After the death of a spouse, litigation can frequently look a lot like a divorce. Often the death of a spouse occurs while a divorce action is pending. Other times, disputes arise after the death of a former spouse. In such circumstances, which way do I go—to the family court or to the probate court? What happens next can be reminiscent of that famous scene from “The Wizard of Oz” when Dorothy, intrepidly following the Munchkins’ advice to follow the Yellow Brick Road, comes to a fork in that road. Unsure of which way she must go, the Scarecrow, still hanging from his perch, speaks up offering advice that “this way is a very nice way,” but “[i]t’s pleasant down that way, too,” and finally, pointing in both directions, “some people do go both ways.” Of course, Dorothy had an even more fundamental question: “How can you talk, if you haven’t got a brain?” The Scarecrow’s response, though inexact, was rather wise: “I don’t know. But, some people without brains do an awful lot of talking, don’t they?” This article is intended to take a step beyond the Scarecrow’s inexact advice to help the brain make a reasoned choice of courtrooms.
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