A California appeals court has provided us with yet another story of complex family life to which law must respond. The case is Citizens Business Bank v. Carrano. Doesn't sound like a family law case, does it? Turns out it's a case about inheritance, specifically about the terms of a trust. The law of wills, trusts, and estates is often really family law....it's just that someone is dead.
In this case the dead people are a married couple who left their estate to the "issue" of their son Christopher. Jonathan Carrano was the biological child of Christopher, and the dispute in the case was whether he was Christopher's "issue." Christopher was not married to Jonathan's mother. And here's where it gets interesting. Jonathan, who is now 25 years old, was born to his mother, Kathy, while she was married to another man (unnamed in the opinion), and the two of them raised Jonathan as their child. Under California law, Kathy's husband is the child's father.
The trust that Christopher's parents set up excludes as "issue" a child adopted by Christopher or a child "adopted out of the...bloodline." Had Kathy's husband adopted Jonathan, then Jonathan would not count as "issue" under the trust. But Kathy's husband had no need to adopt Jonathan; he was Jonathan's father by virtue of marriage to Jonathan's mother.
The trial court ruled that the trust was not specific about how to handle a child born into a family that did not include Christopher and that therefore the term could be interpreted to effectuate the intent of the trustors. The trial court decided that since Jonathan was the legal child of another man he did not count as Christopher's issue.
The appeals court reversed. There was various evidence about who knew when that Jonathan was Christopher's biological child. (Christopher knew for a long time, maybe since the beginning; Kathy told Jonathan and Christopher's father about six months before Christopher's father died, but he was very ill at the time.) In the end that did not matter to the appeals court. All that mattered was that the term "issue" was defined to include lineal descendants not adopted into or out of the bloodline. Jonathan was such a person.
So let's review. Jonathan has a legal and functional father (unnamed) who raised him, but he inherited money as the child of another man. In my book that gives him two fathers. In the most formalistic sense, it may satisfy to articulate that two different bodies of law are involved here, with family law conclusively presuming that Jonathan is the son (and lineal descendant) of Kathy's husband, and trusts and estates law defining lineal descendant by blood and including Jonathan because Christopher's parents did not explicitly reject a child in Jonathan's circumstance. But that formalist approach is deeply unsatisfying. Rather, this case demonstrates the highly contingent and constructed legal definition of parent and child. The court knows how to do that when it wants to. So next time a court says a child cannot have two fathers, or two mothers, or more than two parents, it is good to keep in mind that it is law that creates or refuses to create legal parentage.
There's a legally irrelevant fact in this case. The court notes it, and I will too. Jonathan was the product of rape. Kathy was Christopher's physical therapist and one night he drugged her and had sex with her without her knowledge. I doubt the fact would have been legally irrelevant had Christopher sought a legal declaration of parentage while Jonathan was a child. In fact, I think it's safe to say a California court would have rejected any such effort. Would Jonathan still have been Christopher's "issue" in that instance? If so, it seems all the more to be a legal construct to allow him to prevail here. If not, then the court would have had to interpret "adopted out" in the trust document to include something analogous, such as determining parentage through a legal proceeding. Yet to do that would be to admit an ambiguity that the appeals court simply refuses to see here.
As I often tell my family law students, I couldn't make up these facts....
Showing posts with label inheritance law. Show all posts
Showing posts with label inheritance law. Show all posts
Tuesday, November 9, 2010
Sunday, August 2, 2009
Ever thought of adopting your partner?
Not likely. But in times past -- sometimes not so distant -- that was the mechanism some couples chose to establish a legally recognized relationship. A few appellate court opinions on the subject have made it into family law textbooks. New York ruled famously in the 1980's that such an adoption violated the state's public policy. But many states allow it. Interestingly, two different Florida judges told me in the 1990's that they had granted such adoptions.
Gay rights lawyers have pretty uniformly discouraged such proceedings. You can't divorce your adopted child/parent. You probably have to present yourselves to the court in a manner that is dishonest. But they still happen.
The most recent example to come to public attention is the adoption of Patricia Spado by her then partner Olive Watson. The case has gotten lots of press coverage because Spado stands to inherit oodles of money pursuant to a trust established by Thomas Watson Jr, the son of the founder of IBM. The trustees have been trying to undo the adoption, and they just lost in the Maine Supreme Court. If you don't want to read the court's whole opinion here, you can read Professor Art Leonard's fine summary. Basically, Maine law allowed such adoptions at the time (not anymore), and the court found that the parties satisfied the jurisdictional requirements under Maine adoption law even though they only spent summers there.
