Becker v. Davis, 491 F.3d 1292 (11th Cir.(Fla.) Jul 11, 2007)

In trusts-and-estates litigation there are certain remedies that take on a life of their own; often plead as stand-alone causes of action.  They’re not, they’re remedies.  Examples include "constructive trusts" (see here) and "accountings."

The remedy v. cause-of-action distinction is not just semantics.  Understanding the distinction can have real life consequences: and the linked-to-case is a great example.

In the linked-to case one of the parties sued for a trust accounting in connection with a business dispute subject to an arbitration clause.  The trial court ruled the trust accounting "count" was not subject to the arbitration clause because it was an independent cause of action.  Wrong answer.  A trust accounting is a remedy.  Not a cause of action, so it can’t be litigated as a stand alone claim.  Here’s how the 11th Circuit articulated this point in its reversal of the trial court’s ruling:

[A]n accounting is a remedy attached to a separate independent cause of action. See Johnson v. Pullman, Inc., 845 F.2d 911, 913 (11th Cir.1988) (“Although plaintiff’s complaint contained a count in which an accounting was sought, that relief would not be available here absent some independent cause of action.”).

Accordingly, if the four substantive claims brought by the Trust against the defendants arise out of the agreements and are therefore subject to arbitration, as the parties agree, the Trust’s claim for an accounting, which is merely a remedy for any liability, would also arise out of the agreements. Furthermore, to the extent that Becker’s individual claims rely on the terms of the agreements and are therefore subject to arbitration, Becker’s individual claim for an accounting of the Trust’s assets also rely on the terms of the agreements and are subject to arbitration. Accordingly, we find that the district court erred in not sending Count Nineteen to arbitration.

Justin Barber was convicted in 2006 of murdering his 27 year old wife to collect on a $2.3 million life insurance policy.  This case was the subject of intense media attention (see here, here).  Mr. Barber continues to profess his innocence . . . and he’s still not willing to walk away from the insurance money.

Barber v. Parrish, — So.2d —-, 2007 WL 2384521 (Fla. 1st DCA Aug 23, 2007):

In the linked-to opinion the 1st DCA upheld a trial court’s decision applying F.S. 732.802, Florida’s “slayer statute.”  Mr. Barber argued that since his murder conviction was being appealed, Florida’s slayer statute shouldn’t apply.  As I’ve written before, Florida’s slayer statute does NOT require a final murder conviction to apply (see here).  That’s the same conclusion the 1st DCA came to in the linked-to opinion, based upon the following rationale:

On appeal, Appellant argues that the trial court erred in granting summary judgment because his conviction cannot be considered final before he has exhausted his appellate rights. This argument has previously been rejected. In Prudential Insurance Company of America, Inc. v. Baitinger, 452 So.2d 140, 141 (Fla. 3d DCA 1984), the insured’s husband, who was the primary beneficiary of a life insurance policy, was found guilty of the insured’s murder. The probate court entered an order directing the insurance company to pay the policy proceeds to the personal representatives of the insured’s estate. Id. The insurance company appealed the order arguing that the husband’s conviction could not be considered final due to a pending appeal. Id. at 142. The Third District Court of Appeal examined the legislative intent behind section 732.802 and determined that amendments to the statute demonstrated the Legislature’s intent to make it more difficult for a killer to receive a financial benefit for his wrongdoing. Id. at 142-43. It concluded that the term “final judgment of conviction” meant an adjudication of guilt by the trial court, and it affirmed the trial court’s order directing the insurance company to pay the proceeds to the personal representatives. Id. at 143. See also Cohen v. Cohen, 567 So.2d 1015, 1016 (Fla. 3d DCA 1990) (holding that irreparable harm would not occur to a primary beneficiary, even if her conviction was reversed on appeal, if the estate was distributed to the remaining beneficiaries because she would be able to seek money damages from those beneficiaries).

