Category: Wills, Trusts, and Estates


The fertile octogenarian

Maybe that old Elizabeth Jee case — the classic “fertile octogenarian” case — wasn’t so wacky after all. From the NYT:

Rajo Devi became the oldest woman in recorded history to ever give birth on November 28, when the 70-year-old delivered a baby girl in India. . . . The baby was conceived through the use of a donor egg that was injected with Ms. Devi’s 72-year-old husband’s sperm. . . . The record age for giving birth has inched up over the years (well, it’s the record if you don’t count Sarah and Abraham in the Bible) passing through the sixth decade — from 62 to 66 to 67 — an occasional woman at a time.

How old was Elizabeth Jee? She was seventy. Modern medical technology has finally brought us the day that Jee makes some sense. If we want to make sure that there’s no vesting outside of lives-in-being-plus-21, then maybe we do need to strike down poor Elizabeth’s gift.

(Of course, common-law RAP has been abolished, or partially superseded by USRAP, in a large number of U.S. jurisdictions. But that does not mean that RAP is dead. USRAP incorporates the common law formulation in one of its prongs, which really only makes the issue more complicated — because now you may have to check both the common law prong and the wait-and-see prong.)


Attention All Estates and Trusts Professors (And Pet Lovers)


Jeffrey Toobin has written a must-read article about a $12 million trust that Leona Helmsley established for the benefit of her dog, Trouble. I usually cover the topic of honorary trusts quite quickly, but this semester I’m going to slow down a bit. If nothing else, Trouble’s trust should force students to contemplate the extent to which they are committed to dead-hand control. Beyond the obvious concerns about spending millions on a single dog, as Toobin points out, Trouble herself probably would have been happiest if she had simply been adopted by a dog-loving family.

As an aside, we all know how prickly adult children can get when a step-parent receives the bulk of the decedent’s property. But imagine if the children are disinherited because of a dog . . . .


Law Talk: George R. R. Martin

gm-lochness-t.jpgIn today’s episode of Law Talk, we hear from George R. R. Martin, the prolific author of the “high fantasy” series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I’ve previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) “The American Tolkien.”

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead’s distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren’t a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn’t one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here’s the interview again. Warning: it’s a big file!

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

For other posts in the “Law and Hard Fantasy” Interview Series, see:


What To Do With Left-Over Class Action Money

Adam Liptak has a nice piece in today’s New York Times about the growth of left-over money from class action suits. Judges are finding that after a case is complete there is often a large pool of money that is unclaimed, and the judge must then decide what to do with the money. In one case involving models the judge designated an eating disorder and a drug abuse charity as recipients of the money. The problem is that the Second Circuit and some academics think the plan to use cy pres as a way to dispose of the money has flaws. Judges are being lobbied for money which raises corruption concerns according to Professor Issacharoff of NYU. As Dean Levi of Duke notes, this role “is not a true judicial function and can lead to abuses,” and requests to give an instiution money as a cy pres award put judges in “uncomfortable” positions. The awards can be large. For example, according to the article, George Washington University Law School and The Illinois Institute of Technology have each received $5 million from law suit settlements. Whether judges are best-placed to dole out the money might merit some research and writing. In addition, some argue that the money must go to plaintiffs. Yet, if only a handful of plaintiffs end up filing the paperwork and receive a windfall the system is apparently flawed again. Nonetheless perhaps allowing such windfalls will provide incentives to others to claim their otherwise small payments. It seems that the system fails to provide a good way to get the money to the plaintiffs which alone suggests that judge should not be in this position in the first place. That alone might be worth some writing and thought.


Should You Buy Divorce Insurance?

brokenheart1.jpgDivorce is catastrophic: it increases the rates of suicide and heart disease; can decrease overall well-being for both parents and children; and it significantly hurts the financial position of the parties, especially women.

But unlike almost all other catastrophic risks that we face, the costs of divorce can not be fully insured. Because of statutory requirements that limit insurance coverage to “fortuitous events”, and the perception that divorce is elected (at least by one of the parties to the marriage), you can’t buy a policy that will pay you for breach of the marriage contract. Such is the law.

