I’m always curious to see how remote the conclusion of a case involving application of a probate rule is to the legislative intent of the rule at the time of it becomes law. One such case recently surfaced in New England where the court’s application of a Rhode Island intestacy statute resulted in what may be considered an unjust and bizarre result.

In Fleet Nat’l Bank v. Hunt 944 A.2d 846 (R.I. 2008) the court faced the estate administration of Art Hadley, a self-made entrepreneur and successful New England businessman, who died in 1941; survived by his wife, Frances and his two children, Thomas and Sarah.

After Art Hadley’s death, Thomas married Betty, who had two children from prior relationships: Janet Hunt and Lucille Foster. A few years after Frances died, Thomas formally adopted Janet Hunt and Lucille Foster, both of whom were over eighteen years old. In 1993, Thomas died, having no biological children but survived by Betty and his two adopted daughters, Janet Hunt and Lucille Foster.

Art Hadley’s other child, Sarah, died childless and unmarried on January 3, 2002. Her death triggered the distribution of two Hadley trusts. At the time of her death, Art Hadley had no surviving children, or biological grandchildren, or biological issue. However, Thomas’s two adopted daughters, Janet Hunt and Lucille Foster, were living. Read the rest of this entry

Should a distant heir have inheritance rights from a relative the heir didn’t even know? In Florida, and many other states, the traditional law governing intestate succession provides an inheritance to the intestate decedent’s “next of kin” without regard to how far removed (e.g., emotionally, geographically or familiarity) the relative taking the inheritance is from the decedent. (See, Fla. Stat. § 732.103 allowing collateral inheritance either through the great-grandfather or to “next of kin.” )

This concept is nothing new, it has been with us for ages. For example, the Bible provides an intestacy schedule for the Israelites that allows for inheritance by the closest relative: Read the rest of this entry

Morality and the Probate Code: The Law’s Treatment of Illegitimate Children and IntestacyIt wasn’t too long ago that having a child born out of wedlock was universally considered taboo, thereby placing a stigma on the child which had significant social and economic implications through no fault, choice, or conduct of the child. Today, evidence suggests that one in three children born in our great country is born out of wedlock.

Generally, a child born out of wedlock is also thrust into our world with a legal disadvantage. The child’s intestacy rights are no exception to this general rule. While the intestate succession system in Florida, and most other states, was written to provide an inheritance for a child through receiving the bulk of his or her parent’s estate, non- marital children are treated differently than marital children. Many jurisdictions require non-marital children to jump through many hoops before they can inherit from their parents. Read the rest of this entry

Probate is the legal process of settling the estate of a decedent, specifically resolving all claims made by creditors (for example, credit card companies, hospitals, automobile loans) and distributing the decedent’s property to the beneficiaries named under a valid will or, if there is no valid will, to the beneficiaries named in the state intestacy laws.

FLORIDA INHERITANCE

Should a child have protected rights to property and inheritance where the child was created as an embryo through in vitro fertilization during his parents’ marriage, but implanted into his mother’s womb after the death of his father?

FINLEY vs. ASTRUE A recent case illustrates the difficult policy and legal considerations that factor into resolving these challenging cases: Amy and Michael Finley were married in 1990 and during the course of their marriage pursued fertility treatments and ultimately participated in an in vitro fertilization and embryo transfer program.

Deep Freeze In June, 2001, doctors produced ten embryos using Ms. Finley’s eggs and Mr. Finley’s sperm. Two of the embryos were implanted into Ms. Finely’s uterus and four embryos were frozen for preservation. Ms. Finley later suffered a miscarriage of both of the implanted embryos.

Life and Death Mr. Finley died intestate on July 19, 2001 and shortly thereafter, Ms. Finley had two of the previously frozen embryos thawed and transferred into her uterus, resulting in a single pregnancy. After the child’s birth, Ms. Finley applied for benefits and insurance based on the earnings record of Mr. Finley. After her claim was denied, she appealed to the law and her case progressed through the state and federal court system. Finley v. Astrue, —S.W.3d—, 372 Ark. 103, 2008 WL 95775 (Ark. 2008).

