May 28, 2010
Governor David Patterson, in the State of New York has recently signed into law the Family Health Care Decisions Act. This statute authorizes health care decisions to be made for a person who is incapacitated and has not prepared a healthcare proxy specifically indicating his or her wishes. This statute authorizes family members without a written advanced directive to make decisions to withhold or withdraw life support systems for their family members.
The best means for dealing with making of medical decisions, if you should become disabled or incapable of making your own medical decisions, is to execute a health care proxy appointing someone you trust to make these decisions for you. Unfortunately more than 75,000 incapacitated individuals die each year in the State of New York with out having a health care proxy. Court decisions have ruled that life sustaining treatment cannot be withheld or withdrawn without clear and convincing evidence that the person would decline if they could. This has resulted in people being subject to fruitless treatments that actually violates their personal wishes or religious beliefs.
The new statue sets up a hierarchy to determine those individuals who can make the choices. The list of individuals capable of making these choices range from a guardian, to spouse, to a domestic partner, an adult son or daughter, parent, adult brother or sister, and/or some other relative or close friend. The purpose of the statue is to prevent needless medical treatment for those who, if they were competent, would not want it.
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March 5, 2010
Do you have assets? Do you own a house? Have you been married more than once? Do you have children from more than one relationship? Are you concerned about what happens after your death to your spouse and/or your children? Are you single? All of the above individuals need a Will.
Estate contests often develop between children from the first marriage and the second wife. Issues arise when a man or a woman has children from more than one relationship. Sometimes loved ones have financial difficulty and the possibility of receiving assets in an estate brings out the worst in them.
There is a simple way to avoid unnecessary expensive litigation that can last from months or years. Write a Will! A Will states who your loved ones are, what your assets are and who will receive your assets at the time of your death. No one looks forward to dying. The thought of writing a Will is often an issue that individuals seek to put off. However, a Will should be written when you are competent and healthy not right before your death.
Attorneys that handle Wills & Estates prepare Wills. They are generally speaking inexpensive documents to have prepared. They simplify your end of life issues and allow your assets to pass in an orderly manner. Wills cut down on financial disagreements developing among your heirs and loved ones.
If you die without a Will your assets pass to your loved ones through administration proceedings. These proceedings can be time consuming and tedious. More than one person can request to be the Administrator of your estate. This can lead to arguments, bad feelings and increased attorney’s fees.
If you have assets or loved ones, you need a Will! Have it written by an attorney before you are too sick and old to deal with it.
Should you have questions regarding drafting a Will, feel free to call the Law Office of Elliot S. Schlissel to discuss these issues at 1-800-344-6431 or email us at email@example.com.
August 24, 2009
Common Law Marriage Versus Regular Marriage
The majority of states have laws establishing that marriages are only recognized when created with a marriage license and an official marriage ceremony. This is very important because many rights are dependant on the existence of a valid marriage. For instance, only a wife is entitled to an equitable share in the couple’s marital property and only a husband in a valid marriage will inherit from his wife if she dies without a Last Will and Testament.
Many situations exist, however, where a couple lives as husband and wife without ever formalizing their relationship with a marriage license and ceremony. This is referred to as a “common law marriage.” The parties will only have marital rights if their common law marriage is valid in one of the few states that still recognize common law marriage. Those states include Pennsylvania, Alabama, Colorado, District of Columbia, Georgia (if created before 1/1/97), Iowa, Kansas, Montana, New Hampshire (for probate purposes), Oklahoma, Rhode Island, South Carolina, Texas, Utah, Ohio, and Florida (if created before 1968).
New York’s Recognition of Out-of-State Common Law Marriages
Even where a couple lives in a state like New York that has abolished common law marriage, if the marriage is valid in a state that does recognizes common law marriage, then New York would recognize the marriage as well, pursuant to the “full faith and credit” clause of the Constitution.
For instance, if a common law married couple lived in New York, and merely vacationed briefly in a state like Pennsylvania that does recognize common law marriage, New York State courts may very well recognize that marriage as valid. This is because “Pennsylvania [does] not require that the couple reside within its borders for any specified period of time before their marital status will be recognized.”
