On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Monday, January 27, 2014.

Dividing up of assets and liabilities in a divorce does not always mean money, houses, and credit cards. divorced can involve surprising things like breast augmentation, and very sad things like the remains of a stillborn fetus. And that’s exactly the asset a court in Albany, New York had to divide. Should the court’s decision be based on equitable distribution theory or on a Roe v. Wade woman’s right to choose?

In Jackson v. Jackson, the “property” was a stillborn fetus that was miscarried at 26 weeks. The parties separated a few months later. The wife testified during separation, the husband threatened to flush the ashes down a toilet. He testified he had a bad year, and made the comment in anger.

New York law provides that a fetal death is defined as death prior to the complete expulsion or extraction from its mother of a product of conception.

Do the ashes of a stillborn fetus conceived and miscarried during the marriage constitute marital or separate property? Like Florida, New York defines marital property as property acquired during the marriage.

Ashes are clearly marital property because there is no other alternative. However, the Wife owned the eggs from which the fetus developed before the marriage. The Husband impregnating her with sperm acquired after the marriage would clearly be a co-mingling.

Moreover, there is no way to characterize or to measure any enhanced value of a 26 week old fetus that was produced by the joining of the mother’s egg and the father’s sperm, regardless of when each contribution was made.

While property acquired during marriage is presumed to be marital, the public policy of New York gives the woman full control over the progress and outcome of her pregnancy without veto power by a husband or putative father – subject only to the restrictions of the Roe v. Wade trimester regime, upon which the Florida law is based.

Accordingly, the ashes of the stillborn birth are the Wife’s separate property.

This case raises questions that have never been answered in Florida. If a pregnancy terminates in a stillbirth, should the man and woman have equal rights to the remains under standard equitable distribution law? Or does a woman’s control of her own body lead to the right answer under a Roe v. Wade approach?

Thanks to Prof. Eugene Volokh at the Volokh Conspiracy for the pointer. The case of Jackson v. Jackson can be read here.

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