Pending case: In re Cliffman estate

John Gordon Cliffman died in an automobile accident in 2012. He had no surviving spouse or children. The parties to this case were his two sisters, on one side, and the four sons of his wife Betty, who had died in 1996, on the other.

The claim of the estate against the driver at fault was settled for $300,000 without the filing of a lawsuit. This settlement and the initial allocation of the proceeds were approved by the probate court in December 2013. The sisters later filed a petition to set aside the order of allocation, arguing that Betty's sons were not proper recipients because they could not assert a claim under the Wrongful Death Act. The probate court agreed and granted the petition.

The Wrongful Death Act is codified as part of the Revised Judicature Act, MCL 600.2922. The provisions of section 2922-3 include the following:

(3) Subject to sections 2802 to 2805 of the estates and protected individuals code, 1998 PA 386, MCL 700.2802 to 700.2805, the person or persons who may be entitled to damages under this section shall be limited to any of the following who suffer damages and survive the deceased:
(a) The deceased's spouse, children, descendants, parents, grandparents, brothers and sisters, and, if none of these persons survive the deceased, then those persons to whom the estate of the deceased would pass under the laws of intestate succession determined as of the date of death of the deceased.
(b) The children of the deceased's spouse.
(c) Those persons who are devisees under the will of the deceased, except those whose relationship with the decedent violated Michigan law, including beneficiaries of a trust under the will, those persons who are designated in the will as persons who may be entitled to damages under this section, and the beneficiaries of a living trust of the deceased if there is a devise to that trust in the will of the deceased.

Considering the statutory language, one might think that the result is clear. Betty's sons were of course "the children of the deceased's spouse," weren't they? But the Michigan Court of Appeals, in the case of In re Combs Estate, 257 Mich App 622, 669 NW2d 313  (2003), had held that once the spouse is deceased, she is no longer the spouse, and that the language of section 2922-3-b should be limited to the children of a spouse who survived the deceased. The Court in Cliffman described the Combs rule as follows:

Given that death terminates a marriage, upon one party’s death, the individuals are no longer married and the surviving individual no longer has a “spouse” within the meaning of MCL 600.2922(3)(b).

The sons had to acknowledge that the Combs decision precluded their claim to participate in the distribution, but they argued that that case had been wrongly decided. The Court of Appeals, of course, was bound by Combs, and affirmed the decision of the probate court.

The case is now before the Michigan Supreme Court. On March 23, 2016, it issued an order directing the Clerk to set the application for leave to appeal for oral argument. The Order included this direction:

The parties shall file supplemental briefs within 42 days of the date of this order addressing whether MCL 600.2922(3)(b) allows stepchildren of a decedent to make a claim for damages where the natural parent predeceased the decedent, and if so, whether this Court should overrule In re Combs Estate, 257 Mich App 622 (2003). 

The State Bar Probate and Estate Planning Section has filed an amicus brief on the case.

New case: Koehler Estate

In re Estate of Koehler, decided in late March, is a case in which the Michigan Court of Appeals dealt with a very rare scenario: the application of the principles of "upward inheritance" to a violent death that occurred in Colorado in the 1930s. By "upward inheritance," we mean inheritance by a parent or grandparent from the deceased. This usually arises in a litigation context, where a child or an unborn child is killed and family members seek damages under the Wrongful Death Act.

A rule was adopted in section 2114-4 of the Estates and Protected Individuals Code (EPIC) that precludes a father from inheriting in this manner if he has failed to acknowledge the child as his and has failed to provide support for his child. Perhaps because of the inartful wording of the statute, however, this section was used to try to preclude one Ernest Lee Umble from inheriting one-half of a $500,000 estate from the estate of his deceased great-nephew, Kenneth Koehler.

The background to the case included:

1. The common ancestor was Carl Cedrick Umble, Ernest's father and Kenneth's grandfather
2. Kenneth had a group of cousins and other relatives on his mother's side (the "maternal relatives")
3. Kenneth died leaving no spouse, no children, and no siblings
4. Under EPIC, therefore, his estate was to be divided equally between relatives on his mother's side and relatives on his father's side
5. Ernest was the sole relative on Kenneth's father's side

Carl Cedrick Umble was married to Lydia Hackett and lived in Colorado in the 1930s. Ernest was their son. Carl was apparently separated from Lydia and entered into a relationship with Florence Koehler, who became pregnant. During the pregnancy, Carl physically attacked a man who had kissed Florence; this led to a knife fight in which Carl was killed. When his son, Carl Koehler, was born, he was thus an "afterborn" or "posthumous" child.

As a result of the rule in point 4 above, it was necessary to trace Kenneth's lineage upward two generations, to Carl Umble. The maternal relatives, however, argued that the probate court could not regard Carl Koehler as the son of Carl Umble given the language of section 2114-4.

In previous years, many states distinguished between legitimate and illegitimate children. That distinction has been abolished nearly everywhere. Michigan's current statute, under EPIC, makes no such distinction. 

There was no evidence that Carl Umble had ever denied that the baby Florence was carrying was his. It appears, although both the majority opinion and dissenting opinion of the Court of Appeals danced around the issue a bit, that the maternal relatives were relying on what appears to be a negative presumption in the language of section 2114-4.

This issue demonstrates a reality that affects the judicial interpretation of statutory language: the Legislature is not perfect. The language that it uses in the drafting of statutes is often inartful, clumsy, or sloppy.

Section 2114-4 says: "[i]nheritance from or through a child by either natural parent or his or her kindred is precluded unless that natural parent has openly treated the child as his or hers, and has not refused to support the child." One approach, taking a plain-meaning approach to this language, would interpret it to mean:

• Normally, a parent or someone taking "upward" through a parent may not inherit (regardless of legitimacy). That is the apparent statutory presumption.
• The presumption can be overcome by evidence that the natural parent "openly" treated the child as his or her child, and that he or she had not refused to provide support to the child. Normally, we would think, this first leg would apply only to the father, but it could also be read to apply to a woman who has surrendered a child to be raised by another, without a formal guardianship in place.
• If either of these is not established, the presumption is overcome.

The maternal relatives appear to have argued that a father of an unborn child cannot openly treat the child as his own, and has no opportunity to provide support until he is born. Thus, the argument would go, the presumption cannot be overcome under any circumstances as it pertains to an afterborn child.

The majority opinion of the Court of Appeals, quite naturally, rejected this conclusion as inconsistent with the apparent legislative intent. Despite the sloppy wording of the subsection, the Court concluded that the Legislature intended to disqualify only a parent who has refused to acknowledge his child, or who has refused to provide support to his child. Further, it concluded, this can by definition only occur after the child is born.

Judge Peter O'Connell submitted what is called a "dissent." He did not disagree with the majority's ultimate conclusion, and he also did not mention the apparent presumption argument. He believed, however, that the case should be remanded to the probate court to take further evidence. Where he differed from the majority was on the assumption that a refusal to acknowledge a child is logically impossible before the child is born. Citing and quoting from two decisions by courts in other states, he concluded that it is possible that a married man, faced with the news that a woman he had been intimate with was now pregnant, might try to claim that the child was not his, and was fathered by another man. He cited no evidence of such a statement under the facts of the case, but did note that it would, if established, constitute a refusal to acknowledge paternity.

(Note: Neither of the opinions addressed the question of whether Colorado law rather than Michigan law should apply to the issue of inheritance by Carl Koehner from Carl Umber at the time of the latter's death.)