Patterico's Pontifications

8/25/2012

You Be the Judge: When the Will Requires the Son to Marry Any Grandson’s “Mother,” Is Marrying a Gay Partner Enough?

Filed under: General — Patterico @ 6:08 pm



Interesting:

A gay man and his longtime partner decide to become parents using a surrogate mother. Shortly after their son is born, the couple gets married. But there’s a catch for this modern family: A will left by the man’s wealthy father decrees that he must marry the mother for the child to collect an inheritance.

That quandary has prompted the man, Manhattan Criminal Court Judge Robert M. Mandelbaum, to contest the will in surrogate’s court.

Mandelbaum has filed a petition on behalf of his now 2-year-old son, Cooper, that argues that a condition that might “induce the beneficiary to enter into a sham marriage of convenience” should be invalid.
The petition makes two further arguments: that Mandelbaum’s partner could be considered the boy’s “mother,” and that excluding the boy from sharing in the family fortune would run counter to public policies protecting same-sex marriages and their offspring.

The petition portrays the father as being accepting of his son’s lifestyle. But the will doesn’t make clear why the father appeared to contradict that when it came to his estate.

To fully understand the issue, you need to follow the link and read the whole thing. The will excludes any

adopted child of Robert, if adopted while Robert is a single person, or a biological child of Robert … if Robert shall not be married to the child’s mother within six months of the child’s birth.”

Mandelbaum’s dad died in 2007. Mandelbaum fathered his son with a surrogate mother a couple of years later. The boy was born in 2010, and Mandelbaum married his gay partner within six months. The birth certificate lists Mandelbaum’s partner as the boy’s “mother” — though one suspects this was done with the contents of the will in mind.

How would you rule on this and why?

154 Responses to “You Be the Judge: When the Will Requires the Son to Marry Any Grandson’s “Mother,” Is Marrying a Gay Partner Enough?”

  1. I’m not going to say how I would rule — at least right now.

    Patterico (83033d)

  2. i don’t think this is tough at all.

    People have a god given right to be @$$holes in their wills.

    So if you think he is being an @$$, see my last line.

    This goes double if the father knew the son was gay before writing the will, but it is true regardless. The father could have changed it at any time, and didn’t. Sucks for the kid, who did nothing to create this situation, but oh well.

    And the idea that this creates a desire to get into a sham marriage. That is every clause in every will that says that only married people can inherit or something to that effect.

    No, father’s will–that is his desires–controls, even if you don’t like it.

    Aaron "Worthing" Walker (23789b)

  3. ‘Mother’ is a rather specific concept. It denotes a genetic link to the progeny. If there is no genetic link, then no money.

    MunDane (861704)

  4. Probably the same way my teachers ruled: with a meter stick that could be brought down in a flash on the back of one’s hand or shoulders.

    The educated Dana (f68855)

  5. “Mother” obviously connotes the female parent of the child. Same sex marriage was not lawful at the time the will was authored.

    Next case!

    ManlyDad (060305)

  6. Dad’s will will rule the day;
    He knew that his son was gay.
    He chuckled with mirth
    ‘Cause deep in the earth
    He was still having his say!

    The Limerick Avenger (f68855)

  7. The obvious question is: if the grandson is disinherited, who gets the money?

    The Dana who isn't a lawyer (f68855)

  8. I assume New York law controls because the grandfather was a New York resident, the Will was executed in New York, and/or if the Will so provides. The father didn’t marry Cooper’s mother. Further, since New York didn’t recognize same-sex marriage at the decedent’s death, I don’t think his marriage meets the requirements of the Will. Thus, no bequest or share for grandson.

    It’s possible the father’s public policy argument would succeed since, effective in 2011, New York now recognizes same-sex marriage. In general, courts don’t like to exclude heirs like the grandson. However, courts are also reluctant to substitute their judgment for the testator’s, especially in cases like this where the decedent was aware of his son’s relationship.

    DRJ (a83b8b)

  9. I also assume that the father’s same-sex spouse is not on the birth certificate and has not adopted the son, Cooper.

    DRJ (a83b8b)

  10. The Dana who isn’t a lawyer,

    I think the report said the grandfather’s Will established a trust for his grandchildren and their descendants. Excluding Cooper would mean there is one less grandchild entitled to share in the trust assets, so the other grandchildren would benefit.

    DRJ (a83b8b)

  11. __________________________________________

    that argues that a condition that might “induce the beneficiary to enter into a sham marriage of convenience” should be invalid.

    In this era of GLBT on one hand and Sharia law on the other (hello, polygamy!), marriage in general is increasingly losing its original meaning. So in some ways it’s becoming if not a sham, than less serious and honorable than before. Sort of similar to the way that grade inflation in public schools has altered the meaning of the grades “A” and “B.” So assuming the surrogate would consent to a relationship of convenience with Mandelbaum, I’d suggest he marry her. Or he (and others) can start promoting the heroic, noble cause of bisexual marriage, in which a person has two spouses: one male, the other female.

    Mark (4fc1b2)

  12. there is no mother

    so I’d give the heir everything (as if the mother had passed)

    steveg (64cdaf)

  13. It’s the deceased’s money. Whatever they wanted they get.

    Craig Mc (e1d640)

  14. poor judge Mandelbaum
    it’s the fuggin he gets for
    the fuggin he got

    Colonel Haiku (9c4ddb)

  15. It’s the deceased’s money. Whatever they wanted they get.

    So what did he want?

    Patterico (83033d)

  16. I’m with Steve. Otherwise, the State most likely takes it. And we just can’t let that happen.

    Ghost (6f9de7)

  17. Patterico

    Gee, this is hard for you. Not if you are truly devoted to a plain text reading of things.

    Scalia would be very disappointed in you. 🙂

    Aaron "Worthing" Walker (23789b)

  18. Since it was a surrogate mother, the result should not matter whether or not he is “married” to a man or a woman. He is not married to the child’s mother. If he had been married to a woman and used her egg and his sperm implanted in the surrogate then he might have had an argument.However, in this case, it is as if he had an affair while married to a different woman.

    sabbahillel (8adcbd)

  19. Ghost,

    You’re assuming there is only one possible heir. i don’t know why you should.

    Aaron "Worthing" Walker (23789b)

  20. IANAL.

    However

    1) Everyone went into this with their eyes open, and that the will does seem to specifically exclude children born out of wedlock.

    2) If the judge had married a woman who was not the biological parent of the child, the will would still disinherit, so there is no gender discrimination.

    Kevin M (bf8ad7)

  21. Excellent conundrum. I changed my mind about three times while reading the article.

    This all comes down to “who is the mother?” Is the birth-mother the mother or is the egg donor the mother? The man-mother is not the mother. He’s just a name on a birth certificate.

    As for the “sham marriage” argument. For all we know the current marriage is a sham marriage. Perhaps this one was entered into solely to assure the grandkid’s inheritance. Best to ignore motivations here.

    Q: which state laws should matter here? The kid was born in CA. The two men were married in CN. And the article does not state where the petition was filed.

    My view: he must marry the birth-mother for his kid to inherit. I don’t think a name on a birth cert under “mom” is important at all.

    Which brings up another Q: how long is the period in which a birth-mother can claim the child as her own?

    That being said, the kid will get his dough. One way or another. I’m guessing that there’s some kind of an agreement in place between the all the parties to cut the kid in somehow/someway.

    Viktor (efc7fb)

  22. The MD who is not a lawyer thinks:

    So a lawyer who I assume knew the conditions of his father’s will tries to ignore it anyway, and falsifies a birth certificate- a legal document, yes?- to try to assist in ignoring the will, now goes to court to try to get things done his way.

    First, as others here would say, he should have had a good lawyer before he even thought about trying to ignore the will.

    Second, he should be disciplined for falsifying a birth certificate. I guess there is probably a precedent whether you list woman who gave birth as the mother (I assume you do) or the woman who donated an egg for in vitro, or list both, but whoever the mother is, it isn’t a person with no biological relation to the child, even if a woman, for birth certificate purposes. The partner, married or not, male or female, might be considered a legal parent through adoption, but not by falsifying a birth certificate, is this not true?

