If you do not have a will, your wishes for what happens to your possessions after your death may not come to pass. Even if you think you do not have a large estate, if you own a home or have other assets, it is worthwhile to do some estate planni
ng, and essential that you have a will.
Take the recent case of Margaret Flood. She had an estate of $480,000 (perhaps the value of her house). She had four children, two of whom were disabled. The government had been providing services to these children, and thus had a right to reimbursement if the children were to ever have assets of their own. Ms. Flood had wanted to shelter her children’s inheritance to protect it against taxes and other liens, so that the disabled children especially would have the benefit of what she left to them. She started down the right path – consulting an attorney and indicating a desire to have a will with the necessary provisions, specifically special needs trusts for the disabled children so that they, not the government, would get the inheritance. Unfortunately, she did not execute a will before she passed away.
Upon her death, the estate’s administrator filed an action to establish the trusts, asserting that this had been Ms. Flood’s intent. Absent these trusts, the money would have gone directly to each of the children, and the government would have a legitimate claim for reimbursement from the disabled children. That is because if a person dies without a will, the estate is distributed strictly according to a method set forth in the law. The trial court allowed the trusts to be established, citing the legal doctrine of probable intent, which allows for the intent of the testator (the person who made the will) to be carried out.
But the Appellate Division reversed. If the words of a will seem to imply one thing, but it is proved that the testator really meant for something else to happen, the court does have the power to modify the will so that the intent of the deceased is honored. But here, there was no will to be modified. If a person does not even have a will, then their pre-death intent doesn’t count. So, the children inherited directly with no trusts, and the inheritance was not protected.
The old saying is true: if there’s a will, there’s a way. Make sure you have a will and that it is up to date.
What are the parental rights of a woman who is having someone else bear and give birth to a child? It depends on the specific facts of the case, as recently demonstrated in a case decided by the New Jersey Appellate Division.
Here are the players in this drama, and their story: We start with Husband and Wife – who cannot have a child together because Wife is infertile. So, they take Husband’s sperm and have an in vitro fertilization with the ovum of an anonymous Donor. The embryo created by this process is then placed in the uterus of a different female, with whom Husband and Wife have signed a contract for that person to be the Carrier of the fetus until birth. Thus, everyone has some biological relationship to the child except the Wife.
Before the birth of the child, Husband and Wife went to get a court order directing that they be listed as the parents on the birth certificate when the child was born. The Carrier voluntarily consented to this request, and agreed to relinquish any rights she may have had to the child. The judge granted the request; however, since the law requires that the Carrier cannot relinquish her parental rights until at least 72 hours after the birth of the child, the court’s order was made effective only 72 hours after the birth and only if the Carrier did relinquish her rights.
Into the picture steps the State Registrar, the agency that has the legal obligation to correctly record birth certificates. Not so fast, the Registrar says. The New Jersey Parentage Act does not permit a pre-birth declaration of parentage in these circumstances – where there is no actual relationship between Wife and the child. The application can only be made after birth because of the 72 hour waiting period. Wife cannot be presumed or declared to be the Mother prior to birth.
But that’s unfair and unconstitutional says the Wife. After all, the same Parentage Act presumes that a husband is the father of the child that his wife has borne. Shouldn’t she be presumed to be the mother of the child her husband has fathered?
“No” said the Appellate Division. First, the law is clear that the Carrier (the birth mother) has to be given the 72 hour period in which to decide to relinquish her rights. Also, declaring Wife to be the mother at the time of birth would simply be inaccurate. There are three ways by which someone can legally be a parent: (1) genetic contribution (providing the sperm or the egg); (2) actually giving birth to the child; (3)adoption. Husband fits category (1), but Wife only had category (3) – adoption – available to her. She therefore would have to formally adopt the child. The situation would have been different if Wife had actually carried the child to birth, even if she did not provide the egg.
Her constitutional argument was also rejected. The Appellate Division said there is nothing unfair about the statute. If the Husband fathers a child by a woman who is not his wife, the presumption does not apply. Nor is an infertile husband presumed to be the father of a fertile wife. There is nothing unfair or unconstitutional when the law reflects the actual facts.
The story will have a happy ending, though, even if the Wife does have to go through the formal adoption process. Adoption establishes the same relationships, rights and responsibilities between the child and the adoptive parent as if the child had actually been born to the adoptive parent.
Looks like the Law got this one right. The rights of all the parties, including the birth mother, were protected, and the intentions of all the parties — that Wife be the mother — will be honored.
