When Estate Planning Goes Awry: Ambiguous Beneficiary Designations on Testamentary Substitutes

Beneficiary designations appear most often in insurance contracts, retirement plans, and annuity contracts.  These contracts are known as  testamentary substitutes because they pass outside of the probate estate. The insured or annuitant is asked to designate both the primary beneficiary(ies) and the contingent beneficiaries.  We will examine a case where an issue of construction with respect to the primary beneficiaries required Surrogate Court intervention.

On March 10, 1989, Archibald Foley executed a Will in which he divided the residuary estate as follows:  “…shall be divided into six (6) equal shares․ one each of those shares to each of my brothers and/or sisters who shall survive me and one share to be divided equally between my niece, Carmel Foley, and my nephew, Lawrence Foley, or their survivor.   If neither of them survive me or if any of my brothers and sisters shall fail to survive me, then I direct such share as would have gone to them to be divided equally amongst those brothers and sisters who do survive me.”

On March 13, 1989, Dr. Foley changed the beneficiary designation on four 20-year guaranteed retirement annuities with a combined date-of-death value of $275,872.75 to read:   “to be divided equally, share & share alike among my living brothers and sisters, and one share to be divided equally between my niece (Carmel Foley) & nephew Lawrence Foley.’  Then on March 20, 1989, Foley designated the primary beneficiary under his defined contribution retirement plan with a date-of-death value of $709,380.04 to read:  “to be divided in equal shares among my living brothers and sisters-and an equal share to be divided between my niece Carmel Foley and my nephew Lawrence Foley.” He did not designate contingent beneficiaries under either the retirement annuities or the defined contribution retirement plan.  Foley’s Will was admitted to probate on April 7, 1998 (In re Estate of Foley, 181 Misc. 2d 258, 693 N.Y.S.2d 843, 1999 N.Y. Misc. LEXIS 241 (N.Y. Sur. Ct. May 24, 1999)) [http://caselaw.findlaw.com/ny-surrogates-court/1444422.html]

By the time Archibald Foley died, all of the primary beneficiaries under the annuities and the retirement plan had died except for his sister Edna and his niece Carmel.  The executor of Foley’s Will sought a judicial ruling as to how to distribute the proceeds, particularly the 1/4 share to his predeceased nephew Lawrence.

As it turned out, this was an issue of first impression for the New York County Surrogate’s Court.  ” No authority has been discovered which addresses whether a predeceased beneficiary’s share under a retirement plan or annuity contracts passes to the estate of decedent or to the surviving beneficiaries.” Basing its analysis on prior analogous cases (The New York City Fire Department Life insurance Fund and totten trust accounts), the court reasoned that where beneficiaries were designated as individuals (Carmel and Lawrence) and not as a class (my living brothers and sisters), then they took as tenants in common and not joint tenants with right of survivorship. “Here, Mr. Foley did not expressly declare a joint tenancy in the beneficiary designation of either the retirement plan or the annuities.   Nor does the Court find the evidence that Mr. Foley intended for Lawrence Foley’s proceeds to pass to the surviving beneficiary, Carmel Foley, to be sufficiently clear.  Thus, the Court is required to hold that a tenancy in common has been created.  [See EPTL 6-2.2(a) ]. Accordingly, Lawrence Foley’s share of the proceeds from the retirement plan and the annuities are to be distributed to the estate of Mr. Foley.”  The Will then governed the distribution of Lawrence’s share, being the only document with express instructions as to predeceased relatives.  Thus a non-probate asset became a testamentary asset subject to probate.

The court was sensitive to the fact that this holding may have disrupted the intent of Mr. Foley’s estate plan, but in the absence of express declarations and named contingent beneficiaries, and the ambiguity of the language used to create the primary beneficiary designations, this was the only possible result.  Yet the court was aware that this was an anomalous result: “In the absence of legislation reversing the general common law presumption in the context of retirement plans, annuity contracts and other testamentary substitutes, modern thinking as to presumed intent cannot be extended to these assets.   This anomaly merits consideration and therefore is referred to the EPTL-SCPA Advisory Committee for such action as it deems appropriate.”

