Thursday, May 17, 2007

The family farm, a step-father and a dead mom

That describes my take on the Emma McPeek, et al. v. Charles McCardle from the Indiana Court of Appeals. Mother owns the farm that was in the family for generations when she marries McCardle. When she dies the children from the first marriage file a declaratory action requesting the court find mother's marriage to McArdle void. After all, mother died without a Will so McCardle stands to inherit half the farm via Indiana's intestacy statute. Losing the family farm did not please the children.

The children's theory revolved about what makes a valid marriage. The Indiana Court of Appeals described their theory like this:

Here, it is undisputed that Edwina and Charles complied with the requisite statutes in obtaining and filing their Indiana marriage license and certificate with the clerk of the Ohio County Circuit Court.2 It is also undisputed that Reverend Campbell could have solemnized the marriage under Indiana law had the ceremony taken place in this State. The only question, therefore, is whether the officiant’s failure to obtain the requisite license to marry the couple in Ohio—notwithstanding the fact that he was statutorily authorized to perform Indiana marriage ceremonies—and the couple’s failure to obtain an Ohio marriage license—notwithstanding the fact that they properly obtained an Indiana marriage license—render the marriage void.
The children went onto argue that Indiana courts should find the marriage void because it failed to comply with Ohio law. The Indiana Court of Appeals got rid of that argument quickly.

Which leaves the children and step-father to divide the farm that had been in the children's family for years and years.

Marrying someone with children and with property is a recipe for trouble. A Will might have solved some of the problems. A prenuptial agreement would have been a better solution.

Family law does not exclude estate planning. History might say that they are intertwined areas of the law. Take a look at these blog posts and you will should see this issue is not limited to just this one case: Why Anyone Going Through a Divorce Can Benefit From Estate Planning - Part I, Getting Divorced -- Consider Using a Certified Divorce Financial Analyst, and Every Divorcing Client Needs Estate Planning. Remember that every divorce case deals with property and estate planning also deals with property.

I suggest that if your divorce attorney did not meet with you after the court dissolved your about estate planning issues (new Will, changing beneficiaries on insurance policies and retirement accounts) that you get yourself to a lawyer as soon as possible. First, to make sure that you have not inadvertently kept your former spouse on as a recipient of your property (and this is anything but unheard of). Secondly for crafting an estate plan that meets your post-divorce objectives. No, the reason are interrelated but with I think they have a different emphasis for the client.

Update 6/12/08: Read about the Indiana Supreme Court decision in this case at Latest on the family farm, a step-father and a dead mom.