In today’s world of reality television, it seems like a day does not go by without some breaking news on the Kardashian family. A fascination has been born with the daily activities of the members of this family. Recently, that fascination has extended to capture the attention of the estate planning world, but not for the reasons you may think. Yes, we could talk all day about the significant estate planning that this family needs to or has engaged in to protect their hundreds of millions of dollars. However, as many of us know, it is often the intangible personal items that create bigger family battles then the millions of tangible dollars. The Kardashian Diary drama is no different. While money is to an extent involved, the item that is the subject of pending litigation is a diary containing the intangible writings of the late Robert Kardashian, and not the rumored $100 million dollars left in Trust for his children.
In the last 18 months or so, one of the hottest topics in estate planning has been planning for the afterlife of one’s social media, digital assets and likeness (i.e. publicity and use of one’s name). This expanding area of planning is most important for celebrities. In an era where gossip is more prized then actual news, you never know what the publication of your private words could be worth, no matter who you are. Therefore, it is extremely important that everyone’s testamentary documents include the necessary language to plan for the afterlife of one’s social media, digital assets and likeness. Every word matters!
The Kardashian matter and its outcome will be closely watched by all estate planners as guidance for interpretation of language the many practitioners use in their estate planning documents. Let’s break the matter down. Robert Kardashian’s Will stated that “all intangible property and tangible property” would be distributed to a trust for his children’s benefit. The Will went on to provide one exception, that Robert Kardashian’s then wife, Ellen, would be given the Indian Wells real property and its “furnishings”. Here is where it gets complicated. How do the words interplay with the reality that the diary in question was recovered by Ellen in the Indian Wells property after Robert Kardashian’s death? Further, add in the statement that allegedly, Robert Kardashian told Ellen to put out his side of the family story upon his death. If you are finding it hard to keep up, now you know why the family reality show is titled “Keeping up with the Kardashians”. But I digress.
Keeping in mind that we are only privy to excerpts of the Will, I think it is still evident why each word matters so much. First of all, with regard to the alleged statements made to Ellen, the simple fact here is these statements were not reflected in the Will, and the Will governs. Second, the lawyers for the family state that the Will elaborates on the definition of furnishings to include items “customarily used with that real property”. From an outsider’s perspective, it seems far-fetched to argue that a diary is a furnishing of a home or more so, that is customarily used with that home. This is why interpretation and definitions matter. Even though one may not think their diary or intangible writings could ever be subject to such a dispute, the inclusion of specific language of who can use, publish, destroy, or distribute ones social media or intangible items may have prevented this whole dispute. In some respects, when specifically looking at planning for the afterlife of our social media, digital assets and likeness, we have to all look at ourselves as public figures, or better yet, reality stars. We have to think in this manner to make sure we include the right level of detail and write words to properly dispose of these assets.
Robert Kardashian was an extremely successful and wealthy Hollywood attorney. There is no doubt he engaged in comprehensive estate planning. However, the Kardashian Diary saga raises numerous interesting questions, one of which is, does one ever have a full proof complete estate plan? As we tell all of our clients, estate planning is a lifelong process that is ever changing. The more complex, the more review and updating is necessary. The bottom line is that every word of your documents matter. When you die, the words on that paper are the words that matter and the goal is for it not to be necessary to need a Court to interpret them. Try to keep up with the Kardashian’s to learn the outcome of this saga!
– Adam Abramowitz, Esq.