With the advances in reproductive technology showing up at a fast and furious pace, the law has struggled to keep up. Today's modern family can look very different than most did in the 1950's, especially with more states protecting the rights of gay couples to adopt children or raise children as a married couple. The family law courts are where most people see the clash between modern day family structure, reproductive technology and the law, but a recent story shows how alternative family arrangements can stretch over into the realm of estate administration.
A gay man, who happens to be a judge, and his partner, are contesting the judge's father's will, which contained a certain clause that clashes with the judge's lifestyle. According to reports, the judge's father, who was apparently quite wealthy, set up a series of trusts for the benefit of his grandchildren. But the trusts had parameters for eligible grandchildren - no adopted child could become a beneficiary if the child was adopted when the judge was single, and no biological child of the judge could become a beneficiary unless the judge was married to the "mother" of the child within six months of the child being born.
How does this affect the judge and his partner? Well, the judge is the biological father of a now 2-year-old boy. The child was conceived by using the judge's sperm and a donated egg, with the fertilized egg being implanted into another woman. The child's birth certificate lists the judge as the boy's father and the judge's partner as the boy's "mother/parent." The judge and his partner were married in Connecticut about three months after the boy's birth.
The petition was filed to challenge the probate administration, claiming that the young boy should be entitled to the assets set aside for the grandchildren contemplated in the original will. The case remains entangled in the probate courts, despite some efforts to negotiate a settlement between the parties.
Estate planning can be tricky, but knowing the full impact of each clause in a will before it is needed requires patient and thoughtful analysis. The couple in this story claim that the judge's father was aware of their lifestyle and accepting, socializing with them on a frequent basis. Having the right information in a will is crucial to making the probate process as smooth as possible for heirs.
Source: NBCNEWS.com, "Gay NYC judge challenges father's will," Tom Hays, Aug. 24, 2012