The first story is about the late Adam Yauch, founding member of the Beastie Boys. Yauch died in May, at the age of 47. According to Yauch’s will, if both he and his wife—the mother of their child—died at the same time (such as in a common accident) while the child was still a minor, then Yauch’s parents would raise the child if Yauch and his wife died in an even-numbered year, and his wife’s parents would raise the child if Yauch and his wife died in an odd-numbered year. Presumably, Yauch’s wife’s will had an identical provision. It’s a bit of an arbitrary solution, but nevertheless a workable solution to what I suspect was deep disagreement between the spouses about who would raise their child if they both died and thus neither could do so.
As it happens, Yauch’s wife survived him, and she will of course raise their child. And should she now die at some later point but before their child reaches 18, then the child will be raised by whoever Yauch’s wife names as guardian, which she is now free to choose solely on her own in a new will, unless there was some provision in the original wills preventing such a change (which I doubt would be legally enforceable in any event, for reasons beyond the scope of this post).
In my law practice, I find that the most contentious estate planning-related discussion between spouses or partners with minor children is the discussion about who will raise their minor children should both parents die. It’s not always contentious by any means, but when there is contention, it is usually for this reason. Additionally, when I notice parents delaying in taking the first step toward getting an estate plan, and also when, once involved in the process they delay in approving draft documents and signing final documents, it is usually because they are still working through the guardianship issue. But, the good news is that they almost universally report that once they emerge on the other side of the decision they have incredible peace of mind and their relationship is in a better place as a result.
The second news story involves the late Sherman Helmsley, best known for his portrayal of George Jefferson on TV. Helmsley died in Texas in late July, and at the time I’m writing this post it is the end of August. As of now, a month after he died, Helmsley remains unburied. His body is being stored at an El Paso funeral home pending the outcome of a legal dispute between his longtime partner, Flora Enchinton, and a man claiming to be Helmsley’s brother. The dispute arises because the alleged brother claims he is the sole heir of Helmsley’s estate since he believes the will Helmsley signed a month before he died is not valid.
This post isn’t about the merits of the legal dispute, because I really have very few details about it, but it highlights a problem that often arises when a person dies and leaves behind an unmarried partner, whether that partner be of the same sex or (in Helmsley’s case) the opposite sex. In those cases, the surviving partner often has no legal standing. This post isn’t about the will itself, but about the fact that since Helmsley’s will provides instructions for the disposition of his remains, and since that will is being challenged with a claim that it’s not valid, Helmsley’s remains cannot be disposed of until it is determined whether the will is valid and that its provisions should therefore be carried out.
That said, it is important to note that since 2006 New York has had a law that allows a person to appoint an agent to be responsible for the disposition of his or her remains. Much like a health care agent is authorized to make medical decisions on behalf of a person no longer able to make decisions for him- or herself, an agent authorized to dispose of a person’s remains is legally recognized as the sole person responsible for making all decisions related to the disposition of the deceased person’s remains, such as funeral and/or memorial service plans, whether the body is to be buried or cremated, etc. The person you choose can be anyone, as long as they’re 18 and mentally competent.
Further, even if you die without such a document, the law provides the order of priority that must be followed when determining who will have the authority to make decisions regarding the disposition of remains. The order as determined by the New York statute is:
- Surviving spouse or domestic partner
- Any of the decedent's surviving children over the age of 18
- Either of the decedent's parents
- Any of the decedent's surviving siblings (brothers or sisters) over the age of 18
- A guardian appointed by a court
- Person 18 years or older who are eligible to receive an estate distribution, in the following order:
- Nieces and nephews
- Grand-nieces and grand-nephews
- Aunts and uncles
- First cousins
- Great-grandchildren of Grandparents
- Second cousins
- The duly appointed fiduciary of the decedent's estate (i.e., the executor)
- Close friend or other relative who is reasonably familiar with the decedent's wishes, including his or her religious or moral beliefs, when no one higher on the list is available, willing, or competent to act;
- The Office of the Public Administrator
In New Jersey, the law provides that if a will states who should handle the disposition of remains, that person can do so, even if the will has not been admitted to probate. However, those wishes must be expressed in a will, not a separate document, so it’s important 1) to have a will, and 2) for family members or other loved ones to know where to access your will in a way that allows for a timely funeral/burial/cremation. If the will is locked in a safe deposit box, for example, it will take weeks before a court order can be issued to allow the safe deposit box to be opened.
Interestingly, Texas has a similar law to New York’s, with a little bit of New Jersey’s mixed in. Essentially, it provides that a person can appoint an agent for the disposition of remains in a will, and that that provision will be recognized even before the will is admitted to probate. Apparently, however, it doesn’t necessarily apply if the will is being challenged. The exception in the Texas statute seems to indicate that the provision will not be honored pre-probate only upon a showing of bad faith in the creation of the provision/will (but don't quote me on that). I’m guessing that the delay in Helmsley's burial is that the alleged brother is claiming bad faith on the part of Helmsley’s partner in drawing up the will that contains the disposition of remains provision. Just a guess.
Additionally, while like New York the Texas law provides a hierarchy of people eligible to serve as agent in the absence of a document naming an agent, the Texas statute (like statutes in most states, I'll wager) has no provisions recognizing domestic partners. Remember: Helmsley was not married to his longtime partner. Thus, she cannot benefit from the law. Under the Texas law, in the absence of a valid will or other document naming an agent for the disposition of remains, then the person claiming to be Helmsley’s brother—if he is in fact Helmsley’s brother—has a greater standing than Helmsley’s partner under the law to decide what happens to Helmsley’s remains, even though the two had no relationship whatsoever other than blood ties. In fact, Helmsley’s partner has no standing whatsoever, like she would in New York.
The long and short of it is that anyone who is not in a legally recognized marital relationship should take the precaution of executing an “Appointment of Agent to Control Disposition of Remains” document. This is a standard practice of mine, although it likely is not part of the estate planning toolbox of attorneys not used to working with people in so-called “non-traditional” relationships. It is therefore important to raise the issue with your estate planning attorney if he or she does not raise the issue with you first.
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