Parents, lesbian partner battle over estate

When 43-year-old Gaylene Lamb died of a swollen brain in January, she left behind more than just bank accounts and assets worth $135,000.

Lamb also passed along a serious headache to both her parents and lesbian partner of 13 years.

Because Priscilla and Joe Lamb’s daughter did not have a will, the Queen Creek parents believe they should inherit their daughter’s estate.

But Susan Martin, 49, of Sun City is fighting what she says is an attempt to squeeze her out of the picture. Martin contends she is either coowner of all the assets in question or else owner by right of survivorship.

http://www.eastvalleytribune.com/index.php?sty=62132

As if we needed more proof of the need ... and the rightness! ... of marriage equality.

“We were young,” Martin said. “We didn’t think we’d need one.”

is about as silly a thing I have heard from an adult about that in some time. Inheritance fights are not limited to gay couples. Same would have occured if they were straight and living together. When my first one turned 18, we did a number of things, including having her draft a will. Sexual orientation is not a valid excuse for not doing the right thing.

That is OLD English Common Law dating back to the days before you could devise property by a Will (Under Roman and Later Canon Law you could devise your Personal Property to anyone you want to, but as to REAL PROPERTY, that went to your nearest blood relative even if you wanted it to go to another).

They was one big exception to this rule, Dowry and Cutesy Rights. In the Middle ages they were different based on the fact land rights and military service were interconnected. Thus the husband received full use of his wife's property (But only after she gave birth to a live child) for he had to perform the Military duty (by the Renaissance this Military duty had been converted to Taxes and thus no longer could be justified but the Renaissance saw the re-introduction of Roman and Greek Law and with those laws women lost rights. In the case of cutesy the Court Kept the old English Rule long after it should have been abolished BUT the whole time period saw women's rights decline so Cutesy was retained.

Dowry rights are much more interesting. Given that only blood relatives could inherit and the Husband only had use of his wife's property if she gave birth to a live child (and thus a blood relative to BOTH parents), the rules for Dowry did NOT require a live birth, only marriage. Now the wife's right was limited to 1/3 of her husband's estate and only for her life time, but no justification for this existed under the rules of the time period (i.e. NOT military related as was cutesy nor blood relative related). Where did the 1/3 rule come from? Apparently it came from the Bible i.e. a women is only worth 2/3 of a man, Why? She took care of his children permitting him to go fight as required. Thus his 1/3 advantage was because he had a wife and thus she "Earned" the right to 1/3 of his real property until her death.

Starting in the Renaissance Real property started to be devised by a will instead of by Blood BUT the wife's 1/3 spousal right was maintained. This 1/3 was not her property by will but by Right that she could NOT sign away before the death of her husband. In the 1900s both Cutesy and Dowry was merged into one right now known as the "Spousal Right", In non-Community property states this gives any spouse 1/3 of the property of his or her spouse NO MATTER WHAT THE DECEASED SPOUSE SAYS IN A WILL.

The problem in this case is that the Parents are claiming they right to inherit by BLOOD which is the PREFERRED means, even today, of Inheritance unless there is a Will This problem has come up with heterosexual couple when they do NOT marry. If you are NOT married and NOT mentioned in a Will, you are out of luck unless you a blood relative. Given the historic law favoring Blood Relatives EXCEPT for the sole exception of a spouse (and even that right was limited) arguing homosexual relationship should be treated like married couple is a weak argument.

Now the concept of Co-ownership is a stronger case. Most couple do NOT own things in their own names, but as co-owners. If Co-owners with right of Survivorship then the parents lose for the Law has long recognize Joint Property with the right of Survivorship as going to the surviving co-owner even if a will says something else. In Non-Community Property states married property is treated in one of two ways, as a special form of Joint Ownership with right of Survivorship or as just another form of Joint Ownership with the right of Survivorship (For example Pennsylvania recognizes both Married Property and Joint Property as two different form of property but both with the right of Survivorship, while West Virginia just recognize married property as just another form of Joint Property with the right of Survivorship).

Now under the Common Law, Joint property with right of Survivorship was presumed under the law. Starting in the 1800s states started to reverse this and said such survivorship is NOT presumed unless you have clear language of Survivorship (The Pennsylvania Legislature was one of the first legislature to make this change, but the main effect was for Pennsylvania was for the Courts to strengthen Married Property rights).

