the appellate court reiterated the traditional rule, which has been muddled and obfuscated by time: “[The husband’s] conveyance, through a straw man, of the remainder of the property was not complete, absolute, and unconditional. The law pronounces this to be a fraud on the marital rights of [his surviving spouse].” Knell, 318 Md. at 512. After Knell, there do not seem to be any reported cases of either the Court of Special Appeals or the Court of Appeals that address this issue. What emerges through this exploration of our court’s history and the arc of our understanding of fraud on the elective share is that the original rule has been denuded as modern case law has deviated significantly from the clarity of the Hays rule. Through a series of analytically tangled decisions, this court has chipped away at the Hays rule without thinking through sufficiently how to properly evolve or replace that rule.13 As a result, this court has constructed and 13

Scholars have agreed about the state of confusion. In a 2003 Catholic University Law Review article, Professor Angela M. Valario of the University of Baltimore School of Law noted: “The failure to articulate a clear position further suggests the ambiguity and need for clarification in the Maryland statute and case law.” Angela M. Vallario, Spousal Election: Suggested Equitable Reform for the Division of Property at Death, 52 CATH. U. L. REV. 519, 537 n. 65 (2003). Vallario also notes: “The Maryland General Assembly has not prompted legislative change in light of Knell despite repeated efforts by the Maryland State Bar Association to receive clarification.” Id.

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

242

Karsenty v. Schoukroun

used several makeshift tests that lack diagnostic clarity and that are grounded in various incorrect and sometimes incongruous theories of the elective share. One such incorrect grounding is the “degree test.” Ostensibly to bring some order to the interpretive chaos, this court has frequently focused on the degree to which the surviving spouse has been stripped of property rights. Whittington, for example, plainly names “the degree to which the surviving spouse is stripped of his or her interest in the estate of the decedent spouse” as an important factor in the analysis. Whittington, 205 Md. at 12. We have nevertheless expressed our reservations about this test. In Allender, for example, we remarked: It must be admitted, however, that the test of degree does not commend itself as a legal criterion. If the wife receives less than her legal share in the personal estate, it would seem to be quite immaterial that she is not wholly cut off, that she receives her dower rights in the real estate, or that she has resources of her own. Allender 199 Md. at 549–50

This observation cuts to the heart of why the degree test is inapt. The elective share is not meant to be grounded in measurements of need or calibrations of relative poverty; the elective share is grounded in public policy, and it effectuates economic support and sharing between spouses when a decedent spouse fails to do so. See Gary, supra, at 577 (“Two main theories serve as rationales for protecting spouses against disinheritance. The first theory is based on the need of the surviving spouse for support, and the other, discussed above, is based on the surviving spouse’s right to a share of the marital property under a view of marriage as an economic partnership.”). Historically, with dower, the public policy was based on a husband’s duty of support, which persisted even after the husband’s death. The idea of support may suggest to some that considering need is suitable. Nevertheless, even then, it was the husband’s duty to support his widow in a style befitting and according to his wealth and status. Dower was calculated as a share of the decedent’s estate: a factor of the decedent’s wealth and not of the widow’s need. Dower was always about more than provisioning the widow at a subsistence level – and so is the elective share. Moreover, as social norms and our cultural understandings of marriage change, we have collectively begun to conceive of marriage as an economic partnership. Gary, supra, at 571–75; Laura A. Rosenbury, Two Ways to End a Marriage: Divorce or Death, 2005 UTAH L. REV. 1227, 1234–43 (2005). This is clear in our state’s equitable distribution rules and federal rules such as joint filing and the marital deduction in tax law. From this perspective, the elective share represents a policy decision based not only on support, but also on the

