“An Estate Plan For Kanye West” provides a wealth of information and teaching points, all while keeping you engrossed through a compelling writing style and relatable pop culture references. After all, the very subject is the enigmatic and polarizing hip-hop icon himself, Kanye West—one of the premier pop culture identities of our day and age.
The article takes a deep dive into analyzing viable estate-planning alternatives for the disposition of what’s likely to be a valuable asset in Kanye’s estate —his right of publicity. Under California law, where Kanye is currently a resident, Kanye’s right of publicity is a descendible asset (California recognizes a post-mortem right of publicity that’s protectable for up to 70 years after the death of the deceased personality). California defines this right of publicity as the individual’s “name, voice, signature, photograph or likeness.”
A necessary prerequisite to comparing the viability of estate-planning techniques is to have an estate planning goal that such techniques aim to achieve. This article assumes that Kanye’s primary estate-planning goals with respect to his right of publicity are to ensure the long-term integrity and protection in the use of his personality and to benefit his descendants. That is, Kanye would like to ensure that his “brand” isn’t soiled after his death and that the cashflow generated from his right of publicity benefits his four minor children, North, Saint, Chicago and Psalm (and not others). Kanye also wants to promote cohesion among his family and discourage in-family fighting. Finally, Kanye wants to accomplish these ends in a straightforward manner, to the extent possible.
Kanye’s strong desire to protect his image strikes one as a plausible goal in his estate planning, as Kanye has gained a reputation to be somewhat self-obsessed (See “I Love Kanye” by Kanye West and “I love you more than Kanye loves Kanye” memes). This, combined with the fact that Kanye’s likeness has immense value, makes Kanye ideal fodder for the article’s examination of a unique estate-planning concern—an examination of techniques for the disposition of a right of publicity.
The article starts with the simplest techniques for disposing of Kanye’s right of publicity and gradually moves through more complex techniques, deftly discussing each technique in detail and the advantages and disadvantages of such techniques as well as how they might cater to Kanye’s goals.
Naturally, the first technique discussed is to distribute Kanye’s right of publicity to his children outright. This technique wouldn’t accomplish Kanye’s goal of protecting his image because his children could do whatever they wanted with the right of publicity. Kanye’s primary goal of preserving his brand wouldn’t be accomplished.
Next, the author discusses a few mutations on a bequest using future interests limitations. In one example, the author notes that Kanye could direct that his right of publicity be distributed to his children, “so long as such [such right is not used] in any demeaning, shameful or abject fashion” (that is, a fee simple determinable interest given to the children). However, the author notes that there’s an inherent flaw with this approach—the possibility of a reversion would lie with Kanye’s estate. So if the use restriction is violated, then the estate has the right to enforce the restriction, and if the rest of Kanye’s estate goes to his children, the only people who could sue the children to enforce the use restriction would be . . . the children. Clearly, this is an untenable technique and wouldn’t protect Kanye’s brand in an enforceable manner.
The author next proposes the alternative that Kanye include contractual language in his will that would contain an enforceable use restriction. The primary downside to this technique is that a violation of acceptable use would be enforced by Kanye’s estate—this sets up possible litigation between his estate and his children. If his children’s use of their father’s likeness could be reasonably interpreted as violating the use restriction, the estate may bring an action and the children could find themselves embroiled in litigation. Surely, teeing up a battle between his estate and his children isn’t a worthwhile downside of using this technique.
Finally, the author approaches the possibility of a trust structure and notes many of the benefits of such a structure that estate planners will find all too familiar. Among these, the author notes the benefits of management of the asset being retained in one trustee, rather than divided among the four West children, who may disagree as to uses of such an emotionally charged and valuable asset. The trust structure would provide creditor protection, and spendthrift language would ensure Kanye’s children couldn’t alienate their interest in the asset—both of which would accomplish Kanye’s goal of continuing to benefit his children, not others.
But while the traditional trust structure serves magnificently in accomplishing Kanye’s goal of providing for his children, does it ensure that Kanye’s likeness will be preserved with integrity in the manner he wishes? Absolutely not. A trustee’s fiduciary duties must be directed towards the beneficiaries of the trust. The trustee has a duty to protect and preserve the beneficiaries’ economic interest in the trust, and this duty will trump any duty to protect any specific feature of the trust property such as protecting Kanye’s brand in the manner he wishes.
After reading through all of the above, I was left in the proverbial cliff hanger position as to what solution the author was going to offer. Admittedly, I didn’t see the next curve ball coming: the pet trust.
Typically, trusts must have an ascertainable beneficiary. Under common law, without an ascertainable beneficiary, the trustee wouldn’t be accountable to anyone, and the trust must fail. Pet trusts are unique in that they don’t benefit an ascertainable beneficiary, but they benefit property—a pet. As the author notes, many jurisdictions (including the 35 states that have adopted the Uniform Trust Code) have enacted statutes to authorize the use of pet trusts. Born out of the pet trust was the special purpose trust, which allows a trust to be directed, not towards the economic benefit of individual beneficiaries, but for the preservation or maintenance of any lawful purpose. For example, a purpose trust could be established for the preservation and maintenance of Kanye’s right of publicity.
The author’s proposed solution, a purpose trust, would essentially charge the trustee with balancing the financial interests of Kanye’s children with the duty to preserve Kanye’s likeness in his intended manner. It’s noted that a trust enforcer, the individual charged with keeping the trustee in check with protecting these interests, should be thoughtfully selected.
The author’s article does a great job of exploring lots of possible solutions to the hypothetical task at hand and eventually arriving at a rather very creative, surprisingly esoteric and downright elegant solution. This article keeps you entertained and keeps you thinking. A worthy read indeed.