25 Dukeminier Awards 1
Danaya C. Wright
Fall, 2015
INHERITANCE EQUITY: REFORMING THE INHERITANCE PENALTIES FACING CHILDREN IN NONTRADITIONAL FAMILIES
"This Article looks at two situations in which the interplay of adoption and inheritance law disadvantages millions of American children: (1) the lack of inheritance rights by children who are not adopted by their functional parents; and (2) the inexplicable disinheritance of many children who are adopted by a co-parent. In the former situation, children who are raised by parents, one or both of whom are not biological parents, are unlikely to inherit unless a formal adoption is finalized or expensive estate planning is undertaken. In many of those cases, however, formal adoption is not a legal option, either because a biological parent refuses to consent to an adoption, or the functional parents are prohibited by law from adopting."
51 U. Miami L. Rev. 57
Bruce J. Winick
October, 1996
ADVANCE DIRECTIVE INSTRUMENTS FOR THOSE WITH MENTAL ILLNESS
"In this sense, the advance health-care directive bears a strong analogy to the last will and testament. Just as individuals have the ability to dispose of their property upon death by making a will expressing their intentions, patients may control future health-care treatment through the use of advance directive instruments. When a competent individual executes a will, his or her estate will be disposed of in accordance with the will's directions, even if the individual subsequently becomes incompetent to execute or amend the will. Absent a will, state law on intestate succession applies. In the mental health context, by analogy, the state's parens patriae hospitalization or treatment law and practice should prevail in the absence of an advance directive concerning hospitalization or treatment."
26 Stetson L. Rev. 257
Michael S. Finch
Fall, 1996
CHOICE-OF-LAW AND PROPERTY
"The importance of characterization can be illustrated by a relatively straightforward probate problem. Assume that a woman dies intestate in Florida, leaving behind her husband, two children and a valuable trust account located in New York. Under Florida law, the husband ostensibly has a right to force the estate to give him a share in this trust account. The wife, however, decided long ago that she wanted a marriage where love and affection -- but not property -- were shared. Thus, the couple entered into the marriage after executing an antenuptial agreement, whereby the marriage would have no effect on their various property interests such as the wife's trust. This agreement, as well as the trust, is fully enforceable under the laws of New York where it was executed. On the other hand, the antenuptial agreement does not satisfy the requirements of Florida law, and as a result, the husband can insist upon a share of the trust res under Florida intestacy law."
84 Fla. Bar J. 24
FATHERHOOD IN FLORIDA
Judge Sue Robins
December, 2010
"Notwithstanding the application of the common law, in several appellate court decisions in Florida, a child born to a lawful, intact marriage has been permitted to take by intestate succession from the estate of the child's biological father. Such actions have been permitted both under a statute where the child was considered 'illegitimate' and under a statute where the child was considered to be born 'out of wedlock.' In re Estate of Robertson, 520 So. 2d 99 (Fla. 4th DCA 1988), expressly declares that by replacing the word 'illegitimate' with the words 'out of wedlock' in the statute pertaining to intestate succession, the legislature did not eliminate a cause of action for a child against the estate of his or her biological father."
66 Brooklyn L. Rev. 167
Kim A. Feigenbaum
Spring, 2000
"Today "the large majority of people die intestate," and thus, state law, rather than a will, determines who inherits a decedent's estate. Consequently, unadopted stepchildren often do not inherit from their stepparents because most intestacy schemes limit distribution of a decedent's estate to individuals who were either related to a decedent by blood or were legally adopted by a decedent. In fact, nearly one-third of our states have ratified laws that are substantially similar to the Uniform Probate Code (the "UPC"), which does not pass stepparents' estates to their unadopted stepchildren. Thus, unadopted stepchildren, notwithstanding potentially close relationships with their stepparents, have no inheritance rights because they are not legal descendants of their deceased stepparents. Instead, a "laughing heir," someone who is not closely linked to a decedent and suffers no loss from a decedent's absence, often inherits a decedent's estate."