More Miss Henry and a New (to me) Author

Post by Nyssa
One other question I had that Francis might be able to explain for
me. The situation: Person A dies and his will leaves everything to
Person B. I was under the impression that if another person, oh let's
go with Person C dies *after* Person A but Person C has left all of
*his* estate to Person A, it does not automatically go to Person B
just because Person A has left all his stuff to him/her. The fact
that A pre-deceased C means that A could NOT inherit since he was
already dead and gone. But the book has that Person C's stuff goes
to Person B since he/she was Person A's heir. That just doesn't sound
right to me. An explanation from a knowledgeable source would be
appreciated.

Hmmm that is a good question. But doesn't it also depend on where the dead person lives? I mean the last time we did our wills our lawyer was quite specific about moving to another state or buying property in another state affecting what we have planned. He was adamant that we avoid any property in Massachusetts, not that we would choose to move there. And phrases like "or her heirs". In some states, there are dictates about who, such as a spouse or children, inherits what regardless of wills.

Carol

Nyssa

2017-08-07 21:14:08 UTC

Post by Carol Dickinson

Post by Nyssa
One other question I had that Francis might be able to
explain for me. The situation: Person A dies and his will
leaves everything to Person B. I was under the impression
that if another person, oh let's go with Person C dies
*after* Person A but Person C has left all of *his*
estate to Person A, it does not automatically go to
Person B just because Person A has left all his stuff to
him/her. The fact that A pre-deceased C means that A
could NOT inherit since he was already dead and gone. But
the book has that Person C's stuff goes to Person B since
he/she was Person A's heir. That just doesn't sound right
to me. An explanation from a knowledgeable source would
be appreciated.

Hmmm that is a good question. But doesn't it also depend
on where the dead person lives? I mean the last time we
did our wills our lawyer was quite specific about moving
to another state or buying property in another state
affecting what we have planned. He was adamant that we
avoid any property in Massachusetts, not that we would
choose to move there. And phrases like "or her heirs". In
some states, there are dictates about who, such as a
spouse or children, inherits what regardless of wills.
Carol

All the characters were in New Jersey, none were married.
Persons A and B were living together, so that could cause
a common law factor to kick in, but I have no idea what
NJ law says about how long, if ever, before legal status
ensues.

As it turned out in the story, the matter became moot, but
it still made me wonder.

Nyssa, who finds the oddest things to wonder about sometimes

Carol Dickinson

2017-08-09 00:27:07 UTC

Post by Nyssa
All the characters were in New Jersey, none were married.
Persons A and B were living together, so that could cause
a common law factor to kick in, but I have no idea what
NJ law says about how long, if ever, before legal status
ensues.
As it turned out in the story, the matter became moot, but
it still made me wonder.
Nyssa, who finds the oddest things to wonder about sometimes

I wonder about odd things too.

So persons A & B living together
might trigger common law, brings to mind, now that gay marriage
is legal, does common law apply to that also, and does it require
that the persons regard themselves as a couple.

I mean I've had a lot of same sex roommates over the years.
None since the law changed, but if I become a widow and bring
in even a same sex person, can I be considered to be in a
common law relationship?

Some of my roommates have been real icky as old timers here
know from the stories I used to share. Most of the truly
icky ones I booted out were male, although I did boot out
two different females for cause.

My goodness this post just triggered the oddest questions. EEK

Carol

James Nicoll

2017-08-09 14:18:27 UTC

Post by Carol Dickinson
O
I wonder about odd things too.
So persons A & B living together
might trigger common law, brings to mind, now that gay marriage
is legal, does common law apply to that also, and does it require
that the persons regard themselves as a couple.
I mean I've had a lot of same sex roommates over the years.
None since the law changed, but if I become a widow and bring
in even a same sex person, can I be considered to be in a
common law relationship?

I bet there are more factors than simply living together to trigger
common law status.

