Attention All Estates and Trusts Professors (And Pet Lovers)

Jeffrey Toobin has written a must-read article about a $12 million trust that Leona Helmsley established for the benefit of her dog, Trouble. I usually cover the topic of honorary trusts quite quickly, but this semester I’m going to slow down a bit. If nothing else, Trouble’s trust should force students to contemplate the extent to which they are committed to dead-hand control. Beyond the obvious concerns about spending millions on a single dog, as Toobin points out, Trouble herself probably would have been happiest if she had simply been adopted by a dog-loving family.

As an aside, we all know how prickly adult children can get when a step-parent receives the bulk of the decedent's property. But imagine if the children are disinherited because of a dog . . . .

Posted by Sarah Waldeck at 06:10 PM | Comments (0) | TrackBack

Law Talk: George R. R. Martin

In today's episode of Law Talk, we hear from George R. R. Martin, the prolific author of the "high fantasy" series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I've previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) "The American Tolkien."

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead's distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren't a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn't one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here's the interview again. Warning: it's a big file!

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

For other posts in the "Law and Hard Fantasy" Interview Series, see:

• Fantasy’s Apocalyptic Turn
• The Law and Hard Fantasy Interview Series
• An Interview with Pat Rothfuss

Posted by Dave Hoffman at 12:26 PM | Comments (30) | TrackBack

What To Do With Left-Over Class Action Money

Adam Liptak has a nice piece in today’s New York Times about the growth of left-over money from class action suits. Judges are finding that after a case is complete there is often a large pool of money that is unclaimed, and the judge must then decide what to do with the money. In one case involving models the judge designated an eating disorder and a drug abuse charity as recipients of the money. The problem is that the Second Circuit and some academics think the plan to use cy pres as a way to dispose of the money has flaws. Judges are being lobbied for money which raises corruption concerns according to Professor Issacharoff of NYU. As Dean Levi of Duke notes, this role “is not a true judicial function and can lead to abuses,” and requests to give an instiution money as a cy pres award put judges in "uncomfortable" positions. The awards can be large. For example, according to the article, George Washington University Law School and The Illinois Institute of Technology have each received $5 million from law suit settlements. Whether judges are best-placed to dole out the money might merit some research and writing. In addition, some argue that the money must go to plaintiffs. Yet, if only a handful of plaintiffs end up filing the paperwork and receive a windfall the system is apparently flawed again. Nonetheless perhaps allowing such windfalls will provide incentives to others to claim their otherwise small payments. It seems that the system fails to provide a good way to get the money to the plaintiffs which alone suggests that judge should not be in this position in the first place. That alone might be worth some writing and thought.

Posted by Deven Desai at 10:43 AM | Comments (1) | TrackBack

Should You Buy Divorce Insurance?

Divorce is catastrophic: it increases the rates of suicide and heart disease; can decrease overall well-being for both parents and children; and it significantly hurts the financial position of the parties, especially women.

But unlike almost all other catastrophic risks that we face, the costs of divorce can not be fully insured. Because of statutory requirements that limit insurance coverage to "fortuitous events", and the perception that divorce is elected (at least by one of the parties to the marriage), you can't buy a policy that will pay you for breach of the marriage contract. Such is the law.

I'm interested in this topic, and so I was quite intrigued to read about a new product being developed by an entrepreneur named John Logan, of the SafeGuard Guaranty Corporation: divorce insurance.

There has been significant enthusiasm for the concept. As some noted, you could imagine such insurance having a collateral-benefit: "risk matching" your perspective spouse (or even a first date) based on their premiums. But when you think about the concept a little bit, obvious objections present themselves:

• Fraud and Adverse Selection: Since divorce can be elected, how could an insurance company prevent gaming? Fake marriages seeking divorce payouts might soon abound: would the insurance company have to order Green Card from NetFlix to train its agents? For lack of a cheap way to assess the risk of divorce, and fraudulent marriage, premium rates overall would increase, leading "good" candidates (i.e., those who would never divorce) to opt out of the pool. This divorce insurance externality would be extremely difficult to manage. Indeed, this is why marriage insurance excludes reasons like "change of heart." I don't know that it is a soluble problem.
• Public Policy:
Imagine that we could solve the problem of intentional fraud, so the only payouts would go to innocent victims of adulterous spouses. We might still imagine that the common law, which generally prohibits insurance that encourages socially wrongful conduct, would strike such contracts on public policy grounds. The argument would go that the insurance regime, by decreasing the cost of divorce on the victim spouse, in effect increases the incentives for adultery, by reducing the ultimate financial and emotional obligations. In my view, this is a foolish argument, but courts seem to persist in treating insurance as a step-child of the freedom to contract movement.

The externality problem seemed so severe that I decided to go to the source, and emailed John Logan about his product. He was nice enough to chat with me for a few minutes, and I can now share the fruits of that conversation with you.

