Flyover 3: Family Law Decedents Estates

Hi, everyone. In this lesson, we're going to touch on how choice of law questions can come up in the context of family law and decedents' estates. Now, this isn't absolutely everything that you need to know about the substantive areas of family law and decedents' estates. We're focusing instead on how choice of law questions can come up if those substantive areas are being addressed on the bar exam.

So, here, we're going to be focusing on just a handful of choice of law rules that the bar examiners like to test in these areas. It's not comprehensive, but the goal, as always, is to help you see the main issues, pick up the easy points, and then just move on.

Family Law

All right, let's start with family law.

Marriage

Probably the single most important rule to remember concerns marriage. The overarching rule is this: a marriage that is valid where it was contracted will be regarded as valid everywhere. Sometimes this is called the "place of celebration" rule. It doesn't mean that you literally have to have a big celebration. It's just focusing on the place where the marriage came into being, as it were.

Let's take a simple example. Imagine that a couple lives together in State A, which still allows for common law marriages. And let's imagine that the couple satisfies all of the elements for a common law marriage. So State A is clearly going to regard them as married.

Now imagine that the couple moves to State B, which no longer allows for common law marriages to be formed there. The usual rule is that State B is still going to recognize that common law marriage, which was validly formed in State A. The main exception to this rule is if the marriage violates the strong public policy of the state with the most significant relationship to the spouses and the marriage.

I know that that's a mouthful. Think of this as the public policy exception. So, for example, another state might refuse to recognize a child marriage, even if that marriage was technically legal in the place where it was contracted. This exception used to come up a lot when states had very, very different rules on interracial marriage and same-sex marriage, but all of those marriages are now constitutionally protected.

So, as I said, this public policy exception just isn't going to come up all that much in the context of marriage. All right, that's the first rule: that a marriage is valid in the place of contracting and will be valid everywhere, and then that tiny public policy exception.

Prenups

The second rule that you want to remember concerns premarital agreements—prenups, in other words. The bar examiners just want you to know that the validity of a premarital agreement will be determined by the state with the most significant relationship to this issue. And to figure that out, you're going to be applying the five-factor test from Section 188 of the Second Restatement. We covered that provision in the lesson on contracts, so I'm not going to belabor the point here.

Here's a pro tip, though. If you get a question about a prenup, it's less of a family law question and more of a contracts question. So you're just going to want to work through those steps that we talk about in the contracts lessons. All right. So we've talked about the overarching rule dealing with the validity of marriages and where they're going to be recognized, a bit of a rule on prenups, and then, finally, we need to talk about divorce.

Divorce

There are just a few rules that I want you to remember here. Number one, a state where either spouse is domiciled is going to have power to dissolve a marriage. But really importantly, that is just for granting the divorce. If we're talking about dividing property, determining custody of children, and things of that nature, a court is going to need to have jurisdiction over both spouses in order to issue binding orders.

So let's imagine that one spouse moves to State X and seeks a divorce there. A State X court may grant the divorce, but it probably is not going to be able to issue a binding order regarding the spouses' property. Now, the last thing that I want you to remember about choice of law questions in the context of divorce is the majority rule about how to divide marital property.

Real property is going to be divided based on the law of the situs, that is to say, the place where that real property is located. But personal property is going to be divided based on the place of the spouses' domicile, and very specifically, where they were domiciled when they acquired that personal property.

Okay, so a pretty critical difference between real property and personal property, and really, that's about it. These are the main issues that are going to come up when choice of law questions are being raised in the context of a family law question.

Decedents' Estates

Let's shift gears now and think about decedents' estates. There's obviously a ton that can be said here, but I want to focus yet again on a very few specific rules that might come up on the bar exam in the choice of law context.

Validity of Will

Number one, we're going to figure out how to determine whether a will is valid. Let's take an easy example. Imagine that we have someone who used to live in State X and executes a will there. The person then moves to State Y, which is where, after a long, prosperous life, the person dies peacefully. How do we know whether the will is valid? The common law rule here is that the testator's domicile at death determines the will's validity.

So, here, that would mean that even though the will was executed in State X, it must comply with State Y's laws, because, again, that's where our testator died. But it's worth remembering a more generous rule as well. The Uniform Probate Code will treat a will as valid if it complies with either the law of the testator's domicile at death or the law of the state where the will was executed. So as long as the will complies with either the law of State X or State Y in our hypothetical, then the will is going to be valid.

Now, the bar examiners typically will not tell you whether the jurisdiction that you are in follows the common law rule or the Uniform Probate Code, so it's just good to note both. All right, that was our first rule, figuring out whether a will was valid.

Disposition of Personal Property

The second rule concerns the disposition of personal property. Now, this is a rule that's going to come into play only if someone dies intestate, either because she didn't execute a will or because the will is invalid for some reason. If a person dies intestate, her personal property is going to be distributed based on the law of the person's domicile at death. Okay, so domicile at death to determine how to dispose of personal property for an intestate decedent.

Personal Property

Now, finally, the third rule is going to govern personal property. Importantly, this rule applies to situations in which someone dies intestate, but also to situations in which the person has a valid will. Now, when it comes to real property, and by this, we're basically talking about land and the buildings that are on that land, the transfer of such property is going to be governed by the law of situs, again, the place where the land sits.

All right, that's pretty much it at a high level of abstraction. That's what you need to know about choice of law questions as they can come up in the context of decedents' estates. Know the rules for how to validate a will, the rule governing the disposition of personal property when someone dies without a will, and the rule that governs the disposition of real property. As always, keep it simple, keep it mechanical, and don't overcomplicate things.