    Third, unless it has been ruled that wills must adhere to non-discrimination principles I don’t see why this should be an issue at all, unless the person could be shown not to have been of sound mind, or some other legal technicality that was incorrect in the document.

    For argument’s sake, let’s say a person puts in the will that proceeds will be divided among grandchildren with the exclusion of any grandchildren who are of “mixed race”, whether the maker of the will is white, black, asian, or other. I think in general that would be frowned upon in this land, but is there anything at all illegal about it? I don’t think so.

    MD in Philly (3d3f72)

  23. Is there now precedent that birth certificates aren’t supposed to matter? They don’t matter whether you are eligible to be president, they don’t matter to make you a citizen, or at least a legal resident. Can we fill them out any old way? Maybe my first grandchild will have Bill Gates and Steve Jobs filled in as his parents.

    MD in Philly (3d3f72)

  24. Nothing is sacred from the onslaught of political correctness, not even a man’s right to control the disposition of his own property.

    SPQR (26be8b)

  25. with the exclusion of any grandchildren who are of “mixed race”

    Well, deed covenants that specify race or religion are unenforceable, so a will of similar stripe might also be unenforceable.

    Kevin M (bf8ad7)

  26. Isn’t it usually the case when men decid to have children and use a surrogate mother, they both provide sperm for this undertaking? Is so, and the child is not actually Robert’s biological child at all, perhaps there’s no claim to be made. Just my two cents.

    PatAZ (83729f)

  27. that’s “decide”

    PatAZ (83729f)

  28. That guy has to wait until polygamy is legalized.

    Pinandpuller (4afd5c)

  29. stupid people are stupid

    happyfeet (3c92a1)

  30. Hey, what if only the surrogate mother is an American citizen and the child is born outside the US. Can the child be President?

    Kevin M (bf8ad7)

  31. Hey, SPQR…

    Just the other day i saw a license plate: SPQ-Rome. I snapped a picture of it for your benefit.

    Aaron "Worthing" Walker (23789b)

  32. That a testator has an intention of which others disapprove is not, by itself, grounds for overturning the testator’s decisions regarding the disposition of his or her estate.

    The judge’s duty is to effectuate the testator’s intent. That New York State now has decided, as a matter of public policy, to permit same-sex marriage is irrelevant to that. Unless and until the state legislature passes some further law that would limit all testators’ choices in this respect, or that would make this sort of conditional bequest unlawful, all other arguments about “public policy” are simply acknowledgments that existing law can’t justify a court in frustrating the testator’s intent.

    Or so says Judge Beldar.

    Beldar (8e9db8)

  33. Words have meaning, as our host often says…

    The word “mother” will be redefined by the court….

    The child will receive it’s inheritance….

    Just a wild guess…

    reff (4dcda2)

  34. So let’s complicate things even more! What if the surrogate is already married? Many surrogates are, and have successfully given birth to their own children before undertaking surrogacy as a public service. I did not see anywhere in the article where the surrogate’s own marital status was divulged. Even had the judge been open to a “sham marriage” she might not have been.

    Or, let’s quit trying to make sense of all this and just ask the NYT to do an editorial on it. They’ll know what is “right”, I’m sure.

    Seriously, people do strange stuff with their wills and trusts all the time. Dad gets the last word and only word on where his money goes if I’m making the ruling.

    elissa (1e9a66)

  35. @ PatAZ,

    Isn’t it usually the case when men decid to have children and use a surrogate mother, they both provide sperm for this undertaking? Is so, and the child is not actually Robert’s biological child at all, perhaps there’s no claim to be made. Just my two cents.

    The linked article states that it was only Robert’s sperm that was used.

    The birth certificate lists Mandelbaum’s partner as the boy’s “mother” — though one suspects this was done with the contents of the will in mind.

    In light of marriage between a man and woman being redefined with SSM, why wouldn’t they approach this the same way and attempt to use the courts to redefine “mother” to mean something other than what it traditionally has been recognized to be? In our fluid modern culture, why would “mother” need the qualification of female or woman to define the role? (I don’t agree with this, but it doesn’t seem that absurd in light of where we’re at right now re SSM, etc).

    Dana (292dcf)

  36. Oh. Reff @ 8:29 beat me to the thought…

    Dana (292dcf)

  37. Ironically, if the attempt to redefine “mother” is made, then it will be in great part due to the feminist scream for equality and protection and recognition for the gender.

    Sadly, “mother” is a sacred role that has been so diminished by the very same screamers, that it’s easy to see a challenge made to the role. Ironic too, since only one gender was gifted with a womb.

    Dana (292dcf)

  38. Dana, your post at 8:33 made me think about the redefinitions of things in our world today….such as the redefinition of marriage as it is happening….if marriage doesn’t need a “man and a woman” but can include “other choices,” then it will be easy for the judge to redefine this as a “mother” being a “parent” and the only biology needed will be “the one related to the child,” in this case, the “father.”‘ Or, the redefinition will be that the “father” is redefined as the “mother” for the “biology’ needed to meet the terms of the will.

    Now, this post does not in any way infer or imply that I agree with what I just wrote….

    Or that I even understand it….

    reff (4dcda2)

  39. Aaron, thanks for thinking of me. But I got an alibi …

    SPQR (26be8b)

  40. it’s so simple what
    turkey baster wrought let no
    man rend asunder

    Colonel Haiku (39372c)

  41. Reff,

    I don’t think it’s that far fetched to think that most historical roles in our society will eventually be challenged the farther we move away from a Judeo-Christian ethic. Some will see this as progress, others will see this as utter moral decline.

    With regard to the role of “mother” and/or “father” being challenged, my question would be, why wouldn’t it? It’s the natural progression of what we’ve already seen put in motion.

    For heaven’s sake, we already see gender itself already questioned as being nothing more than a social construct forced upon everyone at birth (see: Pop in Sweden)and perhaps unnecessary in some people’s eyes. Talk about a redefinition…

    Dana (292dcf)

  42. Not a lawyer but wondering…

    Could the grandchild sue his father for irresponsibly disinheriting him by selfishly not complying with the conditions of the will?

    DaMav (ee1908)

  43. ==Comment by Colonel Haiku — 8/25/2012 @ 8:55 pm==

    One of your best efforts, Colonel. Huzzah!

    elissa (1e9a66)

  44. What’s the point? The plaintiffs will judge-hunt until they find one who will rule the guy is the mother.

    Legislation, rule of law, Constitution and state jurisdiction really don’t matter anymore.

    Sorry, Patterico, but law today is pretty much anything the left wants it to be.

    Ag80 (b2c81f)

  45. You folks are all focusing on “husband,” “wife,” and “mother.”

    That’s not what matters. What matters is that the child is “a biological child of Robert” and that Robert was “not be married to the child’s mother within six months of the child’s birth.”

    New York State permits two men to be married to one another, but that doesn’t make either of them a “mother” within the meaning of that term which was understood and intended by the testator.

    If the the birth mother were not a genetic parent — if we had the kind of surrogacy in which eggs are harvested from one woman, fertilized, and then implanted in another woman — and if Robert had married either the egg-donor or the womb-donor, we might have an argument over whether being one or the other, or perhaps either, would qualify the child for inheritance. But nothing can turn Robert’s spouse (whether you call him Robert’s “husband” or “partner” or whatever”) into the child’s mother (biological, surrogate, adopted, or otherwise) within the meaning of this testator’s will.

    Beldar (8e9db8)

  46. Was that will really written so shabbily that it doesn’t even specify “birth mother”?

    Guess it’s time for Mandelbaum’s spouse to start cross-dressing and then adopt the little tyke.

    The courts recognize “woman trapped in a man’s body” gender identification; right?

    Icy (b29c1e)

  47. Not a lawyer but wondering…
    Could the grandchild sue his father for irresponsibly disinheriting him by selfishly not complying with the conditions of the will?
    Comment by DaMav — 8/25/2012 @ 8:58 pm

    — Only in California.

