New York like every other state in the nation has a law to deal with people who go missing and are presumed dead. Most states follow the common law time of seven years, although New York has a three year requirement for which it will wait to declare someone deceased. It is not unheard of for a Court to issue a death certificate only for the dead person to show up and show themselves to be very much alive. In Ohio the law prohibits a Court from vacating a death certificate three years following its issuance. Of course there was a case, very recently, in 2013 wherein a man was declared deceased in absentia, passed the three year statute of limitations to vacate or modify the death certificate and appeared in Court to request that the Court nullify the death certificate so he could get a driver’s license.

Another recent case out of Pennsylvania was in the news where a mother of two kids simply disappeared one day in 2002, declared legally dead in absentia and the resurfaced after 11 years, in 2013. Perhaps the strangest case was the case of Ben Holmes, who disappeared in 1980, declared deceased after eight years by his wife and then tried to reconnect with his wife in the 1990s. When he learned she was in a relationship with another man he confronted her and she shot him. He never tried to nullify the death in absentia although he did collect a personal injury settlement from his wife.


Most states also have a provision to allow for a disaster, such as the September 11 attacks, so as to allow for death certificates to be issued soon after the calamity rather than forcing families and others to wait the requisite three years. The death certificate is necessary for families to collect on life insurance proceeds, to proceed with any probate proceedings or initiate similar such legal proceedings and to allow for spouses to remarry. A death certificate usually only issues when a doctor can verify that a person is indeed actually deceased. When a body does not exist, the legal requirements to have someone declared dead is more rigorous. A person can be declared deceased at any point, it is simply that the law creates certain presumptions after a certain period of time. Tom Hanks was declared deceased in less than four years in Cast Away. Cases dealing with findings of death in absentia have been litigated since the beginning of courts, as the classic case is of a shipwrecked sailor who resurfaced years later.


To nullify the legal finding of death is not the difficult procedure to accomplish. What is difficult is how to deal with the property of the estate that has transferred. It is common place for innocent, bona fide third party purchasers to purchase property of the estate and have good title. Some states, such as California, have laws to deal with a person who is legally dead but still actually alive. Pennsylvania requires that any such estate that is settled as a result of a finding of death by absentia, a “refunding bond” must be posted for any property that he/she receives from the estate. 20 Pa. C.S. § 5703. New York, like most, does not have any such law. In states such as California and Pennsylvania, it is relatively easy to unwind such estate distribution, in New York not so easy.  


There is little question that Federal Courts are courts of limited jurisdiction. If there is neither original jurisdiction, meaning a question of federal law or rights that arise as a result of federal legislation nor complete diversity of the parties, meaning that all of the defendants domicile in a different jurisdiction from the plaintiffs home state, then there is no jurisdiction for a federal Court to preside over a case. In all matters of diversity jurisdiction, the matter has to involve  at least $75,000 in property or damages. Certainly at least some probate cases fit into the requirements of diversity jurisdiction. Yet, there is generally a federal Court hands off approach to dealing with probate cases, known as the probate exception to federal jurisdiction.

A famous case from 1946 in the United States Supreme Court held that a federal Court can adjudicate various suits against a decedents estate, so long as they do not assume general jurisdiction over the probate proceeding itself or assume control over the property that is properly in the hands of the state probate Court. Markham v. Allen, 326 U.S. 490, 494 (1946). The meets and bounds of this holding have caused volumes of case law and law journal articles. It was not until 2006 with the celebrity, Anna Nicole Smith case that came before the United States Supreme Court that the Court expounded on the federal probate exception in any meaningful regards. Specifically the Supreme Court held that when one court is adjudicating a claim over a specific piece of property (or in the case of an estate, a bundle of property rights) a second court will not assume jurisdiction over the same property.

Therefore, the probate exception reserves to state probate Courts the distribution of property in line with a decedent’s will. A federal Court cannot then take over the distribution of the same property when a state Court already asserted jurisdiction over it. A federal Court may entertain suits dealing with matters peripheral to the distribution of property of the estate. Marshall v. Marshall, 547 U.S. 293 (2006).


