On June 12, 1969, eight months prior to Rothko’s death on February 25, 1970, the Mark Rothko Foundation was incorporated as a nonprofit entity in the State of New York. In his will of September 13, 1968, Rothko had named the Foundation as the primary beneficiary of his estate. The will listed the following as directors of the Foundation: William Rubin, Robert Goldwater, Bernard J. Reis, Theodoros Stamos, and Morton Levine. Reis (1895–1978), Rothko’s long-time accountant and financial advisor; Stamos (1922–1997), a painter; and Levine (1922–1982), a professor of anthropology, were also appointed executors of his will and his estate
The Foundation’s mission was ill-defined but was ostensibly intended to provide financial grants and other assistance to artists. To this end, the executors of the estate moved quickly to sell and consign the most desirable works in the estate to Marlborough A.G., a Liechtenstein corporation with numerous international galleries, and Marlborough Gallery, Inc.
, its New York affiliate. In November 1971, the artist’s twenty-year-old daughter, Kate Rothko, filed a lawsuit that initiated proceedings against the three executors of her father’s estate; Marlborough A.G.; and Marlborough Gallery, Inc., New York. The proceedings commenced in Surrogate’s Court, New York County, where they were overseen by Surrogate Millard L. Midonick. Kate was joined in her complaint by the guardian of her then seven-year-old brother, Christopher. Their petition sought a rescission of the two-part contract of May 21, 1970, between the executors of Rothko’s estate and Marlborough A.G. / Marlborough Gallery, Inc., New York; restitution of the 798 paintings sold or consigned to the galleries; and the removal of the executors on grounds of conflict of interest, collusion with Marlborough, and wasting of assets of the estate.
The trial began on February 14, 1974, and lasted eighty-nine days. On December 18, 1975, New York County Surrogate’s Court ruled against the executors, ordering their dismissal and appointing Kate Rothko as the estate’s sole administrator. The two-part contract of May 21, 1970, was rescinded, and Marlborough was ordered to return to the estate 658 paintings that had not been sold to bona fide (non-party) purchasers. The surrogate found Reis, Stamos, Marlborough A.G., and Marlborough Inc., New York, jointly liable for a total of $9,252,000 in damages and fines, the bulk of which was determined by the market value of paintings sold; Levine was found liable for a lesser amount. The ruling also dictated the distribution of the estate. Because the children had inherited what was determined to be one-ninth of the works by their father through their mother’s estate in 1970, the surrogate directed that five-ninths of the remainder of the estate should go to the Mark Rothko Foundation and four-ninths to the children, resulting in each party receiving an equal share of the total estate [see Estate of Rothko, 84 Misc. 2nd 830, 379 N.Y.S.2nd 923 (Sur. Ct. 1975)].
In early 1977 a new Foundation board was recognized following the dismissal of several rounds of appeals, including a case brought to the Supreme Court of the State of New York by previous Foundation board members challenging the legitimacy of the new board. Donald M. Blinken was appointed president of the board comprised of Dorothy C. Miller, Gifford Phillips, David A. Prager, Emily Rauh Pulitzer, Irving Sandler, William Scharf (1927–2018), and Jack Tworkov (1900–1982).
In 1979 the Rothko estate was distributed according to the 1975 court ruling, with 50 percent going to the Foundation. From 1980, David Roger Anthony oversaw a comprehensive inventory and photo-documentation of the collection. Curator Bonnie Clearwater and conservator Dana Cranmer cataloged the collection and undertook necessary conservation treatments. A twelve-member independent advisory committee elected to distribute the collection among public institutions that would extend the mission of the Foundation. In 1986, upon completion of cataloging and documentation of the works, the Mark Rothko Foundation distributed its collection of more than 1,200 works on canvas and paper through gifts to twenty-nine museums in the United States and six museums abroad, including the National Gallery of Art
, which received the largest share. At this point, the Mark Rothko Foundation ceased operations.