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Iowa Appeals Court Affirms Ruling Against Lesbian’s Brother Attempting to Invalidate Bequest to Her Surviving Partner

Posted on: February 26th, 2018 by Art Leonard No Comments


David Lance Wilson struck out in his attempt to get the Iowa courts to hold that a provision in his late sister’s will leaving her entire estate to her long-time partner, Susan Woodall Fisher, was automatically revoked when the women allegedly split up nine years before the sister’s death. Affirming a summary judgment ruling by Crawford County District Judge Patrick H. Tott, the Iowa Court of Appeals ruled on February 7 in Estate of Wilson; Wilson v. Fisher, 2018 WL 739248, 2018 Iowa App. LEXIS 155, that Iowa’s Probate Code, Sec. 633.271(1), would only revoke such a bequest if a marriage was dissolved in a court action, but there is no court record of any such proceeding.


Although the court’s ruling was an unexceptionable interpretation of the statute on its face, the factual setting of the case is a bit odd, to say the least. In order to attempt to invoke the revocation statute, David Wilson had to allege in his petition for declaratory judgment that the women had been legally married, a contention that is demonstrably untrue, but which was accepted as an “undisputed fact” for purposes of this case in the responsive pleading filed by the co-executors of the estate, Fisher and John C. Werden, and thus by the court as well, in its opinion by Judge Christopher L. McDonald.


According to Judge McDonald’s summary of the factual allegations, Leslie Wilson and Susan Fisher, same-sex partners, were married in Colorado “sometime before November 6, 1991,” on which date Leslie “executed her last will and testament. Under the will, Susan was to receive Leslie’s entire estate.  Leslie’s brother, David, was listed as the successor beneficiary.”  After Leslie passed away in March 2014, Susan filed an application in the Crawford County District Court for probate of a “foreign probated will.”  District Judge Tott admitted the will into probate, and appointed Fisher and John C. Werden as “personal representatives” of the Iowa estate.  “Susan subsequently filed an election to take under the will as Leslie’s surviving spouse.  In June 2015, the personal representatives executed and recorded a court officer deed conveying an undivided one-half interest in real property owned by Leslie at the time of her death to Susan.”


David showed up six months later, filing his petition in the District Court alleging that Susan and Leslie had “dissolved” their marriage and that they “never cohabitated again and never remarried.” According to David, this dissolution, which involved terminating their relationship and dividing their assets, occurred in 2005.  He was relying on Code Section 633.271(1), titled “Effect of divorce or dissolution,” which states, “If after making a will the testator is divorced or the testator’s marriage is dissolved, all provisions in the will in favor of the testator’s spouse … are revoked by the divorce or dissolution of marriage, unless the will provides otherwise.”  Of course, this provision only applies if there was a marriage to begin with.


In a footnote, the court acknowledged that “same-sex marriages were not recognized in Colorado until October 2014. However, the parties stipulated in their pleadings that ‘Susan … and Leslie … were married in the state of Colorado’ prior to that time.  We need not address the issue of whether the parties were legally married in Colorado because it is immaterial to our resolution of the case.  If they were not legally married under Colorado law, then Iowa Code section 633.271(1)(2016) does not apply, and we would affirm.  Under the analysis used in this opinion, which assumes without deciding they were legally married, we also affirm.”


David sought to persuade the court that because the provision in question states “divorce or dissolution of marriage,” the words “divorce” and “dissolution” must refer to two different things. A “divorce” is obviously a legal proceeding terminating a marriage.  David argued that “dissolution” must, therefore, refer to an informal voluntary termination of a marriage by the parties without involving the courts.  But the court of appeals panel unanimously rejected this argument.


Judge McDonald referred to Chapter 598 of the Iowa code which “expressly defines a ‘dissolution of marriage’ as ‘a termination of the marriage relationship,’” and more specifically to Section 598.1(2), in which, he asserted, “The legislature has expressly directed that the term ‘dissolution of a marriage’ ‘shall be synonymous with the term ‘divorce.’” Thus, the court concluded, “the terms ‘divorced’ and ‘dissolved’ as used in Section 633.271(1) carry the same meaning – the statute uses the terms in the context of marital relations, and the legislature has expressly defined those terms in the context of marital relations to be synonymous.  In Iowa, a divorce or dissolution of a marriage may only be decreed by a court upon evidence ‘that there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonably likelihood that the marriage can be preserved.’”


As to the contention that parties can voluntarily “dissolve” a marriage without involving the courts, McDonald quoted a 1966 Iowa Supreme Court ruling, stating “We know of no such thing as a common law divorce.” McDonald found similar authority under Colorado law.


“It is undisputed that no decree has ever been entered dissolving Susan and Leslie’s marriage. The facts which David argues are in dispute are legally immaterial to the issue of whether Susan and Leslie’s marriage was dissolved.”  Thus, the court affirmed Judge Tott’s ruling granting summary judgment in favor of the Estate and co-executors, denying David’s request for a declaratory judgment that the bequest to Susan was automatically revoked.