One of the exceptions to the federal probate exception with federal exercise of jurisdiction over matters involving the transfer of property rights over a decedents estate is in the context of trust litigation and generally breach of fiduciary claims against a trustee. The Fifth Circuit Court of Appeals ruled on a case interpreting the Marshall decision and fashioned a two part test to help better clarify if a federal trial court can or should assert jurisdiction, assuming that there is at least federal diversity jurisdiction over the case.

  • First, the Court must ask if the property in dispute is property of an estate for which a state probate Court has jurisdiction over; and
  • Second, if the case would require the federal Court to assert jurisdiction over the property itself (as opposed to jurisdiction over a person).

If the answer to both is yes, the federal Court cannot assert jurisdiction over the case. Curtis v. Brunsting, 704 F.3d 406 (5th Cir. 2013). While it remains to be seen if this holding will take hold across other sister circuits, it is a good approach to the practical questions that are dealt with in federal Courts across the nation.


The idea of using quasijudicial means to settle disputes is as old as the country itself. More specifically arbitration is a method that parties utilize that is usually cheaper, quicker and often with much less formality, yet still adheres to principles of fundamental fairness. George Washington famously included a proviso in his will that outlined a method to arbitrate certain disputes in the execution of his will. Certainly this was no minor matter, as President Washington was perhaps the wealthiest landowner in Virginia and by extension maybe the wealthiest American at the time.

In today’s dollars, President Washington would be worth an estimated half a billion dollars, succeeded by perhaps only President John F. Kennedy’s wealth. By the time of President Washington’s passing in 1799, arbitration was already well established in the United States. New York no longer permits arbitration in the context of a dispute over a last will and testament, as it would unconstitutionally interfere with the power of the Surrogate’s Court to adjudicate disputes involving the disposition and transfer of property of decedents, the administration of estates and probate of wills. Matter of Jacobovitz, 58 Misc. 2d 330 (Nassau County, 1968). The same cannot be said of arbitration clauses in trust documents. There is much diversity of treatment of arbitration clauses found in trust documents, with New York taking a middle of the road approach to interpretation and enforcement of arbitration clauses in trust documents. That principle, however, only applies to the application of the transfer of property via an individual’s last will and testament. It does not apply to the mediation and adjudication of disputes in trust documents controlled by New York law.


Given that an increasing number of trusts function similar to multinational corporations with the transfer of some or all of their assets to different jurisdictions to receive better tax rates and trustees as well as the larger system to administer the estate receiving annual fees for their services it is not surprising that trusts are beginning to use arbitration more and more often to manage disputes. Under New York law there has been a definite favoring of arbitration disputes when the dispute involves a third party to the trust. In one relatively recent case, the Surrogate’s Court took the approach that third parties, more particularly third party beneficiaries of a trust, had to voluntarily submit to the jurisdiction of the Court. In Matter of Blumenkratz 14 Misc. 3d 462 (Sur. Ct. Nassau County, 2006). In the event that the third party did not consent to the jurisdiction of the Surrogate’s Court, the Federal Arbitration Act controls.

At the same time, there is case law that indicates that if a particular arbitration clause would call into doubt the ability of a Court or even outright oust the jurisdiction of the Surrogate’s Court to adjudicate what are core judicial functions over trusts, such as judicial accounting. Estate of Proceeding for the Appointment of a Guardian for Charlotte Radcliffe, N.Y. L.J., July 20, 2007, at 36 (Sur. Ct. N.Y. County July 20, 2007). New York Courts have upheld arbitration awards in trusts even when a core judicial function was implicated, such as a determination that the trustee breached their fiduciary function, as longs as the Court retained the right to review such determination de novo.  

When a married person applies for Medicaid, the government looks at the collected, or, pooled, resources of the two to determine if one of the two spouses is eligible for Medicaid. If the combined income of the two spouses is above the income threshold set by law, the balance must be paid to the nursing home of the dependent spouse.  But what income provisions are allowed for the spouse who remains in the community?  What do the get to keep?  Is the community spouse allowed to tap into the income of the dependent spouse if his/her income is not enough?


