Goodbye Norma Jean, Hello Estate Issues

By Ken Berry

It's been over half a century since Marilyn Monroe passed away at age thirty-six, but her estate is still involved in tax-related litigation.
The Hollywood icon, who was immortalized in song by Elton John's "Candle in the Wind" (Goodbye Norma Jean), bequeathed most of her estate to her acting mentor Lee Strasberg, legendary in his own right. After Strasberg died in 1982, his share passed to his wife, Anna. Anna became executor of the estate in 1989 after the death of Monroe's attorney, Aaron Frosch.
Anna Strasberg established a limited liability company (LLC), known as Marilyn Monroe LLC, in 2001 to oversee the assets of Monroe's estate. She controlled 75 percent and 25 percent was controlled by the Anna Freud Center, a therapy clinic. (The rights were subsequently sold in 2010 to another LLC, the Estate of Marilyn Monroe LLC, but Anna reportedly retained a minority role.)
Monroe had died in California after being fired by 20th Century Fox for her "unprofessional behavior" while she was filming Something's Got to Give. But she had kept her New York apartment during that time. In numerous proceedings, Frosch successfully maintained that Monroe was domiciled in New York when she died, primarily as a way to avoid hefty California estate taxes.
Here's where things get complicated: In 2005, Marilyn Monroe LLC sued the Milton H. Greene Archives and Tom Kelley Studios, claiming that they had violated its rights by using Monroe's image and likeness for unauthorized commercial purposes. Greene was a long-time friend, confidant, and photographer of Monroe, known for taking intimate photos of her. Kelley was another photographer who worked with Greene. 
The Milton H. Greene Archives and Tom Kelley Studios countersued, seeking a declaration that Marilyn Monroe LLC didn't own Monroe's right of publicity. In 2007, a district court in California sided with the Greene Archives and Kelley Studios. The court noted that neither California nor New York recognized a posthumous "right of publicity" at the time of the actress' death.
One month later, in direct response to the court's ruling, legislation was introduced in California to provide a statutory right of publicity, which would be deemed to have existed at the time of death of any deceased celebrity who died before 1985 and would be freely transferable to that person's estate. When the law was enacted, Monroe LLC sought reconsideration of the district court's ruling. The case turned on whether Monroe was domiciled in California or New York at the time of her death.
The court acknowledged that the law change in California would have allowed Monroe LLC to inherit the right of publicity retroactively. But it agreed with the Greene Archives that New York law applies if Monroe was domiciled in New York at the time of her death. Under New York law, Monroe's right of publicity would have expired at her death.
In other words, Monroe LLC and other representatives, including Anna Strasburg, can't have it both ways. They've maintained since her death that Monroe was domiciled in New York to reduce estate taxes, but now they want to shift to a California domicile after legislation would retroactively provide greater financial gains. Final result: Monroe LLC is judicially estopped from taking the position that Monroe was domiciled in California at her death.
The district court judge, Kim McLane Wardlaw, concluded with a rebuke of Monroe's estate representatives by citing the former Norma Jean Baker's oft-quoted line, "If you're going to be two-faced, at least make one of them pretty." In this case, those representatives simply ended up with egg on their faces.

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