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The Case for a Federal RAP

Eric A. Kades, A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust (“DFT”) (2019), available at SSRN.

In a majority of U.S. jurisdictions, at least for purposes of trust law, the Rule Against Perpetuities (“RAP”) is dead. Yes, it’s true. In recent years most states either substantially weakened or completely eliminated their Rules Against Perpetuities. This fact has major implications for the wealthy, and more so for the ultra-wealthy. Freed from the restrictions of the RAP, those with the means and inclination can now create trusts that entrench great wealth within their families forever.

Eric Kades is concerned about this. In his second article addressing the potential repercussions of RAP repeal, A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust (“DFT”), Kades proposes a reinstatement of the RAP, this time in federal form, something he wants to call “The National Anti-Feudalism Act.” This prescription comes after he engages in a kind of predictive analysis of the imagined estate planning of the ultra-wealthy, improbably informed by his reading of evolutionary biology. According to Kades, evolutionary biology should play a “significant role” in “explaining patterns of inheritance behaviors.”

If you read Kades’s last article on the implications of perpetual trusts born of RAP repeal (Of Piketty and Perpetuities: Dynastic Wealth in the Twenty-First Century (and Beyond)),1 his conclusions here might come as a surprise. In that article, although Kades expressed a concern about the “significant evidence of a positive correlation between inequality and undemocratic governance,” he pointedly refrained from arguing for a reinstatement of the RAP. Instead, based on his identification of two arcane economic problems that might be caused by long-term trusts, Kades offered prescriptions in the form of bespoke taxes designed to offset those problems. (Readers looking for a more thorough encapsulation can access my review of Kades’s 2019 article here.) But the current article is not technically inconsistent with the prior one—at least not in all respects.

Kades remains very concerned about the political implications of permanent concentrations of great wealth in a “small circle” of families. He makes reference to the outsized political and economic power wielded by the ultra-wealthy, wealth’s potential to undermine democracy, and its tendency to skew “life chances in favor of the fortunate few.” He further points out that today’s legal tools make it far easier to create a “feudal caste system” (he refers to it as a “New Feudalism”) than did the comparatively crude English common law traditions of primogeniture and the fee tail.

But while in the prior piece Kades set aside the political objections and suggested that we could tolerate permanent family trusts so long as their potential negative economic effects were curbed by targeted taxation schemes, here he wants them stamped out entirely. And here he dispenses with sophisticated and technical economic arguments and focuses instead on the simple facts of the imagined features of estate plans of ultra-wealthy families enabled by perpetuities repeal. After speculating on the wealth and status-entrenching features of these plans, he ticks off the potential social harms of inequality, and concludes with his federal prescription: prohibit them with a federal RAP.

As mentioned above, Kades’s professed insight into the specific features of the trusts that he is sure will result from RAP repeal is gained from general principles of evolutionary biology, applied to the presumed motivations of the ultra-wealthy. Diving into the relevant literature, he points out that evolution has selected humans to “strike a nuanced balance between the quality/status of their descendants and the number of such descendants.” Much recent research in evolutionary biology has apparently focused on “the central role that status-seeking has played in human evolution.” In modern society, high placement in the status hierarchy has a positive effect on reproductive opportunities—among humans as well as apes. This explains why those at the top economically often have fewer, not more, children. When resources are limited, it is easier to confer status on a few, and thereby give those few greater reproductive opportunities.

Importantly, status is “a relative or positional good.” One cannot achieve status without competitors; it is only obtained in relation to others. This means that one must invest in the status of offspring with a view toward surpassing the status of others—one’s offspring’s place in the hierarchy is all that counts. A kind of arms race is created, with parents in competition to confer status on their children so that they may at least keep up with, if not surpass, those of other parents. Evidence shows that this is a good evolutionary bet. Humans at higher points on the status hierarchy survive myriad disasters and crises at higher rates. And biological selective pressures are ongoing. “Either as a proxy for long-term fitness or as a maladaptive holdover from simpler times, the driving force behind fertility and inheritance decisions appears to be seeking high status for children rather than simply having a maximal number of them,” Kades writes.

How is this done in contemporary society? The raw material is wealth, of course, and while humans have massive amounts of it, its distribution among them is massively unequal. The tools that mobilize that wealth are the extraordinary cognitive abilities of humans in relation to other animals, along with complex legal and other devices enabled by “pervasive powerful legal institutions.” Armed with the requisite resources and tools, humans seeking status for their progeny will set about creating that status. But there being “essentially nothing in the inheritance literature on status maximization,” Kades is free to speculate on how this might be accomplished. And he is not concerned with wealth transfer techniques of the masses remember, but rather those of the super wealthy in a post-RAP environment.