Inheritance was actually a major reason for adult adoption...dating back to antiquity. For gay couples, an adoption could prevent a deceased partner's family from challenging a will leaving property to the surviving partner. After all, if the will was thrown out the property would go to a surviving child before going to siblings or more distant relatives.
The gay partner adoption I think about most often is that of Robert Allerton's adoption of John Gregg (whose name became John Gregg Allerton). I came across their story by accident. I was touring the Allerton gardens on Kauai in the early 1990's. Early on the tour guide referred to "Robert Allerton and his adopted son..." Now I am an adoptive mother. I have friends who are adoptive parents and friends who are adopted. It struck me as unusual to have these two individuals described this way; normally, a person would say, "Robert Allerton and his son..." So my ears perked up.
As the tour went on, I learned about how the couple travelled the world collecting art for the garden; how they created "rooms" and had costume balls. Okay, so it was clear to me they were a gay couple. They met in the 1930's and were together until Robert's death in 1964. Robert, an heir to one of Chicago's greatest fortunes, adopted John in Illinois in 1951. I returned home and regaled my friends with stories of finding gay family law history so unexpectedly. (We are everywhere, right?)
On that tour I didn't ask any direct questions. But the gardens are stunning and Kauai is my favorite place in the world, and I returned there a couple of years later. In response to my questions, the guide told me then that it was commonly assumed they were a couple and that everyone in Kauai society attended the parties they gave in their gardens. "We don't care," she said. "We are just grateful they left this property for us." The official history on the Allerton Gardens website speaks of the couple's life and travels, and says that Robert adopted John. Anyone even remotely in the know can read between the lines.
I dug around a bit and thought about writing an article on the Allertons and their garden for a travel magazine with a gay focus (or a gay publication with a travel section?). I never did. In the September 2007 issue of Out, Bruce Shenitz did write such an article, entitled The Garden of Eden. Minus Eve.
Oh, and if you make it to Kauai, visit these gardens. They are stunning. And imagine the lives of the two men who called this place home and what those lives would have been like had they lived 50 years later.
Gay rights lawyers have pretty uniformly discouraged such proceedings. You can't divorce your adopted child/parent. You probably have to present yourselves to the court in a manner that is dishonest. But they still happen.
The most recent example to come to public attention is the adoption of Patricia Spado by her then partner Olive Watson. The case has gotten lots of press coverage because Spado stands to inherit oodles of money pursuant to a trust established by Thomas Watson Jr, the son of the founder of IBM. The trustees have been trying to undo the adoption, and they just lost in the Maine Supreme Court. If you don't want to read the court's whole opinion here, you can read Professor Art Leonard's fine summary. Basically, Maine law allowed such adoptions at the time (not anymore), and the court found that the parties satisfied the jurisdictional requirements under Maine adoption law even though they only spent summers there.
Inheritance was actually a major reason for adult adoption...dating back to antiquity. For gay couples, an adoption could prevent a deceased partner's family from challenging a will leaving property to the surviving partner. After all, if the will was thrown out the property would go to a surviving child before going to siblings or more distant relatives.
The gay partner adoption I think about most often is that of Robert Allerton's adoption of John Gregg (whose name became John Gregg Allerton). I came across their story by accident. I was touring the Allerton gardens on Kauai in the early 1990's. Early on the tour guide referred to "Robert Allerton and his adopted son..." Now I am an adoptive mother. I have friends who are adoptive parents and friends who are adopted. It struck me as unusual to have these two individuals described this way; normally, a person would say, "Robert Allerton and his son..." So my ears perked up.
As the tour went on, I learned about how the couple travelled the world collecting art for the garden; how they created "rooms" and had costume balls. Okay, so it was clear to me they were a gay couple. They met in the 1930's and were together until Robert's death in 1964. Robert, an heir to one of Chicago's greatest fortunes, adopted John in Illinois in 1951. I returned home and regaled my friends with stories of finding gay family law history so unexpectedly. (We are everywhere, right?)