    Icy (b29c1e)

  48. My reaction to the story is that it was generally the elder Mandelbaum’s wish that his heirs receive the money and he was fine with his son’s lifestyle so the Court should accept the agreement to do so made between the other heirs.

    What isn’t clear from the article is if the elder Mendelbaum put this language in after knowing his son was in a committed gay relationship or if he had done so before he knew and never got around to change it. I’m not a lawyer, but I go with the wishes/intent of the senior Mendelbaum willing the money.

    Kaisersoze (298188)

  49. Beldar,

    While it’s true that our host asked us How would you rule on this and why?, I couldn’t help but speculate on what approach a challenge by Robert might take thus focusing on challenging the “mother” aspect. Apologies for going off track.

    That said, I would rule according to Frank Mandelbaum’s wishes: the specifics were very clear and rather without debate, so specific were they. The child would not receive any portion of the inheritance. (His motives, however, are very questionable).

    Dana (292dcf)

  50. SNOOKI IS IN LABOR!!!

    Icy (b29c1e)

  51. Dana, I don’t think we are off track at all. The judge will rule “mother” means “either parent” or “partner” and will set up the law to mean whatever the living want it to mean.

    reff (4dcda2)

  52. What if the birth mother had died prior to the six-month period expired, making it not possible to have such marriage?

    Grandchild is out because of the ill-advised actions of the testor.

    htom (412a17)

  53. Are we to assume that Frank, the grandfather of Cooper, who had no apparent issue with his son’s homosexuality and frequently spent time and vacations with son and partner, ultimately did have issues with it? If not, why would he put in the very specific requirement for inheritance?

    Were his actions a ruse? Was he being cruel as he full well knew his son would not be marrying the mother of his child?

    And, if it that were the case, wouldn’t it call the entire father-son relationship into doubt? I wish we knew more about that.

    Dana (292dcf)

  54. Gee, this is hard for you. Not if you are truly devoted to a plain text reading of things.

    Scalia would be very disappointed in you.

    It’s not hard for me at all. I didn’t say what I think. I thought I made that clear.

    Patterico (83033d)

  55. Comment by Dana — 8/25/2012 @ 9:43 pm

    Whatever we know about the father-son relationship, unless there is some kind of objective evidence, we are getting only one side of the story at the present. That is, one side of the story except for the will.

    MD in Philly (3d3f72)

  56. Were his actions a ruse? Was he being cruel as he full well knew his son would not be marrying the mother of his child?

    Maybe he told his son that he wanted his grandchildren to have a mother and a father, and this was his way of encouraging his son not to have children if he wasn’t going to be able to marry their mother.

    DRJ (a83b8b)

  57. Had Robert’s partner fathered the child and they were married and Robert adopted the child as co-parent I think he would have worked around the apparent intention, likely because the elder did not expect SSM to be present.

    G’ night.

    MD in Philly (3d3f72)

  58. There’s a trusts & estates doctrine called “cy pres,” which roughly translates from Norman French into “as near as possible.” When William Marsh Rice wrote his will in the very late 19th Century, he endowed in it a trust to fund a library and institute of higher learning dedicated “to the instruction of the white inhabitants of the City of Houston, and State of Texas.” That’s right, the trust expressly compelled Rice Institute (now Rice University) to discriminate on the basis of race. That discrimination, however, itself became unlawful, and the Trustees could not both obey the law and follow the trust. Continuing to effectuate all of William Marsh Rice’s very specific intentions became impossible.

    So the Rice Trustees — represented by the Houston law firm at which I (much later) had the opportunity to practice from 1981-1987, Baker Botts — petitioned the Texas courts to use the doctrine of cy pres to reform the terms of Rice’s trust in the fashion best calculated to approach his original intentions as well as was still possible. In due course, a Texas jury decided, and the Texas appellate courts agreed in Coffee v. William Marsh Rice University, 408 S.W.2d 269 (Tex. Civ. App.–Houston 1966, writ ref’d n.r.e.), that they would better fulfill William Rice’s intentions by permitting non-whites to attend Rice than by closing the university down altogether. Specifically, the jury found as a factual matter “that William Marsh Rice intended that the funds given the Institute be used for the instruction and improvement of white inhabitants only, but that [had become] impossible or impracticable under present conditions to carry out said intent.” So based on this finding, the Texas courts used their equitable powers to, in effect, re-write Rice’s will and trust. Rice’s overriding purpose, said the Texas courts, was to start a great university, not to preferentially benefit only white people (even if that was a secondary preference).

    Now it is certainly politically incorrect in New York State to draw uncomfortable distinctions between gays and straights, or between same-sex and opposite-sex marriages. And the law has recently been changed to expressly permit same-sex marriages. But to my knowledge, nothing — yet — in either the laws of New York State nor federal law makes illegal the kind of private discrimination (literally, private choosing) among potential beneficiaries that Frank Mandelbaum did when he wrote his will. And there’s no state action involved in Frank Mandelbaum’s discrimination, either, so even if New York State were prohibited (by federal law, or by the New York state constitution or laws) from discriminating on the basis of sexual preference, Frank Mandelbaum’s personal discrimination doesn’t run afoul of any such laws. His choice strikes me, and many others, as unwise, and ugly, and perhaps even cruel — but none of those are grounds to refuse to carry out the testator’s intentions, and the result (disinheriting the child) was neither impossible or illegal.

    Beldar (8e9db8)

  59. @ Kaisersoze (#48 — 8/25/2012 @ 9:15 pm): You wrote:

    [I]t was generally the elder Mandelbaum’s wish that his heirs receive the money and he was fine with his son’s lifestyle so the Court should accept the agreement to do so made between the other heirs.

    Thank goodness that’s not how probate courts operate! They certainly don’t rely on a newspaper reporter’s conclusions about what someone the reporter never met might have possibly thought many years ago about a hypothetical situation that would have been illegal under state law at the time. And probate courts certainly don’t use such ephemeral and untrustworthy sources to expressly contradict and change the very carefully drawn provisions of a trust instrument!

    In fact we know exactly what Frank Mandelbaum intended, because in the instrument he drafted for the purpose of telling us how he wanted his property distributed upon his death, he told us so, very precisely. Some of us just don’t like it.

    Your comment amounts to, “I think everyone ought to get something ’cause that’s what I think.” You’re entitled to your opinion, and I mean no offense, but: If I could post a certain female American Olympic gymnastics medalist’s picture here that’s been much re-published around the interwebs lately, you could see my approximate facial expression in reaction to your argument. (Here’s a link to the picture in a slightly different, but still legal, context.)

    Beldar (8e9db8)

  60. This provision was clearly directed at the gay son because it named him, but would a clause like this be useful in avoiding a situation where an adult child adopts a friend or lover in order to gain an additional inheritance (as happened in this case)? Obviously it could have unexpected or unintended consequences so there’s probably a better way to write it.

    DRJ (a83b8b)

  61. He should have just adopted (after being legally married) and the adopted child would inherit…

    Lord Nazh (821ae1)

  62. Simple and easy. Kids, grandkids, nephews, nieces, daughters-in-law, queers-in-law, no get nothing, if grandaddy no say.

    (Louisiana had legitime forty or so years ago but some Harvard/Yale graduates changed it.)

    nk (875f57)

  63. ‘People have a god given right to be @$$holes in their wills.’–Aaron

    I agree on both points.

    The dead guy has a right to set any conditions he wants.

    He’s an asshole.

    Dave Surls (46b08c)

  64. The dead have no rights. The law says what the heirs have.

    nk (875f57)

  65. The law also says who the heirs are 🙂

    Lord Nazh (821ae1)

  66. It mostly comes down to, “Be clear or escheat (the state gets it).”

    nk (875f57)

  67. “The dead have no rights.”

    I’ll amend my comment: the dead guy had a right to set any conditions up until he was dead (or incompetent). Obviously, no one care what he wants at the present time.

    He’s still an asshole, though.

    Dave Surls (46b08c)

  68. “He’s still an asshole, though.”