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A Legal Times article entitled Considering Arbitration’s Costs and Dangers does a good job of pointing out arbitration’s hidden costs within the context of commercial disputes.  The same pros/cons apply in the probate litigation context. The article concludes by asking:

Why not mediate instead? Because it is nonbinding, mediation may at first glance seem to be a waste of time — if you’re in a dispute, why would you want to spend time in a process that cannot guarantee a resolution? But in many respects, mediation offers all the benefits of arbitration — lower costs, faster results — without the limitations. It provides a less formal opportunity for both sides to present their views on a dispute, without having to engage in expensive discovery. It can be performed at the outset of a dispute, or later, within the context of a raging litigation (and in fact, courts more and more require parties to attend nonbinding mediation before permitting a case to be brought to trial). Mediation therefore does not preclude litigation, as arbitration does, but complements it. And the average mediation can be performed in a day.

The nature of the mediator’s function is the hidden strength of the mediation process. Arbitrators are essentially private judges, paid to determine an outcome in an impartial fashion. Although arbitrators often seem interested in reaching equitable outcomes to the benefit of all parties, they in fact have no intrinsic interest in the outcome. Mediators, by contrast, are brought to a dispute expressly to find common ground, if possible, and thus have a strong interest in ending a dispute in a manner most fair to all parties.

In the probate-litigation context, mediation is almost always the right answer.  Probate disputes lend themselves to resolution in the mediation context because the costs of litigation are often prohibitive: for BOTH sides.  A good mediator will take a personal interest in brokering a deal both parties can live with . . . and making it happen all in one day.  When I take off my litigator hat and put on my “estate planner” hat, I usually include the following mediation language in my wills and trusts:

Dispute Resolution. If there is a dispute or controversy of any nature involving the disposition or administration of my estate, I direct the parties in dispute to submit the matter to mediation or some other method of alternative dispute resolution selected by them. If a party refuses to submit the matter to alternative dispute resolution, or if a party refuses to participate in good faith, I authorize the court having jurisdiction over my estate to award costs and attorney’s fees from that party’s beneficial share or from other amounts payable to that party (including amounts payable to that party as compensation for service as fiduciary) as in chancery actions.

When is arbitration a good idea?

In the probate litigation context, arbitration may be the right tool if formerly waring parties enter into a settlement agreement or some other type of deal requiring them to work together on multiple issues prior to finally parting ways forever. Examples would include closing down or selling a large family business, partitioning real property, or otherwise liquidating a large and complex estate.  In these cases you have two elements that argue for arbitration: [1] frequency and [2] no bet-the-farm decisions.

[1]  Frequency: In a complex settlement situation, there will be multiple “forks in the road” that all have the potential for bringing the entire process to a screeching halt.  An arbitrator can step in at any time, make a ruling, and keep the parties moving forward.  Here’s how this point was made in the linked-to article:

Where companies are wise to think of arbitration as a means of resolving their contractual problems, the common denominator in all such circumstances is frequency. Companies whose businesses inevitably involve transactions with numerous entities are more likely to benefit from designating arbitration as a means of resolving disputes. Arbitration clauses can, in such circumstances, help companies avoid becoming entangled in multiple concurrent court proceedings. The savings and efficiencies clearly outweigh foreseeable disadvantages.

[2]  No bet-the-farm decisions: The fact that appellate rights are almost non-existent in arbitration means you have to be willing to live with wrong or manifestly unjust arbitration rulings from time to time.  In a complex settlement situation, all the arbitrator should be doing is resolving minor “intermediate-step” disputes so that all parties can arrive at a mutually-agreed upon end point.  In this context, the costs of a wrong arbitration ruling should be something the parties can live with.

If the issue being disputed is important enough that you want to make sure your client can appeal a wrong decision, then arbitration is probably not the way to go (mediation, however, remains an excellent choice).  Here’s how the linked-to article addressed this point:

[I]t is extremely difficult, if not impossible, to get arbitral decisions overturned through the court system — let alone reviewed. The proof is in the small number of decided cases in which an arbitral decision or procedure is challenged. For example, according to Stephen Huber’s article “The Arbitration Jurisprudence of the Fifth Circuit” for the Texas Tech Law Review, between June 2002 and May 2003, the 5th Circuit issued 155 written opinions, with only 21 of them involving issues relating to arbitration. Indeed, the trend is for courts to conclude that an enforceable arbitration clause swallows up just about every dispute under the contract — including whether a dispute could be decided by arbitration in the first place. Once you’ve committed to arbitrate a potential dispute, you’re not likely to attract a lot of sympathy from a court if things don’t work out as you would have hoped.