Alberta has an interesting variation called "Adult Interdependent
Relationships", which overlaps with the legal territory covered by
common law marriages but also allows two people who are interdependent
in a non-romantic way (siblings, say) to set up a legal arrangement
that confers some of the benefits and obligations of common law
marriage.

http://www.law-faqs.org/alberta-faqs/family-law/adult-interdependent-relationships/

--
My reviews can be found at http://jamesdavisnicoll.com/
My Livejournal at http://www.livejournal.com/users/james_nicoll
My patreon is at https://www.patreon.com/jamesdnicoll

Francis A. Miniter

2017-08-10 02:24:44 UTC

I wonder about odd things too.
So persons A & B living together
might trigger common law, brings to mind, now that gay marriage
is legal, does common law apply to that also, and does it require
that the persons regard themselves as a couple.
I mean I've had a lot of same sex roommates over the years.
None since the law changed, but if I become a widow and bring
in even a same sex person, can I be considered to be in a
common law relationship?
Some of my roommates have been real icky as old timers here
know from the stories I used to share. Most of the truly
icky ones I booted out were male, although I did boot out
two different females for cause.
My goodness this post just triggered the oddest questions. EEK
Carol

The seminal case regarding the division of property rights between
unmarried couples living together was Michelle Marvin vs. Lee Marvin,
(California Supreme Court, 1976) 18 Cal. 3d. 660, 557 P. 2d. 106, 134
Cal. Rptr. 815.

Judge Tobriner ruled as follows, in part:

"We conclude: (1) The provisions of the Family Law Act do not govern the
distribution of property acquired during a nonmarital relationship; such
a relationship remains subject solely to judicial decision. (2) The
courts should enforce express contracts between nonmarital partners
except to the extent that the contract is explicitly founded on the
consideration of meretricious sexual services. (3) In the absence of an
express contract, the courts should inquire into the conduct of the
parties to determine whether that conduct demonstrates an implied
contract, agreement of partnership or joint venture, or some other tacit
understanding between the parties. The courts may also employ the
doctrine of quantum meruit, or equitable remedies such as constructive
or resulting trusts, when warranted by the facts of the case."

The full relationship is to be looked at, including but not limited to,
time living together, sexual relationship (or not), holding out to third
parties, promises made, promises kept or not kept, etc.

The case led to an avalanche of decisions across the nation, whereby
just about every state adopted the Marvin v. Marvin principle.

Note that this is not a "common law marriage" case as such, because
California banned common law marriages in 1896. But the results may not
be indistinguishable. The term "palimony" was used to describe the
case, though that would technically refer to support and the case was
about division of property not support.

Simply having a roommate would not give rise to this situation. But
there is no reason that the principle should not apply to gay and
lesbian relationships that meet the criteria.

It should be noted that each state is going to vary somewhat from what I
am describing and legal counsel in that state would be advisable.

Francis A. Miniter

Mike Burke

2017-08-10 05:35:29 UTC

I wonder about odd things too.
So persons A & B living together
might trigger common law, brings to mind, now that gay marriage
is legal, does common law apply to that also, and does it require
that the persons regard themselves as a couple.
I mean I've had a lot of same sex roommates over the years.
None since the law changed, but if I become a widow and bring
in even a same sex person, can I be considered to be in a
common law relationship?
Some of my roommates have been real icky as old timers here
know from the stories I used to share. Most of the truly
icky ones I booted out were male, although I did boot out
two different females for cause.
My goodness this post just triggered the oddest questions. EEK
Carol