    He’s dead Dave, he’s not an asshole anymore.

    Lord Nazh (821ae1)

  69. Niema problema, David.

    I do not hate Jewish homosexuals. But pick one or the other. Your genital feelings or money. Kind of like free ham.

    nk (875f57)

  70. “The assholery that men do lives after them; The good is oft interred with their bones”.

    He’s dead…but, he’s still an asshole.

    Dave Surls (46b08c)

  71. lol I’ll agree that his ‘assholery’ is still alive, but he’s not.

    ergo, no longer an asshole

    (nk, you’re on a roll man)

    Lord Nazh (821ae1)

  72. Who said that? I do not want to look it up because I do not trust the internet. Talk about “seeing a mirror, dimly”.

    I like mine*. The evil that men [humans] do is the evil that makes us men [human].

    (Not mine*, I stole it. I am human.)

    nk (875f57)

  73. “ergo, no longer an asshole”

    He’s still an asshole…just on a different spiritual plane.

    😉

    Dave Surls (46b08c)

  74. My parents left me less money than I have made in one year.

    What they gave me in other means would make gods envious.

    BTW, where’s grandmommy Mandelbaum?

    nk (875f57)

  75. I am willing to accept a redefinition of “marriage”. I am not willing to accept a redefinition of “mother” to someone incapable of giving birth.

    I’m sure there’s a Monty Python skit here somewhere.

    Kevin M (bf8ad7)

  76. #45 Beldar: “You folks are all focusing on “husband,” “wife,” and “mother.””

    Pretty sure I wasn’t back in #20: “If the judge had married a woman who was not the biological parent of the child, the will would still disinherit, so there is no gender discrimination.”

    Kevin M (bf8ad7)

  77. Anyway…I don’t think the guy has much chance of prevailing in court, but he might gum up the works enough so that the other heirs just pay him off to get rid of him…which I suspect is exactly what he’s trying to do.

    And, that makes him a bit of an asshole too, in my book.

    Dave Surls (46b08c)

  78. Jewish homosexuals rock the fucking casbah as far as I’m concerned

    happyfeet (3c92a1)

  79. omg that was supposed to be filtered

    happyfeet (3c92a1)

  80. You picked up a Lucky instead of a Winston, happyfeet? I thought you didn’t smoke, BTW.

    nk (875f57)

  81. my favoritest filtered one was parliament cause of it was in less than zero and I think I did a monologue from that once in another life

    but yeah I quit smoking about 4 years ago

    I’m just now finally getting back to my normal weight

    but even now I still have this weird tic where after a tasty meal in the car on the way home I’ll say “man I’m so hungry”

    which means “I would like a cigarette please”

    it just never really goes away I guess

    here’s a song what is “on point” as you lawyer people are wont to say

    happyfeet (3c92a1)

  82. 3.5 or so I guess to be super-accurate

    happyfeet (3c92a1)

  83. I don’t believe the statistics. Either way. Whether eating, drinking, smoking, running around, is healthy or unhealthy.

    This guy goes to his doctor’s and asks: “Doctor, do you think I’ll get to be 80?” The doctor asks, “Do you drink, smoke, overeat, or run around with women?” The patient says, “No, none of those things”. The doctor says, “Then why would you want to live to 80?”

    nk (875f57)

  84. IANAL either, but here goes:

    The decedent was clearly trying to provide for his “acknowledged” grandchildren, that is, children accepted by their fathers and unlikely to be by-blows with some hoochie trying to glom onto the cash.

    I say “clearly” because he didn’t say “Mary, Joe and Scott get the cash, and nobody else.” Instead, he wrote his Will in such a way as to accommodate future offspring not yet in existence. He crafted the will in such a way to handle (and exclude) unrecognized bastards. (Pardon my French, and no offense meant to actual bastards.)

    When decedent passed, Mandelbaum had no children, but now he does, through the assistance of a surrogate. If Mandelbaum had been straight, and he and his wife, unable to have children, had done the same thing, there would be no question as to whether or not his child would be included in the Will, would there?

    The fact that Mandelbaum’s partner is listed as the “Mother” has less to do with contents of the Will (I think) and more to do with the fact that the forms required probably have not been updated to accommodate SSM.

    Pious Agnostic (ee2c24)

  85. Daddy – How do you make babies?

    With turkey basters of course, son. Why do you ask?

    daleyrocks (bf33e9)

  86. daley, this might help answer this question:

    http://www.youtube.com/watch?v=w_RaPOOVX1Y

    Pious Agnostic (ee2c24)

  87. From a cynical tax lawyer..
    I have to look at the practical approach. It appears from the article that a deal with the his sibling(s) is in the offing and this is just leverage. That being said, let’s remember the Dad who is suing in behalf of his son is a NYC Criminal Court Judge.
    I have no doubt the Judge in the Orphans (or what ever court handles such things in NY)is going to rule in his favor. Per the artilce there is serveral hundred thousand in Dad’s trust. Legal fees for an appeal would be expensive.
    Maybe not the right answer, as I think there is little doubt as to the deceased intentions.
    ^..^(____)~~~

    Cheshirecat (d16616)

  88. It all sounds like a riddle that the gate-keeping troll at the bridge asked me prior to allowing me to cross the river.

    Wait. I think that was a bad dream.

    Elephant Stone (65d289)

  89. I like the question #7 asked; “The obvious question is: if the grandson is disinherited, who gets the money?”

    I like it because that question was central to an inheritance issue in my own family. My father and his sister were both adopted. A relative left some property to be divided according to legal instructions that involved reference to “heirs of the body”. Several years passed while lawyers argued whether this, being boilerplate legal language, could legally be stretched to include adopted children.

    Then my Father asked a simple question; assume that the will CANNOT be stretched to include adopted children; what happens? The answer proved to be that the property would be divided according to Common Law principles, and that would have the SAME EFFECT as if the phrase were interpreted to include adopted children. It was a distinction without a difference.

    I believe that the family lawyer offered father a job, which he declined.

    C. S. P. Schofield (4feea2)

  90. Here’s a question: my first wife was a horrible human being who signed over her parental rights. My new wife adopted my children. We have new birth certificates listing my wife as my children’s mother. If this were this guy’s situation, how different would your opinions be?

    Because as straight men, we can all relate to the “crazy woman” idea, but not so much to the “man lovin” idea. If this guy were straight, and married to a woman who adopted his son, I highly doubt anyone on this board would have a problem with that.

    That being said, my wife was a surrogate for a gay couple. When the baby was born, my wife had to sign over her rights as the birth mother (not genetic, just birth), and the dads had to adopt her. In the eyes of the law, the child has no female mother. If a mother does not legally exist, then there is no one he should have to marry.

    And Aaron, I assume only one heir because only one heir is mentioned here.

    Ghost (6f9de7)

  91. _____________________________________________

    The petition portrays the father as being accepting of his son’s lifestyle.

    I’m presuming the father didn’t have any other children. If so, and his only son was gay and the father knew that, then why did he include a stipulation in his will that he must have known would be very difficult or even impossible for his son to meet. Perhaps the father was aware of the bisexuality in the background of many self-described gays, so he knew human behavior is a lot more pliable than gay activists want society to believe. IOW, sexuality ain’t like skin color, eye shape, hair texture, etc.

    He’s an asshole.

    Speaking of which, here’s an irony to keep in mind: The sexual behavior of most male homosexuals involves a part of the human anatomy that apparently arouses them and that, unlike in heterosexuality, they’re dependent upon. So that area not only isn’t seen by them as a negative, it instead is seen as a positive, as intriguing and appealing. Therefore, why do some in society not understand at least one reason why male homosexuality in particular strikes many people as weird and off-putting, if not flat-out grotesque?

    Mark (925bec)

  92. It is important to separate “what was the intent of the grandfather” from “what is the fair and right thing to do”.

    From the plain language of the will, the child should not inherit.

    If we speculate about the intent of the grandfather outside the 4 corners of the document, in 2007 the grandfather must have known that his adult son was gay and unlikely to have a child by marrying a woman. If he wanted to include his gay son’s children he could have.