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Case Study

Gunster, Yoakley & Stewart, P.A. v. McAdam, — So.2d —-, 2007 WL 2376658 (Fla. 4th DCA Aug 22, 2007)

A unanimous panel of the 4th DCA just upheld a $1 million legal malpractice judgment award in a malpractice case brought by the beneficiaries of an estate against the decedent’s estate planning attorneys. Here’s how the 4th DCA summarized the trial court proceeding in the linked-to opinion:

Frank Gannett McAdam and Charles McAdam, III, individually, as personal representatives of the Estate of Charles V. McAdam, Jr., and as trustees of The Charles V. McAdam, Jr. Revocable Trust, brought an action against Gunster Yoakley, one of Gunster Yoakley’s probate attorneys and J.P. Morgan Trust Company, N.A., (“J.P.Morgan”). In their complaint, plaintiffs asserted claims of breach of fiduciary duty, constructive fraud, civil conspiracy, negligence and unjust enrichment. The substance of these accusations was that Gunster Yoakley wrongfully procured J.P. Morgan’s appointment as corporate fiduciary and caused the estate administration to be more expensive. As such, plaintiffs sought, among other things, recompense for all “avoidable probate expenses” and disgorgement of all fees paid to Gunster Yoakley by decedent Charles V. McAdam, Jr.

After settling their claims against J.P. Morgan, plaintiffs proceeded against Gunster Yoakley and ultimately won a $1.2 million jury verdict. The trial court, however, granted remittitur and entered final judgment of $1,043,430, including interest and costs.

Once the “disloyalty” charge sticks, you’re dead

I’ll get to the legal issues below, but as an initial point I think it’s important to note the case against the decedent’s estate planning attorneys was framed in conflict-of-interests terms.  Basically, the case presented to the jury was that the law firm was disloyal to its estate-planning client in order to secretly favor J.P. Morgan.  This type of allegation against a lawyer is radioactive.  As I’ve reported before it’s claims of disloyalty — NOT negligence — that will really get you in trouble.  Even if the facts show no economic harm was done, juries will crucify you if there’s even a whiff of disloyalty.  In the linked-to case the jury originally awarded the plaintiffs $1.2 million — even though they only asked for $1 million!

Yes, the heirs have standing to sue you

So sayeth the 4th DCA:

[W]e hold that the .  .  .  plaintiffs demonstrated they had standing to bring suit against Gunster Yoakley-Plaintiffs showed that their father’s intent, as expressed in his will, was frustrated by the negligence of Gunster Yoakley and that, as a direct result of such negligence, their legacy was diminished. See Hewko v. Genovese, 730 So.2d 1189, 1192 (Fla. 4th DCA 1999).

Proving liability in estate planning malpractice cases

Florida law isn’t exactly clear on whether heirs can sue a decedent’s estate planning attorney for malpractice.  In this case the 4th DCA seems to open the door to these claims.  All trusts-and-estates attorneys need to keep this point in mind.  Here’s how the 4th DCA framed the liability issues:

We have considered the issues raised by Gunster Yoakley on appeal, including its contentions that . . . it was not liable to the estate for administration expenses or damages arising out of the appointment of J.P. Morgan . . . . As to [this] point, we hold that reversal is not merited on any of the grounds argued by Gunster Yoakley because:

[1] Plaintiffs sought relief not available to them in probate and therefore could, contrary to Gunster Yoakley’s assertion on appeal, collaterally attack the appointment of J.P. Morgan. See Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 586 So.2d 1221 (Fla. 3d DCA 1991) (holding testator’s estate can maintain legal malpractice action against attorney who prepared the will of the deceased in order to address issues not remedied in probate court);

