Comment: Marshall v. Marshall: The Supreme Court's Get-Out-of-Probate-Free Card

Posted: 17 May 2007

See all articles by Julian Hurst

Julian Hurst

University of Washington - School of Law


The probate exception to federal jurisdiction is a legal doctrine self-imposed by federal courts barring jurisdiction over probating wills or administering estates, or related actions that would interfere with property in the custody of state courts. Courts have struggled with cases that fall at the margins of the exception, creating one of the most mysterious and esoteric branches of the law of federal jurisdiction. In Marshall v. Marshall, the Supreme Court addressed the federal probate exception for the first time in over 60 years. Eight members of the Court held that the doctrine was legitimate, but more narrow than many lower courts thought. Unfortunately, the decision leaves as many questions as answers. The history, scope and purpose of the federal probate exception, as well as its place in the Supreme Court's federal jurisdiction jurisprudence, has already been treated by other authors. I will examine Marshall's practical consequences from the perspective of probate law and for those who find themselves challenging the validity of a will or trust.

Keywords: Probate Jurisdiction, Probate Exception, Federal Jurisdiction, Marshall, Anna Nicole Smith, Vickie Lynn, Markham v. Allen,

JEL Classification: K10, K41

Suggested Citation

Hurst, Julian, Comment: Marshall v. Marshall: The Supreme Court's Get-Out-of-Probate-Free Card. Washington Law Review, 2007-2008, Available at SSRN:

Julian Hurst (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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