Probate Litigation - Probate Exception

This Probate Litigation Jurisdiction information comes from an article in an ABA journal article that can be found here. It discusses how it is now expected that there will be an increased amount of Probate Estate Litigation in federal court following the Anna Nicole Smith will contest and trust dispute having been decided by the Supreme Court as part of the ongoing inheritance litigation dispute case.

Writing for the court, Justice Ruth Bader Ginsburg said the Probate exception didn’t apply because the case involved issues normally disputed in federal court. Marshall v. Marshall, No. 04-1544. The Supreme Court ruling puts Smith, whose legal name is Vickie Lynn Marshall, back in court to seek a $474 million inheritance judgment she previously won in federal bankruptcy court in California, according to her lawyer, Kent L. Richland of Los Angeles. Meanwhile, even those on the other side expect the Supreme Court decision in Smith’s case to open federal courtroom doors to a deluge of new probate estate-related litigation."I think it’s going to be read primarily by litigators and it’s going to create another new litigation opportunity," says James R. Wade, a Denver lawyer and former probate judge who filed an amicus brief on behalf of the National College of Probate Judges. "I think that the litigators are going to see opportunities which they hadn’t even thought of before of bringing probate cases in federal court."

Estate Litigation Lawsuit regarding Kirby Pucket's remains

An Estate Litigation update was reported today on ESPN.com from an AP story that Kirby Puckett's fiancee claims he wanted his ashes spread on an inner city baseball diamond.
He had been a great outfielder for the Minnesota Twins but was a resident of Maricopa County Arizona at the time of his death so the Estate Litigation lawsuit regarding his remains has been filed there. A link to the full story can be found here.

He was cremated and his fiancee sought to assert rights to his ashes but had a dispute with his children who were the primary beneficiaries of his estate. He had not indicated in any documents what he would like to have done regarding his final arrangements including what would be done with his remains.

His Fiancee Jodi Olson wanted the remains and said she "just assumed she would get them since she was going to be married to him in 90 days". It is often said that assuming things is not a good idea and that would be true in this case. As the fiancee without any documents saying she were to receive the remains it is the opinion of this Florida Probate Lawyer that she will have no case and the probate court will rule on behalf of the children in this estate litigation matter. Since she was not in fact married the children have the relationship that will be given priority.
The remains have remained in a twins city funeral home following his stroke in Arizona but following the estate litigation dispute and the children telling the personal representative they did not wish to divide the remains with his fiancee they are likely to prevail. Also if Kirby had no will his fiancee will receive no property from his estate as Arizona law will provide like Florida that with no spouse the children will receive the estate assets and the full inheritance.

Sadly he passed away from a stroke at age 45 but this case again shows the importance of expressing ones wishes in advance and putting them in writting so it does not need to be assumed. In a Florida Estate Litigation case with these facts she would have no case as it is clear that children's wishes would clearly prevail over a fiancee. A fiancee has no priority in Florida Probate matters unless a will is prepared and it gives her property. Without that the fiancee would not be sucessful in a Florida dispute in Probate Court on these issues.