[2] The trial court did not err in submitting to the jury the question of whether Gunster Yoakley had a duty to fund a revocable trust during decedent’s lifetime as there was sufficient evidence that Gunster Yoakley implicitly agreed to do so. See Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981) (“[T]he concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.”); see also Lane v. Cold, 882 So.2d 436, 438 (Fla. 1st DCA 2004) (holding action for breach of fiduciary duty may be maintained where, “A relationship exist[s] with respect to the acts or omissions upon which the malpractice claim is based,” and a party may demonstrate this relationship by showing that his attorney implicitly agreed to undertake these responsibilities); and

[3] The trial court did not abuse its discretion in denying Gunster Yoakley’s request for jury instruction, nor did the court err in making an award under the “wrongful act doctrine.” See In re Amendment to Rules Regulating Fla. Bar, 605 So.2d 252, 309 (Fla.1992) (providing that rules of professional conduct “are not designed to be a basis for civil liability”); see also Martha A. Gottfried, Inc. v. Amster, 511 So.2d 595, 598 (Fla. 4th DCA 1987) (“Where the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interests, such costs and expenses, including reasonable attorney’s fees upon appropriate proof, may be recovered as an element of damages.”) (quoting Baxter’s Asphalt & Concrete, Inc. v. Liberty County, 406 So.2d 461 (Fla. 1st DCA 1981)), quashed on other grounds, 421 So.2d 505 (Fla.1982).

Estate of Zlotowski v. C.I.R., T.C. Memo. 2007-203 (Jul 24, 2007)

In a probate proceeding the person primarily responsible for getting the job done right is also the person primarily liable if things go wrong: the personal representative ("PR").  When a PR hires a lawyer to advise him or her, the PR is entitled to good advice, but the mantle of ultimate responsibility/ liability for the estate remains with the PR, not the lawyer.

"Disengaged" PR

In the linked-to case an 85-year old PR (referred to as "executor") who had assumed responsibility for administering the estate of a former business partner’s widow apparently failed to recognize the gravity of his responsibilities.  The following excerpt from the linked-to opinion is how the Tax Court characterized his conduct:

Mr. Roisen testified about his administration of the estate, and, from that testimony, we draw the conclusion that he was almost completely disengaged from estate administration, relying on Mr. Ledley to do virtually all that was required of him and Mr. Helman. Specifically, we make the following findings, based on Mr. Roisen’s testimony: He agreed to serve as an executor to accommodate his old business acquaintance, decedent’s husband. He relied on decedent’s attorney for the selection of Mr. Ledley as executors’ counsel. He knew nothing about the estate and relied fully on Mr. Ledley, who, from his perspective, was in charge of the estate. Apart from signing the Form 706, he did not participate in filing it, which job, he believed, was in Mr. Ledley’s hands. He never discussed with Mr. Ledley penalties for a late-filed return. He only discussed with Mr. Ledley whether the return was going to be filed on time after it already was late.

Mr. Roisen’s almost complete disengagement from return preparation is captured by his final exchange with one of respondent’s counsel:

Q: So, essentially your testimony is that they [i.e., Mr. Ledley] took care of everything relative to the filing of the return?

A: Absolutely. That is a hundred percent correct.

Q: And you had no participation in the filing of the return?

A: No, except that they required my signature, because being the executor of the will, I had to sign it, and which I did. I had full confidence in them.

Mr. Roisen signed the estate tax return, on August 28, 2001, after it was more than 8 months overdue.

Blown estate tax filing deadline = $233,359 late penalty

When the IRS assessed a $233,359 late penalty because the PR filed the estate’s Form 706 Estate Tax Return 8 months late, the PR argued his lawyer was responsible for filing the estate tax return, and so the estate shouldn’t be held responsible for his lawyer’s mistake.  The Tax Court rejected this argument, but summarized the controlling law as follows:

In [United States v. Boyle, 469 U.S. 241, 245 (1985),] at 249-250, the Supreme Court stated:

Congress has placed the burden of prompt filing [of an estate tax return] on the executor, not on some agent or employee of the executor. * * * Congress intended to place upon the taxpayer an obligation to ascertain the statutory deadline and then to meet that deadline, except in a very narrow range of situations.

