Marilyn Monroe executed her last Will in January 1961, while living in New York City. A few months later, she moved to Los Angeles, where she remained until her death in August, 1962. When she died, Monroe was living in a house in Brentwood, which she had purchased earlier that year. Monroe also maintained a fully furnished apartment in New York where many of her belongings were kept.
From an administration standpoint, Monroe’s estate reflects a dilemma/ opportunity that occurs when the decedent resided in more than one state: where to probate the estate? The decision typically comes down to which jurisdiction has the more favorable tax laws.
These days, for example, sunbirds from states like Washington (which has a state estate tax) with winter homes in states like California (that does not have a state estate tax) could benefit their heirs by dying while domiciled in the non-estate tax state. To bolster that position, a common planning strategy is to initiate primary probate proceedings in the non-estate tax state alleging that the decedent died a domiciliary of that state.
Given the California Inheritance Tax laws in effect in 1962, the executor of Monroe’s will would have had a strong tax incentive to assert that Monroe died a domiciliary of New York. Not surprisingly, Monroe’s will was submitted (and accepted) for probate in New York, rather than California. In addition, the executor completed an “Affidavit Concerning Residence,” which was successful in convincing the California Inheritance Tax Appraiser that Monroe died a New York resident (and avoiding California Inheritance Taxes on the bulk of her estate).
The issue of domicile came up again 30 years later when, in 1992, Monroe’s biological child, Nancy Miracle, sued the estate for a 50 percent share of the residue as a pretermitted heir. The claim was based on California law which, as of Monroe’s death in 1962, allowed such claims by an omitted child, even if born before the execution of the will (whereas New York law limited such claims to afterborn children). Accepting that Monroe died a domiciliary of New York, the court determined that New York law applied and, therefore, dismissed Miracle’s case for failure to state a claim.
Monroe’s probate estate was closed in 2001, and all remaining assets were distributed to Marilyn Monroe, LLC; a partnership formed by the two residuary beneficiaries. In Greene Archives, it was the Monroe LLC (not the Monroe estate) asserting that Monroe had died a California domiciliary. In deciding whether the Monroe LLC should be judicially estopped from taking that position, the Greene Archives court had to consider whether the Monroe LLC was bound by the assertions previously advanced by the Monroe estate that Monroe died a domiciliary of New York. In legal terms, was the Monroe LLC in privity with the Monroe estate? Citing various authorities, including the California case Luckhardt v. Mooradian (1949) 92 Cal.App.2d 501, the Greene court had no trouble concluding that Monroe LLC was the privy of the Monroe estate.
John Andersen is a partner at Ventura’s Ferguson Case orr Paterson and a Certified Specialist in Estate Planning, Probate and trust Law by the State Bar of California, Board of Legal Specialization.