I started the conversation believing that Logan was offering a true insurance product. A business methods patent the company may have filed stated that divorce insurance is:

1. An insurance policy covering at least some financial consequences of the untimely ending of a contractual relationship between two or more natural persons, which contractual relationship governs the natural persons way of living together.

12. A method of doing business comprising: determining a periodic amount to be charged a prospective participant for divorce insurance; charging that periodic amount to a participant in an insurance program over a period of time; and administering the insurance program.

But when I talked to Logan, he preferred to call the product to be offered a "hybrid insurance/investment product." The idea is that individuals would buy the right to a payout, in 25 years, of a fixed sum, and in turn promise to pay premiums priced based solely on the total face value of the instrument. The instrument – let's call it an annuity for ease of reference – has a contingency: if its owner gets divorced, the annuity pays out immediately, at a rate to be calculated based on the time since purchase and the premium rate. That is, the longer you stay in the marriage, and the closer you are to the end of the 25-year annuity, the more money you will get paid on divorce. The product does not seem to intend to graduate premiums at all based on the risks of divorce, or the "why". It is a fairly simple investment vehicle. The only other bell I learned about was their plan to permit individuals to recapture premiums at any time, so long as they purchase an initial premium rider, which is a bit of departure from ordinary insurance practice.

Because this isn't an insurance product, Logan plans to market and run his business largely online, with little or no need for the ordinary back-end costs of an insurance business (actuaries, etc.) That said, he still needs an initial capital investment, and is still looking for additional investors before the product launches. He hopes to roll out "divorce insurance" this fall, if the financing lines up. He estimates a premium market approaching $200 billion annually, based on a base premium of something like $1,200 annually per policy.

So what to think? Well, first, this is simply not divorce insurance. That doesn't mean it is a bad investment – I have no idea whether it is or not – but it does not intend to permit individuals to pay an actuarially measured share of the risks of divorce. I imagine that the legal and economic issues I've already discussed play a large role in the shaping of this product, but it still left me with some questions. There is obviously a degree of "yuck" factor when thinking about purchasing insurance for divorce – the kind of distaste than long discouraged pre-nups, and which makes proposals like these dead-letters. But this kind of financial vehicle would appeal to me more were I not "forced" to subsidize others' divorces, and instead were measured at my own risk level. What's the chance that courts will relax their public policy limitations on insurance anytime soon? Second, another way to approach the legal-fees aspect of this problem is through a prepaid legal service. I don’t know enough about these kinds of contracts, so this is a really ignorant question: how can such services possible get around conflict problems if they don't counsel the entire couple about the ethical issues at the beginning of the lawyer-client relationship?

Posted by Dave Hoffman at 11:44 AM | Comments (5) | TrackBack

Costs of Inequality

As tax day approaches, Sheryl Sandberg of the Google Foundation has some sobering insights on the "charity gap"--how small a percentage of donations actually help the disadvantaged. "[O]nly 8% of donations provide food, shelter or other basic necessities. At most, an additional 23% is directed to the poor." International deprivation is not a major concern of most donors; "The most generous estimate shows that only 8% of U.S. individual donations supports international causes of any kind."

Another article, on the prevalence of organ markets, shows how this persistent inequality affects the global supply of and demand for body parts. It pleads for another type of giving:

Fewer than 40 percent of Americans have signed organ-donor cards, and only about half of their families consent to the donation of a loved one's organs. . . . Many assume that if they don't supply the organs, somebody else will. But [even if that is the case,] that somebody won't be a corpse. It'll be a fisherman or an out-of-work laborer who needs cash and can't find another way to get it. The surest way to stop him from selling his kidney is to make it worthless, by flooding the market with free organs. If you haven't filled out a donor card, do it now.

Both quotes bring to mind a recent quote I'd read, reportedly from an upcoming book by Pope Benedict XVI:

Confronted with the abuse of economic power, with the cruelty of capitalism that degrades man into merchandise, we have begun to see more clearly the dangers of wealth and we understand in a new way what Jesus intended in warning us about wealth.

As Thomas Berg has blogged, "great disparity seems likely to make it harder for people to practice the value of solidarity, that is, 'see[ing] the "other". . . not just as some kind of instrument, . . . but as our "neighbor," . . . to be made a sharer on a par with ourselves in the banquet of life to which all are equally invited by God.'" (citing Solicitudo Rei Socialis, para. 39).

I look forward to seeing what the distinguished legal scholars attending the upcoming Class Crits Workshop (hat tip: Feminist Law Profs) at the SUNY Buffalo Law School have to say on these and related topics. (Note--they are still accepting proposals until April 23).

Posted by Frank Pasquale at 09:43 PM | Comments (0) | TrackBack

Anna Nicole Smith's will

Anna Nicole Smith's will is recently available online at various venues, such as CNN. The will, in interaction with the facts, raises a number of questions. It's practically a real-life law exam. This post will discuss a few of the many issues raised by the will.

