Court rules in vitro children not entitled to Social Security benefits

The United States District Court for the Northern District of New York has upheld a Social Security Administration (SSA) decision that children born after the death of their father are not entitled to Social Security survivor benefits. The Court affirmed the agency’s decision, ruling that under the provisions of New York’s Estates, Powers and Trusts Law (“EPTL”) the children were not entitled to inherit under New York law.

Sharon MacNeil filed suit challenging a decision by the Commissioner of the Social Security Administration that her children, twins conceived via in vitro fertilization eleven years after her husband died, were ineligible for survivors’ insurance benefits.

According to court documents,

Sharon and Eric MacNeil were married on October 1, 1994, a year after they graduated from college. Several months into their marriage, Eric was diagnosed with non-Hodgkin’s lymphoma at the age of 23. The couple, knowing that the cancer might be terminal or that treatment might render Eric sterile, decided to bank Eric’s sperm. Eric died intestate on May 24, 1996, at age 24. In June 2007, eleven years after Eric’s death, Sharon underwent in vitro fertilization using the stored sperm. She gave birth to twins, A.T.M. and C.E.M., on February 14, 2008.

In 2009, MacNeil filed for child survivors’ benefits for her twins with the SSA, based upon the wage earnings of their deceased father. The SSA denied them. MacNeil then sought a hearing before an Administrative Law judge. (ALJ)  The only question presented before the ALJ was a legal one, whether the twins qualified as “children” under the Social Security Act. The ALJ concluded that, although the kids were biologically Eric MacNeil’s, they were not entitled to inherit under the applicable provisions of New York intestacy law because they were conceived after Eric’s death.

The court wrote

 Section 4-1.1(c) deems those children conceived before a decedent’s death but born alive thereafter as having “survived” the decedent, enabling these individuals to take by operation of Section 4-1.1(a). The treatment of other potential distributees born after the death of the decedent is determined by omission: children who did not “survive” the decedent, or are not otherwise deemed by statute to survive the decedent, do not inherit in intestacy.

So, in other words, the rule is, if the children were conceived while the father was alive and were born after he died, they would be entitled to the survivor benefits. Since they were conceived and born after the father died, in this case 11 years after, they aren’t entitled to the benefits.

So, the court concluded, “… we can only apply the law as it was written, and under the law as written it is clear that Congress has not provided benefits for children in the category of the MacNeil twins.”

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Bronx widow leaves $300K to her cats

In her will, Bronx widow Ellen Frey-Wouters left $300,000 to Troy and Tiger, her two cats. Her will instructed the money be used to make sure they would “never be caged” and always be lovingly cared for.

The New York Post quotes Dahlia Grizzleto, a former health aide Frey-Wouters and now caretaker of the cats as saying, “He deserves it… He’s a wonderful cat.”

Frey-Wouters, who died in 2015 was born in the Netherlands and worked for the United Nations. Her husband, a Brooklyn College professor, passed away in 1989, and the couple’s only child died in infancy.

Troy lives with Rita Pohila, another one of Frey-Wouters’ former home health aides. Pohila, declined to discuss Troy with The Post — invoking the shy feline’s “privacy” rights. Tiger made out like a bandit.He was a former alley cat who i snow living large in Ocala, Florida,  dining on filet- ­mignon-flavored Fancy Feast and bedding down in a plush faux-fur bed with silk lining.

Frey-Wouters attorney, Irwin Fingerit was surprised the the bequest

“I said I didn’t think, you know, $300,000 was necessary, and I pointed out the case of the Queen of Mean, Leona Helmsley, who left $65,000 to a dog and became sort of a laughingstock,’’ Fingerit said during a 2016 hearing about the gift. (Helmsley actually left $12 million to her Maltese, Trouble.)

“But no, no, [Frey-Wouters] insisted,” Fingerit said. “She wanted to make sure they were taken care of.”

When the cats die, the balance of their trust fund will go to Frey-Wouters’ only living family member, a sister in the Netherlands.

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LOCATING MISSING HEIRS

Whether a family member dies with or without a Last Will & Testament, all interested parties must be located and notified of the decedent’s passing.
Interested parties consist of all the heirs named in the Will or all distributees of the Estate.

A distributee is a family member of the deceased who would inherit if there was no will. Failure to locate an interested party will delay the probate of the Estate.
We can locate missing relatives by conducting extensive internet searches directly or by retaining genologist companies.

As a last resort, we can serve the missing interested parties by publication after the completion of all due diligence and by order of the Court.

However, simply locating an heir is not enough; one would have to first prove his/her status as the legal heir of the decedent. This can be done in two ways:

1)  He/she can produce an Heir ship Affidavit drafted by an individual with knowledge.

2)  By providing a Birth Certificate.

For any assistance in this regard, please contact Jeffrey Weinstein Estates Attorney, on 212-693-3737

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THOMPSON CASE

On 9th October 2016, District Attorney of Brooklyn Ken Thompson lost his fight with cancer, leaving behind his mother, wife Lu-Shawn and two children.

According to an article in the New York Post on January 11, 2017, Thompson’s mother has claimed that her deceased son’s wife destroyed his first Will- in which he had conveyed certain portion of his estate to his mother, and convinced him to draft a new one, wherein he left his estate to his wife and two children, while leaving nothing to his mother.

His mother now wants the Surrogate’s Court to reinstate her son’s first Will. To that end, she raised three main grounds to challenge the validity of the later Will.

First, she claimed abandonment of the marriage by her daughter-in-law because Lu-Shawn did not care for her husband, during his final days battling with cancer; The article states that Thompson’s mother herself took care of him, out of her own expenses. His mother also claimed that he was estranged, and he was contemplating getting a divorce. The legal standard to establish abandonment is a high bar.

The test to determine what constitutes abandonment is provided in the 1941 New York Surrogate’s Court case, In re Barc’s Estate 177 Misc. 578. It states:

“In order to attain a determination that a surviving spouse has abandoned her spouse, under EPTL 5.1.2, those contending for such a result must demonstrate, first, that departure from the other spouse actually occurred; second, that it was without the consent of the one left behind; and, third, that it was “unjustified,” in other words, that it did not occur in consequence of the fault of the person abandoned.”

Second, the Post article stated that Thompson’s mother believed he had revised his Will under Undue Influence by his wife. This is a very tough point to prove without independent documentary evidence, because under the Dead Man’s Statute, any communication between the deceased and his mother is barred from admission into evidence. The reasoning is that since one of the parties to that particular communication has died, there is no way to verify or corroborate what the opposite party is alleging.

Third, she asserts that her son, at the time of revising his Will, lacked the legal capacity to do so. By capacity, she means that he was not in the proper mental state to execute a new Will. This contention is again awfully tough to prove. The presumption is that when the Will was made in the presence of an attorney and two witnesses, the decedent did in fact have capacity at the time. The determination of legal capacity may depend on the decedent’s medical records.

Should his mother be successful in getting the new Will deemed inadmissible by the court, then, it is possible she still cannot claim her right to inherit, because the court may conclude that the decedent died intestate.

Here is the link to the Article on which this is blog is based:

http://nypost.com/2017/01/11/ken-thompsons-widow-mother-at-war-over-his-estate/  

For any assistance on Will or Probate issues, please contact Jeffrey Weinstein Estates Attorney, on 212-693-3737

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