When I think about Valentine’s Day and the Academy Awards, I think about marriage and movies. Thinking about marriage and movies of course leads me to one almost perfect film: Cast Away (2000) starring Tom Hanks, Helen Hunt, and Academy Award® nominee, Wilson the Volleyball (as himself).
I don’t know about you, but I long for the days when I could watch a movie and simply enjoy it. For the first few decades of my life, I did just that. Once I became a lawyer, that all changed.
I never once thought about the potential negligence and wrongful death claims that Kelly Frears (played by Helen Hunt) could have had against FedEx (and its deep pockets) following the disappearance of her boyfriend Chuck Noland (played by Tom Hanks) in what was presumed to be a plane crash.
What’s that you say? Wrongful death is a cause of action that only the next-of-kin may bring? And since Kelly and Chuck were not married, Kelly has no standing? Well done, you zealous advocate! FedEx should hire you as its next general counsel.
But what if they were married?
If they had been married at the time of his disappearance, the marriage would have dissolved after he was declared dead by the court. In Florida, a person is presumed dead (1) if they’ve been absent from their last known domicile for a period of five years and (2) their absence is not satisfactorily explained after diligent search and inquiry.
I know what you’re thinking, Counsel: Hey, wait a minute! Chuck was “only” on the island for four years and some change. Four-ish years ~quick math~ is less than five years, so he was still married to Kelly the whole time he was on the island! Did Kelly approve of her husband spending so much time on a beautiful island with Wilson (played by a Wilson® volleyball)? They sure spent a lot of time together.
Hold the phone – Didn’t Kelly marry that guy from Law & Order? How could she marry him since she was already in a valid marriage? Isn’t that called bigamy and isn’t it illegal in each of the 50 states? (Yes). Couldn’t she face up to ten years in prison?? (Yes, under Texas law). It isn’t a good defense, but Kelly during her trial for felony bigamy, Kelly should scream: “HE WAS NEVER MARRIED TO ME ANYWAY! HE WAS MARRIED TO HIS JOB!!!” Case closed.
Thankfully for Kelly unfortunately for Chuck, Florida law provides an exception to the five-year presumption of death clock in instances where the absent person was exposed to “a specific peril” (such as a plane crash). Such instances may be sufficient basis for a court to determine a person’s death “at any time” after the person’s exposure to the peril. Whew, that was a close one.
What about the probate and estate planning issues? I’m glad you asked.
First, before Chuck’s doomed departure, Kelly gave (or loaned, depending on which one is my client) him a gold pocket watch that belonged to her grandfather. Chuck claims that the watch saved his life. I disagree, as I am of the opinion that it was the cargo ship that rescued him.
Chuck eventually returned the pocket watch to Kelly, stating that it should remain in her family since it was her grandfather’s. Even Chuck knows the importance of keeping sentimental family heirlooms amongst blood relatives.
Next, What about Chuck’s Jeep? Kelly just hands Chuck the keys … where’s the paperwork? Does he have insurance? When was the last time he had an eye exam? Was it paid off? If not, will the bank come and repossess it? Is that why she was hiding it in her garage? Maybe they jointly titled it even though they were not married? (Bad idea, by the way).
When she loaned him the pocket watch, he also gave her a little box. We’re supposed to infer that it is an engagement ring. Where is it? Did she open it? I’m sure he needs some cash, so she really should give it back to him so that he can sell it at a pawn shop or something.
Had he had a revocable living trust-based estate plan, Chuck could have provided for Kelly and could have required that were she to marry, her husband would need to sign a prenup to protect trust assets in the event of a divorce, creditor, or judgment.
And even though revocable trusts become irrevocable upon the death of the trustmaker, Chuck would almost certainly be successful by petitioning a court to modify the trust. Likewise, the current trustee (assuming it’s Kelly) could transfer trust assets into a new trust with different terms through a process called “decanting.”
Tied through all of these movie examples are actual things that could happen to anyone. One thing’s definite: Cast Away would have been a lot less exciting if Chuck had planned his affairs properly. Chuck would have really benefitted from having a comprehensive estate plan. Except for the years that he was actually on the island.
The potential litigation that could have surrounded that pocket watch – say, by one of Kelly’s cousins who states that “grandpa would never have” given Kelly the pocket watch Can you imagine if FedEx wanted to be petty and go after Chuck for opening the packages that he recovered from the crash? Hopefully the person who sent those ice skates purchased insurance.
because she’ll probably just “give it to some boyfriend who falls in love with a volleyball” – would have paid for many networking lunches at the yacht club.
Who owns it? Yes, she might have possession of it, but was it given to her in exchange for her promise to marry him? Since they did not get married, should he sue to get the ring back? She’ll probably say that it can’t be located. Chuck probably can track down where he bought it from so that he can find out how much it would cost at the time and place that he made a demand for it.
“Grandpa would never have given you that watch. He always told me that he didn’t like you anyway. — This is a family heirloom. Chuck is not related to Kelly by blood (so they’re not family) and they’re not related by While all of these issues are fun to think about, there are plenty of estate planning and probate issues to think about. After 4+ years on the island, Chuck returns home to Tennessee. There, he learns that his former dentist and Kelly have married So, she’s guilty of bigamy, isn’t she? Is bigamy still a crime in each of the 50 states? (Yes, it is). There is a I’m impressed! FedEx should give you a raise.
But he was only on the deserted island for four years! And he wasn’t even alone that whole time if you include the companionship he received from Wilson. Had Kelly remarried before her marriage to Chuck was dissolved by death or divorce, she would have been guilty of bigamy. As of my writing this in January 2025, bigamy is still a crime in each of the 50 states.
Tort law and family law aside, as an estate planning and probate attorney, I am most offended by the apparent and flagrant disregard that Chuck had for his personal affairs. I mean, he obviously loved Kelly: we’re supposed to infer that the box that he gives her before his fateful flight is an engagement ring.
In The Wizard of Oz, probate pitfalls abound.