The seminal case regarding the division of property rights between
unmarried couples living together was Michelle Marvin vs. Lee Marvin,
(California Supreme Court, 1976) 18 Cal. 3d. 660, 557 P. 2d. 106, 134
Cal. Rptr. 815.
"We conclude: (1) The provisions of the Family Law Act do not govern the
distribution of property acquired during a nonmarital relationship; such
a relationship remains subject solely to judicial decision. (2) The
courts should enforce express contracts between nonmarital partners
except to the extent that the contract is explicitly founded on the
consideration of meretricious sexual services. (3) In the absence of an
express contract, the courts should inquire into the conduct of the
parties to determine whether that conduct demonstrates an implied
contract, agreement of partnership or joint venture, or some other tacit
understanding between the parties. The courts may also employ the
doctrine of quantum meruit, or equitable remedies such as constructive
or resulting trusts, when warranted by the facts of the case."
The full relationship is to be looked at, including but not limited to,
time living together, sexual relationship (or not), holding out to third
parties, promises made, promises kept or not kept, etc.
The case led to an avalanche of decisions across the nation, whereby
just about every state adopted the Marvin v. Marvin principle.
Note that this is not a "common law marriage" case as such, because
California banned common law marriages in 1896. But the results may not
be indistinguishable. The term "palimony" was used to describe the
case, though that would technically refer to support and the case was
about division of property not support.
Simply having a roommate would not give rise to this situation. But
there is no reason that the principle should not apply to gay and
lesbian relationships that meet the criteria.
It should be noted that each state is going to vary somewhat from what I
am describing and legal counsel in that state would be advisable.
Francis A. Miniter

The situation here in Oz is vastly different because "de facto
relationships" (what you call "common law marriages") are treated as de
jure marriages provided there is evidence the relationship was a genuine
marriage-like relationship. Matrimonial law here is Commonwealth
government legislation applicable to all states and territories. There
have been attempts by some state/territory governments to go it alone on
gay marriage, but to date they've failed. There's to be a national
plebiscite on the issue soon which may indicate the national mood on the
issue, which may or may not affect how the Federal Parliament votes if a
Bill is put to the House.

--
Mique

Nyssa

2017-08-10 12:51:11 UTC

Post by Nyssa
All the characters were in New Jersey, none were
married. Persons A and B were living together, so that
could cause a common law factor to kick in, but I have
no idea what NJ law says about how long, if ever, before
legal status ensues.
As it turned out in the story, the matter became moot,
but it still made me wonder.
Nyssa, who finds the oddest things to wonder about
sometimes

I wonder about odd things too.
So persons A & B living together
might trigger common law, brings to mind, now that gay
marriage is legal, does common law apply to that also,
and does it require that the persons regard themselves as
a couple.
I mean I've had a lot of same sex roommates over the
years. None since the law changed, but if I become a
widow and bring in even a same sex person, can I be
considered to be in a common law relationship?
Some of my roommates have been real icky as old timers
here know from the stories I used to share. Most of the
truly icky ones I booted out were male, although I did
boot out two different females for cause.
My goodness this post just triggered the oddest
questions. EEK
Carol

The seminal case regarding the division of property rights
between unmarried couples living together was Michelle
Marvin vs. Lee Marvin, (California Supreme Court, 1976) 18
Cal. 3d. 660, 557 P. 2d. 106, 134 Cal. Rptr. 815.
"We conclude: (1) The provisions of the Family Law Act do
not govern the distribution of property acquired during a
nonmarital relationship; such a relationship remains
subject solely to judicial decision. (2) The courts should
enforce express contracts between nonmarital partners
except to the extent that the contract is explicitly
founded on the consideration of meretricious sexual
services. (3) In the absence of an express contract, the
courts should inquire into the conduct of the parties to
determine whether that conduct demonstrates an implied
contract, agreement of partnership or joint venture, or
some other tacit understanding between the parties. The
courts may also employ the doctrine of quantum meruit, or
equitable remedies such as constructive or resulting
trusts, when warranted by the facts of the case."
The full relationship is to be looked at, including but
not limited to, time living together, sexual relationship
(or not), holding out to third parties, promises made,
promises kept or not kept, etc.
The case led to an avalanche of decisions across the
nation, whereby just about every state adopted the Marvin
v. Marvin principle.
Note that this is not a "common law marriage" case as
such, because
California banned common law marriages in 1896. But the
results may not
be indistinguishable. The term "palimony" was used to
describe the case, though that would technically refer to
support and the case was about division of property not
support.
Simply having a roommate would not give rise to this
situation. But there is no reason that the principle
should not apply to gay and lesbian relationships that
meet the criteria.
It should be noted that each state is going to vary
somewhat from what I am describing and legal counsel in
that state would be advisable.
Francis A. Miniter

I remember the Marvin v. Marvin case and the palimony
tag that the media put on it.

