Top Developments, Lessons and Reminders of 2021

2021 saw significant developments, lessons and reminders. In addition to the developments discussed below, important legislation was enacted in 2020, which became effective in 2021: New York’s brand new post-mortem right of publicity, which grants to the heirs band executors of New York decedents the right to exploit the decedents’ name and image; the Child-Parent Security Act, which revolutionized New York law in the third-party reproductive context by legally establishing a child’s relationship to their parents where the child is conceived through assisted reproduction; and final revisions to the Power of Attorney form. Since those developments were included in the Top 10 Developments, Lessons and Reminders of 2020 (NYLJ, Jan. 22, 2021), they are not repeated here but please refer to that article for a full discussion of those important developments.

12. Assets Acquired After Death Pass by Intestacy, Not Will. In the Estate of Keough, 150 N.Y.S.3d 449 (N.Y. App. Div. 2021), the Appellate Division determined that assets acquired by a testator’s estate after the testator’s death pass pursuant to the laws of intestacy and not the terms of the decedent’s will. The decedent was the wife of one of the hostages held captive in Iran beginning in 1979. After they both died, Congress enacted legislation to provide compensation to former hostages and their family members, or if deceased to their personal representatives. In concluding that testators may not dispose by will of property that is not owned by them at the time of death, the court looked to Estates, Powers & Trusts Law (EPTL) §3-3.1, which provides that a devise of all property will pass all property a testator was entitled to dispose of at the time of death. According to the court, a testator lacks testamentary capacity to dispose of assets not owned by them at the time of death because they could not have known the nature and extent of that property. As a result, the after-acquired property passed from the decedent’s estate to a distributee brother and not the residuary beneficiary under the decedent’s will. A legislative amendment may be necessary to ensure that after-acquired property passes in accordance with the decedent’s intent.