I do not know what is the law in Utah, but I suspect the problem is the couple NEVER purchased anything with language "With right of Survivorship" which means in most states today, the law presumes the property is "Tenancy in Common" which means it goes to one's heirs NOT to the co-owners of the property. If the couple NEVER used the language "with right of Survivorship" I believe she is out of luck and at least 1/2 of the property is the parents (That is if she can prove it was purchased together as opposed to being purchased jointly).

This is a case that will NOT go up on appeal, the case is to FACT BASED. i.e. Did the couple buy the items together? If the Jury say NO, the Parents win (No Joint Ownership interest). If the Jury says the couple Purchased the item together, the next question is Did the Couple buy the items with "The right of Survivorship"? If NO, the parents get 1/2 of the property for it is NOT joint Property but Property in Common and the 1/2 of the deceased goes to her blood relatives.

Thus before we even get to the issue of Homosexuality, the issue involved are resolved. The biggest problem is the LAW presumes No Joint ownership unless proved by the person alleging joint ownership (The sole exception is the law presumes Husband and wife purchased items together and the burden is on the person alleging no such joint ownership). Furthermore Survivorship (again except in the case of Husband and Wife) is NOT presumed, but must be shown by the person alleging the Joint Ownership with right of Survivorship.

Notice all marriage does is change the presumption (and thus the Burden of Proof) NOT the ultimate rule of whose property it is, that decision is up to a Jury. Furthermore if a couple is careful they can avoid this whole mess by just making sure everything is purchased "With the Right of Survivorship" in the title. That gives you the same rights as being married (as far as the law of property is concerned). I give this same warning to non-Married heterosexual couples, they need to put the words "Right of Survivorship" on items they purchased or the survivor will have the same problem this lesbian couple is having.

as legal strangers for the purpose of taxation and the entire asset is taxed as ordinary income.

Furthermore, some states could now say that such a will would confer the approximation of the benefits of marriage and thus have those terms voided in probate. Presumably a life insurance company could even claim that the designated beneficiary was a contract that approximated the benefits of marriage and just refund the premiums to next of kin, if even that.

Civil marriage has a great deal of nuance in the law for one's designated heirs, not the least of which is declaration of kinship and its associated benefits.

Now I practice in Pennsylvania which more or less follows the Common Law when it comes to Inheritance. Under the COmmon Law a spouse has the "Spousal Right" under inheritance law, but that right is restricted to only 1/3 of the deceased spouse estate, the rest of it goes to the decreased spouse's nearest blood relatives OR via a will (if a Will exists). This has hurt the surviving spouse in that she or he gets LESS than the nearest "Kin". Now in most cases this is a minor problem for the nearest "Kin" of the decreased spouse tend to be the nearest kin of the Surviving Spouse (i.e. their children), but even in such situation you have had Children demanding their share of the Estate even if that mean the surviving spouse is left almost destitute (and this whole conflict can be avoided by making a will that starts "To my Spouse Everything, but if my Spouse should predecease me than to..."). Note had the couple in the cited situation had done "To X everything, but if she should predecease me than to...) this whole mess would have been avoided. My comment is that such conflicts occur in any situation when money may be in dispute, it is the money that is the key NOT the relationship.

As Insurance proceeds, those go independent of ANY Will. For example if a Will says "To X everything" and there is an insurance policy that says to Y, Y gets the proceed for she or he is the named beneficially NOT one heirs. This came up in my home county about ten years ago, a lawyer who no longer could cover up his stealing from his clients committed suicide. He had no will (and even if he have a Will, Debts have to be paid for first and given his theft they was NO assets left over for his heirs). Now he did have an insurance policy which went to his Homosexual lower instead of his then pre-teen daughter. She thus had to survive on Social Security till she turned 18 and they was no way to fight the person who received the proceeds for he was the beneficially of the Policy and thus had the Sole right to the proceeds, even the state could NOT attach it to pay back his debts incurred do to his theft of his client's money. The Attorneys in my area were all upset about it, first for his thrift of his client's assets and second for NOT taking care of his Daughter (His Homosexuality had been known for years and was just ignored as minor even in my rural county).

section of the Bar Exam, kids! Whoaaaaaaaaaaaaa.