What does Kades’s “rational dynast” do? Here is where Kades begins getting conjectural, using what he has learned of the general principles of evolutionary biology to speculate on quite concrete features of his typical dynast’s estate plan. He contends that the focus will be on family rather than individual status, with a goal to “maximize [the dynast’s] bloodline’s standing in society.” His dynast eschews short-term thinking and will implement a plan that will maintain or increase long-term family status. In an admitted departure from his earlier article mentioned above, Kades now maintains that his dynast will deemphasize generational focus in favor of individual descendants who are most likely to achieve very high status. Kades also takes some of his thinking here from his review of the English history of primogeniture and fee tail. And not all of his thinking is speculative. He conducted interviews of lawyers who exclusively represent ultra-high net worth clients in their estate planning.

The more detail Kades provides as to the various contours of the trusts he envisions (“Dynastic Family Trusts,” the “DFTS” of his title), the more he strays into a less tethered conjecture. And some of the features he envisions are based on assumptions or summaries of trust law that lack nuance. But that’s not to take away from his major points, which land quite well. “We are in the early days of a RAP-free America. Dynastic trust planning is in its infancy. We simply do not know the extent to which extremely wealthy aspiring dynasts will leave their large estates in DFTs with terms like those explored here, and we don’t know how effective such trusts would be in projecting family status and power for generation after generation,” he writes.

That claim is hard to argue with, as are his points about the potential of these trusts to further distort the political system and subvert democracy. The ever-expanding American conception of absolute freedom of disposition at bottom is, as Kades aptly puts it, “a deontological statement of faith rather than a case rooted in the social values of efficiency and fairness.” A federal RAP may not be the only or even “the surest means for preventing the rise of a New Feudalism,” as Kades maintains, but it would certainly be a step in the right direction.

  1. 60 B.C. L. Rev. 145 (2019)
Cite as: Kent D. Schenkel, The Case for a Federal RAP, JOTWELL (July 12, 2021) (reviewing Eric A. Kades, A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust (“DFT”) (2019), available at SSRN), https://trustest.jotwell.com/the-case-for-a-federal-rap/.

Update of Jotwell Mailing Lists

Many Jotwell readers choose to subscribe to Jotwell either by RSS or by email.

For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from the Trusts & Estates section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.

The links at the subscription portal already point to the new email delivery system. It is open to all readers whether or not they previously subscribed for email delivery. From there you can choose to subscribe to all Jotwell content, or only the sections that most interest you.

If a Will is Never Probated, does it Make a Sound?

Katheleen Guzman, Wills Speak, 85 Brook. L. Rev. 647 (2020).

Interim Dean (Dean) Katheleen Guzman explores the pre-death relevance of a will by determining whether or when a will speaks. She analyzes the legal consequences of a validly executed will before death and the potential property rights of devisees of the will. The focus and thesis of the article reminded me of the adage, “if the tree falls forest and no one hears, does it make a sound?” In translation, I thought, “Does a will make a sound (have a legal effect) if it is never probated?”

As professors, we typically teach that wills are testamentary documents that have no effect until after the death of a testator and probate by the court. Dean Guzman challenges this perspective of the law by exploring the pre-death effect of a will. First, she makes a distinction between property rights and expectancies by comparing deeds to wills. While adding a name to a deed makes a present transfer of property, adding a name to a will may transfer property in the future. Because the will does not currently transfer property, the named devisee has an expectancy, which is not the equivalent of a present or future property interest.

Dean Guzman acknowledges the efficiency and wisdom in the current law that leaves property rights undisturbed for the testator who names a beneficiary in a will. Thus, transforming a will to make it operate like a deed would render the will irrevocable. This likely would have unintended consequences because testators would not have the opportunity to change their minds. Testator intent is foundational in wills law, and efforts to negate that intent would likely fail. Dean Guzman also posits such changes would lead to an even lower incidence of will executions and may pauperize the testator, thereby shifting the cost of care of the testator to the public. Even so, she challenges the notion that wills have no “voice” until after death; instead, she indicates, a will may speak upon execution.

Dean Guzman explains that testation is a form of speech by communicating with oneself through an expression in the document. The will execution heightens this expression when the testator “publishes” the will (a requirement in some states) because publication is a clear statement of testamentary intent. As Dean Guzman explains, a will has pre-death significance insofar as post mortem questions about interpretation or even incorporation by reference can make the date of execution significant. As such, the will execution represents a time when the will “speaks.” It has pre-death significance because it may have a legal effect on post-death title transfers.

Dean Guzman also explains how the execution date may affect standing to challenge a will. She briefly describes issues associated with standing and how often will challenges occur. She then explains the multiple ways the execution date may impact standing which identifies another time when wills communicate pre-death. In this way, wills also “speak” pre-death by changing beneficiaries or property bequests in a subsequent will. The revocatory effect occurs on the execution date of a subsequent will. The new will evidences the testator’s intent and “silences” the prior will. Thus wills do have an under-appreciated legal effect before probate.

