Adoption and Reproduction

Wednesday, August 29, 2012

Manhattan Businessman Disinherits his Gay Son's Children; Legal Challenge Filed

As reported over the weekend by the New York Post, the son of a wll-known Manhattan businessman has challenged a provision in his father's will that disinherits his grandchildren unless they are born to a heterosexual married couple.  According to the New York Post:

The edict surfaced in the will of Manhattan businessman Frank Mandelbaum, who specified that none of his money should go to any offspring his son Robert might have if he is “not be married to the child’s mother within six months of the child’s birth.”

Frank Mandelbaum, who died in 2007 at the age of 73, is the founder of the ID verification company, Intelli-Check.  The late Frank Mandelbaum's will prompted his son, Robert Mandelbaum, a Manhattan Criminal Court Judge, to challenge the estate and to argue

that his longtime partner Jonathan O’Donnell is the only 'mother' their 16-month-old son, Cooper, knows. The couple married shortly after Cooper’s birth via a surrogate, entitling the child to a share in a $180,000 trust set aside for Frank Mandelbaum’s three grandkids, Robert declared.

According to the New York Post, Frank Mandelbaum's wife, Ann Freeman, stated in court papers that her "husband's will specifically prohibited such a child from becoming a beneficiary."  Such a child!

According to Robert Mandelbaum, his Father was well aware that he was gay, and noted that his long-time partner, O'Donnell, was included in family dinners and vacations.  Now, Robert and his husband O'Donnell are fighting in court to prove that Frank's will is discriminatory and in violation of state law and public policy.

"Requiring a gay man to marry a woman ... to ensure his child’s bequest is tantamount to expecting him either to live in celibacy, or to engage in extramarital activity with another man, and is therefore contrary to public policy,” the couple's attorney, Anne Bederka, wrote in court papers. “There is no doubt that what [Frank Mandelbaum] has sought to do is induce Robert to marry a woman."

In Massachusetts, and many other states, the maker of a will may dispose of her property in any lawful manner, so long as such disposition is not repugnant to law.  An individual may lawfully place conditions on bequests in his will, such as graduating from college or refraining from alcohol, and those conditions should be carried out by the courts so long as they do not contravene some positive rule of law, or are against public policy.  Damon v. Damon, 312 Mass. 268 (1942).

However, conditions that amount to a complete prohibition on marriage will generally not be enforced by the courts, and partial restrictions on one's ability to marry will be upheld only if reasonable.  What qualifies as a total or partial prohibition, and what is a "reasonable restriction", is very much open to debate.  In Gordon v. Gordon, 332 Mass. 197 (1955), the Supreme Judicial Court of Massachusetts held that a testamentary provision which disinherited any beneficiary who did not marry a person born of the Jewish faith constituted an enforceable and reasonable partial prohibition on marriage.  After all, the beneficiary could marry any suitable Jewish person he liked!

Is a testamentary bequest that disinherits a gay child unless he or she marries someone of the opposite sex a reasonable partial restriction on marriage, or does it amount to a complete prohibition on marriage for that gay individual?

In the end, controversial restrictions such as Frank Mandelbaum's are very likely to cost the estate and all beneficiaries a significant amount of money, emotional pain, and legal fees.  When you are preparing your estate plan, be careful that you are restricting gifts for the right reasons and that you are not inviting costly challenges to your estate when you are gone.

 

As reported over the weekend by the New York Post, the son of a well-known Manhattan businessman has challenged a provision in his father's will that disinherits his grandchildren unless they are born to a heterosexual married couple.  According to the New York Post:

The edict surfaced in the will of Manhattan businessman Frank Mandelbaum, who specified that none of his money should go to any offspring his son Robert might have if he is “not be married to the child’s mother within six months of the child’s birth.”

Frank Mandelbaum, who died in 2007 at the age of 73, is the founder of the ID verification company, Intelli-Check.  The late Frank Mandelbaum's will prompted his son, Robert Mandelbaum, a Manhattan Criminal Court Judge, to challenge the estate and to argue

that his longtime partner Jonathan O’Donnell is the only 'mother' their 16-month-old son, Cooper, knows. The couple married shortly after Cooper’s birth via a surrogate, entitling the child to a share in a $180,000 trust set aside for Frank Mandelbaum’s three grandkids, Robert declared.

According to the New York Post, Frank Mandelbaum's wife, Ann Freeman, stated in court papers that her "husband's will specifically prohibited such a child from becoming a beneficiary."  Such a child!

According to Robert Mandelbaum, his Father was well aware that he was gay, and noted that his long-time partner, O'Donnell, was included in family dinners and vacations.  Now, Robert and his husband O'Donnell are fighting in court to prove that Frank's will is discriminatory and in violation of state law and public policy.

