I have an essay forthcoming in the Temple Law Review Online that proposes a solution to the following problem in trusts and estates law (exacerbated by Obergefell):
“[S]uppose an elderly person is completely dependent upon a nurse. The nurse pressures the patient into executing a will leaving everything to the nurse. After the patient dies, the family challenges the will on undue influence grounds, and likely wins. But suppose instead the nurse pressures the patient to marry. Marriage too can be set aside on undue influence grounds, but in most jurisdictions not after a spouse has died. The unscrupulous nurse keeps the ill-gotten spousal share.”
The solution draws on equitable principles and long-forgotten case law: “a person who procures a marriage solely to receive advantages at death and through misconduct that would support a will contest should not be treated as a spouse for purposes of intestacy, the elective share, or other death benefits.”
Posted by Fredrick Vars on October 14, 2015 at 11:25 AM