In this article, Dean Guzman raises important policy questions. She does not suggest changes in the law as much as she expands the way we read and perceive the law. Her insight encourages a more nuanced appreciation of how wills operate. She encourages me both to think differently about how I teach the importance and impact of wills pre-death and also to question antiquated laws that have precedential value, but may need further explanation or expanded application based on Dean Guzman’s insight.

This article is also interesting because it offers various perspectives on how a will communicates, or has legal effect, before probate. By analyzing the many ways in which will executions impact post-death transfers, Dean Guzman correctly states how we should expand the ways we view and teach the legal pre-death significance of wills to our students. A will is an instrument that transfers property after death through the probate process, and the probate process is necessary to consummate the change. The more significant issues arise when we gloss over steps between the date of execution and ultimate title transference. By focusing on the will’s legal significance in the time period between writing and execution on the one hand, and death on the other, we may facilitate understanding of the critical role a pre-probate will plays in title transfers.

Cite as: Phyllis C. Taite, If a Will is Never Probated, does it Make a Sound?, JOTWELL (June 22, 2021) (reviewing Katheleen Guzman, Wills Speak, 85 Brook. L. Rev. 647 (2020)), https://trustest.jotwell.com/if-a-will-is-never-probated-does-it-make-a-sound/.

Subsequent Marriages and the Elective Share

Naomi Cahn, What’s Wrong About the Elective Share “Right”?, 53 U.C. Davis L. Rev. 2087 (2020).

I have long been perplexed by the inconsistency between the rights of divorcing spouses which are governed by family law rules and the rights of surviving spouses which are governed by trusts and estates law. While the rules governing the distribution of property at divorce and the elective share right both claim to reflect a partnership theory of marriage, Naomi Cahn’s article, What’s Wrong About the Elective Share “Right”?, demonstrates that the elective share does not further a partnership theory, at least not in cases involving subsequent marriages, and further fails to recognize and adequately balance the interests of multiple families.

Cahn analyzed all of the elective share cases from January 2014 though January 2019 available on Westlaw and Lexis. Although the number of cases was relatively small (71 cases), the results are illuminating. First, they suggest that the overwhelming majority of surviving spouses who seek an elective share are women. Seventy-eight percent (56/71) of the claimants in Cahn’s study were women. This is not surprising because, as Cahn explains, women tend to live longer than men and to marry men who are older than they, especially in subsequent marriages (marriages other than first marriages). I was, however, intrigued by Cahn’s findings that the typical elective share case pits a stepmother against her stepchildren, or, more precisely, against her former stepchildren. Eighty percent of the cases in Cahn’s study involve subsequent spouses who challenged a will that left most of the property to the decedent’s children from a prior relationship.

In addition to its empirical findings, the article reveals the problems with including non-marital property—which is not available for distribution at divorce in the majority of states—is the augmented estate used to calculate to the elective share. Cahn demonstrates that by including non-marital property in the augmented estate, trusts and estates law strays from the conception of marriage as a partnership. After all, if decedent acquired particular property before the marriage and the surviving spouse never had the opportunity to make any contributions to its acquisition or maintenance, then the property is not the result of marital efforts—it is not the result of a partnership. Thus, the rationale for the elective share would appear to depend on its original purpose—to provide support for needy wives—rather than the partnership rationale.

Cahn’s conclusions are nuanced. She acknowledges that in first marriages, especially those of long duration, the elective share likely reflects and furthers the notion of marriage as a partnership. She explains that in those marriages, especially if the couple raised children together, each spouse might have assumed a different role in the marriage which impacted their earnings during the marriage as well as their earning capacity. The surviving spouse in those cases, who is typically a woman and has fewer assets for retirement, is the traditional claimant that many, if not most, would agree should benefit from the elective share.

In contrast, Cahn demonstrates, these justifications for the elective share are less likely to be present in subsequent marriages, especially in later-in-life marriages where there are no young children that need caretaking, and where the spouses bring with them economic and human capital that they may have built in an earlier marriage with another partner. Although Cahn does not put it quite so bluntly, I quickly came to the conclusion that the subsequent spouse who is seeking an elective share may stand to benefit from the investments and sacrifices made by the decedent’s prior spouse(s) to the detriment of decedent’s children from a prior family. Thus, the elective share may result in a windfall to the subsequent spouse.

Cahn further reminds us that the way a marriage ends—either through death or divorce—affects the way property is distributed even though there is no justification for this distinction. She points out that in some states, a spouse who stays in the marriage until death may receive more property than one who divorced, but in other states she may receive less depending on the state’s approach to division of property at divorce and what property is included in the augmented estate. Despite these inconsistent approaches, all claim to honor a partnership theory of marriage.