Not only that, but “behavior in New York before and after a New York couple’s visit to a jurisdiction that recognizes common-law marriage, like Pennsylvania, may be considered in determining whether the pair entered into a valid common-law marriage while cohabiting, even briefly, in the other jurisdiction.” Evidence of either actual cohabitation in Pennsylvania (like hotel receipts) or the renewal of the private marriage vows in Pennsylvania would still be required.
Because New York only recognizes a common law marriage where that marriage is valid under the laws of a state that validates common law marriage, it is important to understand what the elements of a common law marriage are in that state. This will determine what one must prove in order to have the marriage recognized in New York. Using our Pennsylvania law example, there is one primary requirement that must be met to validate a common law marriage.
Common Law Marriage Under Pennsylvania Law
“A common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that.” “Present tense” means that there must be evidence that the couple made a verbal commitment to enter a marriage at the time of that verbal statement. This means that making statements affirming or acknowledging a pre-existing marriage status or verbally expressing the intent to get married in the future do not qualify.
Where one or both of the parties are unable to testify that words were spoken in the present tense to create a marriage status, Pennsylvania law will create a rebuttable presumption that a common law marriage exists when the party alleging the existence of the common law marriage offers “sufficient proof” that the couple was in (1) Constant Cohabitation and a (2) reputation of marriage “which is not partial or divided but is broad and general”
Interestingly, in September of 2003, the Commonwealth Court of Pennsylvania in its PNC Bank decision purported to abolish all common law marriage going forward, after the date of that case. However, other Pennsylvania courts may not be bound by its decisions, and the Supreme Court of Pennsylvania declined to abolish common law marriage, deferring that decision to the legislature.
But even assuming that the PNC Bank decision were binding, many common law marriages will still survive. If the facts that gave rise to the common law marriage took place before September 13, 2003, when PNC Bank was decided, the marriage would still be valid. This means that if the couple made their private statements creating the marriage, cohabited in Pennsylvania, and had the general reputation of being married prior to Sept. 13, 2003, then their common law marriage would still be recognized under Pennsylvania law, even if PNC Bank were held to be binding precedent.
If a couple has (1) made statements to each other to effect their marriage, (2) has lived together continuously (and at least temporarily on vacation in a state like Pennsylvania that recognizes common law marriage), and (3) has held themselves out and has had the reputation generally of being husband and wife, then New York Courts may indeed recognize their marriage as valid for the purpose of equitable distribution in divorce, a spousal share in an estate, and many other purposes.
As always, these legal issues are complicated, and it is worth noting that our office has extensive experience in matrimonialand estate law. If you need legal representation in general, or if you find yourself in a situation where you may have legal rights under the theory of common law marriage in the divorce or estate contexts, please do not hesitate to contact our office.
 See, e.g., In re Steiner, 786 N.Y.S. 2d 83, 84 (N.Y. App. Div. 2nd Dept. 2004); Sears v. Sears, 700 N.Y.S. 2d 626, 627 (N.Y. App. Div. 4th Dept. 1999); Lancaster v. 46 NYL Partners, 651 N.Y.S. 2d 440, 443 (N.Y. App. Div. 2nd Dept. 1996); Tornese v. Tornese, 649 N.Y.S. 2d 177, 178 (N.Y. App. Div. 2nd Dept. 1996).
Tornese at 178.
Carpenter v. Carpenter, 617 N.Y.S. 2d 903, 904 (N.Y. App. Div. 2nd Dept. 1996); In re Landolfi, 727 N.Y.S. 2d 470, 472 (N.Y. App. Div. 2nd Dept. 2001).
 Carpenter at id.; In re Landolfi at id.
In re Landolfi at id.
Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 (1998).
PNC Bank Corp. v. Workers’ Compensation Appeal Board, 831 A.2d 1269, 1272 (Commw. Ct. Penn. 2003).
Stackhouse v. Stackhouse, 862 A.2d 102, 104-05 (Pa. Super. Ct. 2004).
Staudenmayer at 1020 (1998).
 Id. at 108.
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August 18, 2009
Robert Harper, of the NY Trusts & Estates Litigation blog, recently wrote about the law as it relates to the right to decide how human remains are disposed of in New York. The article quoted NY Public Health Law § 4201(2)(a), which identifies an order of priority of who has the right to direct how a deceased person’s remains are disposed of. An individual may execute a document specifying whom she wishes to decide issues related to how to dispose of her body, but if no such written instrument exists, then the individuals listed in § 4201 determine the order of priority.