The court also denied David’s request to delay ruling on the co-executors’ motion for summary judgment until he could obtain discovery. Such discovery would be irrelevant to disposition of this motion, because David’s attempt to use the statute to get the bequest to Susan “revoked” must be rejected regardless of which version of the “facts” one accepts, so long as there is no record of any court decree “dissolving” the Fisher-Wilson “marriage.”  And, of course, even if David is correct in asserting that the women split up and divided their assets in 2005, Leslie’s failure to revoke her will would leave the bequest in place in the absence of a valid marriage and a legal divorce.


Aaron W. Ahrendsen of Eich, Werden & Steger, P.C., Carroll, Iowa, represents the co-executors. Bradley J. Nelson of Norelius Nelson Law Firm, Denison, Iowa, represents David.

After Half a Century, Surviving Same-Sex Partner Tries to Inherit His Partner’s Estate

Posted on: October 25th, 2016 by Art Leonard No Comments

It seems that anything that could go wrong did go wrong – legally speaking, that is – when William Cornwell died on June 19, 2014, believing he had made a will leaving his entire estate to Thomas Doyle, the man with whom he had shared his life for more than half a century. Cornwell had not involved a lawyer in preparing and signing the will, apparently, because no lawyer would have made the simple mistake he made: getting only one person to witness the will.  After Cornwell died, Doyle turned to Sheila McNichols, Cornwell’s niece and a longtime friend to the two men, “for comfort, support and advice,” said Doyle in a sworn petition filed this month in the New York County Surrogate’s Court.  He showed her the will, and she suggested taking it to her lawyer, Peter Gray, to handle probate.


Gray immediately saw the problem. The New York courts will not accept a will unless there are at least two sworn witnesses to the signing.  Indeed, the will form that Cornwell used had spaces indicated for two witness signatures, but one was blank.  The instruction sheet that came with the will form did not specifically say that two witnesses were required, although the instructions referred to witnesses in the plural several times.  Gray advised Doyle that the will could not be accepted for probate, and because the men had never married, Doyle had no rights as a surviving unmarried partner.  The estate would go to Cornwell’s intestate heirs, two nephews and two nieces, all living in California, three of whom had virtually no relationship with Cornwell or Doyle.


This was a big blow to Doyle, now 85, because his living arrangements depended crucially on the rental income from the other apartments in the West Village brownstone on Horatio Street where he and Cornwell had lived together since 1961, and his ability to continue occupying the ground floor apartment without paying rent. Although they had moved in as tenants after living together elsewhere beginning in 1958, in 1979 the owner decided to sell the building and Cornwell, who had greater resources to finance the purchase, bought it, setting up a corporate entity to own and operate it, and putting Doyle on the board. That building and the rental income it generates is the estate’s main asset.  Cornwell and Doyle had lived on their social security checks and the rental income.  Now Doyle was reduced to his individual monthly social security check (smaller than Cornwell’s, because Cornwell had the good paying job while Doyle was a freelancer with sporadic income), having no pension or other resources.


Although the men lived together and considered themselves spouses, they had never taken any step to formalize their relationship. In the time they lived together, New York City had passed a domestic partnership ordinance in the 1990s, then in this century surrounding states and finally New York State in 2011 had changed their laws to allow same-sex couples to marry, but these men never registered their partnership or formally married.  Doyle says they were planning to marry, and had even purchased rings in anticipation of a ceremony, but in the end it seemed too much of an effort, as Cornwell was in poor health for some time prior to his death. The only legal documents of their relationship are health care proxy forms the men had made in 2002 (properly witnessed by two people, by the way), and joint bank account statements.


According to Doyle, McNichols told him that she felt this situation wasn’t right, Doyle should not be shut out after more than 50 years. She retained Gray to draft an agreement by which the heirs would renounce their interest in the estate in favor of Doyle, and provide that the ownership of the building would go to Doyle as well.  At the same time, Doyle would execute a will leaving everything to McNichols.  This plan seems to have proceeded at first, since Doyle’s attorney attached to the petition a copy of McNichols’ signed agreement to renounce her inheritance, as well as an affidavit she signed for filing in the probate court. Doyle swears that he trusted and relied on McNichols to help him with decisions, named her as his power of attorney and made her joint owner of his bank account.  He depended on her to convince the other relatives to fall in with this plan.