In Cahn’s view, we need an elective share that “explicitly accounts for multifamily partners and changes the focus from the surviving spouse alone to the family more generally.” (P. 2119.). Family law scholars and practitioners would agree and note that family law takes into account the complexity of families and obligations to multiple members. For example, child support guidelines in some states expressly consider a parent’s financial obligations—alimony and child support obligations to a prior family—when calculating a child support award for a subsequent child. In addition, at divorce, most states consider the contributions that each spouse made to the acquisition and maintenance of property, thereby recognizing a partnership theory of marriage and limiting the likelihood that a subsequent spouse will unfairly benefit from the contributions of a prior spouse.

Cahn proposes several reforms to account for the interests of both first and subsequent families. I will focus on two. First, similar to the approach followed by the majority of states at divorce, she proposes excluding non-marital property and including only property acquired during the marriage in the augmented estate. She explains that this approach is in line with a partnership theory of marriage and will allow spouses in longer marriages to receive more property than spouses in shorter marriages. Cahn acknowledges the administrative costs and disputes that will likely result when property must be classified as marital and non-marital. I was persuaded, however, by her argument that these challenges are outweighed by the benefits of having the elective share reflect the partnership theory and mirror the approach that most jurisdictions follow when dividing property at divorce. Moreover, given the small number of cases involving a claim for an elective share, as shown by Cahn’s study, these costs and disputes would arise in a relatively low number of cases.

Second, Cahn grapples with the challenges raised when the decedent has more than one family such as a subsequent spouse and children from a prior relationship. In these cases, the will may have left most of the property to the children from the prior relationship but if the subsequent spouse seeks an elective share, the children receive less than the decedent intended. Cahn suggests that one way to protect the children’s interest is to exclude from the elective share pot any property that the decedent left to the children. While this is the approach followed by the Uniform Probate when calculating a share for an omitted spouse, I fear that in cases in which the decedent leaves most of the property to the children from a prior relationship, this approach would completely disinherit a subsequent spouse, including one in a long marriage that resulted in the accumulation of substantial marital property, thereby depriving the spouse of the fruits of the marital partnership. Cahn acknowledges this inequitable result, noting that is the result in cases involving an omitted spouse. She does not provide a solution, however.

This tension between the interests of multiple families brings me back to the reasons this short piece is so valuable. Cahn does not pretend to have all the answers; rather, she is challenging us to consider the inconsistencies, inequities, and justifications for rules that do not reflect the realities and complexities of families in the 21st century. I hope some of us will take on these intractable questions.

Cite as: Solangel Maldonado, Subsequent Marriages and the Elective Share, JOTWELL (May 14, 2021) (reviewing Naomi Cahn, What’s Wrong About the Elective Share “Right”?, 53 U.C. Davis L. Rev. 2087 (2020)), https://trustest.jotwell.com/subsequent-marriages-and-the-elective-share/.

Trust Law Secrets, Revealed

Mark J. Bennett & Adam S. Hofri-Winogradow, The Use of Trusts to Subvert the Law: An Analysis and CritiqueOxford J. of Legal Stud. (2021), available for free on SSRN as Against Subversion, a Contribution to the Normative Theory of Trust Law.

For those who pay attention to trust law developments, it’s clear that a vast transformation in trust law is taking place. American states like Wyoming, Alaska, Nevada, Delaware, and South Dakota are rewriting their laws to permit trusts that promise perpetual duration, maximum asset protection, and continued settlor control in order to compete with offshore jurisdictions for billions of dollars in trust business. Even for those who don’t usually take notice of trusts, trust law and the uses of the trust as a mechanism to create and perpetuate wealth inequality is becoming better understood. Katarina Pistor, for example, has aptly explained how trusts are “one of [the] most ingenious modules for coding capital” in Anglo-American law.  Moreover, economists like as Emmanuel Saez and Gabriel Zucman, have increasingly started to look at the roles of trusts in building a landscape of wealth inequality.

Into this conversation step Mark Bennett and Adam Hofri-Winogradow with their new article entitled, The Use of Trusts to Subvert the Law: An Analysis and Critique. Their aim is to widen the scope of the debate and inquire into what constitutes a proper normative theory of the trust. This type of inquiry has been fraught, the authors remark, in part because the normative nature of the trust is law-subverting – a poorly kept secret but one that nobody wants to discuss in polite company.

The trust – to clarify, the authors are discussing private, family trusts that use discretionary distribution terms to preserve family wealth – has, as the authors point out, been law-subverting since medieval “uses” enabled English feudal lords to avoid “liabilities consequent on holding land” (otherwise known as taxes). Nevertheless, the authors comment, the trust’s law-subverting powers have routinely been either ignored or minimized. Consequently, as they state, it is “high time to focus scholarly attention on the more problematic uses of the trust rather than on those which are obviously benign.” Any complete theory of the trust, they suggest, should grapple with the fact that the trust has – both historically and presently – allowed individuals to avoid certain legal obligations, like debts to creditors (including the tax authorities).