The legal, financial benefits that allow for the community spouse to keep a certain amount of income has the terrible name of spousal impoverishment standards. This contains an amount of money, known as the minimum monthly maintenance needs allowance (commonly known as or referred to as the MMMNA). The figure from July 1, 2015 to June 30, 2016 is $1,991.25 per month. Starting on January 1, 2016 the maximum monthly maintenance needs allowance is set at $2,980.50 per month. This is the maximum the community spouse may keep before being required to contribute to the medical needs of the dependent spouse (NOT minimum, so not to be confused with the MMMNA).




If the community spouse makes less than the minimum amount, he/she may keep all of that income, plus tap into the dependent spouse’s income to insure that their income rises to that minimum monthly maintenance threshold. If the community spouse can establish that their housing costs are more than 30% of their monthly needs, then the community spouse can add that additional amount for excess shelter allowance. The formula or means by which the community spouse determines their income is called the Community Spouse Monthly Income Allowance (also known as the CSMIA). To determine the CSMIA involves four steps:

  • First step – Determine minimum monthly community spousal need. As noted, from July 1, 2015 to June 30, 2016 that figure is $1,991.25.
  • Second step – Add any additional shelter costs that exceed 30% of their monthly need. Say for example the community spouse can establish that their housing or shelter costs $1,000. 30% of $1,991.25 is (rounded) $598. So the excess of that is $402 per month.
  • Third step – Add the first two steps above together. In the example provided the sum is (rounded) $2,393. Since this amount does not exceed the maximum monthly maintenance need, the community spouse keeps this amount.
  • Fourth step (if needed) – If the community spouse made less than the MMMNA, you subtract this amount from the figure from step three above. In the simple example above, say the community spouse earns $1,000 per month. Subtract $1,000 from $2,393, which equals $1,393. This is the amount that the community spouse may utilize of the dependent spouse.


If for any reason this amount exceeded the maximum monthly maintenance need,the community spouse would only be entitled to keep the maximum monthly maintenance amount and provide anything in excess of the maximum monthly maintenance amount for the care of the dependent spouse.
Medicaid planning is intricate and extraordinarily fact sensitive. Only a consultation with an experienced elder law attorney will do to provide the level of assurance and peace of mind needed.  

As the new year opens it is a good time to review all of your legal estate planning decisions and tweak any previous documents that you think need to be modified. This requires us to get back to the basics of estate planning . For those scenarios that deal with what happens to you in an emergency situation, you have an advanced medical directive, with some level of specificity but not too much. The term advanced medical directive is an umbrella term that encompasses several types of legally significant documents. One of them is a living will. Your living will tells the medical professionals who are treating you, what your wishes are in advance for any number of medical situations.




Underneath the umbrella term of advanced medical directive, there is also the health care proxy. The health care proxy allows for you to appoint a trusted person to act as a decision maker for those scenarios that are not contemplated in your living will and if you are unable to make any medical decisions by yourself. Medical conditions change, different doctors have varying opinions as to the best course of treatment or even over the correct diagnosis. Having a health care proxy will have someone stand in for you to make the best decision under the circumstances. You can limit the authority that you give to the person or only permit the health care proxy go into effect after certain conditions or triggers occur.




Underneath the umbrella term of advanced medical directive is another document of legal significance, the do not resuscitate order. For some a do not resuscitate order may be fitting for religious or other reasons. There is nothing legally inappropriate for a person to include their do not resuscitate order in their living will or in a separate document. Whether it is separate, from the living will or both is of no legal consequence.




The general power of attorney may or may not be a good fit for you depending on any number of factors. It does act as a safety net for any and all situations, such as to empower your health care proxy agent to negotiate with the health insurance company in the event they denied some service, such as medical transport or a physical rehabilitation. It may allow for the person to redirect certain public benefits into different accounts, depending on your needs. It may also allow for someone to care of the young children on an emergency basis if you are incapacitated and they have medical or other needs themselves that need to be taken care of. The general power of attorney helps to fill all cracks in the documents that you created, to allow for truly wrap around services for you in any emergency situation.


