Interesting same-sex relationship inheritance case

[Muffin]

She could have made a will that made her spouse a beneficiary, but she chose to not do so.

[Polycarp]

@Muffin

She could have made a will that made her spouse a beneficiary, but she chose to not do so.

Whoops. Insofar as I can see, Olive F. Watson, the woman who had a Lesbian relationship with and adopted Patricia Spado, is still alive. She was, at least, in 2004. And somewhere in the farrago of posts and links, someone quoted a line that indicates that she is supporting Ms. Spado’s claim. What happens to her own estate is apparently yet to be probated.

What is the issue at hand is a trust set up by Olive F. Watson’s parents, Thomas J. Watson Jr. and Olive Cawley Watson, and it was Olive C. who died in 2004, supposedly apprised of the fact that her daughter had adopted her lover as her daughter. (That clause deserves to be quoted somewhere! :p) That trust was in favor of Tom Jr. and Olive C’s grandchildren – which, if the adoption is in fact valid, would include Ms. Spado. And because Tom Jr. was a founder of IBM, there’s big money involved.

(The family apparently enjoyed perpetuating names – Thomas J. Watson III is the brother of Olive F. Watson, both being the children of Thomas Jr. and Olive C.)

[Muffin]

Thanks, Polycarp. That makes a lot more sense.

[Polycarp]

@Humble Servant

2. In estates of enormous size, the most tax-efficient way to pass assets through a generation-skip is through trusts. Usually a trust is formed for each beneficiary before assets pass to them and gets named specifically in the grants. Again, this must not be the case here as they apparently tried to provide for grandchildren born after the date of the original trust. One wonders though whether provision is being made for grandkids still unborn–there will be a cut-off at some point.

By the oddest of coincidences, Gfactor dealt with this precise question, more or less, in his recent Staff Report on the Rule Against Perpetuities.

Any future gift, whether by bequest or by trust or another means, must not be measured by a date no later than 21 years after the end of a life in being at the time of the devisal of the future gift, in order not to violate the Rule Against Perpetuities. But that “life in being” need not be named explicitly in the legal document conveying the gift. In this case, the senior Watsons left a trust to the benefit of their grandchildren, to be paid out to them on the 35th birthdays of the same. But the “life in being” is not that of the survivor of the senior Watsons – at the time of their death, when the trust comes into play, it is known who their children are, since they cannot have additional children after their own deaths. And it is their children who are the “lives in being” relevant to the trust. Obviously, to be a grandchild of the senior Watsons, one must be the child, by birth or adoption, of one of their children. And the 21 years must hence be measured from the death of the last survivor among the Watson children. That the junior Watsons may have children after the deaths of their parents is easily contemplated, and does not impact the cutoff date – which would, insofar as I can tell, be 21 years after the last survivor among Olive F., Thomas III, and their brothers and sisters, passes to his/her reward.

[Sonia_Montdore]

@Polycarp

Probably not, at the present time. Remember that the couple broke up in 1992, insofar as being a romantic/sexual pair went – though if the information here is to be believed, there was no intent to terminate the adoption.

One would no doubt have to research this out, and determine (a) whether the adoption would be recognized in their state(s) of residence (NY, CT??), and (b) what the statute of limitations on incest would be in that state/those states. But some research I did a couple years back on child sexual abuse seems to indicate that the “normal” statute of limitations would have been seven years, but that there was a model law of sorts being adopted by several states that changed that to seven years from the date of majority, i.e., until the 28th birthday of the minor child (or of course the last date of incest if it fell later).

So if (a) the adoption is recognized, and (b) the states in question are using the usual statue of limitations, then it would have expired, there having been about 15 years since the last sexual activity, and if the adoption is not recognized, then it does not constitute incest. Only if there’s an abnormally long statute of limitations in place and someone wanting to make an issue of it does the question become relevant.

By the way, from the looks of the Maine statutes cited above, it appears that if there was no attempt to perpetrate fraud on the court, and nobody wants to advance the claim that the lesbian relationship made Ms. Watson not a fit and proper person to adopt, then the adoption would appear legal under the Maine law cited. (One assumes that there is no provision omitted elsewhere in the Maine statutes that mandates that the parties to the adoption must have legal residence in Maine – which is not mandated by the law as cited above.)

Thanks, Polycarp.

[Cheesesteak]

@Polycarp

And because Tom Jr. was a founder of IBM, there’s big money involved.

Actually, Tom Sr. founded IBM*, Tom Jr. succeeded him as president of the company in the 50’s.

• at least, he was at the helm when the CTR corporation became IBM in 1924 and he ran the company for the next 30 years.

[Gfactor]

@Polycarp

By the oddest of coincidences, Gfactor dealt with this precise question, more or less, in his recent Staff Report on the Rule Against Perpetuities.

Actually, the report was on the history and meaning of the adage, “possession is 9/10ths of the law.” The perpetuities discussion came about in the comments thread in response to a comment by Oakminster. http://boards.straightdope.com/sdmb/showthread.php?p=8246409&postcount=19

[Humble_Servant]

@Bricker

RAP !!

[Chorus]
Smile for me granny
(What ya lookin at)
Let me see ya will
(let you see my what)
ya, ya will ya ya ya will
(Ain’t robbed da cradle just got fertile with my adopted girl)
she said, Smile for me daddy
(What you lookin at uh)
I wanna see your trust
(You wanna see my what)
Ya, ya trust ya, ya, ya trust
(And my lawyer posse’s rappin and my tax guys on da floor)

[villa]

@Bricker

In Virginia, for example, Va. Code § 18.2-366 provides in pertinent part:

B. Any person who commits adultery or fornication with his daughter or granddaughter, or with her son or grandson, or her father or his mother, shall be guilty of a Class 5 felony. However, if a parent or grandparent commits adultery or fornication with his or her child or grandchild, and such child or grandchild is at least thirteen years of age but less than eighteen years of age at the time of the offense, such parent or grandparent shall be guilty of a Class 3 felony.