Scholars have in the past theorized the trust in a number of ways without mentioning its law-subverting capacities. Some scholars have pointed to the protective nature and function of the trust. As Avihay Dorfman says, trusts are a way of “providing for people who cannot themselves directly hold private ownership rights to assets, whether because they are legally unable to manage such rights, as in the cases of infants or mentally disabled adults, or because owning property would subject them to some prohibitive cost that far exceeds the ordinary costs of private ownership, as where the pursuit of some vocations requires not owning property that would lead to conflicts of interest.”  Alternately, scholars have proposed economic explanations for trust law and have promulgated the facilitative nature of trusts.

Scholars have, in these normative discussions, justified the law-subverting uses of the trust in two main ways. The first justification is the “property autonomy” argument, which states that “people should have as much autonomy in using and enjoying their property as possible.” The second justification is that using a trust to subvert other (primarily tax) rules is a valid response to a confiscatory and overreaching government. That is to say, subversion is “a bulwark against unjust state demands.” The authors contend that “such justifications are not valid in liberal democratic jurisdictions and cannot justify the characteristic use of the trust for subversion of the law.” The outcome of this analysis – which should give trust scholars (as well as state legislatures) much food for thought and fodder for future work – is that “a legitimate law of trusts will require anti-subversion measures to be constantly improved to deal with the potential for subversion resulting from the flexibility of the trust device.” And, if anti-subversion measures don’t work, the authors warn that a last resort might be “a closed list of permitted trust types.”

The authors, in this timely intervention, do an excellent job of revealing the secrets of trust law that have been hiding in plain sight for quite some time. In this respect, they build on the original insights of Roger Cotterrell, who pointed out some thirty years ago that “[t]he trust provides a way of freeing the property owner from constraints which the ideology of property otherwise imposes on her or him through its logic.”

What the authors do not focus on, but what lies just below the surface, is the role or place of equality in law. The authors point out that a primary justification for trust law’s subversive capacities is autonomy; what they leave unsaid is that this focus on autonomy all but erases equality concerns and values. In the theoretical domain, the erasure of equality values has created a normative vision of trust law that prioritizes individual freedom and benefit over collective good; and, in practice, this erasure of equality values is directly linked to staggering wealth gaps – all inflected with questions about race, gender, and class.

Ultimately, the erasure – or at least the suppression – of equality values in trust law begs two questions. We might first ask whether law has the capacity to incorporate and instantiate robust equality values. It may be argued that penetrating the inherent conservatism of trust law as a regime designed to uphold elite capitalism and historical privilege is an uphill battle. That is to say, the system is working this way by design and  high-wealth parties will fight vigorously to maintain their interests. Nevertheless, if we embrace the idea of making change to the landscape of wealth inequality through the reform of trust law, the question becomes what can and must be done in order to recalibrate legal tolerance for law-subverting rules like trust law’s support for asset protection trusts.

The authors of this excellent article give us a launching point for discussing all of these questions. They bring to light the open secret that trust law is law-subverting and, in so doing, gesture to the idea that trust law both suppresses equality values and promotes the economic welfare of elites. And, to be clear, the secret is a scandalous one that none of us should let pass unnoticed.

Cite as: Allison Anna Tait, Trust Law Secrets, Revealed, JOTWELL (April 15, 2021) (reviewing Mark J. Bennett & Adam S. Hofri-Winogradow, The Use of Trusts to Subvert the Law: An Analysis and CritiqueOxford J. of Legal Stud. (2021), available for free on SSRN as Against Subversion, a Contribution to the Normative Theory of Trust Law), https://trustest.jotwell.com/trust-law-secrets-revealed/.

A Proposal to Protect Transgender Beneficiaries

Carla Spivack, The Dilemma of the Transgender Heir, 33 Quinn. Prob. L.J. 147 (2020), available at HeinOnline.

A goal of professors is, or should be, to think about legal issues that have not yet arisen but that are likely to arise in the future. By thinking of the issues before they arise, we can work to change the law before courts are forced to deal with the issue with little guidance on a case-by-case basis.

In her thought-provoking article, Professor Carla Spivack identifies the issue of a transgender heir and a bequest that did not contemplate a gender change. Specifically, she identifies a situation in which an elderly relative leaves property to “my daughter” or to “my grandsons,” but the intended recipient no longer identifies as a female, in the case of the daughter, or a male, in the case of a grandson, at the time of the elderly testator’s death. The concern is that other beneficiaries may then seek to invalidate the gift by arguing that the testator did not have a daughter or a particular grandson at the time of death.