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

Karsenty v. Schoukroun

243

idea of compensating a surviving spouse for contributions made to the marriage. Consequently, to limit a surviving spouse to what a court deems necessary for that person’s subsistence, or to judge the presence of fraud according to degree of disinheritance, is plainly inappropriate. The marital share is partial payment of one spouse’s share in the wealth that the couple accumulated through joint effort and collaboration. Degree of disinheritance therefore must not be considered a factor in these kinds of elective share analyses. In Whittington, we mentioned another factor that a court might consider was “the motive of the transferor.” Whittington, 205 Md. at 12. In this vein, the appellant argues that this postmortem payment of marital wealth “thwarts an innocent decedent’s intentions.” Appellant’s Br. at 17. While degree is surely an unsuitable factor for consideration, intention might be even more so. Decedent intent is not and should not be a factor in these cases because the elective share is, again, based on a public policy to make funds from the decedent’s estate subject to a surviving spouse’s claim. Unlike will construction, which has decedent intent as its lodestar, the elective share by design “restrict[s] the testamentary freedom of married persons.” Gary, supra, at 567. The strength of this public policy is such that the elective share is designed to provision a surviving spouse even if such a payment from the decedent’s estate is wholly and deeply contrary to the decedent’s intent. Stated differently, the marital share is a surviving spouse’s safeguard against disinheritance by a decedent spouse, whether accidental or intentional. Rosenbury, supra, at 1245. Maryland courts have, to this point, taken pains to address the decedent’s freedom of disposition in crafting the fraud on the marital share doctrine. Accordingly, in Allender, we stated: “The doctrine of fraud on marital rights represents an effort to balance the social and practical undesirability of restricting the free alienation of personal property against the desire to protect the legal share of a spouse.” Allender, 199 Md. at 549–50. However, the balance that Maryland has effected does not rely on judicial attempts to gauge the intention of the decedent. Rather, the balance obtains because “a husband . . . has an unqualified right to give away his personal property during his lifetime, even though the effect is to deprive the wife of her statutory share.” Id. But, for this balance to work, we stated that the gift had to be “absolute and unconditional.” Id. at 550. If “the donor retains dominion and control over the property during his lifetime, the courts have held that the gift is colorable and may be set aside.” Id. at 549–50. What assets constitute the elective share and a surviving spouse’s right to it is not, then, about degree of disinheritance. Nor does the amount or availability

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

244

Karsenty v. Schoukroun

of the share turn on decedent intent. The crux of the matter is and has always been the retention of dominion and control by the decedent. Other tests risk taking into account factors that are not suitable for consideration, given the public policy on which the elective share is based. Appellee’s Br. at 20. Therefore, because we believe that the true test remains that crafted early in our state’s history in Hays, we are persuaded by and agree with Ms. Schoukroun in her interpretation and understanding of Knell. Knell returns us to the one-factor test – that of retained dominion and control – and eschews the other tests that have haltingly and haphazardly developed around the question of the elective share. The Appellant argues that our understanding of Knell should not be expanded in such a way because “[i]f every transfer with a retained interest constituted a transfer in fraud of a spouse’s rights, then transfers that have always been excluded from a spouse’s elective share by statute would now be encompassed in the elective share.” Appellant’s Br. at 17. This is a specious argument because, as our doctrine currently stands, categories do not come into play. Of course, there are the categories of probate and nonprobate. Outside of those two simplified categories, however, this court has never reasoned categorically when faced with the question of asset inclusion. By means of the doctrine of fraud on the marital share, our courts have allowed various nonprobate assets belonging to a range of categories to be included in the decedent’s estate for elective share calculations. Similarly, we have excluded for the same purpose assets of various nonprobate instruments. Unless we were to reject the entire line of our state’s case law and rule that no nonprobate asset ever be included, the question of category is inapposite. What our ruling today does is clarify the rule for the inclusion of nonprobate assets across categories, which should bring more certainty, rather than less, to the situation and should provide transparency for Maryland residents and their estate planners. The Appellant further argues that this reading of Knell is inappropriate because the “net estate” is defined by statute and that statute is unambiguous. Appellant’s Br. at 8–9. Specifically, the Maryland Code defines the net estate as “the property of the decedent passing by testate succession, which a deduction for State or federal estate or inheritance taxes, and reduced by: (1) Funeral and administration expenses; (2) Family allowances; and (3) Enforceable claims and debts against the estate.” Maryland. Code Annotated, Estates. & Trusts Article, §3–203(a). Moreover, the Appellant reminds us that by enacting and retaining this precise definition – and by declining “to modify existing law and follow the national trend toward an

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

Karsenty v. Schoukroun

245

augmented estate elective share” – Maryland has “decidedly rejected the augmented estate.” Appellant’s. Br. at 13. It is undoubtedly true that the Maryland legislature has not chosen to modify the elective share statute by adopting the UPC or the augmented estate, in any form. Nevertheless, this lack of legislation does not mean that the lawmakers and citizens of our state have not been continually concerned with the prevention of fraud on the marital share. As we have shown in this opinion, our courts, since the early days of this state, have taken pains to protect surviving spouses and their property rights. And for almost as long as there has been a dower or elective share statute, courts have supplemented that statutory right with common law protections. Using the doctrine of fraud on the marital share and the test of retained control, Maryland courts have an established history of adding nonprobate assets to a decedent’s probate estate for elective share purposes in cases of retained control. This decision is therefore not judicial overreach into the legislature’s territory; this decision is this court’s elucidation of a judicial doctrine that has existed in tandem with the statutory rule for almost two centuries. If, one day, the Maryland legislature were to choose to supplement the common law protections that surviving spouses have through the doctrine of fraud on the marital share, then spouses will have the added statutory guarantee of protection. Until that time, however, surviving spouses in Maryland are not bereft of protection or remedy in cases of disinheritance. Based, therefore, on our reading of Knell and our understanding of the common law precedent supporting the doctrine of fraud on the marital share, we affirm the lower court’s ruling.14 It is so ordered.

