Who Inherits Your itunes Library?

Recently the Wall Street Journal published a small piece on bequeathing digital media along with other personal property.  The article examines the increasing trend of our accumulation of more and more digital media such as mp3’s, mp4’s, and digital books and magazines.  And, we spend a lot of money on these things.  But, what happens to them when we die?  Can they be passed down or do they die with us?

The crux of this issue is – what do we actually own?  In most circumstances, when it comes to digital content, we own a license to use the digital file but we do not own the content itself.  The case law concerning this issue is virtually non-existent – but it is coming.  Estate planners are beginning to see this issue crop up and a few are getting creative.  According to the WSJ, David Goldman, a lawyer in Jacksonville, says he will launch software next month called DapTrust that will help estate planners create a legal trust for their clients’ online accounts that hold music, e-books, and movies.  This is only one potential solution in what may be becoming a digital nightmare.  Tech pros are calling for regulation reform and digital giants like Apple and Amazon are looking to lock down their property.  The key will become licensing agreements and increasing consumer demand to hold onto property that may be ready to die with them.

See also, itunes Library.

Testamentary Provisions v. Public Policy

Many of us want to leave money to family members in a way that encourages our values in the next generation, such as receiving an education, becoming self-sufficient, or participating in a spiritual life. However, Colorado courts will not enforce a provision in a Will or Trust that is deemed to violate public policy, such as requiring a beneficiary to divorce their spouse if they wish to receive a bequest.

Frank Mandelbaum, founder of the ID-verification firm Intellicheck, recently died with a very large fortune. His son, Robert Mandelbaum, is a gay Manhattan Criminal Court Judge. In Frank’s Will, he creates a $180,000 trust for his grandchildren, but Robert's 16-month old son, Cooper, may be excluded from those benefits unless Robert marries Cooper's biological mother. Although Frank knew his son was gay, he included a provision excluding "an 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." The provision will exclude Cooper if Robert remains married to his partner. His attorney Anne Bederka wrote that the Will provision was "tantamount to expecting him either to live in celibacy, or to engage in extramarital activity with another man, and is therefore contrary to public policy."

Robert is challenging the will because in order to meet the conditions set in the Will, he would have to enter into a sham marriage in violation of New York marriage-equality law. The Manhattan Surrogate's court has yet to approve a settlement.

See Alyssa Newcomb, Gay Man Told to Marry Woman or Son Would Lose Inheritance.

Can a Child Have More Than Two Parents?

Under current law, California does not allow more than two legal parents per child. But with the rise of surrogate births, same-sex parenthood, and assisted reproduction, California state senator, Mark Leno, introduced Senate Bill 1476, which would allow a child to have multiple parents. The bill states that in a situation in which three or more people could not agree on child custody, a court could divide custody among all of them.

The bill does not require a judge to take this step, but it provides another avenue when trying to decide what is in the best interest of a child. California’s children might ultimately benefit from additional financial support, health insurance, or social security benefits from more than two parents. Supporters of the bill believe this factor might ultimately reduce the state's potential financial responsibility. Opponents argue the bill is redefining and "muddy[ing] the waters" of family structure. It may also have unintended consequences in other areas of the law, such as inheritance or wrongful death. It will be interesting to hear the issues raised by this bill, and if it is signed into law, how it impacts families.

We are not aware of any Colorado law which would authorize more than two legal parents for purposes of determining child custody or child support issues. However, Colorado has changed state intestacy statutes to allow for a person to inherit from more than just two parents (adoptive and birth parents, under certain situations). This statute does not impact Colorado law regarding child support or child custody.

See Jim Sanders, California Bill Would Allow a Child to Have More than Two Parents, The Sacramento Bee, July 2, 2012.