Blogs from August, 2020

Since 1971, August 26^th is recognized as Women’s Equality Day in the United States in commemoration of the certification of the Nineteenth Amendment. The 1970s saw a cavalcade of landmark women’s rights cases decided in the Supreme Court. One of those cases, Reed v. Reed, struck down an Idaho law giving men preference over women in the administration of an estate.

Background of case: Richard died in 1967. His mother filed an application with the court to be administrator of his estate. Then his father filed a competing application asking that he be administrator instead. The Idaho law said that parents were the preferred people to be administrator of an estate if the person did not name one in a will. However, the Idaho law also said that if both parents apply, “males must be preferred to females.” Bound by the Idaho statute specifically saying that males get preferential treatment over females, the probate judge named the father as administrator.

After the decision was held up by the Idaho Supreme Court, a volunteer attorney named Ruth Bader Ginsburg (maybe you’ve heard of her) wrote a brief for the United States Supreme Court asserting that the law giving men preference over women—without any other considerations—was “arbitrary and capricious” enough to violate the Fourteenth Amendment’s Equal Protection Clause. The law’s application was based solely on the sex of the person it was being applied to. Because no one could come up with a good reason for it other than sex discrimination, it was struck down. 

Fighting over who gets to be administrator of an estate doesn’t seem like something that anyone would want to pursue into the hallowed halls of the Supreme Court. After all, being an administrator isn’t exactly fun or rewarding. However, this was, arguably, the first time that the Supreme Court gave a clear indication that laws that treated people differently because of their sex—male or female—better have a really good reason to do so, or it will be struck down. 

Who says being an estate planning attorney can’t be glamourous?

Now, in 2020, thankfully we don’t have to argue to the court that a client is capable of being the administrator of an estate “even though she’s a woman.” However, there are still a lot of court pleadings that have to be done when the decedent doesn’t leave valid instructions. Please, work with an estate planning professional to create a will or trust plan that meets not only your goals, but also stands up to a rigorous legal review.

No.

Well, probably not. One of our many rights as Americans is that we’re allowed to leave our assets to anyone we want. A father has the right to not leave anything to his adult children, regardless of the existence of a stepmother or not. We can leave our house to a charity. We can leave our investment accounts to our alma mater. We can leave every penny that’s left to the animal shelter down the street. Gone are the days of Downton Abbey where we’re searching for a male heir to become Earl because the law says so.

However, in most states, including Texas, there are default laws that resemble old English laws of inheritance in case a person dies without any specific instructions. When someone dies without leaving their own written instructions, the courts decide what the closest thing to “fair” is for the people left behind. The legal term for dying without instructions is dying “intestate”.

If someone dies intestate, generally (after a substantial court process) the estate will go to a spouse. If there is no spouse, then kids. If there aren’t spouses or kids, then to parents…then brothers and sisters…then brothers’ and sisters’ kids…then on and on and on until the entire estate is distributed via a lengthy court process. 

The existence of a stepmother, or step-parent of any kind, changes all of this. For example, let’s say your father dies intestate and he and his wife/your stepmom had a house together. In Texas (a community property state), your dad owned half of the house and she owned half of the house.  She gets to keep her half of the house, but you and your siblings get an interest in the other half. However, your stepmom gets to live there for the rest of her life, and you can’t kick her out. Sounds complicated, right? It can get downright ugly.

So how do you avoid a Texas-size episode of Downton Abbey? Plan ahead by having a professional estate planning attorney help you do what’s best for everyone.