It is good practice to forward and review all of your documents that encompass your advanced medical directive (living will, health care proxy and if any do not resuscitate) with your primary care physician. Of course all doctors are busy professionals so make sure that you inform your doctor’s office receptionist that you are making an appointment to review your advance medical directive. It is always best to listen to the advice of any professional that you engage with, obviously including your primary care physician. That does not mean that you have to do everything that they suggest as it may not be fitting for you personally. But it should always be food for thought. Hospitals often ask about a do not resuscitate order when a person is admitted as well any advanced medical directives. The same holds true for your attorney. It is best to review all of your documents with your attorney and make any recommended changes that you are comfortable with.

In today’s society it is common, to say the least, to have a single parent household. Most of the time the parents are divorced or simply not together and one of the parents is less hands on than the other. Perhaps this is a because of distance, as the other parent may live quite some distance away or perhaps due to work obligations and can only physically parent a month or two out of the year. Then there are truly single parents insofar as the other parent has passed away or perhaps the other parent is just not in the picture for any number of reasons or there is a history of domestic violence and the other parent’s custodial rights are extremely curtailed.  


For this population, their will serves not only to memorialize how they want their possessions and property to be disposed of, it also allows for them to indicate who they want to take custody of their children.  To be sure, if the other parent is named as the father/mother to the child and the primary custodian passes away, the other parent has the legal authority to take custody, absent good cause. There are, however, other ways of addressing these concerns outside of the four corners of the primary custodians will. Enter the standby guardianship which was specifically designed in response to such situations.




New York has a standby guardianship law, which creates a safety net for the children to insure that their basic everyday needs and well being is met in the event the primary custodian cannot care for them. New York was the first state in the nation to create such a law, which was originally designed to address the needs of those suffering through the AIDS epidemic in the 1980s and 1990s. It’s utility is obvious. For single parents who may have a terminal illness and are concerned more for the future of their children than anything else, the standby guardianship may indeed be the perfect legal device.


While there is a need for a standby guardian to obtain court approval via a Court Order, they have some breathing room to insure that their actions are legally proper and the immediate needs of the children are met. If the parent has a progressive terminal illness or condition, they may not be able to care for the child even before they pass away. The standby guardian can be there to do what needs to be done. In many ways, the vehicle of the standby guardian is superior to a typical custody Order, as a custody Order may entitle the non-parent custodian a right to custody in the future, even after the parent is able to reobtain custody, on grounds that the non-parent custodian stood in loco parentis. Absent a standby guardian, after a single parent passes away, it is likely that the children may go into foster care, which will only magnify any emotional distress the children are already experiencing. The standby guardianship can go into effect at any time that the parent and standby guardian define in the guardianship documents; perhaps on a date certain or if the single parent’s medical condition deteriorates past a certain point.

As with any decision regarding such important issues it is best to consult with an experienced estate planning attorney to insure that your intentions and decisions are given full legal effect.

An intentionally defective grantor trust is an extremely effective tool that accomplishes multiple objectives. First, it helps to minimize gift or transfer tax liability that a person may have to pay if the asset passed through normal probate process or it were gifted to the intended recipient. Second, it helps to step up the cost basis, which can be extremely valuable if the asset grew in value and then stabilized. It is often an effective tool for a small business owner who seeks to pass his/her business on to children or grandchildren. It is even more fitting if the same small business grew in size but then stabilized in value.


But, the question has to be asked. What’s with the reference “defective” in its name? It certainly is not a name conducive to marketing its rather impressive abilities. The term does not refer to something being broken (or busted).  The term defective has a simple explanation, it is defective as to income tax liability. To state it in the inverse may help to explain it better; the trust is effective for estate tax purposes. In other words, the trust does not eliminate all taxes in that the grantor still pays the income taxes generated by the asset that is the corpus of the trust, but it does eliminate estate tax liability. Furthermore, it is a “grantor trust”, as defined at 26 U.S.C. § 675, meaning that it satisfies the legal definition of a grantor trust.




The transaction has to be structured properly to allow for the avoidance of gift tax liability. A good example is small business owner – let’s call her Deb – wants to ensure that her kids inherit her very lucrative company that specializes in providing services to disadvantaged, inner-city children. Deb sells her company to the trust, in return the trust gives Deb a promissory note. 26 U.S.C. § 675 establishes that a trust is a grantor trust for income tax purposes if the owner maintains control over the asset in a non fiduciary capacity. As such, even after the sale, Deb maintains control over the business to insure that the promissory note is paid in full.


