By Delaywaves - Own work, CC BY 3.0
Artists leaving behind multi-million dollar estates is a relatively recent phenomenon.
A product of the art market’s post-war expansion, artist estates are now a niche industry, requiring dedicated archivists, curators, foundation directors, trustees, and attorneys. Death is messy, however, and artist estates are no exception. In-fighting, litigation, misappropriated funds and other controversies have plagued the legacies of some of art history’s most visionary names.
Here, we delve into three of the most notorious artist estate scandals and their unique cautionary tales, and offer guidance on how living artists can avoid a similar fate.
Mark Rothko’s estate: Conspiracy theories & art market vultures.
When celebrated painter Mark Rothko died tragically in 1970 at the age of 66, his multi-million dollar estate was to be executed by three of his longtime confidantes: an anthropology professor, a painter, and his accountant. The artist’s two children were not included in his will—instead, everything was left to the Rothko Foundation, led by the three executors, none of whom had any real understanding of the art market.
The situation quickly unraveled. The estate immediately sold one hundred of Rothko’s best paintings to Marlborough Gallery for about $12,000 each, less than a quarter of their fair market value at the time. A year after the artist’s death, his daughter Kate and her appointed guardian began a legal process intended to remove the estate’s executors for “conspiring to waste the assets of the estate”—specifically 798 paintings valued at more than $30 million, according to The Guardian—and get the paintings back from Marlborough. Things only got worse from there.
Writing in Triple Canopy, the online publication beloved by the art world’s intelligentsia, artist, dramaturgist and Guggenheim fellow David Levine recounts the tragic string of events that befell his father, the anthropology professor tasked with co-executing Rothko’s estate:
“Within two years my father had lost his job and his marriage. Within three years ‘The Matter of Rothko’ had become the biggest scandal the New York art world had ever seen. Within five years my father was fined $6 million for his role in the affair, and within ten he was dead.”
The senior Levine had gone to great lengths to prove his innocence, even secretly taping phone conversations with Marlborough's then-director—the clear-cut villain in this story, who had intentionally raided the Rothko estate for pennies on the dollar.
The case captivated the masses and was made into a documentary by the BBC. It even inspired an unlikely rom-com, directed by Ivan Reitman of Ghostbusters fame and starring Darryl Hannah. Ultimately, Rothko’s children were victorious, with the court finding that two of the executors (the painter and the accountant) were conspiring with Marlborough, since both had been listed on the gallery’s payroll. The contracts between the estate and Marlborough were declared void and Marlborough’s de facto leader was fined $9 million by the judge.
Among the revelations included in Levine’s Triple Canopy essay was the fact that Rothko had no cataloging system for his work. None. In fact, Levine’s own father had photographed the majority of Rothko’s works in 1968, resulting in three metal cases of slides that were ultimately included as evidence in the court trial.
The younger Levine also writes that, before Rothko’s death, the artist had been somewhat obtuse about the purpose of his foundation. Perhaps it was the fog of depression, exacerbated by alcoholism, but the artist, who was feeling neglected by New York’s insular art world at the time, reportedly made assertions prior to dying about using the foundation to distribute grants to “older, unsuccessful artists.”
According to Levine,
“The charter was vague, citing ‘charitable, scientific, and/or educational purposes.’ If the charitable aspect of the charter was paramount, then the executors were under obligation to secure liquid assets for the foundation, so that it could begin to fulfill its grantmaking mission; a bulk sale of the estate would therefore be prudent, to avoid the cost of insuring the paintings and the taxes that would be assessed if they were parceled out piecemeal.”
Ultimately, this story is one of naivety, on the part of the executors to be sure, but also on the part of the artist—creating a perfect storm primed for exploitation by savvy art market manipulators. The money, the emotions, and (let us not forget) the art caught up in the ensuing years-long legal battle all amount to a cautionary tale that exemplifies the worst-case-scenario of artist legacy planning gone terribly awry.
