Property Law Developments—Joseph William Singer

New York state has adopted a statute that defines procedures for ensuring that children conceived after the death of their biological parents can inherit property, receive Social Security survivor benefits, and benefit from trusts established for them. The law applies to  ova or sperm that are stored for use after the death of a biological parent, usually when that parent knows his or her lifespan is limited. The law requires a written declaration of the purpose for which the biological material was stored, recording of the document in public records, and requires the genetic child to be in utero within 24 months or born within 33 months of the death of the genetic parent. read article

The traditional rule is that title to real property is determined by the whole law of the situs of the property, meaning both the substantive law of the situs and its choice-of-law rules. Thus title is determined by whatever law would be applied at the situs. This rule has been rejected in some cases in recent years because personal property on death is determined by the law of the domicile of the decedent and if different rules are applied to real property located elsewhere and personal property, the decedent’s wishes may be ignored or perverted. However, many courts adhere to the traditional rules as occurred in In re Estate of Latek, 960 N.E.2d 193 (Ind. Ct. App. 2012), a court at the decedent’s domicile (Illinois) refused to accept a will for failure to comply with Illinois will execution requirements but the court in Indiana (where the property was located) refused to defer automatically to the determination of the Illinois court. The court affirmed what appears to be settled law that the full faith and credit clause does not require one state to defer to judgments of another state that purport to determine title to land outside that court’s jurisdiction. The Indiana court noted that an Indiana statute allowed wills that were proved valid in other states to be admitted in Indiana but in this case the will had not been proved in Illinois.

A deed granting an interest to two siblings (Roger & Dana Waid) “or the survivor” was interpreted as created a tenancy in common rather than a joint tenancy. Young v. Waid, 2012 WL 2947590, (W.Va. 2012). Following the death of Roger, Dana would have had a 100 % interest in the property if they held as joint tenants (because of her right of survivorship) but only a 50 % interest (with 50% held by Roger’s heir or devisees) if they held as tenants in common. Applying an interpretive presumption in favor of tenancies in common, the West Virginia Supreme Court noted that the deed did not use the words “joint tenancy” or “right of survivorship” and that it was possible the words “to the survivor” were mere surplusage. The court found the language not clear enough to constitute an intent to create a right of survivorship, effectively privileging giving each sibling (and his or her descendants) the economic benefit of the property rather than assuming the grantor wanted to consolidate interests in the survivor of the siblings. The case pitted one canon of interpretation (do not interpret conveyances to include language that has no purpose) against another (preferring tenancies in common over joint tenancies). The common approach in the US is to prefer the tenancy in common because it  treats co-owners more equally than the joint tenancy which consolidates interests but disinherits the descendants of one of the owners.

Within the last month or so, new states have recognized same-sex marriage. They are Delaware, Rhode Island, and Minnesota. All did so legislatively. Del. Code, tit. 13, §§101 to 122, as amended by 2013 Del. HB 75 (May 8, 2013); R.I. Gen. Laws §§15-1-1 to 15-1-5, as amended by 2013 R.I. Pub. Laws 4 (2013 R.I. HB 5015); Minn. Stat. §§517.01 to 517.09, as amended by 2013 Minn. Sess. Law Serv., ch. 74 (H.F. 1054) (May 14, 2013). Internationally, recent additions to the list include France, New Zealand, and Uruguay.

As of May 17, 2013, there are now thirteen jurisdictions (12 states and the District of Columbia) that recognize same -sex marriage in the U.S. They include  Connecticut, Delaware, the District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.

Three American Indian nations also recognize same-sex marriage, including the Coquille Indian Tribe, the Little Traverse Bay Bands of Odawa Indians, and the Suquamish Tribe. ee, e.g., Coquille Indian Tribal Code §§740.010, 740.100; Little Traverse Bay Bands of Odawa Indians Tribal Code of Law § 13.103; William Yardley, A Washington State Indian Tribe Approves Same-Sex Marriage, N.Y. Times, Aug. 11, 2011, at A-12 (Suquamish Tribe).

Both Great Britain and the United States have long traditions of letting individuals  write wills to determine who owns their property when they die. Those laws are tempered by statutes protecting the rights of spouses to some portion of the decedent’s estate. But both countries allow parents to disinherit their children. See Estate of Max Feinberg, 2009 WL 3063395 (Ill. 2009)(lawful to refuse to leave property to grandchildren because they married non-Jews). However, most other countries in Europe consider it both remarkable and close to barbaric to allow parents to disinherit their children; indeed, in 26 of 27 European Union countries, a large part of the estate of the deceased is reserved in equal shares for surviving children. This difference has erupted into a dramatic conflict as the EU announced rules for distribution of property located in more than one EU country. Not only do the two sides have differing views of the appropriate distribution of  family estates but each side appears to view the other’s system as both shocking and unjust. There is an interesting report about the dispute in The Economist magazine. Charlemagne, Where there’s a will there’s a row, The Economist, Oct. 15, 2009.

On September 24, 2009, the Illinois Supreme Court upheld the provisions of a will disinheriting the decedent’s grandchildren for marrying non-Jews. In re Estate of Max Feinberg, 2009 WL 3063395 (Ill. 2009).