The Probate Exception: We’re Not Just in State Court AnymoreThe Probate Exception: We’re Not Just in State Court Anymore

The probate exception to federal diversity jurisdiction historically had been an effective bar to keeping estate and trust practitioners out of the federal courts. In the 1946 landmark decision of Markham v. Allen,¹ the U.S. Supreme Court held that the federal courts couldn’t “interfere with the probate proceedings.”² For the next six decades, the federal courts broadly interpreted that language to decline to exercise jurisdiction in cases that seemed to touch on estate matters. That is, until 2006, when the Supreme Court revisited Markham and narrowed the scope of the then-60-year-old doctrine. In Marshall v. Marshall,³ the Supreme Court moved away from the “interference” language of Markham and warned that the federal courts could no l...