The lesson here is clear:  the drafting of beneficiary designations on testamentary substitutes needs to be done with great care.  Moreover, you should safeguard even your testamentary substitutes by having a Will with clear bequest, beneficiary, and residuary estate language.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

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A Thanksgiving Checklist as We Count Our Blessings…

More than any other holiday, Thanksgiving is the time when we gather around the table to celebrate with family and friends.  Many of you are traveling to visit your family, and many of you are receiving family and friends for Thanksgiving.  Soon there will be the familiar and anticipated aromas coming from the kitchen and we will gather around the table to enjoy a fabulous meal prepared by loving hands and give thanks for all of our blessings.

This is also the time of year that I suggest for an annual review of your legal life plan because the people you love and want to protect are right there with you.  So this weekend, as you savor the leftovers, ask yourself the following questions.

  • Do I need a Will?
  • If I have a Will, has anything major occured in my life this past year so that I should review it with an attorney?
  • Do I need to look into setting up a trust?
  • Have I reviewed all of my beneficiary designations on such things as life insurance policies and retirement plans?
  • Do I need a living Will?
  • Do I need a Power of Attorney for financial matters?
  • Do I need a Power of Attorney for health care?
  • Do I need a prenuptial agreement?
  • Do I need a postnuptial agreement?
  • Do I need a domestic partnership agreement?

If you would like to discuss your own personal situation with me, review your current legal life plan, or put together a legal life plan that is tailored for your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.

From my home to yours, I wish you a very Happy Thanksgiving!  May you and your family continue to be blessed.

Adoption and Inheritance, Part 3: When the Adopted Out Beneficiary Dies Before the Birth Parent

In 1924, Mildred Murphy gave birth to a son whom she named Arthur. Arthur went to live with the Manning family who renamed him Clair Willard Manning. The Mannings officially adopted Clair in 1944 when he was 19. Sometime after World War II, Mildred and Clair re-established contact. Mildred had no other children.

Clair would eventually have four children of his own.

In 1998, Mildred executed a Will with this relevant provision:

“Fifth. I give, devise and bequeath to Clair W. Manning of Wellsboro, PA the real property owned by me on Keuka Lake, located at 132 and 134 West Lake Road, consisting of a cottage, extra lot and boathouse together with all of the contents and property located therein and thereon. I further give and bequeath to Clair W. Manning the sum of Eight thousand dollars ($8,000.00).”

She also bequeathed half of her residuary estate to Clair, the remaining half to go to her sister-in-law, Evelyn Beckman. Mildred passed away on Valentine’s Day 2002, having been predeceased by Clair on 4 March 2001.

In my previous post, I considered the issue of class gifts and the requirement under New York law that an adopted out child be specifically named in a Will or a trust in order to inherit from a birth parent as illustrated by the Matter of Piel case. For the purpose of inheritance, Domestic Relations Law (DRL) § 117 terminates the adopted-out child’s right to inherit from the biological parents unless the adopted out child is specifically named, but at the same time gives the adopted child the right to inherit from the adoptive parents.

Today’s fascinating case, Matter of Murphy, presents another twist on that same theme. In Murphy, the New York Court of Appeals case focused on the rights of the children of an adopted out child who had been named in his birth mother’s Will but who had predeceased her. In this case, the court had to construe two very relevant statutes that implicated each other but did not reference each other. In Murphy, the Court of Appeals bridged these two statutes and at the same time extended the rights of the issue of adopted out children who are named beneficiaries in a Will.

As Judge Rosenblatt noted in his majority opinion, at issue was the definition of “issue.” Can the children of a named adopted out child inherit the adopted out child’s gift, or does the gift lapse and fall into the residuary estate? More to the point, what is the interplay of New York’s anti-lapse statute (EPTL 3-3.3) with the statute governing the inheritance rights of adopted children (DRL § 117(2)(b)), particularly with respect to descendants of a named adopted out child in a Will (see my prior posting on Matter of Piel)?