However, when the income tax liability is due for Deb’s business over the next several years, it is paid for by the money that is due to Deb from the promissory note. Ideally Deb wants the promissory note to pay the same amount as is due to for the income taxes. Precision is possible but getting a figure that is approximately the same as is due for the income tax of the business is more likely. Deb’s children will also realize an added benefit for this transaction. Since Deb sold the company to the trust for its true market value, it has a stepped up or heightened cost basis. That means that if and when Deb’s kids takes over sole control of the company and the trust transfers the company out of its portfolio, they will have minimal, hopefully zero transfer tax liability.

As with any estate planning decision, it is best to consult with an experienced estate planning attorney.

It happens often enough that a parent for many reasons decides to disinherit one, several or all of his/her children.  At the same time, this is often not a controversial decision and is just as common both understandable and predicable.  Perhaps a person promised their estate to a specific child, stepchild or niece or nephew for taking care of them instead of being required to be sent to a long term continuing care facility.  Perhaps the parent provided financial largesse to his/her via college education, graduate school and even helped them purchase a house but had one child who had special needs who always lived at home and insured that child’s future by funding a trust during his/her lifetime and then disinherited all of his/her other children by putting the whole of the estate into the trust.  


Mickey Rooney was a very well known and well paid actor that had a long career, with many children and many marriages and disinherited his children.  He instead left his estate to his stepson and explained that his kids were better off than he was.  By the time Mr. Rooney passed, his estate dwindled to just about $18,000, so there was little incentive for any of his kids to contest the will, although the same did not hold true for Mr. Rooney’s then current spouse.  Unfortunately for some families, this can be a shock and there are sufficient incentives for the family to contest the will.  




Louisiana is the only state that allows for a disinherited child to elect to take a statutory share against the stated wishes of a parent’s will.  If the parent did not dispose of everything in the will, due to perhaps an heir predeceasing him/her, the children may inherit that property via intestacy statutes.  If a parent, however, leaves all of his/her property to someone else via his/her will, the only thing the child/children can do is to invalidate the will.  In New York, if a person dies intestate – meaning without a will – the spouse inherits the first $50,000 and half of the remainder.  The children then split the other half between themselves.  The child/children must also consider if there was a previous will, and, if so, what treatment is afforded to them in that will.  But the matter gets more complicated from there.  Property held in joint tenancy (with a business partner for example), by the entireties (held as a marital asset with the spouse) takes those assets out of the estate.  




There are many many factual scenarios that enable a party to contest a will.  The first consideration is who may contest the will, or, more properly stated, who has standing to contest the will?  In New York, only people who have a material interest that may be prejudiced if the will as written is fully probated.  Perhaps the heir stands to inherit more if the intestacy law controlled or perhaps the heir stood to gain more under an older will.  There are several grounds to contest the validity of a specific will:


  • Undue influence, coercion or duress;
  • Revocation;
  • Incapacity or lack of capacity;
  • Fraud;
  • Forgery; and
  • Improper execution.

Think about this, you were born to your mother and father. At a wee young age your mother and father separated and your mother raised you. Nothing unusual there. Say then your mother later married another man and he started to raise you as his own; while your stepfather may have always been known as a stepfather, he still loved you and treated you as his own without distinction as to his own biological children. Then at a certain point your stepfather moves to adopt you. Adoption can be a lengthy process, with a mandatory minimum three month waiting period. During that process your stepfather passes away intestate. You are not legally his child so there are no inheritance rights; so what do you do?


Perhaps you seek various government benefits that you would be entitled to if you were adopted, such as Social Security benefits if you are still a minor, benefits through the Veterans Administration, et cetera. This scenario is entirely plausible and actually happened in the case of Matter of Mazzeo, 466 N.Y.759 (A.D. 3rd Dept 1983). Mazzeo shows some of the problems that goes beyond what was outlined above, in that in Mazzeo after the necessary parties filed the adoption petition for an adult adoption, the stepmother (Rose Mazzeo, hereafter Mrs. Mazzeo) passed away intestate and her niece filed for letters of administration, claiming that under New York’s intestacy statute, Mrs. Mazzeo’s only surviving heirs were her five nieces. The stepson (Joseph Mazzeo, hereafter Mr. Mazzeo) opposed this move and claimed that he was equitably entitled to be considered the child of the deceased. The New York Appellate Court agreed with Mr. Mazzeo and found that under principles of equity, or, fundamental fairness, an adoption should be construed for purposes of considering Mr. Mazzeo as the heir to Mrs. Mazzeo.