The Court recognized that engaging an attorney to assist in probate proceedings is “plainly an exercise of the ‘ordinary business care and prudence’ prescribed by [section 301.6651-1(c)(1), Proced. & Admin. Regs.]”. Id. at 250. Nevertheless, describing the executor’s duty to file the return as an “unambiguous, precisely defined duty”, the Court cautioned that the executor’s expectation that the attorney, as his agent, would attend to the matter “does not relieve the principal of his duty to comply with the statute.” Id.

In re Estate of Musil, — So.2d —-, 2007 WL 2317189 (Fla. 2d DCA Aug 15, 2007)

The stuff of most probate disputes isn’t the dramatic will contest.  Rather, it’s the secondary, less sexy bread-and-butter issues that usually rule the day.  For that reason cases like the linked-to opinion are useful. Practitioners and judges alike get practical guidance they can use over and over again.

What if I can’t find the original will, what if I only have a copy?

I get this question with some frequency.  I’m sure most probate practitioners would say the same. In the linked-to opinion the court does a good job of explaining what needs to be done to have a photocopy of a will accepted into probate:

A will that was in the possession of the testator before his death and that cannot be located after his death is presumed to have been destroyed by the testator with the intention of revoking it. See Carlton v. Sims ( In re Estate of Carlton), 276 So.2d 832, 833 (Fla.1973); Walton v. Estate of Walton, 601 So.2d 1266, 1266 (Fla. 3d DCA 1992). The proponent of the lost or destroyed will bears the burden of overcoming the presumption that the will was intentionally destroyed. Daul, 754 So.2d at 848. “The first step in overcoming this presumption is” to establish the terms of the will and to offer it for probate. In re Estate of Parker, 382 So.2d 652, 653 (Fla.1980). Section 733.207, Florida Statutes (2005), outlines the procedure for establishing a lost or destroyed will:

Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

See also Fla. Prob. R. 5.510 (stating additional requirements for the establishment and probate of a lost or destroyed will).

But he raised me like his own son, don’t I have any rights?

According to U.S. census data married couples made up 71% of all households in 1970 but decreased to 53% in 2000.  Nontraditional families, made up of adults raising children who are not biologically related to them, are obviously an increasingly common phenomenon.  Many of these “parent/child” relationships are never formalized in an adoption proceeding.

Against this backdrop we can expect to see more cases where people who are not related to a decedent by blood or adoption feel entitled to a stake in the estate.  “Virtual adoption” is the only available remedy in these cases.  Get to know this concept, you’ll be seeing more of it (see here).  Here’s how the court in the linked-to opinion summarized the elements of this claim in Florida:

Following the reasoning in [Sheffield v. Barry, 14 So.2d 417 (Fla.1943)] and in other cases, the Fifth District listed the five elements of virtual adoption in its review of a judgment that determined heirs. Poole v. Burnett (In re Heirs of Hodge), 470 So.2d 740, 741 (Fla. 5th DCA 1985). The elements of a virtual adoption include:

1. an agreement between the natural and adoptive parents;

2. performance by the natural parents of the child in giving up custody;

3. performance by the child by living in the home of the adoptive parents;

4. partial performance by the foster parents in taking the child into the home and treating the child as their child; and

5. intestacy of the foster parents.

Id. The Fifth District also recognized the Sheffield court’s acknowledgment that in Florida, the purpose of virtual adoption is to provide the child with “an enforceable contractual right.” Id.

I can’t imagine a more extreme example of trustee decision making under pressure-cooker conditions than the on-again-off-again negotiations for the sale Dow Jones & Co., which owns the Wall Street Journal.  As reported by the WSJ in Bancroft Trusts’ Lawyers Hold Key to Dow Jones, at the center of that deal was a small group of lawyer-trustees:

The Bancroft family may own a controlling stake in Dow Jones & Co., but the final decision on whether to sell the publisher of The Wall Street Journal to Rupert Murdoch could well be made by a small circle of longtime family lawyers in downtown Boston.