14

Like the lower court, because we read Knell as we do and answer the first question presented in the affirmative, we need not answer the second question and perform an equitable analysis under Whittington.

https://doi.org/10.1017/9781108860963.013 Published online by Cambridge University Press

Index

Adoption, 81–83 background, 81–83 feminist judgment and implications, 81–83 African American family arrangements, 12 Agency and autonomy, 13 Antenuptial agreements, 190 background, 190 feminist judgment and implications, 190 rewritten opinion, 190 Antiessentialism, 12–13 Antisubordination/dominance feminism, 11–12 Artificial reproductive technology (ART), 201 Augmented estate, 221 and offset of elective shares, 140–144 Autonomy and agency, 13 Bias, implicit male, 14–15 Caesarean sections, forced, 13 Canadian Journal of Women and the Law, 1 Child support, 12, 179, 180 Community property, 220 Constitutional interpretation, 2 Contracts family wealth, rights to, 4 power imbalances, 11 Critical opinion writing appeal of, 2–4 judges, challenges to, 3, 4 original opinions compared, 4 preconceived notions, challenges to, 2 readers, 4 Cy pres, 67 Defined contribution plans, 151 Devising property, 4

Discretionary trusts, 180 Dominance feminism, 11–12 Donative freedom, 4 Dower rights, 14, 100, 223 Drevenik v. Nardone, 189 background, 181 feminist judgment and implications, 184 original opinion, 182 rewritten opinion, 178 Education Amendments of 1972, 65 Egelhoff v. Egelhoff, 149–152 background, 149–152 feminist judgment and implications, 149–152 original opinion, 149–152 rewritten opinion, 149–152 Elective shares, 100–103, See also Nonprobate mechanisms background, 100–103 feminist judgment and implications, 100–103 Florida, 100, 101 gendered implications, 12 history, 100–103 Maryland, 223 Myers, 100–103 offset and augmented estate, 100–103 rewritten opinion, 100–103 traditional statutes, 221 Employee benefit plans, defined, 151 Employee Retirement Income Security Act of 1974 (ERISA), 149–152 administration, 149–152 background, 149–152 beneficiaries, 153 employee benefit plans, defined, 151

246

https://doi.org/10.1017/9781108860963.014 Published online by Cambridge University Press

Index feminist judgment and implications, 149–152 goals or objectives, 149–152 plan administrators, 153 preemption, 14, 151, 152 rewritten opinion, 149–152 state law effect on, 149–152 End-of-life decisions, 4 Entitlements, 4, See also Specific entitlements Equal protection male bias, 10 male-only scholarships, 65, 67 pregnancy, 11 Equal Rights Amendment, 17 Family allowance, 102 Family formation, 4 Feminist judgment and implications adoption, 81–83 antenuptial agreements, 190 defined Drevenik v. Nardone, 184 Egelhoff v. Egelhoff, 149–152 elective shares, 100–103 ERISA, 149–152 intestacy, 81–83 Karsenty v. Schoukroun, 226 Khabbaz v. Commissioner, 206 male-only scholarships, 65–67 Moses, 46 mutual wills, 109 Myers, 132 nonprobate mechanisms, 226 O’Neal v. Wilkes, 81–83 posthumously conceived children, 206 Reece v. Elliott, 190 spendthrift trusts, 184 undue influence, 39–40 Via v. Putnam, 109 Wilson, 72 Feminist jurisprudence, central question, 5 Feminist practical reasoning, 13 Forced caesarean sections, 13 Forced sterilization, 13 Formal equality vs. substantive equality, 9–11 Fourteenth Amendment equal protection, 10 male-only scholarships, 65, 67 Gender discrimination, 65 Gender essentialism, 12 Gender-restrictive scholarships, 11