"Requiring a gay man to marry a woman ... to ensure his child’s bequest is tantamount to expecting him either to live in celibacy, or to engage in extramarital activity with another man, and is therefore contrary to public policy,” the couple's attorney, Anne Bederka, wrote in court papers. “There is no doubt that what [Frank Mandelbaum] has sought to do is induce Robert to marry a woman."

In Massachusetts, and many other states, the maker of a will may dispose of her property in any lawful manner, so long as such disposition is not repugnant to law.  An individual may lawfully place conditions on bequests in his will, such as graduating from college or refraining from alcohol, and those conditions should be carried out by the courts so long as they do not contravene some positive rule of law, or are against public policy.  Damon v. Damon, 312 Mass. 268 (1942).

However, conditions that amount to a complete prohibition on marriage will generally not be enforced by the courts, and partial restrictions on one's ability to marry will be upheld only if reasonable.  What qualifies as a total or partial prohibition, and what is a "reasonable restriction", is very much open to debate.  In Gordon v. Gordon, 332 Mass. 197 (1955), the Supreme Judicial Court of Massachusetts held that a testamentary provision which disinherited any beneficiary who did not marry a person born of the Jewish faith constituted an enforceable and reasonable partial prohibition on marriage.  After all, the beneficiary could marry any suitable Jewish person he liked!

Is a testamentary bequest that disinherits a gay child unless he or she marries someone of the opposite sex a reasonable partial restriction on marriage, or does it amount to a complete prohibition on marriage for that gay individual?

In the end, controversial restrictions such as Frank Mandelbaum's are very likely to cost the estate and all beneficiaries a significant amount of money, emotional pain, and legal fees.  When you are preparing your estate plan, be careful that you are restricting gifts for the right reasons and that you are not inviting costly challenges to your estate when you are gone.

 

Thursday, March 22, 2012

Tax Alert: Same-Sex Couples Should Demand Federal Adoption Credit

As individuals and families throughout the country begin to prepare and file tax returns for 2011, tax experts seem to agree that same-sex couples with children may be ignoring a significant tax benefit -- the federal adoption credit.


Read more . . .


Wednesday, January 4, 2012

Lesbian Custody Battle: Florida Court Orders Birth Mother to Share Custody with Genetic Mother

As reported by the Orlando Sentinal, the 5th District Florida Court of Appeals has ruled that a birth mother must share custody of the child that was conceived with her lesbian partner's eggs, and that Florida' s laws relating to egg donation were unconstitutional as applied to the two women.

By way of background, the case involves a same-sex lesbian couple who had been in a committed relationship for 11 years, and who decided to conceive and to have a child together.  After learning that one of the women, a 39-year-old law-enforcement officer, was infertile, it was decided that the other woman, then 34 and also a law-enforcement officer, would donate her egg to be fertilized. The fertilized egg was then implanted in her partner's womb, and a baby girl was born the first week of 2004.

Three and a half years later, and following the separation of the two women, the birth mother disappeared with the child, leaving the country without telling her former partner where they had gone.  Eventually the egg-donor mom tracked them down in Queensland, Australia.

The egg-donor/genetic mother brought a petition under Florida law asking the court to, among other things, declare that she was the legal mother of the child, grant her custody of the child, and order a corrected birth certificate identifying her as the parent.  Section 742.14 of Florida law - concerning the donation of eggs, sperm, or preembryos - reads in relevant part:

The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement [... ], shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children.

Applying existing Florida law, the trial court judge DENIED the genetic mother's requests for parental recognition, writing:

Same-sex partners do not meet the definition of commissioning couple.  There really is no protection for [Appellant] under Florida law because she could not have adopted this child to prevent this current set of circumstances.  I do not agree with the current state of the law, but I must uphold it.  I believe the law is not caught up with science nor the state of same-sex marriages.  I do think that is on the horizon.

The trial court judge acknowledged that family planning options were limited to the lesbian couple when they decided to have and raise a child together, including the option to get married and to establish parenthood by adoption.  The trial court judge wrote presciently, "If you appeal this, I hope I'm wrong."  The genetic mother appealed.

On appeal, the 5th District Court of Appeals  in Florida did indeed reverse the lower court's decision, holding that Florida's existing interpretation and application of Section 742.14 to the genetic mother was unlawful and violated her rights under the Florida and United States constitutions.