Protect the Children This unique issue has presented itself several times especially in light of modern medical advances in reproductive science. On one hand, it is reasonable to conclude that the Finley’s child was neither born nor conceived during their marriage, which ended upon Mr. Finley’s death. On the other hand, it can be argued that a child is “conceived” at the time a woman’s egg is fertilized by the father’s sperm, and therefore based upon the medical definitions of “conception” the child was conceived during the life of Mr. Finley, and that as a matter of public policy, the child’s inheritance and property rights should be protected by a court of law.

Florida Probate Code vs. Florida’s Determination of Parentage Act The Florida Probate Code provides that heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent’s lifetime. Fla.Stat. §732.106. However, the Florida legislature has written into law in the Determination of Parentage Act, Fla.Stat.§ 742.17 that a child ho is conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or pre-embryo to a woman’s body is not eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will. One Florida court used the Determination of Parentage Act to deny benefits to a child conceived from the sperm of a person who died before the transfer to the mother’s body. Stephen v. Commissioner of Social Security, 386 F.Supp.2d 1257 (M.D.Fla. 2005).

Why are children treated differently under these two statutes? In my view, the legislature needs to directly address this issue because the law’s treatment of children in this regard is inconsistent and illogical. There is no doubt that under the circumstances described above, the legitimacy of the child would be irrebuttably presumed under §742.11. Why then should the child not be treated as a dependent and entitled to property and inheritance rights?

Can a Parent Inherit from a Child Whom the Parent Did Not Support?

An infant was born severely handicapped as a result of medical malpractice by doctors at birth. The doctors were sued and a judgment was entered against them for almost three million dollars, the bulk of which was placed in a trust for the child’s benefit. The child died on September 2, 2005.

The child’s mother took care of her throughout her life and received funds from the trust to attend to the child’s needs. After the child’s death, her biological father sought half of the balance remaining in the trust under their state’s intestacy laws. The child’s mother argued that the father didn’t contribute to the child’s support during her life, and owed unpaid child support, and therefore shouldn’t be entitled to half of the remaining funds in the trust. Further, the child’s mother claimed that even if there was no dispute as to his status as the child’s biological father, he didn’t qualify as a “parent” because the dictionary defines “parent” as not only one who “brings forth offspring,” but also includes a person who “brings up and cares for another.”

This case was decided recently under New Jersey’s state law in In the Matter of Rogiers, 396 N.J.Super. 317, 933 A.2d 971 (2007). The New Jersey court in this determination of heirs case, acknowledged that parents must contribute to the basic support needs of an unemancipated child to the extent of their financial abilities and regardless of marital status and also recognized that the absence of meaningful relationship does not relieve a legally-obligated parent from providing for his child’s basic needs. Nevertheless, the New Jersey court looked to that state’s probate code and found that a “parent” was “any person entitled to take or who would be entitled to take if the child, natural or adopted, died without a will, by intestate succession from the child whose relationship is in question and excludes any person who is a stepparent, resource family parent or grandparent.” Thus, under New Jersey law, a parent includes a mother and child and father and child legal relationships, either natural (biological) or adoptive. This relationship alone qualified the child’s father as a parent under the New Jersey probate code for purposes of inheriting half of the child’s remaining trust fund.

A different result might be reached if this case were decided by application of the Uniform Probate Code, which has been partially adopted in Florida. The Uniform Probate Code provides that neither natural parent (nor that natural parent’s kindred) can inherit from or through a child unless that natural parent, mother or father, has openly treated the child as his or hers and has not refused to support the child. Unif. Probate Code § 2-114(c).

The Florida Probate Code has not adopted the above section of the Uniform Probate Code, but does provide for a mechanism to determine what happens to probate assets when there is no will. Under the Florida Probate Code, section 732.103 provides that, the part of the intestate estate not passing to the surviving spouse, or the entire intestate estate if there is no surviving spouse, descends, if there is no lineal descendant, to the decedent’s father and mother equally or to the survivor of them. At this time, the only conduct by a heir that would disqualify him or her from taking their intestate share of a relative’s estate is murder. Under the Florida Probate Murder Statute, a slayer is prohibited from inheriting from the murder victim. One provision of the Florida Probate Code that might be relevant in the type of case described above is section 733.809, which provides that the amount of a noncontingent indebtedness due from a beneficiary to the estate or its present value, if not due, may be offset against that beneficiary’s interest.