On that tour I didn't ask any direct questions. But the gardens are stunning and Kauai is my favorite place in the world, and I returned there a couple of years later. In response to my questions, the guide told me then that it was commonly assumed they were a couple and that everyone in Kauai society attended the parties they gave in their gardens. "We don't care," she said. "We are just grateful they left this property for us." The official history on the Allerton Gardens website speaks of the couple's life and travels, and says that Robert adopted John. Anyone even remotely in the know can read between the lines.
I dug around a bit and thought about writing an article on the Allertons and their garden for a travel magazine with a gay focus (or a gay publication with a travel section?). I never did. In the September 2007 issue of Out, Bruce Shenitz did write such an article, entitled The Garden of Eden. Minus Eve.
Oh, and if you make it to Kauai, visit these gardens. They are stunning. And imagine the lives of the two men who called this place home and what those lives would have been like had they lived 50 years later.
Monday, June 22, 2009
Uniform Probate Code recognizes child of assisted reproduction by lesbian couples as child of both moms
Legal parentage matters for lots of reasons. One of those reasons is that it determines whether a parent-child relationship exists for the purpose of inheriting in the absence of a will. So when a lesbian couple has a child together using donor insemination, the legal status of the biological mom's partner determines whether the child will inherit from her if she dies without a will that names the child as a beneficiary. This is one of the many reasons why a couple might do a second parent adoption and why some of us are trying to rewrite parentage statutes so that a biological mother's partner is automatically the legal parent of the child that the two of them plan for together.
Well the latest amendments to the Uniform Probate Code automatically recognize the parentage of both mothers. Like all laws written by the National Conference of Commissioners on Uniform State Laws, the Uniform Probate Code becomes law only in those states that enact it. But arguing for something that is in a uniform law is arguing for something that has been vetted by many legal experts and therefore carries an enormous stamp of legitimacy. (Colorado and North Dakota have already enacted these provisions.)
Section 2-120(f) of the Uniform Probate Code now says that "a parent-child relationship exists between a child of assisted reproduction and an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child."
Consent is established if the individual "before or after the child’s birth, signed a record that, considering all the facts and circumstances, evidences the individual’s consent" or "functioned as a parent of the child no later than two years after the child’s birth" or "intended to function as a parent of the child no later than two years after the child’s birth but was prevented from carrying out that intent by death, incapacity, or other circumstances." ("Functioned as a parent" is further defined in Section 2-115)
A separate provision, 2-120(e), reads that "a birth certificate identifying an individual other than the birth mother as the other parent of a child of assisted reproduction presumptively establishes a parent-child relationship between the child and that individual." This provision will apply to couples in states that put the names of both mothers on the birth certificate because the biological mother is married to or in a civil union or domestic partnership with another woman.
Comments to these sections of the Uniform Probate Code make clear that the drafters fully intended the child of a lesbian couple to be considered the child of both of them for inheritance purposes. This was not an accident!
Thanks for University of California at Davis law professor Courtney Joslin for alerting me to these changes.
Well the latest amendments to the Uniform Probate Code automatically recognize the parentage of both mothers. Like all laws written by the National Conference of Commissioners on Uniform State Laws, the Uniform Probate Code becomes law only in those states that enact it. But arguing for something that is in a uniform law is arguing for something that has been vetted by many legal experts and therefore carries an enormous stamp of legitimacy. (Colorado and North Dakota have already enacted these provisions.)
Section 2-120(f) of the Uniform Probate Code now says that "a parent-child relationship exists between a child of assisted reproduction and an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child."
Consent is established if the individual "before or after the child’s birth, signed a record that, considering all the facts and circumstances, evidences the individual’s consent" or "functioned as a parent of the child no later than two years after the child’s birth" or "intended to function as a parent of the child no later than two years after the child’s birth but was prevented from carrying out that intent by death, incapacity, or other circumstances." ("Functioned as a parent" is further defined in Section 2-115)
A separate provision, 2-120(e), reads that "a birth certificate identifying an individual other than the birth mother as the other parent of a child of assisted reproduction presumptively establishes a parent-child relationship between the child and that individual." This provision will apply to couples in states that put the names of both mothers on the birth certificate because the biological mother is married to or in a civil union or domestic partnership with another woman.
Comments to these sections of the Uniform Probate Code make clear that the drafters fully intended the child of a lesbian couple to be considered the child of both of them for inheritance purposes. This was not an accident!
Thanks for University of California at Davis law professor Courtney Joslin for alerting me to these changes.
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