In September 2016, Miami Marlins pitcher Jose Fernandez tragically passed away in a boating accident. At the time his girlfriend was carrying his first child. This type of situation leads to a number of questions about what happens to his girlfriend and future daughter.
In this particular case, Jose had an agent who understood the value of estate planning. Scott Boras, Jose’s agent, did yearly estate plan reviews with all of his clients, and kept a file on what to do if anything was to happen to a client. Major League Baseball and the players association also gives all of their members a life insurance and accidental death policy as part of their benefits package.
This planning will result in the executor of Jose’s estate distributing the estate assets as Jose would have wished. A trust is in place for the unborn child, which should take care of her. It is less clear at this time if any of Jose’s assets will go to the mother of his child. The early reports of Jose’s estate plan show that much of his estate will go to his mother.
I am not a Florida lawyer, so I will not discuss what would happen in Florida if Jose had died without a will. In New York and New Jersey however, if this situation were to have occurred where there was no will, the distribution would have gone quite differently. In NY & NJ, generally if you have children but no spouse, then the children receive the entire estate. In this case, we need to address two additional elements: Jose was not married to the child’s mother, and the child is unborn. In the case of parents who are unmarried at the time of birth, under both NY & NJ law, in order for the unborn child to receive a share, the deceased parent must have either acknowledged paternity, or paternity was otherwise proven under state law. In this case, Jose made an Instagram post previous to his death where he announced he was expecting a baby, a surrogate’s court would probably consider this to be an acknowledgement of paternity. In New York, posthumous children receive the same share as any other child, while this is also the case in New Jersey, New Jersey also has the additional requirement that the child must survive for an additional 120hrs after they are born.
If this tragedy had occurred to someone who lived in NY or NJ, the existence of a will would make a major difference. It is clear from the estate planning that exists, that Jose wanted to take care of his mother. If he had no will or other estate plan set up, this would not have happened. Under intestacy law, the entire estate would go to the child, and none would have gone to his mother.
The next issue to consider is what happens if the will maker created the will before he knew he was going to be a father, and did not mention the child. New York and New Jersey law would consider the child pretermitted, which would lead to a very interesting outcome. In New York and New Jersey, under these circumstances, the child would receive the same share as they would if there was no will. So, if the will did not mention the unborn child, and the will maker made no other provision to care for the child, then the probate court would find the will valid, but would entirely revoke the will’s terms and give everything to the child.
What this sad case shows is the importance of both creating an estate plan, and keeping it up to date. As you may have noticed, Maria Arias, Jose’s girlfriend and the mother of his unborn child does not receive anything under any of these scenarios. In order for her to receive any part of the estate, Jose would have had to of specifically mentioned her in his will. Furthermore, an even slightly out of date estate plan would have thwarted Jose’s wish to care for his mother. While this is an extreme scenario, these lessons are important for everyone. If you have people who depend on you, get an estate plan, and either update it annually, or at minimum whenever you have a major life event.