I’m interested in this topic, and so I was quite intrigued to read about a new product being developed by an entrepreneur named John Logan, of the SafeGuard Guaranty Corporation: divorce insurance.

There has been significant enthusiasm for the concept. As some noted, you could imagine such insurance having a collateral-benefit: “risk matching” your perspective spouse (or even a first date) based on their premiums. But when you think about the concept a little bit, obvious objections present themselves:

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Costs of Inequality

As tax day approaches, Sheryl Sandberg of the Google Foundation has some sobering insights on the “charity gap”–how small a percentage of donations actually help the disadvantaged. “[O]nly 8% of donations provide food, shelter or other basic necessities. At most, an additional 23% is directed to the poor.” International deprivation is not a major concern of most donors; “The most generous estimate shows that only 8% of U.S. individual donations supports international causes of any kind.”

Another article, on the prevalence of organ markets, shows how this persistent inequality affects the global supply of and demand for body parts. It pleads for another type of giving:

Fewer than 40 percent of Americans have signed organ-donor cards, and only about half of their families consent to the donation of a loved one’s organs. . . . Many assume that if they don’t supply the organs, somebody else will. But [even if that is the case,] that somebody won’t be a corpse. It’ll be a fisherman or an out-of-work laborer who needs cash and can’t find another way to get it. The surest way to stop him from selling his kidney is to make it worthless, by flooding the market with free organs. If you haven’t filled out a donor card, do it now.

Both quotes bring to mind a recent quote I’d read, reportedly from an upcoming book by Pope Benedict XVI:

Confronted with the abuse of economic power, with the cruelty of capitalism that degrades man into merchandise, we have begun to see more clearly the dangers of wealth and we understand in a new way what Jesus intended in warning us about wealth.

As Thomas Berg has blogged, “great disparity seems likely to make it harder for people to practice the value of solidarity, that is, ‘see[ing] the “other”. . . not just as some kind of instrument, . . . but as our “neighbor,” . . . to be made a sharer on a par with ourselves in the banquet of life to which all are equally invited by God.'” (citing Solicitudo Rei Socialis, para. 39).

I look forward to seeing what the distinguished legal scholars attending the upcoming Class Crits Workshop (hat tip: Feminist Law Profs) at the SUNY Buffalo Law School have to say on these and related topics. (Note–they are still accepting proposals until April 23).


Anna Nicole Smith’s will

Anna Nicole Smith’s will is recently available online at various venues, such as CNN. The will, in interaction with the facts, raises a number of questions. It’s practically a real-life law exam. This post will discuss a few of the many issues raised by the will.

This discussion is limited in a number of important ways. For example, there are messy jurisdictional questions; there may be questions about the existence of other potential heirs (an interesting possibility, raised in this news article); it seems not outside the realm of possibility that a later will or codicil will surface. There are also a whole array of questions falling under the broad umbrella of undue influence or related impropriety. Conspiracy theorists are already suggesting that the lawyer, Howard Stern, orchestrated a complicated web of murder. Even less exotic and more mundane possibilities, like plain vanilla undue influence, could still drastically affect the distribution. Finally, there are big question marks relating to the value of the estate. The $80 million question is the litigation over the estate of Ms. Smith’s late husband. The ultimate value of her estate could vary greatly depending on how those issues are ultimately resolved.

But even setting aside those questions, the will still leaves a number of interesting issues. Questions that come out of the will itself include whether Anna Nicole Smith’s daughter will be treated as a pretermitted child, and the question of how to treat the lapsed bequest to Anna Nicole Smith’s son, Daniel. We can frame the query in a way that highlights these sub-issues. In fact, it makes quite a nice law-exam-style question.

“Anna executes a will in California in 2001. She leaves her entire estate to her son Daniel, to be held under various trust provisions. She also explicitly disinherits any other relatives, as well as any future spouses or children she might have. Her will contains no residuary clause. In 2006, Daniel dies suddenly, leaving no issue. Later in 2006, Anna’s daughter Dannielynn is born. In 2007, Anna dies. How is her estate distributed under California law?”

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