Cautionary Tale: Even Celebrities Don't Always Get What They Pay For

According to a recent Forbes article, it looks like Philip Seymour Hoffman left a little more drama post mortem by some problematic wording in his Will.  According to the report, Hoffman's Will left his estate (estimated to be roughly $35 million) entirely to his children's mother.  However, since she was not his spouse (only ever his girlfriend), she would face substantial federal estate taxes on about $30 million of the estate, as well as New York State estate taxes on almost all of the estate.  Evidently Mr. Hoffman did foresee this potential problem, and so the drafting attorney wrote a specific "disclaimer" clause into the Will, which would allow his girlfriend to "disclaim" her inheritance, which would then go into a Trust for their son (which would avoid having another estate tax applied to it when Hoffman's son's mother passes away).

The problem? Hoffman only named the son in the Will, but when the actor died earlier this year, he left 3 children.  Now the Surrogate's Court will have to grapple with how, and whether, the other two children can share in the Trust created by their father's Will and their mother's - expected - disclaimer of her share.

With the amount of money that Mr. Hoffman had, and the fact that he lived in a City with hundreds of top-notch attorneys, it is very surprising to me that his Will was so inartfully drafted, as to not anticipate any future children.  As quoted in the Forbes article, a New York Law School professor noted:

One extra sentence in the will could have avoided these issues ... for instance by saying, “Any reference to [Hoffman's son] includes children born to me after him.”

In my practice I run into this situation often.  There may be only one child then living when a parent writes their Will (which child I usually name in one clause in order to satisfy the Rule Against Perpetuities ... but that's an issue for another blog post).  But if there are any more children anticipated (and there usually are), my "standard" Trust clause reads to the effect that a Trust is to be created for "as many of my children then living".  So even if a person creates a Will with only one child in mind, all his or her children will be taken care of by a Trust if any more children are born after signing the Will (without any need to necessarily revise the Will).

I'm just a country lawyer in Upstate New York - and probably charge less than 1/3 what most attorneys in Mr. Hoffman's Manhattan neighborhood do - but I wouldn't have let this happen to his kids.  A cautionary tale then, for those impressed with white-shoe firms and fancy ZIP codes: caveat emptor.

Arizona: Discriminatus Deus

The past few weeks have been terribly cold and dreary here in New York, so my interest has turned, temporarily, to warmer climes.  According to reports, the Arizona state legislature has recently passed a law (H.B. 2153), which provides a defense to discrimination claims if the defendant’s actions were motivated by a “sincerely held religious belief” and the action complained of, or sought, by the plaintiff would “substantially burden” the defendant’s religious beliefs.  In essence, this statutory amendment would provide a license to discriminate by public businesses in that state.

I rarely make sweeping generalizations, but I am quite confident that, if the Governor of Arizona is mistaken enough to sign this bill into law, it will undoubtedly be overturned by the first federal court to hear a challenge.  That’s because, this law is apparently in direct conflict with the federal Civil Rights Act (codified at 42 U.S.C. §2000a, et seq.).  Under the Civil Rights Act, “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation … without discrimination or segregation on the ground of race, color,  religion, or national origin.”  Under federal law “establishments of public accommodation” include all those “affecting interstate commerce or supported in their activities by State action”, such as hotels and motels (other than small bed & breakfasts); restaurants (including those contained in a mall or at a gas station); movie theaters, concert halls, sports stadiums, and other entertainment venues.  A business’ effect on interstate commerce is pretty liberally construed under the Civil Rights Act, but there is an explicit exclusion of coverage for certain “private club[s] or other establishment not in fact open to the public.”

To say – as a business under the Arizona statute might – that “I refuse to serve you because my religious beliefs conflict with your actions or beliefs, and serving you would make me feel bad” is legally indistinguishable from saying “I refuse to serve you because I disagree with your religion [or lack thereof].”  The latter is unequivocally prohibited by federal law, and the support of the former by the State of Arizona cannot be reconciled with the federal Civil Rights Act.

Beyond the obvious legal infirmities of this statutory scheme in Arizona, the practical effects could be a nightmare.  It appears from reports that the legislative purpose of this bill is to protect conservative Christian business owners who wish to turn away business from potential homosexual customers/clients.  However, even a place like Arizona is a religiously plural society, and the terms of this law could – and would – go far beyond “protecting” conservative Christians.  For example, Jews and Muslims are forbidden from consuming pork, so would a Jewish mechanic be justified in refusing to fix a pig farmer’s truck?  Ahimsa, or non-violence, is a core tenant of Buddhist faith, so could a Buddhist ice cream shop owner refuse to sell ice cream to the county animal-control officer?  An even more extreme example could be imagined from the fact that some white supremacist organizations in the United States have (most likely for tax avoidance purposes) putatively organized as “religious” groups.  Of course, I’m sure the core tenants of that “religion” is hatred of non-Caucasian groups, so the protection of a such a business owner's "sincerely held" religious conscience would involve a whole lot of discrimination.

History teaches us that, when a national monarch was given supreme control over the religious beliefs of his or her subjects, war and strife inevitably followed.  This fact was one of the primary inspirations for our First Amendment.  However, it is no less pernicious and destructive to the cohesiveness of our society, to appoint every citizen their own mini-Pope, empowered to decide who does and doesn’t “deserve” their entirely secular business services.

#FirstAmendment #Arizona #ACLU