Lawyers from Hemenway & Barnes sit at the center of dozens of overlapping trusts that hold power over most of the Bancrofts’ 64% voting stake in the company .  .  .  . Those lawyers occupy two of the three trustee seats on a number of key trusts, with the third held by a family member. On one of the biggest trusts, lawyers from the firm are the only trustees. And the fact that the large Bancroft clan is divided over whether to sell further deepens the firm’s influence.

"The vote really resides with them," says one family member who is leaning in favor of selling the company.

Risk management:

The best way to reduce the risk of getting sued as a trustee is to make sure the trust beneficiaries consent to your actions.  That seems to be what the trustees did in this case:

"There are 35 adult family members who have 35 points of view," Mr. Elefante said. "We’ve tried to be fair to all the family members by giving each of them all the information they need to make a good decision."

As the family’s legal representative, Mr. Elefante likely would be reluctant to go against the family’s wishes if a large portion of them oppose the deal. While trustees don’t legally have to consult the beneficiaries of a trust before acting, ignoring their wishes might expose them to litigation. What’s more, the Hemenway & Barnes trustees do not have to vote in concert. Mr. Elefante is expected to poll the family before deciding how the trusts would vote on a sale, a person close to him said.

Lesson learned — plan ahead:

The earliest Bancroft trusts date back to the mid-1930s.  Back then no one could have possibly anticipated a sale of the WSJ in the year 2007 to a controversial media magnet from Australia.  Just like no one creating a trust today to hold a client’s family business could possibly anticipate every contingency that trust will have to face in the decades (perhaps centuries – see here) that trust may be around for.

What you can do today is put in place a mechanism for trustee decision making that decreases the likelihood of future litigation while also making sure qualified trustees are at the helm when needed.  One way of achieving this balance is to design the trust so that an independent trustee, preferably a bank or trust company (see here for why), has ultimate decision making authority.  However, if trust beneficiaries feel their trustee isn’t doing a good job or doesn’t have their best interest at heart, sooner or later the parties will end up in court.  A way to avoid this type of showdown is to give the trust beneficiaries the power to hire and fire their corporate trustee at regular intervals.  Here’s one way to do it:

  • Require a corporate trustee:

After my death or if my personal rights under this Trust Agreement are suspended, there must be at least one Corporate Trustee serving at all times.

  • Give trust beneficiaries periodic power to hire/fire corporate trustee:

Upon the third anniversary date of my death, and every three years thereafter, a majority in interest of the permissible current income beneficiaries most closely related to me who are then legally competent may remove any Corporate Trustee for any reason by giving 30 days’ written notice to that Trustee and to the permissible current income beneficiaries, including the natural or legal guardians of any beneficiaries who are then disabled.

  • Give senior generation greater voting power:

If there is ever a vacancy in the office of Trustee of any trust created in this Trust Agreement and no successor is appointed as provided in this instrument, a majority in interest of the permissible current income beneficiaries most closely related to me who are then legally competent (the “beneficiaries”) will nominate as a successor Trustee a Corporate Trustee as defined in this Trust Agreement. If the beneficiaries do not appoint a successor Trustee within a reasonable time, the terminating Trustee shall, or any beneficiary may, petition a court of competent jurisdiction to appoint a successor Corporate Trustee.

Register v. State, 946 So.2d 50 (Fla. 1st DCA Dec 15, 2006)

The Florida law covering both voluntary and involuntary treatment for mentally ill persons is Chapter 394 of Florida Statutes: known as the Florida Mental Health Act or the Baker Act.  As with contested guardianship proceedings, the due process issues in these cases are thorny to say the least.    In the linked-to case the 1st DCA reversed a trial court’s involuntary inpatient placement of a mentally ill person because the trial court had failed to "certify through proper inquiry" that counsel’s waiver of the patient’s presence at the commitment hearing "was knowing, intelligent, and voluntary."