But that doesn't answer my original question about inheritance
when the sole heir to another party has deceased before that
person dies.

In the book, the woman (okay, I'll spoil this slightly) living
with the son (who had been murdered) was named his sole heir in
the will. A few days later, the father was found dead and *his*
will named his son as his sole heir. In the story it was stated
a couple of times (or simply assumed by all of the characters)
that the woman would get all the father's property since she
had been the son's heir.

That didn't seem right to me because of the order of deaths.
How could the son inherit if he were already dead? It seems
that it shouldn't be automatic, and that a court would have
to decide if the woman would get the father's estate if there
were no other relatives hiding under a bush somewhere.

If the father had died first, left the estate to the son,
*then* the son died, yes, I can see where the woman would
get the whole sheebang, but not if the son predeceased the
father. At least in my non-legal opinion of common sense.

The point turned out to be moot in the book, but the
assumption of automatic pass-through inheritance bugged me.

I doubt the Martin palimony case would have any bearing on
this scenario since the son's will was specific in handing
everything over to the live-in woman (who was also his
secretary).

Any opinion on this piece of the puzzle, Francis?

Nyssa, who knows how to beat a topic into submission

Francis A. Miniter

2017-08-10 22:06:59 UTC

Post by Nyssa

Post by Nyssa
All the characters were in New Jersey, none were
married. Persons A and B were living together, so that
could cause a common law factor to kick in, but I have
no idea what NJ law says about how long, if ever, before
legal status ensues.
As it turned out in the story, the matter became moot,
but it still made me wonder.
Nyssa, who finds the oddest things to wonder about
sometimes

I wonder about odd things too.
So persons A & B living together
might trigger common law, brings to mind, now that gay
marriage is legal, does common law apply to that also,
and does it require that the persons regard themselves as
a couple.
I mean I've had a lot of same sex roommates over the
years. None since the law changed, but if I become a
widow and bring in even a same sex person, can I be
considered to be in a common law relationship?
Some of my roommates have been real icky as old timers
here know from the stories I used to share. Most of the
truly icky ones I booted out were male, although I did
boot out two different females for cause.
My goodness this post just triggered the oddest
questions. EEK
Carol

The seminal case regarding the division of property rights
between unmarried couples living together was Michelle
Marvin vs. Lee Marvin, (California Supreme Court, 1976) 18
Cal. 3d. 660, 557 P. 2d. 106, 134 Cal. Rptr. 815.
"We conclude: (1) The provisions of the Family Law Act do
not govern the distribution of property acquired during a
nonmarital relationship; such a relationship remains
subject solely to judicial decision. (2) The courts should
enforce express contracts between nonmarital partners
except to the extent that the contract is explicitly
founded on the consideration of meretricious sexual
services. (3) In the absence of an express contract, the
courts should inquire into the conduct of the parties to
determine whether that conduct demonstrates an implied
contract, agreement of partnership or joint venture, or
some other tacit understanding between the parties. The
courts may also employ the doctrine of quantum meruit, or
equitable remedies such as constructive or resulting
trusts, when warranted by the facts of the case."
The full relationship is to be looked at, including but
not limited to, time living together, sexual relationship
(or not), holding out to third parties, promises made,
promises kept or not kept, etc.
The case led to an avalanche of decisions across the
nation, whereby just about every state adopted the Marvin
v. Marvin principle.
Note that this is not a "common law marriage" case as
such, because
California banned common law marriages in 1896. But the
results may not
be indistinguishable. The term "palimony" was used to
describe the case, though that would technically refer to
support and the case was about division of property not
support.
Simply having a roommate would not give rise to this
situation. But there is no reason that the principle
should not apply to gay and lesbian relationships that
meet the criteria.
It should be noted that each state is going to vary
somewhat from what I am describing and legal counsel in
that state would be advisable.
Francis A. Miniter

