Adventures in (not) Estate Planning #2: Why the Focus on the Lack of a Will?

There is a lot of ventilating going on over on the Houston Chronicle website with regards to the Estate of Thomas Araguz, III. As I noted the other day, there are questions related to the gender of the Captain’s wife.  But much of the discussion misses the mark with regards to the real issue.

Many of the articles note the lack of a Will, which is a problem, but it only deals with those assets which would pass under probate.  There are any number of assets and other payments, such as insurance and the Public Safety Officer Benefit, which are non-probate assets and will pass under the contracts or statutory authority.

What does this mean for the hearing that is occurring this Friday in Wharton?  Well, if I was the attorney for Nikki Araguz, I would be filing a petition to remove this case to Federal Court immediately.  Why, you ask?  Well, considering the recent decision in the Federal District Court for the District of Massachusetts invalidating the Defense of Marriage Act, there is an open question regarding how the DOJ will treat the marriage of Thomas and Nikki Araguz (assuming all of the reports are correct and Nikki Araguz was born a male named Justin Graham Purdue).

Note also that while the plaintiff’s are saying this “remains a matter of (settled) law.”  Settled law is definitely not what this is . . . only the San Antonio appeals court has decided and made settled law for those 32 counties.  It is an open question in the rest of the state.  There is a split nationally, with several decisions going either way and now the Massachusettes DOMA decision.  This is going to be a drawn out process unless there is some agreement between the parties. . .

Marc

2 Responses to Adventures in (not) Estate Planning #2: Why the Focus on the Lack of a Will?
  1. [...] Adventures in (not) Estate Planning #2: Why the Focus on the Lack … [...]

  2. Sturm Law
    December 30, 2010 | 1:13 pm

    you make a really good point. Settled law is definitely not what this is.