Here’s how the 1st DCA explained its ruling:

A patient has a fundamental right to be present at a commitment proceeding. Joehnk v. State, 689 So.2d 1179, 1180 (Fla. 1st DCA 1997). While a patient may waive his or her right to be personally present and be constructively present through counsel, a court must certify through proper inquiry that the waiver is knowing, intelligent, and voluntary. Id. Furthermore, a denial of the due process right to be present at an involuntary commitment hearing is fundamental error which may be raised on appeal even if not preserved below. See Ibur v. State, 765 So.2d 275, 276 (Fla. 1st DCA 2000) (holding that a denial of the due process right to be heard prior to the deprivation of one’s liberty is fundamental error).

Because the court below did not certify through proper inquiry that the waiver was knowing, intelligent, and voluntary, we reverse and remand for a new commitment hearing.

City of Key West v. Knowles, 948 So.2d 58 (Fla. 3d DCA Jan 10, 2007)

I think cases involving dead bodies often end up getting appealed because families find it hard to believe how limited a person’s legal rights are with respect to the remains of his or her loved ones. This issue received national attention in Florida during the Anna Nicole Smith case, as chronicled on this blog (see here) and by Prof. James T.R. Jones of the Louis D. Brandeis School of Law, in an article entitled Anna Nicole Smith and the Right to Control Disposition of the Dead.

In the linked-to case a surviving widow, Lorraine Knowles, filed a federal section 1983 claim against the City of Key West and its former Cemetery Sexton, Gilbert Suarez, on the grounds, among other things, that she was deprived of a property interest in her husband’s buried remains without due process.  The 3d DCA ruled that the trial court should have granted the City’s motion for directed verdict because the surviving widow lacked a protected property interest in her dead husband’s body.  Here’s the key language from the linked-to opinion:

To determine whether a property interest exists, for purposes of a section 1983 claim, we must look to state law. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Crocker, 778 So.2d at 984 (citing Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976)). “[I]n Florida there is a legitimate claim of entitlement by the next of kin to possession of the remains of a decedent for burial or other lawful disposition.” Crocker, 778 So.2d at 988. These rights to a deceased’s remains, however, exist only for purposes of burial, or for other statutory purposes, and nothing further. Id. See Lascurain v. City of Newark, 349 N.J.Super. 251, 793 A.2d 731 (2002). Thus, for purposes of a section 1983 claim, constitutionally protected property interest to decedent’s remains ends at the point of burial or other lawful disposition. Any claims for events occurring thereafter must be pursued under traditional common law causes of action. See Crocker, 778 So.2d at 987-88. In this case, Knowles’s complaint arises solely from events after the lawful burial of her husband. Hence, there is no constitutionally protected property interest on which Knowles can rest her section 1983 claim under the facts of this case. Therefore, the trial court should have granted the City’s directed verdict motion as the close of Knowles’s evidence.

I’ve previously written about how the U.S. Supreme Court’s ruling in Marshall v. Marshall will likely lead to more trusts-and-estates cases being litigated in Federal Court (see here, here).  In Marshall v. Marshall: The Supreme Court’s Get-Out-of-Probate-Free Card, University of Washington School of Law law student Julian Hurst (2008 J.D. Candidate) examines Marshall’s “practical consequences from the perspective of probate law and for those who find themselves challenging the validity of a will or trust.”

One of these days you’ll either be pushing for federal jurisdiction or opposing it in some form of trusts-and-estates litigation.  When that day comes, remember the linked-to law review article.  Here’s the abstract:

Abstract:

The probate exception to federal jurisdiction is a legal doctrine self-imposed by federal courts barring jurisdiction over probating wills or administering estates, or related actions that would interfere with property in the custody of state courts. Courts have struggled with cases that fall at the margins of the exception, creating one of the most mysterious and esoteric branches of the law of federal jurisdiction.

In Marshall v. Marshall, the Supreme Court addressed the federal probate exception for the first time in over 60 years. Eight members of the Court held that the doctrine was legitimate, but more narrow than many lower courts thought. Unfortunately, the decision leaves as many questions as answers. The history, scope and purpose of the federal probate exception, as well as its place in the Supreme Court’s federal jurisdiction jurisprudence, has already been treated by other authors. I will examine Marshall’s practical consequences from the perspective of probate law and for those who find themselves challenging the validity of a will or trust.