Memorandum of Law
To: Supervisor
From: Paralegal
Date: August 13, 2014
RE: Francine’s
Statement of the assignment
It is my understanding that Francine’s husband, Frank, has passed with an unsigned
will, two houses, and an IRA worth $100,000. Frank’s previous partner, Bob, feels
entitled to some sort of compensation. Frank has one biological child with Francine
and one adopted child with Bob. You want me to research Massachusetts and
Florida laws and prepare an interoffice memorandum based on whether Francine is
entitled to any assets. This project is due by August 15, 2014, and should provide an
extensive discussion.
Issues
1.
2.
3.
4.
5.
6.
7.
Does Bob and Frank’s cohabitation establish a legal marriage?
If not, what legal obligations did their cohabitation create?
Did Frank, having drafted an unsigned will, die intestate?
Is Frank Jr., co-adopted with Bob in Massachusetts, considered Frank’s
legal son in Florida?
Does Frank’s unborn child have inheritance rights?
Does Francine have a legal marriage to Frank?
Does Bob have any rights to property and/or Frank’s estate in light of his
cohabitation?
Facts
Bob and Frank lived together in Massachusetts for eight years, between 2004 and
2012, and legally adopted a boy, Frank Jr. in 2011. In 2012, Frank left the household
and moved to Florida where he met and married Francine in January 2013. Francine
became pregnant with Frank’s child in July 2013. Before Frank and Francine
finished their estate plans and signed the final paperwork – including a will - Frank
was hit by a falling coconut and died. At the time of his death, Frank owned two
houses – one in Massachusetts, where Bob and Frank Jr. still live, and another in
Florida, where Francine lives – and an IRA worth $100,000.
Analysis
1. Issue One and Issue Two
According to the facts given, Bob and Frank’s cohabitation is a deciding factor
in determining what happens to Frank’s assets. Bob and Frank’s relationship is
delineated as a period of eight years of cohabitation and an adoption of a child. In
Bedard v Corliss, 82 Mass. App. Ct. 360 (Mass. 2012), a case with facts analogous to
the client’s case, the court found that individuals who cohabit and obtain the
benefits of marriage are stopped from later denying that marriage. The Bedard v
Corliss court cited Poor v Poor, 409 N.E.2d 758 (Mass. 1980) and its discussion of
the validity of marriage.
In Poor, the court found that if both participants complete the duration of
their marriage under the belief that their marriage is legal, even if it is not, then the
guidelines for the separation are the same as those for legally married couples.
Proof that the marriage was illegitimate presented after the separation becomes
irrelevant in divorce proceedings because these claims constitute conduct that is
inconsistent with conduct prior to the separation. If a couple acted as a married
couple, one party cannot use the claim they were not legally married when it comes
time to split the assets.
Similarly, in the client’s case, Bob and Frank were not legitimately married
under Massachusetts’s law but acted as a married couple by sharing a house and
adopting a child. In Poor, the ex-husband could not claim his marriage was illegal
and therefore irrelevant after the separation. Likewise, Frank could not have denied
his relationship with Bob after their cohabitation for eight years and adoption of a
child. Therefore, Bob is entitled to some of Frank’s assets.
In Bedard v Corliss, prohibiting the denial of a marriage undertaken in full
faith is escalated to include that a marriage cannot be considered as invalid if one
has received benefits from it. Although the defendant in Bedard v Corliss claimed
the marriage could not be recognized by Massachusetts as a valid foreign marriage
and Massachusetts does not recognize common-law marriage, the court ultimately
decided that an individual who has obtained the benefits of marriage is estopped
from later denying that marriage.
While together, Bob and Frank received benefits of being married. They
participated in a joint adoption and joint ownership of real property. Securing these
aspects of this relationship affirmed their public commitment to each other. Even
though Massachusetts and Florida law do not recognize common law marriage, Bob
and Frank were granted the privileges associated with marriage and therefore
cannot deny their marriage.
2. Issue Three
Per Florida statute 732.502, a valid will must have the testator’s signature and
witnesses’ signatures. Since Frank’s will was not signed by Frank, it is not
considered valid in the state of Florida. Thus, Frank died intestate.