But the other heirs were not willing to go along with it. Doyle claims that the two nephews had never even met Cornwell, and the other niece only met him fleetingly as a child, and none of them knew Doyle. Evidently the allure of a monetary windfall from a “rich uncle” was too powerful. Suddenly, Doyle was confronted with the contention that the papers McNichols signed were not valid, merely “samples,” that McNichols and one of the nephews had been appointed by the Surrogate to administer the estate, to sell the brownstone, and to split up the proceeds among the heirs.  Indeed, according to a New York Times article published on October 23, the building is now in contract for about $7 million.  The Times also reports (although Doyle does not mention it in his petition), that the nieces and nephews offered to let Doyle continue living in the building by including a clause in the sales contract under which he can stay for up to five years at a nominal rent of $10 a month, and that he would receive $250,000 from the proceeds of the sale, but Doyle, stiffened by the heirs’ resistance, decided to sue for the full inheritance he claims Cornwell intended to leave him.


Although he didn’t have a retainer agreement with Gray, Doyle says he regarded Gray as his attorney and trusted him to advise on how to protected his legal rights, but Gray never suggested any legal strategy to advance Doyle’s claim. Doyle says that some friends suggested he get another legal opinion, so he spoke with Polly Eustis, who confirmed Gray’s opinion that Doyle had no standing to inherit Cornwell’s estate.  Eventually, however, he found Arthur Schwartz and Jamie Wolf, his current attorneys, who have devised a new strategy on his behalf.


It seems that Doyle and Cornwell had gone to Pennsylvania in 1991 to purchase a show dog together, and Doyle has the American Kennel Club registration certificate with the date of the sale, listing the two men as the owners. He also claims that they had a good friend in New Hope whom they visited several times on vacations.  The significance of this is that under Pennsylvania law until January 2005, cohabiting individuals who spent time together in that state could be considered to have a common law marriage, and New York courts have recognized Pennsylvania common law marriages in determining whether an individual who was not formally married to a partner is to be considered a surviving spouse.  Doyle’s lawyers have constructed an intricate argument based on New York and Pennsylvania cases seeking to persuade the Surrogate’s Court that Doyle should be recognized as Cornwell’s sole heir, the surviving spouse of a man who had no children, and thus should inherit the entire estate.  Their argument crucially depends on a court retroactively applying last year’s Supreme Court Obergefell marriage decision more than a decade into the past in order to find that two men spending time living together in Pennsylvania prior to 2005 had a common law marriage that New York will recognize.  The will that Cornwell signed may not be admissible for probate, but it would be admissible as evidence to support Doyle’s claim that the two men considered themselves to be married and that Cornwell planned to leave everything to Doyle.


This is a difficult argument to make in retrospect, so Schwartz and Wolf face an uphill battle in the Surrogate’s Court. Doyle’s petition is vague on some of the kinds of facts that would be helpful to his case, such as exactly when and for how long he and Cornwell stayed in New Hope on their vacation trips.  All the affidavits submitted with the Petition to bolster his case come from Doyle’s relatives and neighbors in New York.  There are no affidavits from anybody in Pennsylvania to corroborate Doyle’s recollections about those trips.  The affidavit by Sheila McNichols, signed two years ago, refers to the men as lifetime partners and domestic partners, but not as spouses.    This isn’t surprising, since it was prepared under Gray’s supervision, before Doyle met his current lawyers, who first suggested the common law marriage theory after interviewing Doyle about the details of his relationship with Cornwell and their lives together.  New York court decisions have accepted common law marriage arguments based solely on the testimony of the alleged surviving spouse, but the cases have usually mentioned more details that a court would likely rely upon to support marital intent, such as the couple having had a religious ceremony or exchanged rings before a gathering of friends.


Doyle’s lawyers will also have to convince the court to waive various deadlines that were missed while Doyle was letting McNichols and Gray take the lead in handling the estate affairs. Doyle’s claim should have been filed shortly after Cornwell’s death, not more than two years later, but he argues in his petition that he only recently learned from his current attorney about his legal right as a common law surviving spouse.  In a written argument accompanying the petition, Schwartz and Wolf contend that Doyle had reasonably relied on Gray and McNichols’ assurances that he would be taken care of, and he “did not think that he needed to pursue any sort of litigation to inherit from this estate.”


There are plenty of cautionary tales here for couples in similar situations. If significant property is involved in a relationship, getting a competent lawyer to prepare and supervise the execution of legal documents (including wills) is essential.  Whether to marry is a decision that couples need to weigh carefully, but the benefits in terms of inheritance rights are substantial, especially taking into account the spousal deduction if an inheritance will be large enough to generate federal or state tax liability.  Even at the mundane level, surviving spouses may get a death benefit from social security or from the decedent’s employer’s benefits plan, and monthly social security payments at the higher rate enjoyed by their deceased spouse.  These men first got together when these things weren’t spoken about, and the idea of same-sex marriage seemed a pipe dream in 1958!  Unfortunately for Doyle, they failed to keep up with the times.


The case is pending before New York County Surrogate Nora Anderson, who signed the document appointing the co-administrators and authorized the sale of the building.