Other important issues exist regarding how a loved one’s body is treated after death as well regarding whether a body is autopsied or cremated.
With regard to the decision whether bury or cremate an individual’s body, there is an order of priority for how that decision is made, as noted above, and there is an exception to the rule.
1. If the decedent left a document specifying how her remains should be disposed of (i.e. burial versus cremation), then that document controls. NY Public Health Law § 4201(2)(a)
2. If no such document existed, but the decedent’s actions or expressed wishes dictated how her body should be handled after death, then those wishes control, even over the objections of family members. Application of Hillard, 91 N.Y.S. 2d 547, 549 (N.Y. Sup. Ct. 1944).
3. If the decedent had no discernable wishes as to how her body should be disposed of, then the statutory order of priority determines which relatives decide how the decedent’s body is disposed of. NY Public Health Law § 4201(2)(a)
However, there is an exception to the order of priority listed in the § 4201. For instance, a surviving spouse and children are high in the order of priority to decide how a body is disposed of us a surviving spouse, but where there is evidence that the decedent was estranged from his or her spouse or children, the courts look beyond those individuals to decide how a decedent’s body should be disposed of. In re Solomon, 766 N.Y.S. 2d 294, 295 (N.Y. Sup. Ct. 2003).
In one relatively recent Nassau County Supreme Court case, a deceased person’s estranged wife and daughter were planning to have him cremated, and his body was already in the custody of a crematorium. Based on testimony that the decedent led a somewhat observant Jewish life, and based on the expert testimony of Rabbi Moshe Weinberger that orthodox Jews consider cremation unacceptable, the court held that evidence of the decedent’s desire to have a traditional Jewish burial overcame the wishes of the surviving spouse and daughter, the provisions of § 4201 notwithstanding. Id.
The Performance of an Autopsy
NY Public Health Law § 4210 gives the medical examiner the power or right to perform an autopsies on, “… the bodies of persons dying from… casualty, … suddenly when in apparent health, … or in any suspicious or unusual manner.” But § 4210-c(1) states that absent some compelling public policy need, “no dissection or autopsy shall be performed over the objection of a surviving relative … that such procedure is contrary to the religious belief of the decedent, or, if there is reason to believe that a dissection or autopsy is contrary to the decedent’s religious beliefs.”
Absent one of the circumstances specified in § 4210, the medical examiner may not do an autopsy on a body without notice to the family of the deceased. Dick v. City of New York, 2002 WL 31844745, *3 (N.Y. Sup. Ct. Oct. 30, 2002). However, “the burden is upon a decedent’s next of kin to convey a religious objection to the medical examiner’s office” were the death occurred in some unusual manner, or upon notice, absent some unusual or suspicious circumstances surrounding the death.” Id.
If an autopsy is performed despite notice that there are religious objections, the hospital may be held liable for civil damages. In Rotholtz v. City of New York, 582 N.Y.S. 2d 366, 367 (N.Y. Sup. Ct. 1992), the decedent’s brother informed a doctor at Lenox Hill Hospital that an autopsy should not be performed on his sister, but the hospital failed to convey this message when it turned the body over to the medical examiner, who performed an autopsy. The court there held that the hospital was responsible because when it failed to inform the medical examiner of the family’s religious objection to the performance of an autopsy, it thereby “caused or procured” the unauthorized autopsy. Id. at 670.
The Appellate Division reinstated a jury’s decision to award a surviving family $75,000 compensatory damages and $1,350,000 in punitive damages when an employee at Riverside Chapels caused the medical examiner’s office to perform an autopsy even though the family had told Riverside employees that they were orthodox Jews and that no autopsy should be performed. Liberman v. Riverside Memorial Chapel, Inc., 650 N.Y.S. 2d 194, 197-99 (N.Y. App. Div. 1996).
The safest way to ensure that one’s wishes regarding how his or her remains are disposed of after death will be honored is by executing a Will which makes those wishes clear. The named Executor will be able to ensure that the appropriate people know of your wishes. And as for family members, even though it is a very difficult time after the loss of a loved one, miscommunications can be avoided more easily if everyone they speak to at the hospital, the nursing home, and the medical examiner’s office (if they are involved) are made aware of your wishes with regard to how the deceased’s body should be treated.
