Alimony from a Dead Man

When you win a case by getting alimony from a dead man, you’ve got a right to boast a little. But Shannon M. Fitzpatrick is modest about her accomplishment.

“I think that the significance has been overblown somewhat,” she says in an assessment of the case that led Massachusetts Lawyers Weekly to name her among the top 10 Massachusetts lawyers in 2003. The case, Cohan v. Feuer, turned on whether alimony payments should continue after an ex-husband’s death. Cohan probably would have been settled out of court except for three factors: the litigants’ rancor; the client’s willingness to go forward; and Fitzpatrick’s novel argument that what looked like an alimony dispute could be approached instead as contract law.

The story begins in 1973, when Barbara Cohan, now in her 70s, was left by Dr. Henry Cohan, her husband of 18 years. She was awarded alimony and child support, but Henry proved less than reliable: he left New Jersey, where they lived, was jailed for nonpayment in New Jersey, then fled to Massachusetts, while his family subsisted on welfare. Eventually, though, the Cohans settled on a new agreement that clearly awarded Barbara $475 a month in alimony until she died or remarried. She did neither, but Henry died in 1998, leaving as his heirs children from another marriage, who resisted Barbara’s claims on the estate.

“I really think you’ve got a chance of convincing a court that when he dies the estate is still liable,” Fitzpatrick advised another attorney, who was then representing Barbara Cohan.

A trial judge was unconvinced, deciding against Barbara on summary judgment — which is when Fitzpatrick got involved. Experienced in handling appeals, and relishing a good courtroom fight, she was ready to take the case to the next level. This time, her argument succeeded, and an appeals court ruled in May 2003 that the language of the agreement meant the alimony must continue.

Alimony agreements tend to address the death of either spouse, so Fitzpatrick doesn’t expect the decision to have broad ramifications. “I look at it not so much as something that’s going to happen frequently,” she says, “but as, this woman deserves what’s coming to her.” Still the ruling hit a nerve — and sometimes a funny bone. Both Boston newspapers picked it up, an online forum had a heyday with it and, most consequential, the Supreme Judicial Court (SJC) agreed to review it this past December.

At Nathanson & Goldberg, the small Boston firm where she has worked since 1996, she covers general civil litigation, but it is the civil rights cases and, increasingly, post-Cohan, family law cases that fire her up. “I seem to get the cases that are really, really difficult,” she says, sounding as if she doesn’t mind in the least. Recently, she successfully represented a man claiming eligibility under his great-great-aunt’s trust. At issue: he was born out-ofwedlock, a status viewed differently 50 years ago when the trust was written.

Passion for the law sneaked up on Fitzpatrick, 47. She graduated summa cum laude from the University of Minnesota, not knowing what she wanted to do next. Next turned out to be a law degree from Georgetown and that turned out to be the right move — she ended up graduating magna cum laude.

“The cases I enjoy the most [are] where I feel that somebody has had wrong done to them and they haven’t gotten justice. I enjoy that battle and I enjoy going to bat for these people.” Those cases, she says, are “the epitome of what I went to law school for.”

As for Barbara Cohan’s battle, regardless of the SJC’s decision, “I’m happy to do it even if we end up not getting paid anything. She just deserves for somebody to be in her corner.”