Geoff R Casavant, PC

It occurred to me earlier this month that in the past year I have dealt with three cases involving informal or "common law" marriage. Once, representing the surviving common law spouse; once, representing relatives seeking to disprove the claimed common law marriage; and once as a mediator, seeking to resolve a dispute between such parties.

Common law marriage is an archaic part of Texas jurisprudence that nevertheless survives to the present day. And naturally, the existence of a common law marriage has a profound effect on the probate and administration of a person's estate after death. It will be worthwhile to examine this more closely.

One of the hardest parts of being a mediator is remembering to be neutral. I am mediating a case next week, and as is my practice I am reviewing the pleadings in the case, and researching other documents. And perhaps realizing one side really has no leg to stand on, unless maybe they have done some extra work, and debating if I am allowed to ask them if they have done this work, and finally concluding I have to bite my tongue and let the process work itself.

An interesting case was just argued before the United States Supreme Court. Although it deals with divorce, not probate or estate planning, I still find it of interest because of its connection to the military.

The case is Howell v. Howell, and the basic facts are these. Mr. and Mrs. Howell were married during the time Mr. Howell served a full career in the military. Under the law, that meant Mrs. Howell was entitled to a portion of Mr. Howell's military retirement pension, and the court that heard their divorce proceeding divided the pension on a percentage basis, so that as Mr. Howell's pension increased due to cost of living adjustments, Mrs. Howell would receive a similar increased amount.

A few years after the divorce was finalized, Mr. Howell received the option to convert a portion of his retirement pay to disability pay. This practice has become popular because unlike retirement pay, disability pay is non-taxable. For Mr. Howell, moreover, there was an added benefit -- disability pay is defined as the separate property of the disabled spouse, and is not subject to division in a divorce. So, with respect to the disability pay, Mr. Howell not only got to keep the share that would formerly have gone to his ex-wife, but got to keep the share that would otherwise have gone to the government.

Mrs. Howell, as could be expected, sued to force Mr. Howell to pay her the amounts that she would have received but for the reclassification of the benefits. As is the case with most cases that make it to the Supreme Court, there are good arguments to be made on both sides.

Regardless of how the Court rules, however, it is clear that future divorce agreement seeking to divide a military pension, or any other benefit that might be subject to re-classification in the future, should specifically discuss what should happen to the division in the event such a re-classification is made.

Most of us have heard of the tragic and untimely death of music superstar Prince. This promises to be a case to watch in the future, and an object lesson of the need to have a will in place. Surveys have shown that nearly two-thirds of Americans do not have a will.

So far there has been no trace of a will among Prince's effects. If he ever consulted an attorney to prepare a will, that attorney has yet to come forward. That means Prince's estate will pass according to the laws of intestacy in his home state of Minnesota. If he owned real property in a different state, or another country, however, the inheritance laws of that state or country will apply to that particular property.

Publicly, Prince was unmarried at the time of his death, with no children. His parents are dead. His estate will therefore pass to his siblings. It is known he has a sister, along with five half-siblings (who share one parent with Prince, but not both). A trust company has been appointed as a temporary administrator of the estate until the heirship issue can be resolved.

What promises to make this case interesting for those of us in the probate world, is that Prince toured world-wide for a period of decades, and was notorious for his sexual freedom (and presumably an appetite to match). The existence of a single child, even one that was unknown to Prince himself, would instantly wipe out any claim his siblings would have to his estate in the absence of a will, and his child (or children as the case may be) would instantly inherit everything.

Similarly, there would also be the possibility of a previously unknown marriage. A man visiting so many states and countries could not possibly be aware of the marriage laws of all of them, especially in those jurisdictions that still recognize common-law marriage.

Assuming Minnesota's probate laws are of the usual variety, the court overseeing the estate will appoint an attorney, known as an attorney ad litem, whose task it will be to represent any unknown heirs of the pop superstar. Part of the attorney ad litem's duties will be to actively search records and interview witnesses, to locate any children that may exist.

Ponder that for a moment -- an attorney's job will be to fly around the country and the world, tracing the steps of a man whose travels span decades, interviewing hundreds (perhaps thousands?) of women whom this man may have slept with, comparing birth records, and testing claims. This one case could easily provide a career's worth of billable hours for years. The due diligence required of the attorney ad litem could easily exceed even that of the case of Howard Hughes, the Texas billionaire who died intestate in 1976.

Ponder as well, all the cranks who are all but guaranteed to come out of the woodwork in the months and years to come, each claiming to be a long-lost unknown child. Modern science, in the form of DNA testing, should be able to rule most of them out easily. But oh, those who cannot be excluded so easily . . . .

This is an interesting time to be a probate attorney in Minnesota.