I remember the Marvin v. Marvin case and the palimony
tag that the media put on it.
But that doesn't answer my original question about inheritance
when the sole heir to another party has deceased before that
person dies.
In the book, the woman (okay, I'll spoil this slightly) living
with the son (who had been murdered) was named his sole heir in
the will. A few days later, the father was found dead and *his*
will named his son as his sole heir. In the story it was stated
a couple of times (or simply assumed by all of the characters)
that the woman would get all the father's property since she
had been the son's heir.
That didn't seem right to me because of the order of deaths.
How could the son inherit if he were already dead? It seems
that it shouldn't be automatic, and that a court would have
to decide if the woman would get the father's estate if there
were no other relatives hiding under a bush somewhere.
If the father had died first, left the estate to the son,
*then* the son died, yes, I can see where the woman would
get the whole sheebang, but not if the son predeceased the
father. At least in my non-legal opinion of common sense.
The point turned out to be moot in the book, but the
assumption of automatic pass-through inheritance bugged me.
I doubt the Martin palimony case would have any bearing on
this scenario since the son's will was specific in handing
everything over to the live-in woman (who was also his
secretary).
Any opinion on this piece of the puzzle, Francis?
Nyssa, who knows how to beat a topic into submission

You are right. The law is different in the situation of inheritance.
And the main reason is that the deceased is, well, dead, and not in a
position to testify, as in the Marvin v. Marvin situation.

And the order of deaths matters. The common law has always presumed
that if a beneficiary of a will predeceases the testator, then the
bequest abates. The exception is where the testator has specified in
his/her will that if the beneficiary predeceases, the bequest shall (a)
go to the estate of the predeceased beneficiary, or (b) is a "per
stirpes" [to offspring] one, surviving and going to the children of the
beneficiary (usual wording "to my son X, per stirpes"). The basis for
the common law rule is to have bequests go to the living, and not be
shared by the dead, whose estates may be unknown.

Francis A. Miniter

Nyssa

2017-08-10 22:18:22 UTC

Post by Nyssa

Post by Nyssa
All the characters were in New Jersey, none were
married. Persons A and B were living together, so that
could cause a common law factor to kick in, but I have
no idea what NJ law says about how long, if ever,
before legal status ensues.
As it turned out in the story, the matter became moot,
but it still made me wonder.
Nyssa, who finds the oddest things to wonder about
sometimes

I wonder about odd things too.
So persons A & B living together
might trigger common law, brings to mind, now that gay
marriage is legal, does common law apply to that also,
and does it require that the persons regard themselves
as a couple.
I mean I've had a lot of same sex roommates over the
years. None since the law changed, but if I become a
widow and bring in even a same sex person, can I be
considered to be in a common law relationship?
Some of my roommates have been real icky as old timers
here know from the stories I used to share. Most of the
truly icky ones I booted out were male, although I did
boot out two different females for cause.
My goodness this post just triggered the oddest
questions. EEK
Carol