This discussion is limited in a number of important ways. For example, there are messy jurisdictional questions; there may be questions about the existence of other potential heirs (an interesting possibility, raised in this news article); it seems not outside the realm of possibility that a later will or codicil will surface. There are also a whole array of questions falling under the broad umbrella of undue influence or related impropriety. Conspiracy theorists are already suggesting that the lawyer, Howard Stern, orchestrated a complicated web of murder. Even less exotic and more mundane possibilities, like plain vanilla undue influence, could still drastically affect the distribution. Finally, there are big question marks relating to the value of the estate. The $80 million question is the litigation over the estate of Ms. Smith's late husband. The ultimate value of her estate could vary greatly depending on how those issues are ultimately resolved.

But even setting aside those questions, the will still leaves a number of interesting issues. Questions that come out of the will itself include whether Anna Nicole Smith's daughter will be treated as a pretermitted child, and the question of how to treat the lapsed bequest to Anna Nicole Smith's son, Daniel. We can frame the query in a way that highlights these sub-issues. In fact, it makes quite a nice law-exam-style question.

"Anna executes a will in California in 2001. She leaves her entire estate to her son Daniel, to be held under various trust provisions. She also explicitly disinherits any other relatives, as well as any future spouses or children she might have. Her will contains no residuary clause. In 2006, Daniel dies suddenly, leaving no issue. Later in 2006, Anna's daughter Dannielynn is born. In 2007, Anna dies. How is her estate distributed under California law?"

Is Dannielynn a pretermitted child?

The answer here is "Yes, but."

Yes, she is a pretermitted child. That is, she is a child born after the execution of the instrument. Such children are often able to inherit under the California statute, taking an intestate share:

21620. Except as provided in Section 21621, if a decedent fails to provide in a testamentary instrument for a child of decedent born or adopted after the execution of all of the decedent's testamentary instruments, the omitted child shall receive a share in the decedent's estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument.

However, exceptions under the California statute include explicit disinheritance:

21621. A child shall not receive a share of the estate under Section 21620 if any of the following is established: (a) The decedent's failure to provide for the child in the decedent's testamentary instruments was intentional and that intention appears from the testamentary instruments.

Given that statutory exception, and the explicit disinheritance on the face of the will, it is clear. Dannielynn does not inherit through the pretermitted child statute.

Does this mean that she is unable to inherit? Not exactly. She cannot take through the will, but she may still be able to claim an intestate share of portions of the estate that pass outside the will.

How is the lapsed gift to Daniel treated?

Good question.

First of all, as a general matter, the deceased do not inherit.

21109. (a) A transferee who fails to survive the transferor of an at-death transfer or until any future time required by the instrument does not take under the instrument. (b) If it cannot be determined by clear and convincing evidence that the transferee survived until a future time required by the instrument, it is deemed that the transferee did not survive until the required future time.

Okay, so what happens to a lapsed gift? Here, the statute diverges into two branches. If the deceased transferee left issue, then the issue take. If not, then the gift passes to any contingent takers; if there are no contingent takers, it passes to the residuary taker; if there is no residuary taker, it falls into the estate.

21110. (a) Subject to subdivision (b), if a transferee is dead when the instrument is executed, or fails or is treated as failing to survive the transferor or until a future time required by the instrument, the issue of the deceased transferee take in the transferee's place in the manner provided in Section 240. . . . (b) The issue of a deceased transferee do not take in the transferee's place if the instrument expresses a contrary intention or a substitute disposition. . . .

21111. Except as provided in subdivision (b) and subject to Section 21110, if a transfer fails for any reason, the property is transferred as follows:
(1) If the transferring instrument provides for an alternative disposition in the event the transfer fails, the property is transferred according to the terms of the instrument.
(2) If the transferring instrument does not provide for an alternative disposition but does provide for the transfer of a residue, the property becomes a part of the residue transferred under the instrument.
(3) If the transferring instrument does not provide for an alternative disposition and does not provide for the transfer of a residue, or if the transfer is itself a residuary gift, the property is transferred to the decedent's estate. . . .

The lapsed gift would go first to Daniel's issue, but he has none. Next, it would go to the contingent taker, but there is none. Next, it would go to the residuary taker, but again, there is none.

So the most likely answer is, it falls into the estate. Nobody takes under the will, and the entire estate passes in intestacy. From there, we turn to the intestate statute (6401 and 6402). With no surviving spouse, the entire estate passes to the deceased's children. Which is, in this case, Dannielynn. (And any other children who may be discovered.) So while she doesn't take under the will (because of the exclusion clause), she stands to take in intestacy. Also, because the property passes in intestacy rather than under the will, the various trust provisions in the will (intended to keep Daniel from receiving all of the property at once) will be ineffective.

Posted by Kaimipono D. Wenger at 02:35 PM | Comments (11) | TrackBack