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John V. Orth, “The Laughing Heir” What’s So Funny?, 48 Real Prop., Tr. & Est. L.J. 321 (2013).

Professor John V. Orth takes a look at the limitations of intestate succession in his recent article, “The Laughing Heir” What’s So Funny. Unless an individual is the last human being on earth, when he or she dies, a surviving relative will exist. How closely related should the relative be to the decedent in order to inherit the decedent’s estate through intestate succession?

Common law canons of inheritance did not include a decedent’s ancestors as his or her heirs. Surviving spouses were also excluded. If a decedent had no descendants, his or her nearest collateral relatives inherited the estate. As long as there was proof of a blood relationship, a remote collateral could inherit the decedent’s estate.

Now, in the United States, surviving spouses are heirs. Also, ancestors may inherit when a decedent is not survived by a spouse or descendants. About half of states have unlimited collateral succession. The other half limit intestate succession by collaterals based on either parentelic lines, degree of relationship or some combination of the two. When limitations are strict, the likelihood of a decedent’s estate escheating increases. So the question becomes, who has the last laugh? The state or a remote collateral relative.

Professor Orth suggests that a 1935 article by Professor David Cavers influenced states to adopt limitations on intestate succession. In the article, Cavers suggested that only descendants of a decedent’s parents (first parentelic line) should inherit through intestate succession. His suggested limitation was based on the shift from rural to urban life. He argued that relatives who are scattered in different locales have no “sentiment of relationship” and “family pride” diminishes. For such individuals to inherit is a social injustice, according to Cavers, because they suffer no sense of loss. In the years following the Cavers article, many states began to place limitations on intestate succession. Professor Orth challenges the Cavers assertion. No state intestate succession statute lists the emotional reaction of the decedent’s death as a requirement for inheritance. There are plenty of close relatives who have no emotional connection to a decedent. So, if intestate succession is an “estate plan by default” then why do we impose any limits?

Professor Orth leaves us to ponder whether a state should have the last laugh. I would love to see an article answering the question in the negative. Both Professor Orth and I teach in North Carolina where the intestate succession limitation is the second parentelic line (descendants of a decedent’s grandparents) and fifth degree of relationship. Most of my students think this limitation is too rigid. I tend to agree with them. Such limitation eliminates relatives who are a far cry from “laughing.” As an example, since both of my “ninety- something” year old grandmothers are alive, my children are blessed to know their great-grandmothers—third parentelic line relatives. According to North Carolina and the Uniform Probate Code, such great-great mothers are too remote to inherit from my children through intestate succession. If they were my children’s only surviving relatives, my children’s estates would escheat.

When I teach Decedent’s Estates, we look at the case of Newlin v. Gill1, a North Carolina case where the first cousin of the decedent’s mother claims that he is entitled to the decedent’s estate. Unfortunately, as a third parentelic line relative, he was not able to inherit through intestate succession and the decedent’s estate escheated.

Professor Orth says the only reason to limit intestate succession is to increase the chances that the state will receive the windfall. Is the government better able to make use of the funds than private individuals? There is no consensus on the answer. But, if intestate succession statutes are to replicate what an individual would do had he taken the time to draft a will, then most individuals do not list the state as their residuary beneficiary. So, who would you rather have laugh all the way to the bank? A first cousin once removed, your great-grandmother, or the state?

  1. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977). []
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Cite as: Camille Davidson, The Heir Who Laughs, Laughs Last, JOTWELL (January 5, 2015) (reviewing John V. Orth, “The Laughing Heir” What’s So Funny?, 48 Real Prop., Tr. & Est. L.J. 321 (2013)), http://trustest.jotwell.com/the-heir-who-laughs-laughs-last/.