Actor Alan Thicke – best known for his role on the TV show Growing Pains – passed away at the end of 2016, leaving behind a dispute between two of his sons and his third wife.

Recently, Thicke’s two sons (Robin Thicke and Brennan Thicke) filed a petition in California state court, seeking a ruling that a premarital agreement between their father and his third wife (Tanya Callau Thicke) be declared valid. Tanya Thicke moved to dismiss the petition, claiming that she did not intend to contest the validity of the premarital agreement. The sons argued that Tanya Thicke had previously indicated that she was planning to challenge the premarital agreement (because if she was successful in her challenge, she would receive a larger part of Alan Thicke’s estate).

In support of their argument, the sons pointed to a letter that Tanya Thicke’s attorney had sent earlier in the year, alluding to a challenge to the premarital agreement. However, Tanya Thicke argued that the letter was merely a settlement communication, which, under the rules of evidence, was privileged (and therefore could not be introduced into evidence in a judicial proceeding).

The judge ruled that he wouldn’t consider the contents of the letter (due to its privileged nature). As a result, and in light of Tanya Thicke’s representation that she was not contesting the premarital agreement, the judge dismissed the sons’ petition on the basis that there was not an active dispute over the agreement.

The dispute between Alan Thicke’s sons and their stepmother highlights a fairly common occurrence in estate disputes: pre-litigation jockeying for position. When a loved one passes away, it’s not unusual for heirs to seek out legal counsel to advise them of their rights with respect to the loved one’s estate. In scenarios where the parties’ rights are unclear, or where there’s bad blood between the parties, typically the parties will have their attorneys stake out aggressive positions under which they stand to inherit the maximum sum of money. For example, parties may claim through their attorney that a will or a trust is invalid, that a premarital agreement is invalid, that an executor or trustee is committing misconduct, etc. All of these claims may be asserted in letters from attorneys before a lawsuit is ever filed, in an effort to try to get the opposing party to back down short of litigation.

Whether pre-litigation jockeying is effective in resolving a matter short of litigation almost always depends on the strengths of the parties’ positions, their temperaments, and their desires to vindicate their positions in court. In certain scenarios, the parties may file a lawsuit for a declaratory judgment from the court (a declaratory judgment action is a lawsuit that seeks a ruling as to the parties’ rights in light of an actual conflict). That’s what Alan Thicke’s sons tried in this instance.

Interestingly, there are other bodies of law that have developed around pre-litigation threats and jockeying. In 2015, the Virginia Supreme Court ruled in the Rafalko case that pre-litigation threats of challenges to a will or trust do not trigger a no contest clause contained in a will or trust. I previously wrote a series of blog posts about the Rafalko case, and those posts can be accessed here.

It will be interesting to watch how the situation between Alan Thicke’s sons and Tanya Thicke unfolds. Something tells me that we haven’t seen the end of the conflict yet.