Part I of the article focuses on the “expressive function” of law, or the law’s power to make value statements to encourage change or to deter behavior. In the context of transgender individuals, Professor Spivack argues that the law should play an expressive role by expressly including transgender heirs for inheritance purposes into the notion of what constitutes a “family.”

Professor Spivack notes that the issue of ambiguous gifts to transgendered heirs is likely to arise with a growing level of frequency in the future. The issue is particularly important because transgender people have higher unemployment and poverty rates than the population as a whole. The intergenerational transfer of wealth protects people from living precariously, and it determines what society will look like, who has access to social goods, and who wields political power. While it is possible to draft around issues with transgender heirs by using gender neutral terms such as “my child” or “my grandchildren,” gendered descriptions often appear in form documents and in the idiosyncratic wills of wealthy individuals. In short, we need to assume that people will not always draft around it, and the law should provide a solution for when they fail to do so.

In Part II of her article, Professor Spivack attempts to fit the transgender heir into existing will interpretation doctrines. She ultimately concludes that all attempts to do so fail. The problem is that current doctrines would bog courts down with considering complex philosophical questions related to the meaning of gender and identity. Instead, Professor Spivack argues, the focus should be on creating a succession law presumption that focuses on the decedent’s intent.

First, Professor Spivack analyzes the current doctrine of ambiguity. She notes that courts traditionally have allowed for the consideration of extrinsic evidence about intent with a latent (not apparent from the text alone) ambiguity. Now, most courts allow extrinsic evidence to be considered for both latent and patent (obvious from the text) ambiguities. Arguably, a person who has changed gender creates an ambiguity. The issue is that somebody could argue that no ambiguity exists because the person identified in the bequest no longer exists. For example, a person who was once a son named Alex is not the same person as a daughter named Alexa. The son named Alex no longer exists, and the bequest then lapses. While this argument may ultimately fail, it mires courts in the question of whether a change in gender is so fundamental that the former person can be said to no longer exist.

Second, Professor Spivack analyzes the doctrine of reformation of mistakes. The problem is that the mistake to be reformed must concern some fact or law at the time the will was executed. The “mistake of fact” here would be an incorrect belief about the beneficiary’s gender identity at the time the will was executed. This gets into questions about the nature of gender and leads us to the same question, as with ambiguities, about the question of identity. Once again, the person contesting the will will argue that the transgender child is not the same person identified in the document, leading to a lapsed gift.

Third, Professor Spivack analyzes the pretermitted heir doctrine, which protects children from disinheritance if they were born or adopted after the will’s execution. In general, the doctrine creates a presumption that the testator simply forgot to update the will and would not have intended to disinherit the child. With transgender individuals, this doctrine is far more challenging because there often isn’t a discrete point in time, such as with childbirth, when gender changes.

Fourth, Professor Spivack considers the doctrine of “fact of independent significance.” Again, she concludes that this doctrine is insufficient to resolve the issue. The basic doctrine deals with devises that are otherwise outdated because of life events following the document’s execution. For example, a bequest to “my children” should include subsequently born children because the birth of a child is an objective event that would take place regardless of the disposition in the will. The problem with a transgender individual is that a contestant would simply argue that the person identified in the will no longer exists, again leading us to a lapse.

Finally, Professor Spivack looks at two more simple concepts, name changes and provisions in the will, to argue that the transgendered heirs should inherit. Courts commonly allow people who have changed their names to inherit because there is no question that they are the same people as the person identified in the will. That does not resolve the question of whether a person who has changed gender is, in fact, the same person. Could the changing of gender so fundamentally alter who a person is that he or she is no longer the same person? Similarly, wills often contain boilerplate provisions that state that words should not be construed to exclude a different gender. Such provisions also do not resolve the deeper issue of what it means to change gender and whether the person identified is the same person if his or her gender has changed.

In Part III of her article, Professor Spivack focus on the meaning of gender and the cultural basis for the “gender binary.” Here, she gets into the core issue that complicates using current doctrines to resolve these issues. Specifically, what is the meaning of gender? Culturally, at least in the United States in recent memory, men and women are often viewed as opposites. Historically and in other cultures, that has not necessarily been the case. Some cultures have historically had traditions of fluidity between genders, including a third gender. Now, several states, as well as Washington, D.C., now recognize a third gender, and one court in Oregon has recognized a nonbinary gender identity.

In part IV, Professor Spivack focuses on the law’s role in constructing gender. She notes that current legal discourse in the U.S. generally naturalizes the gender binary. This has helped to establish rigid genders as constructed parts of our society. Professor Spivack does not deny the reality that individual identities are often lived at one of two gender poles. She merely tries to recognize their constructed and contingent nature so that we can then focus on the broad policies of focusing on the testator’s intent and family protection.

