Marital Property

Statutory share statute gives surviving spouse a portion of the estate of the decedent

/ Marital Property, Wills and Inheritance

Applying the terms of a long-existing state statute, the Supreme Judicial Court of the Commonwealth of Massachusetts affirmed that a second spouse could take 1/3 of her deceased husband’s estate when he failed to rewrite his will after his second marriage and his will had left his entire estate to his first wife. Ciani v. MacGrath, 114 N.E.3d 52 (Mass. 2019); Mass. Gen. Laws ch. 191, §15. The court also read the state statute to give the surviving spouse a life estate in the family house rather than just a right to a share of its income.

Tenancy by the entirety interests can be sold to satisfy debts of one spouse

/ Concurrent or Common Ownership, Marital Property

A bankruptcy court in Massachusetts has ruled that state tenancy by the entirety law is preempted by  the Bankruptcy Code, §363(h)–(j), interpreting federal law to authorize the forced sale of tenancy by the entirety property over the objections of the non-debtor spouse to satisfy the debts of the debtor spouse. Desmond v. Green, 2018 Bankr. LEXIS 3136 (Bankr. D. Mass. 2018).

Can an owner or inhabitant of real property give police the right to search property when a co-owner or coinhabitant objects?

/ Concurrent or Common Ownership, Estates and Future Interests, Fourth Amendment, Leaseholds, Marital Property, Trespass

The Appeals Court of Massachusetts held that the police could search a closed suitcase in a common closet of a bedroom when given permission to do so by the defendant’s coinhabitant. Commonwealth v. Hernandez,93 Mass. App. Ct. 172, 2018 Mass. App. LEXIS 48 (Mass. App. Ct. 2018). This ruling was based on traditional rules of property law that give tenants in common rights of access to the property they both own. The court noted that any coinhabitant had the right to consent to a search of her home, her bedroom, and her closet because these were areas where both inhabitants shared joint access or control. The Supreme Court reached the opposite conclusion in the case of Georgia v. Randolph,547 U.S. 103 (2006) when it held that the police could not enter property owned by a married couple when one (but not the other) objected to entry. The Massachusetts case is consistent with …

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While real property held as tenancy by the entirety cannot be conveyed absent consent of both spouses, funds held in a bank account can be withdrawn by either spouse and, upon withdrawal, cease to be entireties property

/ Concurrent or Common Ownership, Estates and Future Interests, Marital Property, Personal Property

The Supreme Court of Tennessee overruled prior cases and adopted the Arkansas approach that allows spouses that own bank account as tenants by the entirety are free to withdraw funds unilaterally (without consent of their co-owner) and that moneys so withdraw become the individual property of the spouse that withdrew the funds. This contrasts with real property which neither spouse may convey without the consent of the other. In re Estate of Fletcher, 538 S.W.3d 444 (Tenn. 2017). It should be noted as well that Tennessee presumes that a conveyance to a married couple is held as a tenancy by the entirety unless the language provides otherwise.

Heirs under intestacy statute include adopted children

/ Marital Property, Wills and Inheritance

In a decision one might think was unnecessary today, the Maine Supreme Judicial Court ruled that the “children” who inherit under state intestacy statutes include adopted children. Fiduciary Trust Co. v. Wheeler, 132 A.3d 1178, 2016 ME 26 (Me. 2016). The issue was raised because an earlier court decision interpreting the decedent’s will had held that a separate clause leaving property to the decedent’s “issue” went to biological children (in this case grandchildren) only. This clause did not affect another clause, at issue here, that referred to the state’s intestacy statute to govern distribution of property upon termination of the trust.

Supreme Court finds fundamental liberty and equality interests in extending right to marry to same-sex couples

/ Antidiscrimination Law, Due Process, Marital Property, Religious Freedom, Sexual Orientation

On June 26, 2015, the Supreme Court held in Obergefell v. Hodges, — U.S. — (2015), that the Constitution’s due process clause protects liberty interests that include personal choices central to individual dignity and autonomy and that those include the right to marry, including someone of the same sex. The Court also held that it violates equal protection of the laws to allow male-female couples to marry but to deny that right to same-sex couples. For the same reasons, states must recognize same-sex marriages validly celebrated in other states.

Cert denial brings same-sex marriage to many more states

/ Antidiscrimination Law, Marital Property, Sexual Orientation

The Supreme Court’s refusal to take certiorari in a number of cases means that same-sex marriage will become legal in Indiana, Oklahoma, Utah, Virginia and Wisconsin, and soon afterwards in Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming bringing the total number of jurisdictions to 31 (including the District of Columbia) plus at least 5 Indian nations. In addition a ruling by a three judge panel in the 9th Circuit on Oct 7, 2014 will likely open up Nevada and Idaho as well, making a total of 33 jurisdictions. States that still ban same-sex marriages include Alaska, Montana, Arizona, North Dakota, South Dakota, Nebraska, Texas, Missouri, Arkansas, Louisiana, Michigan, Ohio, Kentucky, Tennessee, Mississippi, Alabama, Georgia and Florida. Jessica Meyers, Appeals rejected, way cleared for wider same-sex marriage: court action likely to affect 11 more states, Boston Globe, Oc. 6, 2014.

Oregon and Pennsylvania join the states with same-sex marriage

/ Antidiscrimination Law, Marital Property, Sexual Orientation

For the first time, federal court rulings seem to have brought same-sex marriage the states. Most of the states that have recognized such marriages have done so through state court rulings or legislation. However, federal court rulings have increasingly found same-sex marriage bans to violate the equal protection clause of the federal constitution. Most such rulings of federal district courts are on appeal and most were stayed during that appeal. However, the governors of both Oregon and Pennsylvania declined to appeal the rulings and no other parties appear to have been given standing to do so. Geiger v. Kitzhaber, 2014 U.S. Dist. LEXIS 68171 (D. Ore. 2014); Whitewood v. Wolf, 2014 U.S. Dist. LEXIS 68771 (M.D. Pa. 2014); That seems to place those states in the same-sex marriage column bringing the total number of jurisdictions with same-sex marriage to twenty (19 states plus the District of Columbia). The list includes California, Connecticut, Delaware, District …

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