And of course, if you need assistance with any estate planning documents like Living Wills, Powers of Attorney, Wills, or Trusts, our office has extensive experience with these documents. Feel free to contact our office at any time for assistance.
Picture courtesy of the Hoven Funeral Home.
Update 8/26/09: Indiana Creates Funeral Planning Directive
April 22, 2009
Our office maintains a very large Wills, Trusts & Estates and general Elder Law practice. See the video above and our New York Wills and Trusts website for more information.
He reported on the case of Matter of Farraj, decided by the Surrogate’s Court in Kings County last week. In that case, Rabaa M. Hanash, the decedent Daoud Farraj’s wife, petitioned the court for an accounting of her husband’s estate. An adult child of the decedent, Saed Farraj, claimed that Rabaa had no standing to compel the accounting because she was not legally married to the decedent.
He claimed that this was the case because the couple did not obtain a marriage licence and were married in a Muslim ceremony in New Jersey, though they actually lived in New York. And according to New Jersey law (N.J. Stat. § 37:1-10) a marriage is absolutely void if a the couple fails to obtain a marriage license before the ceremony. He argued, therefore, that Daoud and Rabaa’s marriage was void and that consequently, Rabaa was not a spouse with standing to petition to compel an accounting in her husband’s estate.
The Surrogate held that the validity of the marriage in question is governed by New York law, and not New Jersey law, because the parties maintained their domicile in New York. Under New York law, marriages performed in religious ceremonies are recognized as valid even if no marriage license is obtained. The marriage between Radaa and Daoud was therefore valid under the governing New York law, so the court held that Radaa had standing to petition for an accounting in her husband’s estate proceeding.
I would like to consider the a slight variation on these facts though, to show that even though New Jersey law invalidates marriage ceremonies performed without a license, a New Jersey court would still validate the marriage in this case.
Normally, a New Jersey court would only have jurisdiction over an estate proceeding in the above-mentioned facts, if the parties’ primary domicile was in NJ. And if they had jurisdiction, they would have invalidated the marriage because the marriage ceremony took place without a license. But let’s say the couple had a vacation home in New Jersey and therefore had to do an ancillary probate proceeding in New Jersey to dispose of the home. In such a case, their domicile would still be in New York, but a New Jersey probate court would still have jurisdiction in the ancillary probate proceeding for the NJ vacation home.
Under those facts, if someone challenged the wife’s standing, a New Jersey court ought to agree that the couple’s marriage was valid under New York law (where the couple were domiciled) and therefore that the wife has standing as a widow of the decedent. It should further consider the couple’s marriage to be valid under New Jersey law, pursuant to the Constitution’s Full Faith and Credit clause (Article IV, Section 1), which obligates states to recognize the “public acts, records, and judicial rulings” of other states.
Because the couple was domiciled in New York, even a NJ court would hold that the marriage was valid under New York law, and by extension, under New Jersey law as well pursuant to the “full faith and credit” clause.
The New Jersey Supreme Court held in Heur v. Heur, 704 A 2d 913, 916 (1998), that “full faith and credit need not be accorded a judgment of another jurisdiction when the court issuing the judgment lacked the jurisdictional prerequisite of domicile.” Under our facts, the couple would have met the jurisdictional prerequisite of domicile in New York, and therefore a New Jersey court considering an ancillary probate proceeding would apply New York law to determine the validity of Radaa and Daoud’s marriage. (Is it relevant that despite the couple’s domicile in New York, no New York court every officially ruled on the validity of their marriage?)
Thus, I think that were a New Jersey court to have jurisdiction over an ancilary probate proceeding under the facts, as suggested above, it would also recognize the validity of the Muslim ceremony, even without the marriage license, to give the decedent’s wife standing to petition for an accounting.
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March 31, 2009
This is the first post in a series of short videos by New York attorney Elliot S. Schlissel, Esq, providing basic information about important aspects of Estate Planning. This informational video is entitled, “Who Needs a Will.”
Mr. Schlissel’s is a leading Elder Law and Wills Trusts and Estates attorney in the 5 Boroughs of New York, Nassau and Suffolk Counties so we are pleased to provide this information to Elliot Schlissel New York Law Blog readers.
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