In Part V, Professor Spivack argues for an addition to the Uniform Probate Code (UPC). Specifically, she proposes that the UPC establish a presumption that the parent or grandparent of a transgender child would want that person to inherit even after the person has changed gender. This presumption could be rebutted if there is clear and convincing evidence that the testator no longer wanted the person with the changed gender to inherit.

Professor Spivack has written a thought-provoking article. While I do not necessarily agree with her view that a rigid, binary view of gender is a relatively new concept, she raises these issues in a thought-provoking way. Her ultimate proposal is a sound one because it helps us to reform our laws in light of modern realities.

Cite as: Sergio Pareja, A Proposal to Protect Transgender Beneficiaries, JOTWELL (March 16, 2021) (reviewing Carla Spivack, The Dilemma of the Transgender Heir, 33 Quinn. Prob. L.J. 147 (2020), available at HeinOnline), https://trustest.jotwell.com/a-proposal-to-protect-transgender-beneficiaries/.

Performers and Portrayers

In 1956, sociologist Erving Goffman wrote his now-classic text, The Presentation of Self in Everyday Life. Consciously or not, Goffman posited, people are invariably actors, their lives spent staging and arranging a string of performances across time and space. Were A and B to meet for a walk, their social interaction would comprise complex impression management techniques with each simultaneously actor, and audience, to the other.

Goffman’s contributions were neither startling then nor dated now. “All the world [was already] a stage” to a 17th century playwright, and as Rush admonished in the late 20th century – Limelight; Moving Pictures (1981) – “we are merely players, performers and portrayers.” Rush continued, casting the limelight as “the universal dream for those who wish to seem,” by contrast to its incompatibility to a life of authenticity, where seeming – and being – are merged. Goffman might have questioned whether such a life were even possible. But it is likely that none of them – not Shakespeare, nor Goffman, nor even Geddy Lee or Neil Peart – could have known the prescience of their observations as applied to the social media platforms on which so many live today. Shelly Kreiczer-Levy and Ronit Donyets-Kedar do, and through Better Left Forgotten: An Argument Against Treating Some Social Media and Digital Assets as Inheritance in an Era of Platform Power, they invite us to think longer and harder (or at least, differently) about what it means to propertize online presentations of self through inheritance.

An Argument Against begins by situating social network sites and the profiles or accounts that accompany them within larger arenas of platform power, digital technologies and assets “proper” as well as the online life – with all of its sociocultural subtext – they engender. That orientation is critical for a luddite such as myself, for whom “technology” is a huge word holding fungible widgets and bits within it. Noting that not all digital assets bear the same characteristics, Kreiczer-Levy and Donyets-Kedar carefully frame the uniquely constitutive force that social network profiles and accounts hold for individual development, actualization and expression, through sweeping yet directed accounts of agency and autonomy, value and vulnerability, and relationship with and to others and self. In a way, their relational focus, including between individuals interacting with (and presenting self to) technology, power platforms, and other individuals or groups, replicates a different sort of interchange that arises whenever questions of ownership are posed. If property is the legal relationship between and among persons and a “thing,” then any question involving property can generally distill to “who has what rights to the ‘thing’ relative to whom, and when”? These authors ask: are social network profiles “property” (crudely, “things”) to which such traditional property concepts as “rights to transfer at death” apply?

Here is what I find to be the most elegant and provocative aspect to the paper. Rather than answer that precise question – although the analysis surveys trends and answers on point, including the Uniform Law Commission’s Uniform Fiduciary Access to Digital Assets Act and some fine scholarship by Professors Naomi Cahn (Virginia) and Natalie Banta (Drake) – the piece largely sidesteps that inquiry as yet another example of “constantly asking the wrong questions.” It is as though the authors are turning the reader by the chin to say “not there, look over here – stop being so distracted, and focus on the hard part.” Either/or binaries with sorting powers are comfortable and alluring for complex law in a complex world. It is tempting to arrange complex sets as rough yes/no questions, either to drive results or rationalize predicate decisions. For example, the authors observe how the very term “digital asset” suggests that a property determination has already been made, shifting the hard theoretical work of characterizing legal interests toward a routine analysis of rights to use, exclude, enjoy, consume, destroy (and most relevant here, “transfer”) it. Once classified as property, social media profiles or access rights thereto, the story would go, are subject to (1) relatively few restraints on alienation or acceptance but (2) relatively free donative and testamentary choice.

