WHY FEDERAL JURISDICTION MATTERS: THE IMPACT OF MARSHALL V. MARSHALL ON PROBATE COURT LITIGATION

By Daryl M. Crone^*

I. INTRODUCTION

Unbeknownst to many practitioners, actions typically litigated in state probate court are potentially subject to federal court jurisdiction. As the U.S. Supreme Court clarified in 2006, the so-called "probate exception" to federal court jurisdiction extends only to the core, traditional province of the probate court, e.g., probating a will. Beyond that, the ordinary bases for asserting federal court jurisdiction apply to probate-related matters, so long as the assertion of federal jurisdiction does not unduly disturb a previous assertion by the probate court of jurisdiction over the subject property.

This is true even when proceedings originate in the probate court. A defendant facing an adversary action in probate court—such as a petition under section 850 of the Probate Code seeking the return of alleged estate property—is entitled to remove the action to federal court provided that other jurisdictional prerequisites are satisfied. Practitioners should be aware of this possibility, and that trust and estate disputes may sometimes be brought or end up in a federal forum.