Create an estate plan that clearly outlines the responsibilities of the executors and the intentions for the artwork and any foundation that may be established.
Have open conversations with the executors and named beneficiaries as soon as you begin to plan your estate, so there are no surprises (or efforts to reinterpret the will post-mortem). Signed and notarized letters of intent and other written declarations are important to keep on file, so there the artist’s wishes are thoroughly documented.
You can upload these documents to your Artwork Archive account in the artwork’s record, or in a contact’s record. All records are linked across the database, so keeping track of beneficiaries and executors—as well as appraisals, donation agreements, and other paperwork—is streamlined and simple.
Photo by Daniel ODonnell on Unsplash
Robert Indiana’s estate: Was the reclusive pop-artist manipulated before his death?
Robert Indiana created the iconic LOVE sculpture, perhaps the defining artwork of the 1960s zeitgeist. In 1978 the artist retreated from urban life and moved to a remote island off the coast of Maine, where he lived in relative solitude until his death in 2018 at the age of 89. Since then, his legacy hasn’t been a celebration of pop art, but rather a quagmire of acrimonious legal disputes, alleged intellectual property theft, and accusations of elder abuse.
The disasterous execution of Indiana’s $100 million estate revolves around his caretaker Jamie Thomas, attorney James Brannan, a private dealer named Michael McKenzie, and Morgan Art Foundation (MAF), an art dealing entity that owns the copyright to several of Indiana’s most famous works. With no children or immediate family, Indiana’s will named both Thomas and Brannan as executors, with Thomas listed as power of attorney. The will was signed two years before the artist’s death, when he was reportedly beginning to go blind and suffering from memory loss, a form of mild cognitive impairment.
In 2018, MAF filed a lawsuit against caretaker Thomas and dealer McKenzie (effectively “the estate”). MAF claimed that the estate’s executors had deliberately isolated Indiana and “produced unauthorized reproductions of his work.” According to the suit, Thomas and MacKenzie also hadn’t compensated Indiana for sales of his works over many years, adding up to an eye-watering $50 million.
A year later, in 2019, Thomas was further accused of neglect by estate co-executor Brannan, who asserted that the caretaker had “allowed the artist to live in squalor” in his final years, a charge Thomas fully denied. Artnet reported that, “Indiana had $13 million in the bank, but when he died at his home, nicknamed the Star of Hope, it had fallen into severe disrepair, and was found to be ‘littered with animal feces and urine,’ the court papers say.” Thomas was also accused by Brannan of stealing over $1 million from Indiana, as well as hundreds of artworks he claimed Indiana had gifted him.
However, during this time, Thomas was also suing the Indiana estate for $2 million—the cost of his legal fees after defending himself against MAF’s earlier lawsuit. Not long after, Maine’s Attorney General jumped in the mix and filed charges against Brannan—alleging that he grossly overpaid himself and other attorneys from the estate’s koffers. That case was settled in 2022, when Brannan and other lawyers for the estate agreed to remit more than $2 million to Maine’s AG office.
According to a case review published by the Center for Art Law in 2022, Brannan and Thomas settled their dispute in 2021. One case, between the estate and MAF, is still pending. The study’s author, Atreya Mathur, observes the twisted irony inherent to the Indiana estate’s legal woes. “It has been almost four years since the first suit was filed,” she writes, “and millions of dollars have been spent on legal fees since Indiana’s death, with funds that should have gone to the Star of Hope Foundation, as per Indiana’s wishes.”
The sad truth about Robert Indiana is that, because he had no immediate family, his estate was easy prey for predatory forces. Seniors are often targeted in financial scams and other schemes, and it’s likely that Indiana suffered from the unethical motives of his various business partners.
While Indiana’s will seems cut and dry, the artist’s state of mind in the final years of his life is still unknown. It is possible that his caretaker manipulated him, but that’s practically impossible to prove. To avoid this situation, it’s recommended to set up your will and begin planning your estate as early as possible, while your faculties are still firing on all cylinders.