The seminal case regarding the division of property
rights between unmarried couples living together was
Michelle Marvin vs. Lee Marvin, (California Supreme
Court, 1976) 18 Cal. 3d. 660, 557 P. 2d. 106, 134 Cal.
Rptr. 815.
"We conclude: (1) The provisions of the Family Law Act
do not govern the distribution of property acquired
during a nonmarital relationship; such a relationship
remains subject solely to judicial decision. (2) The
courts should enforce express contracts between
nonmarital partners except to the extent that the
contract is explicitly founded on the consideration of
meretricious sexual services. (3) In the absence of an
express contract, the courts should inquire into the
conduct of the parties to determine whether that conduct
demonstrates an implied contract, agreement of
partnership or joint venture, or some other tacit
understanding between the parties. The courts may also
employ the doctrine of quantum meruit, or equitable
remedies such as constructive or resulting trusts, when
warranted by the facts of the case."
The full relationship is to be looked at, including but
not limited to, time living together, sexual
relationship (or not), holding out to third parties,
promises made, promises kept or not kept, etc.
The case led to an avalanche of decisions across the
nation, whereby just about every state adopted the
Marvin v. Marvin principle.
Note that this is not a "common law marriage" case as
such, because
California banned common law marriages in 1896. But the
results may not
be indistinguishable. The term "palimony" was used to
describe the case, though that would technically refer
to support and the case was about division of property
not support.
Simply having a roommate would not give rise to this
situation. But there is no reason that the principle
should not apply to gay and lesbian relationships that
meet the criteria.
It should be noted that each state is going to vary
somewhat from what I am describing and legal counsel in
that state would be advisable.
Francis A. Miniter

I remember the Marvin v. Marvin case and the palimony
tag that the media put on it.
But that doesn't answer my original question about
inheritance when the sole heir to another party has
deceased before that person dies.
In the book, the woman (okay, I'll spoil this slightly)
living with the son (who had been murdered) was named his
sole heir in the will. A few days later, the father was
found dead and *his* will named his son as his sole heir.
In the story it was stated a couple of times (or simply
assumed by all of the characters) that the woman would
get all the father's property since she had been the
son's heir.
That didn't seem right to me because of the order of
deaths. How could the son inherit if he were already
dead? It seems that it shouldn't be automatic, and that a
court would have to decide if the woman would get the
father's estate if there were no other relatives hiding
under a bush somewhere.
If the father had died first, left the estate to the son,
*then* the son died, yes, I can see where the woman would
get the whole sheebang, but not if the son predeceased
the father. At least in my non-legal opinion of common
sense.
The point turned out to be moot in the book, but the
assumption of automatic pass-through inheritance bugged
me.
I doubt the Martin palimony case would have any bearing
on this scenario since the son's will was specific in
handing everything over to the live-in woman (who was
also his secretary).
Any opinion on this piece of the puzzle, Francis?
Nyssa, who knows how to beat a topic into submission

You are right. The law is different in the situation of
inheritance. And the main reason is that the deceased is,
well, dead, and not in a position to testify, as in the
Marvin v. Marvin situation.
And the order of deaths matters. The common law has
always presumed that if a beneficiary of a will
predeceases the testator, then the
bequest abates. The exception is where the testator has
specified in his/her will that if the beneficiary
predeceases, the bequest shall (a) go to the estate of the
predeceased beneficiary, or (b) is a "per stirpes" [to
offspring] one, surviving and going to the children of the
beneficiary (usual wording "to my son X, per stirpes").
The basis for the common law rule is to have bequests go
to the living, and not be shared by the dead, whose
estates may be unknown.
Francis A. Miniter

Thanks, Francis. It's nice to know that my common sense
take on the way things *should* be is what they really are.

I remember years ago how couples were advised to put clauses
into their wills that would cover situations where they
would both be killed, such as in a car accident, to ensure
that there was a "just in case" fall back of inheritance,
guardianship, and trusts. Sort of a secondary set of rules
rather than just each spouse leaving everything to the
other or assuming one would survive. This could especially
be sticky if one parent/spouse was to die only minutes or
hours after the other.

Not having either a spouse or children, such as case didn't
apply to my situation, but it's funny how some things you
hear or read will stick in your mind for years.

Nyssa, who has a mind like a steel trap...that's rusted shut

Carol Dickinson

2017-08-12 04:18:07 UTC