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Residence at Time of Death and Comprehensive Knowledge of State Laws Crucial to Estate Planning and Probate Strategy

October 18, 2012 • Posted By Tara Bhupathi • Complex Litigation

In Milton H. Green Archives, Inc. v. Marilyn Monroe LLC, et al., the Ninth Circuit held that Marilyn Monroe did not own a right of publicity at the time of her death, and therefore, the right did not pass through her estate during probate and was not included in the assets held by Marilyn Monroe LLC (“the LLC”).

The right of publicity is recognized in most states, whether by statute or through common law.  While the right of publicity varies from state to state, it generally grants a person the exclusive right to use in commerce his or her own name, voice, picture or likeness. For example, before Pepsi can feature fearless skydiver Felix Baumgartner’s face on its soda cans, it must first seek permission to do so, likely through a license.  Unlike trademark rights which have the potential to last forever, and copyrights, which last up to 70 years after the death of the author, right of publicity statutes often limit the right to the life of the person.

In Milton, the LLC sought to claim that Marilyn Monroe owned a right of publicity at the time of her death in an effort to sue Milton H. Green Archives for unauthorized use of Marilyn Monroe’s name, picture and likeness.  In so claiming, the LLC argued that Marilyn Monroe’s right of publicity survived her death and passed through her residuary clause and ultimately ended up as an asset owned by the LLC.

Marilyn Monroe’s will was probated in New York Surrogate’s Court due to the vehement and consistent argument by the estate’s executor that Marilyn Monroe died as a resident of New York, as opposed to California.  The purpose of establishing that Marilyn Monroe’s domicile was in New York was to avoid California’s heavy estate tax.  However, where California had a less favorable estate tax scheme, it turns out New York had a less favorable right of publicity.

In New York, the right of publicity does not survive death.  At death, the right no longer exists and therefore is not an asset which can pass through probate.  In California, on the other hand, the right of publicity is an asset which survives death and can pass through probate.  Despite this, the District Court granted Milton H. Green summary judgment because California created the right of publicity in 1984, after Marilyn Monroe’s death in 1962.  The District Court reasoned that the right could not be passed if it was not yet created. 

However, in 2007 California amended its right of publicity law to state that the statutory right of publicity will be deemed to have existed at the time of death of any deceased person who died before the enactment of the right of publicity statute.  This amendment retroactively supplied those who died before the right of publicity statute was enacted (i.e. Marilyn Monroe) a valid right of publicity which survived their death and is an asset which can pass to the deceased’s estate.

Not surprisingly, the LLC filed a motion for reconsideration claiming that, at the time of her death, Marilyn Monroe was a resident of California, not New York, and thus owned a right of publicity at death which was then passed through her residuary clause to the LLC. However, the Ninth Circuit used the doctrine of judicial estoppel to again grant Milton H. Green summary judgment, holding that because Marilyn Monroe’s executors argued and succeeded in arguing that Marilyn Monroe was domiciled in New York at death to avoid payment of California estate taxes, among other things, the LLC was estopped from claiming that Marilyn Monroe died as a resident of California and could assert California’s right of publicity.

This case highlights the importance of having a comprehensive understanding of all of the laws which have an effect on estate planning and probate.  In 2011, Forbes Magazine identified Marilyn Monroe as the third-highest money maker in its annual ranking of “The Top Earning Dead Celebrities,” with an income of $27 million.   While Marilyn Monroe’s executor and drafters had no way of foreseeing the retroactive enactment of California’s right of publicity law, the lesson is no less valuable.