In reaching its decision, the appeals court brushed aside the birth mother's argument that the genetic mother was a "donor" under Section 742.14, and therefore had relinquished her parental rights.  After examining the factual record and noting that the statute did not specifically define "donor" , the judge wrote:

Based on the uncontradicted facts, [the genetic mother] would not be a donor under this definition because she did not intend to give her ova away.  Rather, she always intended to be a mother to the child born from her ova and was a mother to the child for several years after its birth. from her ova and was a mother to the child for several years after its birth.

The appeals court also disregarded the birth mother's argument that Florida's laws prohibiting adoption by same-sex couples barred recognition of parenthood by the genetic mother, stating:

[W]e do not discern any legislative intent that the prohibitions of that statute apply to deprive either woman of parental rights to a child conceived through the reproductive process employed here, and we can find no prohibition to lesbian women utilizing that process to conceive a child.

In its opinion, the 5th District Appeals Judge requested that the Florida Supreme Court decide a narrow constitutional question:  whether a woman in a lesbian relationship who gives her egg to her partner in order to have a child give up her parental rights to the child.

The Judge also sent the case back down to the trial court to make an appropriate order of custody, visitation, and support, but not before making an important philosophical comment on the court's role in parenting cases:

Parental rights, which include the love and affection an individual has for his or her child, transcend the relationship between two consenting adults, and we see nothing in this record that makes either [birth mother] or [genetic mother] an exception that places those rights in one to the exclusion of the other.  It is unknown what caused these two women to cross the proverbial line between love and hate, but that is a matter between [birth mother] or [genetic mother].  Their separation does not dissolve the parental rights of either woman to the child, nor does it dissolve the love and affection either has for the child.

Read the appellate opinion of Judge Sawaya in the case of T.M.H v. D.M.T. in its entirety here:  http://www.5dca.org/Opinions/Opin2011/121911/09-3559.op.pdf


Tuesday, September 20, 2011

The "New" Massachusetts Standard Birth Certificate

Historically, Massachusetts birth certificate forms have varied among individual cities and towns.  Many variations of the birth certificates listed the child’s parents as “Mother” and “Father”, posing a hurdle for gay and lesbian parents and confusion on the part of the hospitals, lawyers, and courts who work with birth certificates regularly.  Throughout the past two decades, gay and lesbian parents would find the traditional “mother” and “father” titles crossed out on their child’s birth certificate, being replaced with “co-parent” or “second parent” to more accurately reflect their family situation.

With changes officially going into effect in March of this year, Massachusetts has now standardized birth certificates with two boxes labeled “mother/parent” and “father/parent”.  This standardization serves to recognize the existence of gay and lesbian families and demonstrates a greater sensitivity to alternative reproduction and family creation.  Additionally, it helps to incorporate gay and lesbian families into the everyday framework of hospitals all around the state who are working more and more with different types of families and with various models of family creation.

As reported by Stephen Smith of the Boston Globe:

Massachusetts law has recognized gay and lesbian parents for nearly two decades, said Kara Suffredini, executive director of MassEquality, a gay rights organization. “And yet they’ve continued to suffer the indignity of having their family formation be invisible on a fundamental form like a birth certificate. It’s about time that comes to an end.’’

Until now, Massachusetts, with its fiercely protected tradition of local rule, has had a patchwork of birth certificate forms. Each city or town could have its own. Some were kept electronically, some on paper. The state estimates that as many as 700 variations on the birth certificate existed in the state’s 351 cities and towns.

The standardization of birth certificates in Massachusetts is a step forward for gay and lesbian parents, and will hopefully end the oftentimes uncomfortable and confusing process of altering the birth certificate unnecessary.

Keep checking VAUGHN-MARTEL LAW’S Legal Blog for the most recent legal news surrounding same-sex families and alternative reproduction advances in the law.




Charles River Law Partners, LLC represents clients in Suffolk County, Middlesex County, Essex County, Norfolk County, Plymouth County, Bristol County, Worcester County, Hampden County, and Franklin County.
Legal Web Design by Zola Creative

© Charles River Law Partners, LLC  |  Disclaimer  |  Law Firm Website Design by Zola Creative

© Charles River Law Partners, LLC  |  Disclaimer  |  Law Firm Website Design by Amicus Creative



© 2017 Charles River Law Partners, LLC. | Disclaimer
1180 Washington Street, Suite 101, Boston, MA 02118
| Phone: 617-357-4898
13 Beach Street Extension, (by appointment only), Vineyard Haven, MA 02568
| Phone: 617-357-4898

Representative Cases | Family Law | Estate Planning & Probate | Litigation | Real Estate | LGBTQ | Adoption & Reproductive Law | | Login | About | Blog | News | Fees

Blog RSS

Site Development by
Zola Media