Upload your estate planning documents in your Artwork Archive account, where you can also create collections of artworks to be bequeathed to specific heirs. That way, there’s no question about what is intended for whom, potentially protecting your loved ones from future litigation.
Also, it's advised to always document any gift of art, and to keep an electronic copy of that paperwork on file. Artwork Archive allows you to label a work as gifted and link to the contact record of the recipient for quick reference.
Marfa, Texas. Photo by Mollie Lund on Unsplash
Donald Judd’s estate: A potential victim of climate change.
The master of minimalism, Donald Judd’s art is best viewed in its natural habitat, namely Marfa, Texas. Beginning in the 1970s, Judd bought up more than 50 buildings across Marfa, including a decommissioned Army base. The artist’s intent, like his art, was pure and idealistic—he wanted his works to have a permanent home in an ideal setting, one that would amplify their aesthetic with minimal distraction.
To realize his vision, Judd formed the Chinati Foundation in the mid 1980s. The Chinati Foundation, an independent, nonprofit museum, was intended to function as a curatorial platform, juxtaposing temporary exhibitions with permanent installations.
The foundation’s website states that its mission, since its founding, “has been the preservation of this unique situation, in which artists have determined how their work will be seen in permanent relationship to architecture and the land.” About a decade later, following the artist’s death, the Donald Judd Foundation was established to maintain the artist’s archives, homes, studios and libraries in both New York and Texas.
Judd stipulated precisely how his works should be displayed in their desert home, but he didn’t account for the environment’s effects over time, or the degradation of the building itself, both of which have become impossible to ignore. As written by Hilarie Sheets in a lengthy New York Times expose, when viewing Judd’s flagship work of one hundred aluminum cubes, pedantically arranged, “listen closely and you can hear the metal sculptures as they expand and contract. Some have inched out of alignment, heating up to 120 degrees...”
The issues facing both foundations include physical dilemmas, such as structural problems, leaking roofs, improper or nonexistent climate control, and unrelenting sunshine—poison for sensitive archival ephemera. The foundations say it will cost $70 million to fix all the problems without sacrificing the sanctity of Judd’s initial vision. But, the foundations are also grappingly with an existential question—namely, is deviating from the artist’s vision in response to environmental factors an offense bordering on sacrilege?
Due to Judd’s continued art historical significance, the restoration plan for Chinati and the Judd Fondations has found widespread support and generous funding. Its corporate patrons list includes about a dozen of the world’s top galleries. But there’s still a fierce debate over whether or not Judd’s vision should be updated slightly to accommodate some of the 21st century’s realities. As climate change continues to disrupt life, does adaptation require compromise, or the doubling-down on an artist’s halcyon dream?
Judd did an excellent job of securing his own legacy—too good, perhaps. Refusing to allow for any deviation from his original vision may have created an unsustainable mission. Like Frank Lloyd Wright’s iconic Falling Water in Pennsylvania, which is literally falling down, Judd didn’t fully understand what it would take to maintain his Marfa sanctuary over the span of many decades and in an increasingly unpredictable environment.
Incorporating clauses into your estate plan about the preservation and conservation of your art is a responsible way to safeguard your art—within a reasonable timeframe. Some estates are now including a “sunset clause,” which outlines when a foundation will cease operations. One example is the Holt-Smithson Foundation (named for Nancy Holt and Robert Smithson), based in Santa Fe, New Mexico. That foundation is slated to sunset in 2038, a century after the artists were born. According to Lisa Le Feuvre, the foundation’s director, as quoted in The Art Newspaper, “Our foundation intends to come to a natural end as other institutions continue our work…Our ultimate measure of success is our own obsolescence.”
No matter what, making sure your estate is properly inventoried by cataloging your art, contacts and paperwork in a digital database like Artwork Archive, is the best way to ensure that your legacy is protected after your death and your art is appreciated for generations to come.