What is the anti-lapse statute? The anti-lapse statute takes effect when the beneficiary under a Will dies before the testator because the law does not permit a gift to be made to a deceased person. The anti-lapse statute “saves” the gift and passes the gift on to the issue of the deceased beneficiary. However, the law applies the statute to a very narrow band of persons. The anti-lapse statute applies only when the deceased beneficiary was the issue, brother, or sister of the testator, and when the deceased beneficiary has issue (children) who survive the testator.

There are three additional important provisions concerning the anti-lapse statute. First, the anti-lapse statute will only go into effect as a result of a Will. If a person dies without a Will, the law of intestacy will apply (see my prior post on the difference between a beneficiary and an heir), meaning that the adopted out child cannot be an heir of their birth parent. Secondly, the anti-lapse statute trumps the deceased beneficiary’s Will with respect to the inherited gift because the law names the substitute taker. Finally, if a gift in a Will is conditioned upon the survival of the beneficiary, it will automatically rule out the application of the anti-lapse statute.

Note that the anti-lapse statute makes no direct reference to the inheritance rights of adopted out children. The adoption law (DRL § 117(2)(b)) is also silent with respect to the anti-lapse statute. New York law provides for full inheritance rights of adopted children from their adopting family (and vice versa), but inheritance rights of adopted out children are severed from their natural parent or kin unless (1) they are expressly named in a Will or trust; (2) they are adopted by the spouse of a natural parent, in which case the child and his issue can inherit from the adopting parent and either natural parent; or (3) the child is adopted by a relative, in which case the child can inherit under the adoptive relationship.

Furthermore, under the terms of the anti-lapse statute, if the child is adopted out by a brother or a sister of the testator (the birth parent), then the adopted out child qualifies as a substitute taker under the anti-lapse statute. If the child is related by both adoption and a natural relationship, then the adopted out child inherits under the natural relationship. This would be the case when the child was adopted by an aunt, for example, and the aunt’s mother (the child’s natural grandmother) dies. The adopted out child would inherit as a natural descendant of the grandmother. If the adoptive aunt predeceased the adopted out child, then the adopted out child could take under the anti-lapse statute.

Under New York law, adopted out children are considered “strangers” with respect to their birth mothers for the purpose of inheritance, even if they re-establish a relationship. The adopted out child inherits from the adoptive parents and, as a result, so do their children (issue). The adopted out child may inherit specific bequests or class gifts from the birth parents only if specifically named in the Will. The law is silent as to the operation of the anti-lapse statute in such a case.

Does the act of naming of an adopted out child in a Will change that person’s status from “stranger” to “issue”? This is what the court in Murphy was asked to decide. If the answer was yes, then the anti-lapse statute would be in effect and Clair’s children would inherit his bequest. If the answer was no, then Clair’s gift would fall into the residuary estate and Evelyn Beckman would inherit all of the residuary estate.

The court found in favor of the Manning children. “We therefore conclude that when Mildred Murphy named her adopted-out son Clair as a beneficiary of her will, she triggered the condition in section 117 (2) that made him a nonstranger, and thus her issue, with respect to the relevant bequest. His children, therefore, are entitled to the benefit of the anti-lapse statute.”

What Murphy means in practice is that a child adopted out by strangers receives the same rights as a child adopted out by a close relative (brother or sister of the testator), merely by being named in the testator’s Will. Murphy extends the inheritance rights of the named adopted out child’s issue under the anti-lapse statute and puts them on equal legal footing with a child adopted out by a sister or brother of the testator. And because the anti-lapse statute overrides the deceased beneficiary’s Will by operation of law, it may have the unintended consequence of defeating the original testator’s estate plans or the estate plans of the predeceased beneficiary.