    Tom Hynes (a2e520)

  93. I don’t know how many of the commenters here have done any googling or bing-ing but there are many very recent articles which shed more light on this story. They are too numerous to link.

    Among the facts: (1)There are more grandchildren- so other inheritors.(2) Senior Mandelbaum’s wife at the time of his death (she is not Robert’s mom) states he very much wanted and hoped for Robert to marry a woman. (3) The will was signed (obviously) prior to senior Mandelbaum’s death and he passed in 2007. Cooper-the grandchild who is now the centerpiece of this legal battle – was not even born until 2010.

    Robert was fully aware of the stipulation in the will. I hate that this poor innocent child is being used as a pawn and no matter how this ends, Cooper will have to hear and read all about this ugliness when he is older.

    elissa (80507b)

  94. There is a real Shakespearian feel to this family’s story.

    elissa (80507b)

  95. I tend to not cry too many tears over the idea of a “sham” marriage, since every shotgun wedding in history falls into that category, and is generally done for the good of the child, not for the lurve of the parents. (Sarcasm intended.)

    The social science is clear: children who are raised by married parents, or married adoptive parents, do much better than their peers. I don’t see what “public policy” would prevent a parent from using his money in order to bring about a socially desirable outcome.

    I’m suspicious of arguments that go like: “This is the best thing for my child, how dare you judge/withhold money, and it just happens to coincide with exactly what I want.”

    Likewise, a large bequest to a grandchild can benefit the parent: distributions of principle can lessen a financial burden, or be used to take the child on luxurious vacations or to live in a bigger house in a nicer area.

    The plaintiff was well-aware of this provision of the will when he decided to go through with artificial insemination of a surrogate mother. This is not some preexisting child who is being unfairly denied a bequest; this is a child who could have been conceived for the purpose of sticking one’s middle finger up at the restrictions of the bequest.

    bridget (ecbaa9)

  96. Does the surrogate mother have any say in this? She may already be married.

    microcosme (50cab0)

  97. Thanks, Elissa, you got some of the details that had bothered me.
    IANAL… so…
    1) The gentleman passed away in 2007, and the trust conditions were in force and uncontested (apparently) at that time.
    2) In 2009, (two years later), Robert took specific steps in order to “create”, (literally), the conditions for this petition which is trying to rewrite/contest the conditions of the trust/will.
    3) The information given seems to suggest that the gentleman’s immediate offspring, including Robert, have already received whatever was going to be available to them, so this action on the part of Robert seems to be specifically targeted at “obtaining additional inheritance” that was not even in consideration at the time of the gentleman’s death, except through the existence of grandchildren. There are two other grandchildren who apparently fit the trust requirements without question or any finagling required.
    Therefore:
    a) Cooper does not fit the requirements of the trust. Robert took extraordinary steps in order to create a question that did not exist at the time of the gentleman’s death, and it is reasonable to consider the possibility that Robert’s petition may be for the sole purpose of accessing additional inheritance. There is no reason to override the gentleman’s intentions for the gratification of Robert’s possible greed. The gentleman had specifically excluded any adopted children of Robert’s and information suggests his intention was to force Robert to marry a woman if Robert wanted to have a child that would participate in the trust. (He could choose not to.) (My personal question is this: Robert was in this relationship prior to the gentleman’s death, so presumably they could have married and had this child prior as well. So why didn’t they? Why wait until two years later when the old man couldn’t speak for himself, and then go to such extreme gyrations in order to try to “fit the forms” for such a petition?)
    Or:
    b) If the other guardians and/or court are intent upon trying to “include” Cooper in the inheritance, I would consider the possibility of doing so under specific conditions. I assume the trust has a trustee in control of it, and that including Cooper would require the trustee’s agreement as well as the court that was mentioned in the article. I can see some validity in saying that Cooper is indeed Robert’s biological offspring and that Robert took advantage of societal and technological change in an effort to override the gentleman’s instructions, but if Cooper is approved to receive inheritance funds from the trust, I would require that an independent trustee be placed in control of Cooper’s portion. That would remove Robert’s greed from any possible evaluation of the matter. (I don’t know if the trust is set up to make such changes, either to include Cooper, or to control Robert’s involvement, but to me such a control would be a possible compromise/solution to a situation that Robert caused after the gentleman’s passing.)

    Sue (527f07)

  98. There is a real Shakespearian feel to this family’s story.
    Comment by elissa — 8/26/2012 @ 9:13 am

    — Perhaps a bit more sitcom-ian (“Grandpa says in his will that If I’m not married by midnight, TONIGHT, I’ll lose my inheritance!”).

    Icy (b29c1e)

  99. You are so right, Dana. I should have read the whole thing more carefully.

    I googled Frank (the grandpa) but elissa beat me to the punch. What I found interesting is, the trust is for $180K. Not an awful lot to be fighting over and if it continues, the legal fees will probably take up much of that.

    PatAZ (83729f)

  100. #89, Ghost: I assume only one heir because only one heir is mentioned here.

    #90, Mark: I’m presuming the father didn’t have any other children.

    Clearly neither of you bothered to read the article, which explicitly says there are other, legitimate grandchildren.

    Milhouse (8acf6a)

  101. HAAAARRRRRRRRRRRRRRRRRRRRUMPPPPPP!!!!

    Colonel Haiku (b69517)

  102. teach us, o Master!

    Colonel Haiku (b69517)

  103. My personal question is this: Robert was in this relationship prior to the gentleman’s death, so presumably they could have married and had this child prior as well. So why didn’t they? Why wait until two years later when the old man couldn’t speak for himself, and then go to such extreme gyrations in order to try to “fit the forms” for such a petition?

    How about because in 2007 there was no such thing as same-sex marriage?

    Milhouse (8acf6a)

  104. Shut up, Faiku

    Milhouse (8acf6a)

  105. When decedent passed, Mandelbaum had no children, but now he does, through the assistance of a surrogate. If Mandelbaum had been straight, and he and his wife, unable to have children, had done the same thing, there would be no question as to whether or not his child would be included in the Will, would there?

    Only because he would have already been married at the time of the adoption. The problem here is that they adopted the child before getting married, presumably because there was no same-sex marriage at the time.

    Milhouse (8acf6a)

  106. When decedent passed, Mandelbaum had no children, but now he does, through the assistance of a surrogate. If Mandelbaum had been straight, and he and his wife, unable to have children, had done the same thing, there would be no question as to whether or not his child would be included in the Will, would there?

    Only because he would have already been married at the time of the adoption. The problem here is that they adopted the child before getting married, presumably because there was no same-sex marriage at the time.

    A better question is whether it would make a difference if they had postponed the adoption until after their marriage. It’s pretty clear that when the testator wrote about marriage he meant mixed-sex marriage, which was the only kind that existed at the time. But now the law in NY has changed. If he’d known this would happen he would probably have specifically excluded it, and instead of “a single person” he would have written “not married to a woman”. But he didn’t do that, because it never occurred to him that it was necessary. Can the will be interpreted to frrustrate his clear intention?

    Milhouse (8acf6a)

  107. Beldar @ 59:

    Thank goodness that’s not how probate courts operate! They certainly don’t rely on a newspaper reporter’s conclusions about what someone the reporter never met might have possibly thought many years ago about a hypothetical situation that would have been illegal under state law at the time.

    Hey, how about a reminder about how blogs operate? They post news articles rather than the legal documents and readers only have that information to work from. Pretty much the reason I said I needed more information on what the intent of the will was. What I was (inartfully) saying was the “cy pres” point you outlined and that we don’t have the information needed to make a decision.

    My apologies for posting in a legal thread if Patrick was only looking for replies from attorneys.

    Kaisersoze (298188)

  108. Private Milhouse,

    That’s COLONEL Haiku, to you.
    Ok, as you were.

    Elephant Stone (65d289)

  109. _________________________________________________

    Among the facts: (1)There are more grandchildren- so other inheritors.(2) Senior Mandelbaum’s wife at the time of his death (she is not Robert’s mom) states he very much wanted and hoped for Robert to marry a woman.

