Will Would Force Gay Man To Marry A Woman To Preserve Son’s Inheritance
A truly bizarre probate case out of New York City:
The gay son of a deceased New York City businessman is fighting a stipulation in his late father’s will that required him to marry the mother of his child or risk losing the child’s inheritance.
Robert Mandelbaum, who is a Manhattan Criminal Court judge, said in court documents that his father, Frank Mandelbaum, knew he was gay and included his male partner in family activities. The elder Mandelbaum died in 2007 at the age of 73.
Mandelbaum, who amassed a fortune after founding the ID-verification firm Intellicheck, died before his grandson, Cooper, now 16 months, was born.
Cooper’s fathers, Robert Mandelbaum and Jonathan O’Donnell, married shortly after his birth via surrogate in 2011. It’s unclear which of the men is Cooper’s biological father.
The late businessman’s will left behind a $180,000 trust for his grandchildren, including those who would be born after his death. The heirs will receive installments from ages 25 to 30, although the amounts will be contingent on the performance of the investment.
But Cooper will not be eligible for his inheritance because he has two dads, according to the terms of the will.
The words “child,” “grandchild” and “descendant” include natural and adopted children and children born out of wedlock, according to the will, which was filed in Manhattan Surrogate’s Court.
“However, such words shall specifically not include an adopted child of Robert, if adopted while Robert is a single person, or a biological child of Robert, if Robert shall not be married to the child’s mother within six months of the child’s birth,” the will states.
(…)
Attorney Anne Bederka wrote that the stipulation Robert Mandelbaum marry a woman was “tantamount to expecting him either to live in celibacy, or to engage in extramarital activity with another man, and is therefore contrary to public policy.”
“There is no doubt that what [Frank Mandelbaum] has sought to do is induce Robert to marry a woman,” Bederka wrote.
Not just marry a woman, but since Mandelbaum is apparently legally married under New York law, he’d be required to divorce his husband too.
While I’m unfamiliar with New York Probate Law, I’ve got to believe that a Court would have authority to set a provision like this aside on the ground that it is against public policy. Otherwise, a decedent could say that a grandchild would not inherit if one of its parents was a member of a specific racial, ethnic or religious group.
The other thought is that Frank Mandelbaum really must have hated the fact that his son was gay.
The public policy angle was what immediately crossed my mind upon seeing the headline. Presumably, this is more likely to happen in NYC than in, say, Dothan, Alabama given prevailing community values.
@James Joyner: Yeah, but unfortunaly in Alabama we are more likely to be taken out behind the wood shed and beaten.
Any will that requires a divorce to be implemented would be thrown out as against public policy. Since gay marriage is allowed in NYS, I expect the restrictions imposed by the will to be thrown out very quickly.
If the son weren’t already married….well, probably under the Restatements this would still get thrown out. Courts are more amendable to testaments requiring marriage to a member of the same religion than they are to other restrictions. I suspect that over time, more and more of these restrictions are going to be considered invalid.
The court doesn’t even need to address the gay marriage issue to resolve this case. It seems to me this will is void on basic Rule Against Perpetuities groundS:
http://en.wikipedia.org/wiki/Rule_against_perpetuities
@Stormy Dragon:
Is this or the rule in Shelley’s case going to be on the exam?
I was curious about the particular wording…
Even if he did just what his dick grandfather wanted, what if the unfortunate woman died in childbirth? Additionally, isn’t it against the law to willfully enter into a sham marriage anyway? Regardless of what the ultimate intent is, a will can’t direct someone to engage in unlawful conduct, right?
@rudderpedals:
I’m not in law school, I only know about it because of a fascinating post on the subject they had on The Volokh Conspiracy a few years ago. ;>
I think it’s a safe bet that this is one trust fund case where trust fund liberals won’t believe in private property rights of a decedent.
On a serious note, this merely is the vanguard of what ultimately will be an avalanche of litigation tied directly to the issue of gay marriages. Will contests merely are the tip of the iceberg. Just wait until married gays ((from the likes of New York State) start divorcing each other (in the likes of Florida, etc.) and then start claiming alimony and child support, not to mention suing each other over property partitions, etc. The legal ripple effects could last for decades and cost billions of dollars in legal fees. Perhaps a lot more.
Policies have consequences, many of which are unexpected and ultimately unwanted.
@Stormy Dragon: Would have to read the will to see if there’s a RAP problem. I haven’t studied NYS property law, so I don’t know if the RAP problem woulc be solved by striking the offending clause entirely or putting in time limitations or any of the other methods by which states now usually solve the problem. A RAP problem doesn’t invalidate a will, usually.
@Stormy Dragon: I spent the last five minutes having an offline discussion about bypassing the rule in a place where one can use a frozen embryo as the life then in existence. Thanks for bringing it up. You know if you haven’t considered law school then let me commend it to you because I think you’d enjoy it.
@grumpy realist:
The two passages quoted refer to grandchildren born or adopted in present tense, rather than past tense. This creates the impression the will is leaving money to Mandelbaum’s future grandchildren, rather than just his currently living grandchildren. That’s where the RAP problem comes in, as those future grandchildren represent a contingent grant that could vest decades into the future (e.g. suppose Robert marries a 20 year old woman in 90 years and concieves a child with her?).
@rudderpedals:
I probably would, but given the level of competition for entry level legal jobs, it would be foolish of me to abandoned an established career as an engineer to become a lawyer, and law school is too expensive just to indulge a hobby.
@Stormy Dragon: Ah, yes, if it’s that ill-defined. Still, NYS might simply close the class of grandchildren at the point at which the Rule Against Perpetuities comes into effect rather than throwing out the clause altogether.
May I congratulate you on your intelligence of not going to law school? I’m just about to graduate and will probably go back into entrepreneurial work. I expect it to be useful, but would never have gone through the procedure had I needed to take out loans. Law school is outrageously overpriced. (One of the reasons why I’m going part time–the other reason is I have a decent paying job in IP.)
Now have to go off and make some phone calls to Japan….
@Stormy Dragon: I understand. I was young and very very fortunate in that I had great contract geek work to keep the lights on and royalties for law school tuition, kept geeking for another 10 years until 9/11 took out what survived the tech crash. I hope you have the same chance to go one day if you have time. On the other hand, this comes from some guy with a spinning ape for an avatar…
@James Joyner: population density dictates that just about anything absurd will happen in NYC. will this guy sell his soul for $180k is the dilemma! in NYC, i say probably- and get a divorce ASAP. of course there’s the buying out of the real mother and such…..paying off lawyers or gambling on a liberal judge to declare the will to be “obtuse” or something. .I don’t miss it up there.
@Tsar Nicholas: “Just wait until married gays ((from the likes of New York State) start divorcing each other (in the likes of Florida, etc.) and then start claiming alimony and child support, not to mention suing each other over property partitions, etc. The legal ripple effects could last for decades and cost billions of dollars in legal fees. Perhaps a lot more.”
Then we could save *tens* of billions by forbidding heterosexual marriage. How’s that feel?
@bill: Any clause in a will which would require a divorce in order to be satisfied is struck down as being against public policy. Settled law. This will would be treated just as if the testator insisted that his son divorce his wife and marry the mother of his out-of-wedlock child. Notgonnahappen.