The Murphy case points out once again the necessity of working with an attorney to draft your Will and tailor it to your individual needs. Though it may seem contrary to nature, children at times do predecease their parents, and this reality must somehow be accounted for in your Will. Your attorney will work through some scenarios with you to make sure that all of your wishes are met and executable. No boilerplate form can do this kind of reasoned and careful drafting befitting your individual needs.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

In the next segment of this series, I will look at yet another fascinating New York case involving adopted-out children and inheritance rights. I invite you to join my list of subscribers to this blog by clicking on “Sign me up!” under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.

What is the Difference between an Heir and a Beneficiary?

In everyday life, you will often hear people speak about their hope for an inheritance from a family member or relative.  However, this commonplace use of the term “inheritance” often masks a misunderstanding of the law and can lead to unintended consequences when misplaced assumptions are not addressed.  Today we are going to examine exactly what the term “inheritance” means from a legal standpoint, and how having a Will takes uncertainty out of the equation.

What defines an “heir”?  Strictly speaking, one is not an “heir” of a living person.  That is because the exact identity of an “heir” is determined at the time of the decedent’s death.  The determination is made by the laws of the jurisdiction, and not by the decedent.  An “heir,” then, is a legal creation and its terms are defined by a State.  One becomes an heir by virtue of satisfying the definition in a statute.  In New York, that statute is EPTL § 4-1.1. That is because New York  has an interest in the smooth transfer of property from one generation to the next.  As such, an “heir” is the statutory recipient of property from a decedent who dies without a Will (intestate).  The State is also the final “heir” in most statutory schemes.  If there are no statutory heir, then the property will go to the State (escheat).  In New York, a person who inherits property under intestate succession is called a distributee.

New York also has a “laughing heir” statute (EPTL §4-1.1(6)).  A “laughing heir” is someone entitled to inherit by law who is so remotely connected to the deceased that he or she would not feel any sorrow at hearing of the death.  To prevent this occurrence, New York cuts off heirs at the grandchildren of the deceased:  “For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.”  No one more remote, such as a great-grandchild, may inherit.  After that, the property of the deceased escheats to the State.

When a person dies without a Will, New York uses as its default an intestate distribution system called per capita (“each head”) at each generation.  In this system, each person is weighed equally.  By virtue of their presence on the family tree, no one can be disinherited.  The first thing we have to do is determine the number of surviving distributees. To illustrate: Beth is a single person who dies without a Will.  She had two sons named Luke and Dick, and a daughter named Nancy.  Luke had two children, Bill and Jane, and Nancy had one child named Jim, and Dick had two children named Sandy and Sam.

At the time of Beth’s death, Luke had already predeceased her.  Had Luke been alive, he, Nancy and Dick would have each received 1/3 of the estate.  Because Luke has already died, Nancy and Dick each receive their 1/3 share, and Luke’s children divided what would have been their father’s share equally between them.  So Nancy receives 1/3, Dick receives 1/3 , and Bill and Jane each receive 1/6.   

Depending upon your family situation, the New York default system of distribution may not suit your needs.  In that case, you may want to draft a Will stipulating that you want your estate distributed per stirpes (“by each branch”) to give you more control over the outcome.  In New York, a person who receives under a Will is called a beneficiary.  Let’s say that you want your great-grandchild to receive something from your estate.  Drafting a Will eliminates the “laughing heir” statute and allows you to leave something to your great-grandchildren.  A Will also allows you to distribute your estate to a class of beneficiaries, such as “to all my children” or “to all of my grandchildren” to cover any issue born or adopted after the execution the Will (pretermitted child).  The class closes at the time of the death of the testator.

Finally, instead of having your estate possibly escheat to the State, you can name a person unrelated to you or a charity as a beneficiary of your residuary estate.  Your property can then be used in a way that is consistent with your life and beliefs.  You should seek the advice on an attorney in drafting a Will so that your wishes are reflected in the resulting document.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on “Sign me up!”  under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.  Thank you.