    So if the deceased had other children — much less at least one other wife — and some of them had offspring in the traditional, typical manner, then to me it’s a given that all the inheritance should go to the out-and-out 100% grandchildren. I’m therefore also even more cynical about the end-run tactics of the gay son and his believing that crafting a child through technical and legal engineering shouldn’t be treated as a stumbling block.

    The father may not have expressed explicit unhappiness about his son’s sexual behavior, but it’s very possible that was due mainly to political correctness common in today’s era. So the deceased may have been less easygoing about the son’s homosexuality than is stated or presumed, certainly given the way he worded his will.

    In light of this, I’d say there’s a tiny possibility — yea, just a slight one — that Judge Robert Mandelbaum is not just gay, but he’s also an anything-goes, do-your-own-thang, feelings-trump-reality liberal too.

    Mark (925bec)

  110. If the the birth mother were not a genetic parent — if we had the kind of surrogacy in which eggs are harvested from one woman, fertilized, and then implanted in another woman — and if Robert had married either the egg-donor or the womb-donor, we might have an argument over whether being one or the other, or perhaps either, would qualify the child for inheritance. But nothing can turn Robert’s spouse (whether you call him Robert’s “husband” or “partner” or whatever”) into the child’s mother (biological, surrogate, adopted, or otherwise) within the meaning of this testator’s will.

    Which brings up another point: gay marriage has been legal in Massachusetts since 2003. Cooper could have inherited if Robert got hitched in MA and worked the surrogacy as an adoption arrangement.

    A lot of the argument seems to assume that it’s social discrimination to point out that gay men don’t procreate with each other. Not so.

    bridget (ecbaa9)

  111. Comment by Milhouse — 8/26/2012 @ 10:33 am
    Sorry, I don’t remember the exact details on when it became legal in some places. Thanks for the reminder.
    I guess the point in my mind is that Robert claimed his father knew of the relationship, so if there was a question about inheritance and Robert’s potential offspring, Robert presumably could have addressed it while his father was still living. But since the requirement excluded adoption and made specific conditions, I suspect that Robert believed that his father would still have excluded a child under these conditions. In any event, he didn’t have a child, even under his long-term relationship, before the old man died; so he didn’t approach the father about rewriting the will when it might have been possible to do so. (Or perhaps they did have that discussion but they disagreed?) If, as claimed, the father knew of the relationship, then it is reasonable to conclude that the father may have intended to exclude any issue of that relationship by the specific conditions of the trust.

    Sue (527f07)

  112. Kaizersoze:

    My apologies for posting in a legal thread if Patrick was only looking for replies from attorneys.

    I rarely speak for Patterico but I think this is one time I can. I’m sure he wasn’t looking for replies only from attorneys.

    DRJ (a83b8b)

  113. _________________________________________

    Clearly neither of you bothered to read the article, which explicitly says there are other, legitimate grandchildren.

    Yea, I didn’t, if only because the story on the surface seems so typical of the junk arising in this age of political correctness run amok and where feel-good is the new religion. So I didn’t want to delve any further into it than I had to.

    If anything, I was willing to give a bit more benefit of the doubt to the gay guy, because I originally thought that the only reason he believed his father’s will should be contested was because he, the gay son, doesn’t have any nieces and nephews where the inheritance otherwise would be re-directed to. [But insert the sound of a phonograph record being scratched here.]

    Mark (925bec)

  114. Time to stir the pot with some snark….

    Gee, where are the postpolice to arrest Private Milhouse….or for that matter, Colonel Haiku, for commenter abuse….

    eh, gahrie and the icyman???

    Sorry, just couldn’t resist that one….

    Leviticus….let it go so they don’t send the men in their little white suits to take you away….and….the Honey Badger shall return….

    Geaux Tigers

    reff (4dcda2)

  115. bridget,

    It appears Robert is a New York resident so, as a non-resident, I don’t think he could have gotten married in Massachusetts. Hoever, I believe Connecticut allows same-sex marriages by non-residents so that may be why the article says he was married in Connecticut. The Connecticut same-sex marriage law took effect in 2008.

    DRJ (a83b8b)

  116. That’s COLONEL Haiku, to you.

    He’s not in my chain of command. He’s not even in my army.

    Milhouse (8acf6a)

  117. I wasn’t looking for replies only from attorneys.

    Patterico (83033d)

  118. On a side note regarding the father-son relationship, it would appear that both were dissatisfied or disagreed with the others view of marriage/sexuality/family. Both of their behaviors seem to be attempts and changing the other through whatever means possible (even post-Frank’s death). Perhaps their personal relationship was not as close as the article led us to believe. Clearly this is an extremely intimate part of one’s life and for the father to willingly leverage his not yet born grandchild’s inheritance with such specific demands that he knew would go against his son’s lifestyle, and, in turn for the son to willfully not meet his father’s criteria for inheritance and then challenge it, speaks volumes about the lack of regard and respect for the other.

    Dana (292dcf)

  119. I’m not a lawyer, I don’t have all the info, but I can say this –

    A guy can not be a mother. It’s a tragedy for a child not to have a mother.

    You can deliberately cut your child’s arm off and then say he is just like everyone else. And I can call that child abuse.

    Amphipolis (e01538)

  120. I wasn’t looking for replies only from attorneys.

    Comment by Patterico — 8/26/2012 @ 11:21 am

    I know, I love Beldar’s posts but was being snarky there.

    Kaisersoze (298188)

  121. Going back to the larger point of gay parents, let me throw this out. I can make an argument that gay parents are MORE desirable than straight parents.

    I have two kids, 4 and 2, and live in West Hollywood where there is a large gay population (I’m straight). Before having kids my attitude was that I wasn’t opposed to gay couples having children but because of societal pressures its probably better if the kids parents are straight.

    Having had children now, I think the most important factor in parenting (by a wide margin) is whether the parents really, really love that child. I think if you made a list of the top ten, that intense love would be the top 7 or so and after that would come the parents available time, finances, sexual orientation, etc.

    In my oldest son’s preschool last year there were 22 kids, with 4 of them having gay parents (yes, small sample size). A lot of the straight parents were not people that had children because they desperately loved kids, but because they had an unexpected pregnancy. The gay parents all had children because they really, really loved children and had them because of that, despite the societal issues (which are dramatically less in West Hollywood however).

    I can make the argument that on average, gay parents have an overwhelming love of children more than (on average) straight parents. In five years of taking my kids to the playgrounds I’ve never seen a gay parent yapping on their cell phone oblivious to their children running amok on the playground. They were parents because they intensely loved children and not because “…Oh man, I knocked her up”.

    Kaisersoze (298188)

  122. an Army of Gimps
    and Milhous rose up teh ranks
    cream or scum you choose

    just kiddin’

    Colonel Haiku (b69517)

  123. _____________________________________________

    All the bilge laws allowing same-sex marriage illustrate why the stated requirements in a will have to be less ambiguous or vague. Mandelbaum’s father should have been more forceful and clear-cut in his disapproval of his gay son’s behavior.

    In this age of absurdity and folly, words like “marriage,” “mother and “wife” can be so easily twisted, distorted and expanded — given all the transgenderization and bi-sexualization to the hilt — that perhaps even phrases like “offspring of a human being” and “offspring not born in a test tube” now need to be inserted into a legal document so that the preferences of its creator aren’t violated.

    Mark (925bec)

  124. The article indicates that he set up a trust for grandchildren – which to me implys that this Judge has siblings with children and that his son Cnooer is competing for his slice of the trust.

    Without further info assuming that this is a trust with dvisiable and not fixed portions – its typical in wording trust for grandchildren to have standards that prevent abuse such as adoption and children out of wedlock, many trusts have that you cannot adopt.

    Also I have heard of the out of wedlock thing as well. But never in the case of gay marriage

    EPWJ (e83e82)

  125. no more kindle posts from me

    EPWJ (e83e82)

  126. ______________________________________________

    The gay parents all had children because they really, really loved children and had them because of that

    There was a time — a long time ago — when two people who were considering divorce would immediately say “but think of how that will hurt the kids!!,” and then go from there. That sentiment seems so selfless and quaint nowadays, so oddly non-self-entitled.