Issue Four
The situation involving Frank’s adopted son also requires careful evaluation. In
Embry v Ryan, 2D08-1323. (FL 2009), an on point case, a same-sex couple had two
children, each woman birthing one child and adopting the other non-biological child.
After moving to Florida and their subsequent split, a successful custody and
visitation agreement was implemented until one woman broke the contract
claiming she did not have any responsibility for her non-biological child because
Florida does not recognize same-sex adoptions. Similarly, after Frank left Bob and
moved to Florida, he ignored Frank Jr. and did not take any parental responsibility
for him. In Embry v Ryan, the Florida court of Appeals concluded that Florida must
give full faith and credit to adoptions granted to same-sex couples in other states.
Because Frank Jr. was legally adopted by Frank and Bob in Massachusetts, Frank’s
move to Florida does not negate his parental responsibilities to Frank Jr. Based on
the precedent Embry v Ryan, Frank Jr. is considered Frank’s legal son in Florida.
This will have definite implications for his rights to Frank’s assets as Florida statute
732.108 states that “for the purpose of intestate succession by or from an adopted
person, the adopted person is a descendant of the adopting parent and is one of the
natural kindred of all members of the adopting parent’s family.” Lineal descendants
have claim in probate court.
Issue Five
Since it is established that Frank Jr. is entitled to some of Frank’s assets, it must now
be determined whether his other child, Francine’s unborn baby, also has inheritance
rights. Per Florida statute 732.101, any part of a decedent’s estate not effectively
disposed of by will passes to the decedent’s heirs. As previously established, Frank
died intestate because his will was left unsigned. This would constitute a situation in
which Frank’s estate is not effectively determined by will. So his children would be
in line to collect. However, this statue does not specify about afterborn heirs. Thus it
is necessary to further look at Florida statute 732.106 which directly states, “heirs of
the decedent conceived before his or her death, but born thereafter, inherit intestate
property as if they had been born in the decedent’s lifetime.” In combination, these
statutes assert that afterborn heirs are entitled to the same conditions that living
descendants are; they have claims to assets not specifically disposed of in the will.
Issue Six
Francine does not have a legal marriage to Frank because Bob and Frank were
already married when Frank and Francine got married in Florida. This makes Frank
and Francine’s marriage bigamous and therefore invalid. The state of Florida has
classified bigamy as a punishable offense. Florida defines their bigamy law as
“whoever, having a husband or wife living, marries another person shall…be guilty
of a felony of the third degree punishable as provided.” And although statute 826.02
allows for bigamy when the prior spouse has voluntarily deserted their partner and
remained absent for three continuous years, this exception does not apply to
Frank’s case because he was the one who deserted Bob. The law explicitly allows
bigamy only for the partner who was deserted, not the partner who committed the
abandonment.
Issue Seven
The issue of Bob’s claim on Frank’s estate depends on two issues: whether they
were legally married at common law, and if not, what other obligations, either
created by the parties or by common law, have qlegal standing. Massachusetts has
no law establishing common-law marriage by length of cohabitation; therefore, any
argument for claims on Bob’s behalf will have to stem from other kinds of property
claim. In Massachusetts, according to Chapter 184, Section 7, a deed establishing
joint tenants in common provides that the surviving co-owner of the property
immediately inherits it. In this instance, Frank and Bob had signed the deed.
Therefore, the Massachusetts property belongs to Bob.
Conclusion
Bob and Frank’s cohabitation did establish a legal marriage per the precedents
Bedard v Corliss, 82 Mass. App. Ct. 360 (Mass. 2012) and Poor v Poor, 409 N.E.2d
758 (Mass. 1980). Frank died intestate because the will was unsigned so it did not
meet Florida requirements. Both Frank Jr. and Francine’s unborn child have
inheritance rights per Embry v Ryan, 2D08-1323 (FL 2009) and Florida statutes
involving lineal descendants. Francine does not have a legal marriage to Frank per
Florida’s statues on bigamy. Bob has property rights to the Massachusetts property
because of Massachusetts’s joint tenancy rules.
Recommendation
We should accept Bob as a client and assist him in asserting rights to the
MASSACHUSETTS property and inheritance rights for his adopted son. Francine
will get the FLORIDA HOUSE. Bob has a reasonable claim and our firm has the
ability to help him get justice in this unfortunate series of events. The authority used
in this memorandum was validated through August 13, 2014.