Lessons from the Robin Williams Estate

OK, so technically this is not New York-specific legal news, but I found it interesting nonetheless (and I trust you do too!).  Although the vast majority of people read stories about deceased celebrities’ estates – and the inevitably warring groups of heirs – with a voyeuristic interest and think “well, I don’t have three houses in California, so my kids/spouse will never have these problems!”, in fact, if we look below the glitzy surface of these cases, they can hold very instructive lessons for all people planning for their own families.

In the Robin Williams case, apparently a Trust was established in which his children and former wife received the bulk of the estate, while his current wife was given their marital house and “enough money to keep it up through her lifetime”.  It’s been reported that the heirs dispute the value of this house, how much money is actually necessary to “maintain it” during the widow’s lifetime, and whether the contents of the marital house were intended to be kept by the widow, or part of the estate going to the children.  So what can we glean from this particularly messy celebrity estate?

1. Be careful what you agree to with your spouse! I presume that California, like New York, provides substantial protection for spouses (like Mr. Williams' widow), enabling the surviving spouse to claim a priority, often majority, share of the late spouse's estate.  However, at least in New York, under certain conditions a spouse can waive their statutory rights in an estate when signing an agreement to that effect.
2. Specificity in your estate plan is important!  I always encourage people creating Wills or Trusts to be as specific as possible with regard to their intent, so that there is little room for a dispute amongst heirs after that person passes away.  For example, if Robin Williams meant for his widow to have the house and every piece of personal property left in it, I would hope that the Trust was drafted to say that.
3. Mediation is for more than just divorce cases.  According to reports, the California court has delayed issuing a ruling on the Williams’ estate since the parties appear to be resolving much of their issues with the assistance of a mediator.  Mediation can be especially helpful in situations where, while there might be a serious disagreement amongst parties, the parties to the dispute may want to (or need to) maintain a civil relationship in the future.  We see the benefits of mediation often in the realm of divorces where the divorcing spouses have children together, but this type of dispute resolution could also be effective to resolve issues between neighbors, business partners, or, like here, a widow and the children of a deceased person.
4. Estate planning for blended families takes extra care.  When you have children from a prior marriage, a new spouse, and/or children with your new spouse, it is important to consider the financial needs and non-financial emotions of all of them when drafting your estate plan.  This can be tricky, but when done correctly and with care, many of the problems we see in Robin Williams’ estate might be avoided.  While a person is normally under no obligation to reveal the details of their Will or other estate plan with anyone (including heirs), in some situations, having everyone “on the same page” might be useful.

As we see repeatedly, just because a person is rich and famous, doesn’t mean that their estate planning issues are any different from those faced by us non-celebrities.

Sure you have a Will, but do you have a Genetic Will?

Over the decades, substantial advances in medicine and biotechnology have taken place, which now make it possible for individuals to conceive biological children from stored sperm or eggs even after a parent has died.  Owing to its cost and uncertainty, this isn’t something that occurs with great frequency, but it is sometimes pursued when a couple wishes to have a child (or more children) but one of the parents is dying of a terminal illness.  After the parent’s death, a true biological child of that person might successfully be born, but is that baby a legal child of the deceased parent?

Although there have been extremely few cases dealing with this question (apparently only one in New York: Matter of Martin B., 17 Misc.3d 198, 841 N.Y.S.2d 207 (Sur. Ct. New York Co. 2007)), the New York State Legislature felt it was a compelling problem that needed to be solved.  In which case, in 2014, the State passed and enacted several revisions to our Estates, Powers, and Trusts Law to provide clarification of who qualifies as a “child” of a pre-deceased parent.  Most important of which is the new §4-1.3, which provides that “a genetic child is the child of his or her genetic parent or parents and … is an [heir of the genetic parent] … if it is established that:” the genetic parent made a written directive about his or her stored genetic material within 7 years of his or her death, which “expressly consented to the use of his or her genetic material to posthumously conceive his or her genetic child, and authorized a person to make decisions about the use of the genetic parent's genetic material after the death of the genetic parent…”

This is what I would call a “Genetic Will”.  It is a separate written directive from one’s Will, and necessitates fewer formalities than an actual Will, but it is similarly one’s posthumous directive on how certain items (his or her genetic material) may be used after death, and by whom.  In fact, a person’s Will (even subsequent to the making of a “Genetic Will”) cannot alter or revoke a provision in the “Genetic Will”.  The legislation includes a sample form for people to use, but if a couple (married or otherwise) is contemplating needing this kind of directive, they should seek the advice of an estate planning attorney.

That’s because, for a posthumously-conceived child to be considered the legal child and heir of a deceased person, the following minimum (and somewhat complicated) steps need to be taken:

(1)  The deceased parent signed and dated a “Genetic Will”:

a.     Which sets out his or her consent for the conception of a child from his or her genetic material after death;

b.     Which specifies the name and address of a “custodian” of the genetic material;

c.     In the presence of at least 2 independent adult witnesses, who also sign the document;

d.     Within 7 years before his or her death.

(2)  After the parent’s death, the “Genetic Custodian” notifies the deceased person’s executor within 7 months of the opening of an estate that there is genetic material available for the conception of a posthumous child of the deceased person.

(3)  The “Genetic Custodian” records the “Genetic Will” in the Surrogate’s Court within 7 months of the parent’s death.

(4)  A child is conceived no more than 2 years after the parent’s death;

(5)  The child is born no more than 33 months after the parent’s death.

As you can see, although this new process provides some latitude for the inheritance of a posthumously-conceived child, it is far from a perfect system.  First, for estate executors faced with a “Genetic Will”, it can cause further frustration and delay in calculating each person’s share in an estate.  If there are 3 living children, but one or two (or three or more!) children could be conceived within 24 months after the parent’s death, the estate cannot be finalized and settled before the executor knows for sure what each child’s share will be.  Furthermore, if a posthumously-conceived child is born more than 33 months after death, he or she would still not be an heir to the deceased parent even under this new legislation.  The cutoff date of 33 months seems just as arbitrary as the cutoff date of death, or 9 months after the date of death.  Under our existing estates laws, any child conceived before a parent’s death (and born thereafter), would be considered an heir of that parent; but now there is a distinction made between those children conceived and born within 2 – 2 ¾ years after a parent’s death, and those children conceived and born within 2 years and 10 months of their parent’s death.

The challenges apparent in this new statute are still largely hypothetical (since so few of these situations arise), but as medical technology advances, and costs and risks of this technology decrease, we might someday be faced with a number of posthumous, genetic heirs, along with their less-advantaged younger genetic siblings.