Generally speaking, in New Jersey (and in an increasing number of other states), when an engagement is broken, the ring goes back to the man. It does not make any difference who broke the engagement, or whose fault it was. The engagement ring (un
like other gifts that may be given) is considered to be a conditional gift. If the pre-condition does not occur – in other words, if the marriage does not take place - the gift is voided and returned to the original owner.
But there may be exceptions. For example, in many states, if a man gives a gift to a woman who is married, he cannot later claim that it was an engagement gift, “conditioned on marriage,” and that he has a right to its return if the marriage does not take place. The reason is that if the person giving the gift – the “donor” – knows there is an existing lawful impediment to his ability to marry the woman (such as the fact that she is already married), he cannot reasonably believe that at the time of the giving of the gift he could expect to actually marry that woman. It would be a gift given, not in contemplation of marriage, but rather in contemplation of divorce. It would thus be against the public policy that influencing or aiding the breakup of a marriage is not favored.
A situation testing these principles recently was before the court in Bergen County, New Jersey. The man gave the woman a ring, and placed the woman’s name on property that he purchased with his own funds. When the relationship broke down, he claimed that both actions were gifts given in contemplation of marriage, and since the marriage was not going to take place, he was entitled to recission of both actions (return of the ring, and removal of her name from the deed on the property). The woman claimed that they were never engaged, that she was legally married to another at the time of the giving of the gifts, and that the gifts were merely tokens of affection given in consideration of the parties’ long standing relationship.
The judge questioned the wisdom of imposing in all cases a ban on the return of gifts when there is a known impediment to marriage. He noted that although there is a public policy in favor of the preservation of marriage, with the passage of the No Fault Divorce laws, New Jersey also recognized that there is no benefit to prolonging a failed marriage. He also noted that continuing such a ban could produce unjust results. For example, such an arbitrary ban would bar recovery of a gift even in situations where one party actively made a knowing, intentional, and fraudulent misrepresentation deliberately designed to mislead the other party to believe that divorce was imminent and inevitable so that the parties could soon thereafter marry. The unilateral ban could also allow recovery by an abusive, unmarried donor from an innocent, victimized unmarried recipient who justifiably canceled the parties’ engagement.
Accordingly, the judge allowed the man to have the opportunity to establish whether or not the woman acted fraudulently, and whether this fraud led the man to reasonably believe that she would soon be divorced so that the parties could marry. If he could prove it, he would get back to gifts.
Just as there are rarely absolutes in marriage, there are rarely absolutes in the law.
You can control what happens to you after you die. No, this is not a blog about religion and I do not profess to know what happens to a person’s soul. But a recent decision by the New Jersey Supreme Court does confirm that you can control what ha
ppens to your body after your death. And, if you don’t take precautions, it may not turn out the way you or your loved ones intended.
Here’s the facts: when Larry Marino, Sr. passed away in October 2005 he had six children, two by his first wife, and four by his second wife Joan. Joan and Larry had not been divorced but apparently their relationship had deteriorated prior to his death. Joan wanted Larry to be buried in a plot that they had acquired through her mother, where she intended to be buried, and which was near her family’s plots. The children unanimously insisted that their father should be buried in his mother’s plot, as that is where he had wanted to be buried, and that he certainly did not want to be buried with Joan’s family. At the trial of the matter, Joan testified that she had been coerced into agreeing to having Larry buried where the children wanted. Later she sought a court order to have his body disinterred and moved to her plot.
She lost at trial. Even though the judge found that her decision to allow the burial near Larry’s mother was coerced, the judge held that Larry’s desire to be buried with his family coupled with his inferred desire not to be disinterred was paramount. That decision was reversed by the Appellate Division which held that Joan, as the surviving spouse, had the authority to determine where Larry was to be buried, and since she had been coerced into acting contrary to her wishes, the body could be disinterred.
The New Jersey Supreme Court disagreed. It pointed out that there is a statute related to internment, but a different statute related to disinterment. The internment statute says that if the person who has died has not left a will specifically appointing a person to control the funeral and the disposition of his remains, the right to do so belongs first to the surviving spouse and then to a majority of the surviving adult children. So, initially Joan did have the right to determine where Larry should’ve been buried, to the exclusion of the children. But, once a body is in the ground, the internment statute no longer applies, and one must look to the disinterment statute. That statute says human remains shall not be removed from an internment space unless the surviving spouse, the adult children, and the owner of the internment space all authorize the removal in writing. Majority does not rule in that instance. Thus, even though Joan had certain rights prior to burial, once the body is in the ground she had to share those rights with the surviving children. Since they could not all agree, the body stays put. This emphasizes the strong preference against disinterment.
The lesson to be learned is that everyone should not only have a will, but that will should be explicit as to what you want to happen to not just your possessions, but your remains as well.
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