In the probate litigation system, there are two separate yet equally important parties: the second wife (who usually inherits the decedent's property), and the children of a prior marriage (who sue her). This is their story. [Clank! Clank!]

I should really apologize for that intro, but felt compelled to do it because my wife is a HUGE Jerry Orbach fan. He's up there with Richard Farnsworth (my wife either doesn't get crushes on young, good-looking actors, or she doesn't tell me about those crushes).

Anywho, Jerry Orbach's son is stirring things up via a letter he wrote to his step-mom, which "somehow" became public. The story is here. I don't think the son comes off looking too great here. From a PR perspective, it's hard to make the surviving spouse look evil because she assisted in organ donation. However, the horror movie fan in me does like the grisly imagery of a dead person having their eyes "shucked out" (I thought the verb "shucked" could only be used for oysters, but maybe it applies to the removal of any slimy thing from where it resides?).

I first became a Christopher Buckley fan in 1995, when I read Thank You For Smoking. Mr. Buckley is a satirist of the first order, and usually turns his eye to Washington politics (his father is William F. Buckley). I recently picked up a copy of Mr. Buckley's most recent novel, Boomsday, which focuses on the coming entitlement crisis. The main character, Cassandra Devine, is a blogger(!) who suggests legislation encouraging Baby Boomers (also referred to here as "The Ungreatest Generation") to take part in "voluntary transitioning" (i.e. suicide). What's in it for the Boomers?

[Ms. Devine's mentor, Terry Tucker:] "You offer people tax breaks. To kill themselves. At age seventy."

[Ms. Devine:]"More if they Transition at sixty-five. Yes, a package of incentives. Free medical. Drugs -- all the drugs you want. Boomers love that kind of pork. The big one is no estate tax. Why leave it to Uncle Sam when you can leave it to the kids? That'll get the kids on board. Terry, listen to me. I ran the numbers. By my calculations, if only twenty percent of seventy-seven million Baby Boomers go for it, Social Security, Medicare, Medicaid will be solvent. End of crisis. Tell me that's not worth debating."

I've written extensively, in this blog and on my website, about statutory custodial claims. These types of claims can be filed by family members if they meet certain requirements for the care of a decedent. The statutory language (which has recently been changed -- here is the new language) has always been pretty vague, which is part of the reason why we have the new 1st District case of Estate of Hale (here is the PDF).

This is the sort of legal opinion I like, as it answers specifically a number of questions surrounding statutory custodial claims:

1. How many years of care can be considered? As many years as care was provided (in this case, 9-1/2 years)

2. When does the statute of limitations for such a claim begin to run? Upon the decedent's death

3. Is the amount of the statutory custodial claim reduced by the amount of any fees the claimant received for acting as guardian of the decedent during his or her lifetime? No

This is a fun topic. Are there public policy limits to how you can give away your property in your Will or trust? The answer is yes -- some obvious examples of provisions that would be struck down:

"I leave $50,000 to my son Robert, so long as he divorces his horrible wife Bonnie within one year of my death"

"I leave my entire estate to Pamela, so long as, within six months of my death, she murders the following individuals:..."

These provisions would be null and void, so Robert gets his money with no need to divorce, and Pamela gets her inheritance without having to go on a killing spree.

A recent 1st District case (an appeal from Cook County) dealt with the question of whether a specific provision should be void as against public policy. The case is Estate of Feinberg, and it's here as a PDF. Basically, Mr. Feinberg's trust left property to his grandchildren, but any grandchild who marries outside the Jewish faith (to a person who doesn't convert in one year after marriage) is disinherited. Oh goy!

This provision was held null and void, because of the long-standing Illinois rule that "testamentary provisions which act as a restraint upon marriage or which encourage divorce are void as against public policy." There is, however, an interesting dissent, which tries to distinguish between the above divorce example and this case.

Thanks as always to Patricia Brosterhous for bringing this case to my attention through her IICLE Estate Planning & Probate Flashpoints. I'll comment on some of the other cases she mentions in the next few days.

Recently (here) I had a post about the respective tax policies of Senators Obama and McCain. Slate has more on Senator McCain and taxes, here, although as the writer (Timothy Noah) makes clear, it's not easy to tell exactly what the Senator really thinks.

The Wall Street Journal's Daniel Henninger goes even further on the subject of Senator McCain and taxes, here, in an article entitled "Is John McCain Stupid?" An excerpt:

Is John McCain losing it?

On Sunday, he said on national television that to solve Social Security "everything's on the table," which of course means raising payroll taxes. On July 7 in Denver he said: "Senator Obama will raise your taxes. I won't."

This isn't a flip-flop. It's a sex-change operation.

Mr. Henninger continues:

What I'm asking is, does John McCain have the mental focus, the intellectual discipline, to avoid being out-slicked by Barack Obama, if he isn't abandoned by his own voters?