Allison Elvert Graves (J.D., University of Alabama, licensed in Missouri) has recently published her comment entitled Marshall v. Marshall: The Past, Present, and Future of the Probate Exception to Federal Jurisdiction, 59 Ala. L. Rev. 1643 (2008).

Here is the introduction to her article:

The probate exception is one of the most mysterious and esoteric branches of the law of federal jurisdiction.” This often cited quote describes the uncertainty surrounding the scope of the probate exception to federal jurisdiction. It has long been held that “a federal court has no jurisdiction to probate a will or administer an estate.” This prohibition on “matters of strict probate” is generally assumed to have its basis in the Judiciary Act of 1789, which extended the same equity jurisdiction possessed by the English Court of Chancery in 1789 to United States federal courts in diversity cases.  Since the English ecclesiastical courts, not the Court of Chancery, had exclusive jurisdiction over matters of probate in 1789, courts have found that the power to adjudicate probate matters was not part of the original grant of jurisdiction to the federal courts. While the accuracy of this historical explanation has been called into question, the probate exception is a “well established feature of our federal system.”

What is not well established is the scope of the probate exception beyond matters of strict probate. The U.S. Supreme Court addressed this issue in Markham v. Allen. At issue in Markham was whether a federal district court could determine the respective rights of legatees and heirs-at-law to a share of a decedent’s estate, which was still undergoing probate administration in a state court. The district court held that it had jurisdiction over the issue, that the heirs-at-law had no interest in the estate, and that the legatees were entitled to receive the net estate. The Ninth Circuit, however, reversed on the ground that the probate exception deprived the district court of subject matter jurisdiction over the claim. The court held that since the state probate “court is in possession of the property, its right to proceed to determine heirship cannot be interfered with by the federal court.” The Supreme Court reversed, holding that “creditors, legatees and heirs” may establish their claims against a decedent’s estate in federal court to the extent that the state court is bound to recognize the federal court’s judgment in the matter. However, the federal court may “not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court.” Thus, the district court properly exercised its jurisdiction by adjudicating the rights of the heirs-at-law and the legatees in the decedent’s estate, so long as it did not disturb administration of the estate by ordering payment of property that was in the control of the state probate court to the legatees.

Prior to the Supreme Court’s recent decision in Marshall v. Marshall, Markham was the authoritative case on the probate exception. However, Markham failed to clearly define the limitations the probate exception places on the subject matter jurisdiction of federal courts. As a result, the lower federal courts were not able to agree on a uniform interpretation of Markham’s language, and this area of the law was left in a state of extreme uncertainty. This Note addresses the problems the lower courts had in applying the probate exception as set out in Markham, the Supreme Court’s attempt to clarify the Markham rule in Marshall, and the effect the Marshall rule will have on the future of the probate exception.