247

Ginsburg, Ruth Bader, 10 Guidelines for Opinions and Commentary, 8–9 Homesteads, 101 Identities, multiple, 12–13 Implicit male bias, 14–15 Moses, 17–20 background, 17–20 feminist judgment and implications, 5 original opinion, 17–20 rewritten opinion, 64 Myers, 65–67 background, 39–40 feminist judgment and implications, 39–40 history, 39–40 original opinion, 39–40 rewritten opinion, 39–40 Strittmater’s Estate, 17–20 background, 17–20 feminist judgment and implications, 17–20 insane delusion, 17–20 original opinion, 17–20 rewritten opinion, 17–20 testamentary capacity, 17–20 Wilson, 17–20 background, 65–67 feminist judgment and implications, 65–67 original opinion, 65–67 rewritten opinion, 65–67 Insane delusion background, 17–20 feminist judgment and implications, 17–20 implicit male bias, 15 Strittmater’s Estate, 65–67 Intermediate scrutiny, 10 Intersectionality antiessentialism, and multiple identities, 12–13 defined, 5 Intestacy, 81–83 background, 81–83 defined, 81 feminist judgment and implications, 81–83 social policy considerations, 81 Intimate relationships, 12–13

https://doi.org/10.1017/9781108860963.014 Published online by Cambridge University Press

248

Index

Karsenty v. Schoukroun, 39–40 background, 39–40 feminist judgment and implications, 39–40 original opinion, 65–67 rewritten opinion, 39–40 Khabbaz v. Commissioner, 100–103 background, 51 feminist judgment and implications, 42 original opinion, 8 rewritten opinion, 156

Preemption ERISA, 151, 152 Pregnancy autonomy, 13 equal protection, 11 Prenuptial agreements, 12 Pretermitted shares, 100–103

Life experiences women and, 5

Reece v. Elliott, 190 background, 190 feminist judgment and implications, 190 original opinion, 190 rewritten opinion, 190 Relationships, intimate, 12–13 Resources, 15 Retirement Equity Income Act of 1984 (REA), 151–152 Rewritten opinions adoption, 81–83 antenuptial agreements, 190 Drevenik v. Nardone, 189 Egelhoff v. Egelhoff, 149–152 elective shares, 100–103 ERISA, 149–152 intestacy, 81–83 Karsenty v. Schoukroun, 245 Khabbaz v. Commissioner, 219 male-only scholarships, 65–67 Moses, 39–40 mutual wills, 122 Myers, 148 nonprobate mechanisms, 245 O’Neal v. Wilkes, 81–83 posthumously conceived children, 219 Reece v. Elliott, 190 spendthrift trusts, 189 Strittmater’s Estate, 38 undue influence, 39–40 Via v. Putnam, 122 Wilson, 80

Male bias, 14–15 Male-only scholarships, 65–67 background, 65–67 Equal Protection Clause, 65, 67 feminist judgment and implications, 65–67 Fourteenth Amendment, 65, 67 rewritten opinion, 65–67 Methodology, 6–7 Multiple identities, 12–13 Mutual wills, 109 background, 103 feminist judgment and implications, 109 rewritten opinion, 122 National Organization for Women, 43 National Woman’s Party, 17 Nineteenth Amendment, 17 Nonprobate mechanisms, 245, See also Elective shares background, 221 feminist judgment and implications, 226 rewritten opinions, 245 O’Neal v. Wilkes, 81–83 background, 81–83 feminist judgment and implications, 81–83 original opinion, 81–83 rewritten opinion, 81–83 Pension benefits access to, 4 Pension plans, 151 Posthumously conceived children, 219 background, 202 feminist judgment and implications, 206 rewritten opinion, 219

Qualified domestic relations orders (QDROs), 155

Scholarships, gender-restrictive, 11 Separate property, 220 Sex stereotyping, 44 Shadow opinions, 1

https://doi.org/10.1017/9781108860963.014 Published online by Cambridge University Press

Index Social security access to, 4 survivor’s benefits, 11 Spendthrift trust, 179, 180, 181 background, 181 feminist judgment and implications, 184 rewritten opinion, 189 Spousal support, 180 Substantive equality vs. formal equality, 9–11 Surviving spouses estate rights, 4 pretermitted shares, 100–103 Testamentary capacity, 17–20 Title IX, 65 Trusts cy pres, 67 discretionary, 180 dower rights and, 14 spendthrift, 179, 180, 181, See Drevenik v. Nardone, Spendthrift trusts valuation of interest, 144–147

249

Undue influence background, 39–40 feminist judgment and implications, 39–40 Moses, 39–40 rewritten opinion, 39–40 Uniform Probate Code, 221 Uniform Trust Code, 180, 181 Valuation of trust interest, 144–147 Via v. Putnam, 122 background, 103 feminist judgment and implications, 109 original opinion, 8 rewritten opinion, 3 Wealth inequality women vs. men, 4 Wealth transmission law defined, 4 Welfare plans, 151 Women’s Court of Canada, 1

https://doi.org/10.1017/9781108860963.014 Published online by Cambridge University Press

https://doi.org/10.1017/9781108860963.014 Published online by Cambridge University Press