    When setting up a household, I think if two people truly love kids they’ll place the needs and wishes of the child first and foremost and submerge the needs and wishes of the would-be parents. So the adult will say “it’s better for a child to have an in-home environment that contains the characteristics that only a male (ie, father) can provide, and that only a female (ie, mother) can provide. So we two guys (or we two women) bringing kids into our home isn’t such a great idea for those children. Hey, let’s instead adopt a cat or dog.”

    Mark (925bec)

  127. my father’s will had a clause that eliminated an illegitimate grandchild from sharing in his estate. The father of that grandchild didn’t complain

    Peterk (c6cfe1)

  128. That being said, my wife was a surrogate for a gay couple. When the baby was born, my wife had to sign over her rights as the birth mother (not genetic, just birth), and the dads had to adopt her. In the eyes of the law, the child has no female mother. If a mother does not legally exist, then there is no one he should have to marry.

    Comment by Ghost — 8/26/2012 @ 8:13 am

    I assume there is a birth certificate and the person listed as mother on it is either your wife or the biological mother (which leads me to ask, how is that listed, anyway?).
    So the child does have a mother who gave birth. As far as current legal parental rights, those have been fixed because of a legal adoption process.
    When a child is asked about their father and mother it can get answered both according to birth and current state- such as “my mom (the woman who gave birth to me) died when I was X yrs old”, or “my parents are John and Jane, they’re the only parents I’ve ever known, though I was adopted by them at birth so I don’t know about my biological parents”, or “I have two fathers, the woman who gave birth to me carried me and gave me to them at birth”, or other similar depending on the circumstances.

    Aphrael refers to his partner as his husband, as the person is a male in their marital relationship. I assume the other person refers to aphrael also as his husband (All joking about, “Let me be frank”, “Why can’t I be Frank?” aside).

    In this age of absurdity and folly, words like “marriage,” “mother and “wife” can be so easily twisted, distorted and expanded — given all the transgenderization and bi-sexualization to the hilt — that perhaps even phrases like “offspring of a human being” and “offspring not born in a test tube” now need to be inserted into a legal document so that the preferences of its creator aren’t violated.
    Comment by Mark — 8/26/2012 @ 11:57 am

    Thinking they became wise, they became fools.
    With Modern Family and The New Normal around it seems culture relishes the thought of having relationship so jumbles up that the definition of “family” becomes untenable. Few stop to think that most books written about a future where a child does not know who their father and mother are are likely to be about a dystopian future, dreams of utopia run amok.

    Of course, sitcoms and profound thinking normally don’t go together, kind of like circuses/gladiators and education and a free society.

    MD in Philly (3d3f72)

  129. DRJ: That FindLaw article is from 2006. Gay couples domiciled outside of the Commonwealth have been free to marry in MA since 2008:
    http://www.foxnews.com/story/0,2933,395441,00.html

    Either way, it is prior to the birth of Cooper the son in 2010.

    bridget the MA-barred attorney (ecbaa9)

  130. (It’s sort of irrelevant anyway, as existence of legal gay marriage in MA since 2003 matters for two reasons:
    1. The testator had four years of his life in which to write a codicil eliminating the possibility of gay marriage from the adoption provision. He did not. Ergo, I find it a bit of a stretch to say that his Will was discriminatory.

    2. Getting residency in MA for the purposes of marriage is pretty easy. Getting married in MA in or after 2008 is easy. Either way, avenues for a gay marriage, not a “sham marriage”, were open to this man prior to Cooper’s birth. Robert had the opportunity to marry the person of his choosing and have a child, specifically Cooper, inherit.)

    bridget (ecbaa9)

  131. Bridget,

    Obviously I’m not knowledgeable about Massachusetts law. Thanks for correcting me.

    DRJ (a83b8b)

  132. I wasn’t looking for replies only from attorneys.

    Comment by Patterico — 8/26/2012 @ 11:21 am

    In that case, I’ll throw in my two cents. As a non-attorney who doesn’t know the intricacies of inheritance law, I’m inclined to look at the plain meaning of the words.

    The provision in the will specifically mentioned “the child’s mother”. An inherent part of being a mother is being a woman. Mr. Mandelbaum’s partner can call himself the child’s mother all he likes, but it cannot make him the child’s mother in actual fact. I can claim all day that the car sitting in my garage is really an airplane and should be called an airplane, but it won’t make the car able to fly. Elizabeth Warren can claim to be part-Cherokee all day long, but unless she has actual Cherokee ancestors, her claim will not make her a Cherokee in actual fact.

    If this was a case where Mr. Mandelbaum had a girlfriend who was infertile and they decided to have a child together via a surrogate mother, and he subsequently married his girlfriend, a case could perhaps be made that his now-wife should be considered the child’s mother rather than the surrogate. But a man cannot be a mother, by the plain meaning of the term. There is, therefore, one and only one person who is, unambiguously, the child’s mother: the woman who bore him. Was Mr. Mandelbaum married to that woman within six months of the child’s birth? No; he was married to someone else. Therefore the provision of the will excludes the child.

    Robin Munn (69cc95)

  133. I thank Kaiser for his amplification and gracious words.

    I never suggested that only attorneys are qualified to answer our host’s question. I don’t think that. I suppose I’m glad Kaiser doesn’t really think I think that.

    Most lay people whom I’ve represented, dealt with, or spoken to already have a sense of the importance, in legal settings, of the written word. Most people understand that a key reason to put things in writing is to avoid later disputes about intentions. One expresses one’s intentions through the written word when one is being careful and wishes to leave a record. That’s the essence of what a will is. You don’t have to be a lawyer to grasp that.

    What I objected to was Kaiser’s argument (#48 — 8/25/2012 @ 9:15 pm)) that we should be persuaded of Frank Mandelbaum’s intent with respect to this child by looking “generally [to] the elder Mandelbaum’s wish that his heirs receive the money and [indications that] he was fine with his son’s lifestyle.” His general intentions and his general reaction to his son’s lifestyle are irrelevant if he left behind a clear and unambiguous written specification of his wishes in the form of a will.

    If instead someone’s express, written decisions about the distribution of his or her estate can be overturned by generalized and even second- or third-hand hearsay and conclusions of other people about one’s intentions and beliefs, then a will becomes worthless and the Rule of Law is undercut.

    I feel quite strongly about that, but I didn’t intend to offend Kaiser or anyone else who may not share that view, or who may not hold it with the same fervor that I do, or who may not have appreciated the consequences of Kaiser’s suggested approach. (That’s why I troubled to write, “You’re entitled to your opinion, and I mean no offense.”) My own blog, and almost everything I leave as comments elsewhere, is written with the goal that not only lawyers but interested laymen may read, react to, and comment on what I’ve said even when (as here) I’m commenting on a legal subject.

    Robert Mandelbaum may have good reason to be disappointed in his father’s decision. But I am disappointed that he — a lawyer and a criminal court judge — would act on that disappointment by trying to torture the word “mother,” as used in his father’s will, into meaning something that his father certainly never meant. In that, son surely would have disappointed his father, as surely as by his will, the father disappointed his son.

    Beldar (8e9db8)

  134. Someday, when gay men have artificial wombs implanted to allow them to live Stan/Loretta‘s dream, we may have to revisit what “motherhood” means. But not just yet.

    Kevin M (bf8ad7)

  135. I assume there is a birth certificate and the person listed as mother on it is either your wife or the biological mother (which leads me to ask, how is that listed, anyway?).

    It wasn’t my wife or the donor’s name on the birth certificate. The parents were listed as “Joseph” and “Joshua.” There legally is no mother.

    And yeah, Milhouse, I didn’t click the link. I read the post here. If there are other heirs, fine, give it to them. If this guy wanted to be a jerk to his gay son and future offspring, it’s his money, so I could care less. I just didn’t want the State saying, “nope, not good enough, we’re taking it all.” I was giving my opinion on the information provided.