In fact, incest between adults is illegal almost everywhere in the US.

What is interesting with this is that it does not include the conduct in question. The law here (unless the child is between 13 and 18) specifically applies to heterosexual sex only - it is a person who fornicates with his daughter or her son. A woman having sex with her adult daughter is not covered by this statute. I assume this is because when it was written, homosexual activity itself was a crime in the Commonwealth.

[Bricker]

@villa

What is interesting with this is that it does not include the conduct in question. The law here (unless the child is between 13 and 18) specifically applies to heterosexual sex only - it is a person who fornicates with his daughter or her son. A woman having sex with her adult daughter is not covered by this statute. I assume this is because when it was written, homosexual activity itself was a crime in the Commonwealth.

You might think so. However, as a general principle in criminal law, the masculine includes the feminine it’s used. In other words, if a law prohibits, say, a person issuing a check “…when he knows, or should know, it will not be honored…” can be used to prosecute a female check-bouncer just as easily as a male one.

In recent years, many states have sought to update their statutes with gender-neutral language. The failure of that to happen, though, is not generally a bar to prosecution.

[villa]

@Bricker

You might think so. However, as a general principle in criminal law, the masculine includes the feminine it’s used. In other words, if a law prohibits, say, a person issuing a check “…when he knows, or should know, it will not be honored…” can be used to prosecute a female check-bouncer just as easily as a male one.

In recent years, many states have sought to update their statutes with gender-neutral language. The failure of that to happen, though, is not generally a bar to prosecution.

I agree. However, in a situation where pronouns are used as specifically as they are here, that probably won’t work. This isn’t a law that says that a person may not fornicate with his son or daughter, and could be applied to prosecute a woman for fornication with her child. It very specifically says his daughter or her son.

I’d feel comfortable making the argument before a judge that this law did not, as written, include homosexual conduct. I think I’d probably lose, but it isn’t an illegitimate argument, and it is a long way off your example of the bouncing check law. Under canons of construction I think I am right, but that won’t always fly with a judge, unfortunately.

[Bricker]

@villa

I agree. However, in a situation where pronouns are used as specifically as they are here, that probably won’t work. This isn’t a law that says that a person may not fornicate with his son or daughter, and could be applied to prosecute a woman for fornication with her child. It very specifically says his daughter or her son.

I’d feel comfortable making the argument before a judge that this law did not, as written, include homosexual conduct. I think I’d probably lose, but it isn’t an illegitimate argument, and it is a long way off your example of the bouncing check law. Under canons of construction I think I am right, but that won’t always fly with a judge, unfortunately.

You have a point.

I can’t find any case of same-sex incest prosecuted under this statute, so the issue has never been squarely addressed in Virginia. Certainly you make a reasonable argument.

[Polycarp]

Not to be snarky, but what is the definition of incest in Virginia? Not meaning whom you’re forbidden to do it with, but what you’re forbidden to do – what specifically constitutes “adultery” or “fornication” under the law? It’s possible that the statute, like rape in some jurisdictions, contemplates only penile-vaginal intromission: one male and one female, accept no substitutes. And that that is the reason for the gender-explicit wording.

[villa]

Poly - given that rape laws (and I assume incest laws) were written at times that same sex activity was already criminalized, it wasn’t seen as necessary to include it in the definition of rape. Of course, this reflected a mindset that consensual same sex intercourse was no different to forced same sex intercourse, but there you go.

I don’t know the definition of the terms - I may try to look them up today when I get a chance. It might even force me to write the article I have been planning since Lawrence came out, refuting the point that if you take the power away from states to ban homosexual intercourse, you take their power away to ban incest or polygamy etc.

[Bricker]

@Polycarp

Not to be snarky, but what is the definition of incest in Virginia? Not meaning whom you’re forbidden to do it with, but what you’re forbidden to do – what specifically constitutes “adultery” or “fornication” under the law? It’s possible that the statute, like rape in some jurisdictions, contemplates only penile-vaginal intromission: one male and one female, accept no substitutes. And that that is the reason for the gender-explicit wording.

It’s true that both adultery and fornication require sexual intercourse, as far as Virginia law is concerned.

But same-sex contact other than sexual intercourse is forbidden amongst relatives by § 18.2-361, which provides in relevant part:

Any person who performs or causes to be performed cunnilingus, fellatio, anilingus or anal intercourse upon or by his daughter or granddaughter, son or grandson, brother or sister, or father or mother is guilty of a Class 5 felony. However, if a parent or grandparent commits any such act with his child or grandchild and such child or grandchild is at least 13 but less than 18 years of age at the time of the offense, such parent or grandparent is guilty of a Class 3 felony.

[villa]

Well that certainly covers up any loophole in the other statute. I’d be interested to see the dates the two laws were enacted/amended to see if it was connected to the decriminalization of same sex intercourse.

[Gfactor]

@villa

Well that certainly covers up any loophole in the other statute. I’d be interested to see the dates the two laws were enacted/amended to see if it was connected to the decriminalization of same sex intercourse.

Amendment history: (Code 1950, § 18.1-212; 1960, c. 358; 1968, c. 427; 1975, cc. 14, 15; 1977, c. 285; 1981, c. 397; 1993, c. 450; 2005, c. 185.)Legislative Information System

Last amendment was in '05. A definite maybe.