The November 2020 election was chock full of legal controversy, namely the countless arguments the Trump campaign has launched against various jurisdictions with regard to alleged voter fraud. As we continue to monitor the merits of the asserted claims, there are a host of other legal issues, many pertaining to estate planning and administration, that the 2020 election, with COVID-19 as a dark backdrop, have exposed.
As a preliminary statement, and to state the obvious, dead people cannot vote. Not only can they not vote, they cannot bequeath or assign their right to vote to someone else. The right to vote is personal to an individual. Neither an executor, nor an administrator, nor any next-of-kin, may vote on behalf of someone who is deceased.
An interesting issue, however, is what becomes of a vote properly cast prior to an individual’s death. What happens if a voter dies between the time she mailed her ballot and Election Day, when it is counted? There is a disagreement among states as to how to address this issue. For example, just a few short weeks ago, in Wisconsin, Amber Pflughoeft cast her first and what would be her last ballot. She died from cancer before Election Day. Wisconsin disregarded her ballot as their election laws do not permit the counting of a ballot in the event the voter is deceased, even if the death occurred following the proper casting of the vote. Sixteen other states follow that rule.
There are many instances when the voter dies following the casting of the ballot. There are only 10 states which explicitly permit such a vote to be counted, despite the death. Janice Lawrence, who died at the age of 82, in Indiana, mustered up enough strength to cast her final vote before entering hospice for end-stage liver cancer. Sadly, she died prior to Election Day and her vote was not counted.
I do not ever need a reason to preach the importance of executing an estate plan, however, this year’s presidential election has given me quite the soap box. Both presidential candidates reveal, in very different ways, the need for proper planning. President-elect Joe Biden’s family has been riddled by tragedy. By now we have all seen the iconic 1973 photograph of him being sworn in as senator at his son’s hospital bed. His first wife and baby daughter were killed in a car crash, leaving him a widower with two young sons, both hurt from the accident. Decades later one of those children, Beau Biden, who was the Attorney General of the State of Delaware, would die at the age of 46 from brain cancer, leaving a wife and two children. These life experiences exemplify why every adult should have a last will and testament, power of attorney, and healthcare proxy. Fame, power, and prominence do not protect one from death or disease, and planning for one’s incapacity is just as important as planning for one’s death. The Bidens are national reminders of the fragility of life and how we must make certain to have our affairs in order.
Certainly one does not need tragedy to encourage estate planning. Sometimes family complexities and multigenerational wealth are reason enough. President Trump and his relatives have had their share of estate litigation with regard to the real estate empire of his father, Fred Trump. Past embroilment in family litigation is reason enough to resolve any unsettled estate or family issues during one’s lifetime. Particular attention should be given to developing a comprehensive estate plan when families are blended, as is the case with President Trump, who has children from different marriages and of different generations.
Finally, no one needs any more reminder of our mortality with COVID-19 continuing to weigh on our collective souls. The pandemic was the lead issue in this year’s presidential election and its impact will be felt for a long time Regardless of the election cycle, pandemic, or one’s personal situation, it is imperative to review one’s estate plan to ensure that all has been done to provide for oneself and one’s loved ones.
Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.