Many states and territories have statutes or case law that enable Courts to find an equitable adoption. Even federal Courts recognize and enforce this legal principle, as found in Kuchenig v California Co., 410 F.2d 222 (5th Cir. 1969). Moreover, it is a doctrine with a long history. In fact one of the best quotes describing equitable adoption in New York case law comes from New Jersey case law from 1933, which states, in essential parts, equitable adoption will be found where there has been “full and faithful performance” but was never memorialized with a formal Judgment of adoption.


With the death of the parent, however, “equity and justice” require that there be a finding and the law and Courts treat the child as if there was an adoption and the child be entitled to the same rights of inheritance that is not disposed of by will and be treated as a natural born child. Burdick v Grimshaw, 113 NJ Eq. 591, 595 (Ch. 1933), as quoted in Matter of Riggs, 109 Misc. 2d 644 (Surrogate’s Court, 1981). No doubt it is a fact sensitive determination that a Surrogate’s Court must carefully weigh after hearing all of the evidence.

If you believe that you are entitled to an inheritance but for formal adoption proceedings memorializing this arrangement, you must speak with an experienced estate planning attorney today.  Any delay could be to your prejudice.


Contrary to the European model, American parents are legally free to disinherit their children, but at the same time, they cannot simply forget or omit their children in their will by mistake. If the child is specifically addressed in the will and, at the same time, the will either fails to pass any property or assets on the child or specifically disinherits the child, there is nothing that the child can do to inherit something from the estate, aside from invalidating the will and potentially inheriting under the intestacy statutes. Children born after a will is created and not properly addressed in the will, via language that is expansive and inclusive that undoubtedly includes even children born or adopted after the specific will is created are referred to in the law by the ungainly term pretermitted children.


Not surprisingly it comes from a latin verb meaning to overlook or forget. New York’s law that addresses pretermitted children and found at NY EPTL §5-3.2, only addresses children born after the creation of a last will and not otherwise provided for by other means, such as life insurance proceeds, a trust or other assets. The children that fall under the pretermitted law protections are entitled to whatever the other children who are addressed in last will. Oddly enough, if the children born before the creation of the will are mentioned but unprovided for, the pretermitted child will not inherit anything. Indeed, the law specifically addresses this possibility, insofar as it indicates that “(1) If the testator has one or more children living when he executes his last will, and: (A) No provision is made therein for any such child, an after-born child is not entitled to share in the testator’s estate.” NY EPTL §5-3.2. Certainly there are many problems with this, insofar as some parents specifically disinherit their children. Anna Nicole Smith disinherited her son in her last will and then had a baby daughter only a short time prior to her passing away, without any change in her will.




It is a rather common scenario for a person to create a will, forget about it and move on with life by having kids, buying a house, investing in a retirement account and growing their assets. A number of celebrities left these problems in their wake by their failure to properly plan.


This blog reported on the problems with Philip Seymour Hoffman and Paul Walker in the past. Heath Ledger was another famous celebrity with similar issues. Fortunately for Mr. Ledger’s daughter, Matilda, she had a very altruistic family. Mr. Ledger’s family clearly live the adage that just because you can do something does not mean you should do it. There are many people, however, who would handle things differently, even if they were still altruistic, in that they would perhaps create a trust wherein they are the trustee or somehow or another exert control over the money. The remedy to all of these issues is simple and obvious, have an experienced estate planning attorney review all of your estate documents to insure that there is a coherent plan and the legal documents properly effectuate these plans. Furthermore, it is best to review these documents on a periodic basis in light of major, life changing events, such as marriage, divorce, the birth of children or grandchildren, et cetera.  

Contact Information