    Ghost (6f9de7)

  136. This father must of had legal counsel when he drafted the will – i wonder whhat advice he was given

    EPWJ (e83e82)

  137. Someday, when gay men have artificial wombs implanted to allow them to live Stan/Loretta‘s dream, we may have to revisit what “motherhood” means. But not just yet.

    Comment by Kevin M — 8/26/2012 @ 2:48 pm

    And if frogs could fly, they wouldn’t bump their asses when they hop either.

    peedoffamerican (04c0e1)

  138. I assume there is a birth certificate and the person listed as mother on it is either your wife or the biological mother (which leads me to ask, how is that listed, anyway?).

    Don’t birth certificates for adopted children give the adoptive parents rather than the biological ones?

    Milhouse (8acf6a)

  139. Don’t birth certificates for adopted children give the adoptive parents rather than the biological ones?

    They do indeed. My wife adopted my sons, and their birth certificates read that Mrs Ghost is their mother, and always has been. There is no mention of the egg donor (my ex).

    Ghost (6f9de7)

  140. It wasn’t my wife or the donor’s name on the birth certificate. The parents were listed as “Joseph” and “Joshua.” There legally is no mother.
    Comment by Ghost — 8/26/2012 @ 3:02 pm

    I am surprised, dumbfounded, and appalled. It is a “birth certificate”, not a certificate of legal custody.

    I guess “birth” doesn’t mean what I thought it meant. Silly me.
    http://www.youtube.com/watch?v=G2y8Sx4B2Sk

    If this is really true, no wonder the nation is so messed up.

    MD in Philly (3d3f72)

  141. Ghost: In New York, adopted children receive a second birth certificate, listing their new parents. My understanding is that the original birth certificate does not list the adopted parents.

    (Yeah, okay, I also passed the NY bar.)

    bridget (ecbaa9)

  142. Comment by Milhouse — 8/26/2012 @ 4:03 pm
    Comment by Ghost — 8/26/2012 @ 4:32 pm

    If this is the case, they are not “birth” certificates, no matter what a lawyer, judge, or state officials say. They should change the name of it to “baby license”.

    And if this is really the case, then the common sense direct word understanding of the original query has totally changed.

    And I’m afraid it is no longer safe to say anything unless first approved by a lawyer.

    If a birth certificate doesn’t document a birth, then why does a car registration register a car, or a driver’s license give legal right to drive?

    MD in Philly (3d3f72)

  143. I am surprised, dumbfounded, and appalled. It is a “birth certificate”, not a certificate of legal custody.

    Adoption is legally considered exactly like birth; the adoptive parents are not just legal custodians, they are the legal parents. So when a child is adopted any previous birth certificate is reissued with the adoptive parents’ names on it in place of the original ones.

    An adopted child is legally unable to marry his adopted relatives, while I believe he is legally free to marry his biological ones. To the best of my knowledge this goes all the way back to Roman law.

    Jewish law, on the other hand, does not recognise adoption at all. The biological parents remain the legal parents, and the adoptive parents are merely guardians. The child may not marry his biological relatives, and may marry his adoptive ones. If the bio parents die intestate, the child inherits; if the adoptive ones do, he doesn’t. And he is required to mourn when his bio relatives die, while mourning for adoptive relatives is strictly optional.

    Milhouse (8acf6a)

  144. Milhouse, in this case I don’t care about Roman law, Jewish law, Greek law, or anything else. If it is not a certificate of birth, it should not be called such in a society where words mean something. I don’t get a “Registration of Manufacture” for telling the state the car belongs to me, I get a certificate of registration or ownership that I have registered the car as belonging to me.

    MD in Philly (3d3f72)

  145. MD in Philly #142 – the driver’s licence doesn’t give the legal “right to drive” … it licenses the person to exercise the privilege of driving

    (“-ce” is the noun form, “-se” is the verb form – licence/license, practice/practise)

    And I am deeply shocked that in a fine upstanding blog like this one, so many people are comfortable publicly expressing such deep-rooted anti-semantic beliefs !

    (grin)

    Alasdair (2cd241)

  146. Comment by Alasdair — 8/26/2012 @ 5:33 pm

    Thank you for the clarifications. I was so beside myself with the issue at hand such details escaped me.

    Really. I am. If a birth certificate doesn’t document a birth I’m not sure why we have semantics at all. Death certificates document a death.

    MD in Philly (3d3f72)

  147. I can make the argument that on average, gay parents have an overwhelming love of children more than (on average) straight parents. In five years of taking my kids to the playgrounds I’ve never seen a gay parent yapping on their cell phone oblivious to their children running amok on the playground. They were parents because they intensely loved children and not because “…Oh man, I knocked her up”.

    Comment by Kaisersoze — 8/26/2012 @ 11:50 am

    The problem is that science doesn’t back up your small observational study.

    Study on Homosexual Parenting

    Children fair much better with an intact two parent family consisting of a male and female. Even children of single parents do better than homosexuals acting as parents.

    As far as the will I a non lawyer believe that you must interpret documents based on the time the document was written. At the time the will was written, mother meant female. The wording is clear, Cooper doesn’t qualify, Mandelbaum did not marry the birth mother within six months of Cooper’s birth.

    Tanny O'Haley (12193c)

  148. _____________________________________________

    Study on Homosexual Parenting

    Closely related to that is not just the sexuality of the parents per se, but also that a high number of them are socio-politically of the left. If surveys instead indicated that 80-plus percent of “GLBT” people were conservative to truly moderate, I’d place more of the responsibility for negative outcomes affecting children of same-sex couples to the sexuality of such people all by itself.

    There does appear to be a fine line between left-leaning ideology and homosexuality in many instances, or ambiguity where one begins and the other leaves off.

    Mark (925bec)

  149. The grandfather is not the asshole. The father is the asshole. This lawsuit was filed to get a court ruling to force a change in the law, not to decide whether the grandson gets any inheritance.

    There is no legal basis to rule that Cooper gets money, unless the judge has the exquisite intellect of a John Roberts.

    Ken in Camarillo (645bed)

  150. Seems pretty simple.

    Will says you must marry the mother for the grandchild to inherit. The son didn’t marry the mother of the grandchild.

    Ergo the grandchild cannot collect.

    egd (d580cc)

  151. Birth certificates do document a birth. More specifically, a live birth. The date, time, place of the birth, and the sex of the child.

    They do not necessarily document parentage. The father’s name can be “unknown”. The mother can be “Jane Doe” or “unknown-named female”. It’s rare, but it happens.

    And lawyers did not do this. Bureraucrats with the assistance of doctors and midwives did, in the last hundred years or so. My mother, for example, did not have a birth certificate, she had a baptismal certificate from the village priest. My “birth certificate” was “registry of a male” with only the year of my birth, not the month or day, but it did include the pedigree. Which is the reason, still, under the law that birth and parentage can be established by hearsay testimony.

    nk (875f57)

  152. The problem is that science doesn’t back up your small observational study.

    Study on Homosexual Parenting

    If you read that study you would never quote it to back up your point. The study is ridiculously flawed by including anyone who has ever had one gay experience as a “gay parent”. By that definition Steven Tyler and John Lennon are/were gay parents.

    I first saw that study on National Review and did “laugh out loud” when it claimed children of gay parents were THIRTY times more likely than children of straight parents to be sexually abused.

    That study goes on the pile next to Michael Mann’s and the “four times more likely to be killed if you have a gun in your house” study.

    Kaisersoze (298188)

  153. And the article does not state where the petition was filed.

    I haven’t read all the intervening responses, but… doesn’t the state where the will was filed also matter, if different?

    IGotBupkis -- "Faecies Evenio", Mr. Holder? (8e2a3d)

  154. Contrary to the desires of some an Heir has No inherant right to any part of an estate that the author of the Will does not wish.

    You get what your parents choose to leave you. If you do not satisfy the requirements of the Will you chose the outcome.

    Dan Kauffman (3c9c17)


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