To Kreiczer-Levy and Donyets-Kedar, however, making that classification first is a bit like putting a cart before a horse, and even one of a different color. Although never quite coming out and saying so, their work periodically intimates that perhaps social constructions of self are more closely tied to personhood or personal rights, thus not properly inheritable, or at least not unquestionably so. And yet: although these lines are rarely uttered, some things that aren’t property can nevertheless be “bequeathed,” and some things that are property, can’t. If all property rights are relative and capable of yielding to countervailing force, perhaps “law writ large” is captured by the same gilded cage of managed impressions of self. Just maybe, whether an Instagram account is deemed “property” v. person, expression, privacy right, communication, or the rest is peripheral to (or non-determinative for) whether it can transfer at death; just maybe, a heavily covertly influenced expression of self ought die along with its maker. Who would decide, and how? For what it is worth, and no matter what we call it, I favor designated postmortem access to digital assets (including personal social media) if clearly so chosen, pre-death, by a user with capacity. Even if at some level an online persona is a manipulated, hyper-documented, socially flattened simulacrum of self, it is still a created and presented one, whether A’s manipulation of B’s reaction to her was itself manipulated by some corporate actor, C.

Kreiczer-Levy and Donyets-Kedar essentially close by giving to or seeking answers from no one, instead preferring further questions about people, property, privacy, and in a sense, even digital, disembodied and “surviving” consciousness, AI, and what personhood even means mid-stage of an online world. If we are all actors in our own and others’ games, it may be that we all know the score, and that Kreiczer-Levy and Donyets-Kedar themselves also have firm answers to different questions than it might seem that their scholarship asks.

Cite as: Katheleen Guzman, Performers and Portrayers, JOTWELL (February 16, 2021) (reviewing Shelly Kreiczer-Levy & Ronit Donyets-Kedar, Better Left Forgotten: An Argument Against Treating Some Social Media and Digital Assets as Inheritance in an Era of Platform Power, 84 Brook. L. Rev. 703 (2019)), https://trustest.jotwell.com/performers-and-portrayers/.

The Disruptive Potential of Blockchain in the Law of Wills

Bridget J. Crawford, Blockchain Wills, 95 Ind. L.J. 735 (2020), available at SSRN.

Disruptive technologies, like the Internet, often drive new social and organizational arrangements: we now enjoy global interconnectedness and an ease of communication that was previously the stuff of speculative fiction. Blockchain technology has the potential to be similarly transformative, with the Wall Street Journal characterizing blockchain as a foundational technology along the lines of the electricity or the world wide web. Bitcoin was created in 2009 as a decentralized, immutable, open source method of peer-to-peer payment that uses a distributed ledger to track all transactions—and this process of recording transactions is what is known as “the blockchain.” Although blockchain technology has been bought into common parlance through its association with popular cryptocurrencies such as Bitcoin, the potential application and broad appeal of blockchain technology eclipses the purpose for which it was originally developed. Blockchain Wills by Bridget J. Crawford tackles the subject of blockchain technology as applied to will execution in an article that is unquestionably my favorite article of 2020.

The best analogy to describe blockchain is that of the tree in the forest. Every ring in the trunk of the tree is like a groove in a record and each groove memorializes important information: the age of the tree; water levels; disasters such as forest fires; rate of growth. Each ring evidences a new block of information related to a specific moment in time, and the information recorded on each ring is accessible and transparent because nobody owns the tree. Like the rings of a tree, a block on the blockchain is immutable. An earlier block is only changed through a later block. The information in each block is simultaneously public and private—the details of a transaction are recorded on the blockchain but the identity of each user is protected with a private key. The blockchain is transparent while also offering security and privacy. One may arguably have complete trust in a system that has removed human error from its process, with each transaction verified through a distributed network and the need for no intermediaries.

Blockchain Wills explores the potential of this technology to disrupt an area of law that is relatively slow to change. The article is divided into four parts: a discussion of the way in which traditionally rigid rules are gradually but inconsistently yielding to the digital age; an introduction to the E-Wills Act and the states that currently recognize electronic wills; the way in which blockchain technology’s anti-fraud features may be used to authenticate electronic wills; and finally, the argument that blockchain wills are a safer and more cost-effective approach that will broaden access to estate planning. Perhaps it is this aspect of the article that is most important in its contribution—Professor Crawford presents a vision of the future in which an important property right (the ability to dispose of one’s property at death) is no longer abrogated by an inability to afford legal services. This article brushes the dust off a doctrinal area of the law that generally embraces tradition and enthrones formality to present an approach by which a disruptive technology may be transformative in broadening access:

In the not-too-distant future, executing a blockchain will likely may be no more difficult than registering online for a class at the local gym. When that day comes, if enough people have appropriate Internet access, then making a will becomes a far less expensive and difficult task then it currently is . . . as the technology advances, it is possible to imagine that executing a blockchain will could be as simple as opening an app on a smartphone or tablet device. Because the use of complex smartphones is more widespread among young people than the elderly, it may be that those who most wish or need to engage in estate planning would not be quick to adopt blockchain wills.

Professor Crawford explains to the reader the way in which “a distributed ledger’s security as a function of design” works to the advantage of the decedent. The person who wishes to create a will (the testator) would notify the network of an intention to make a will and nominate a personal representative (the key custodian). After the key custodian formally accepts their role with the network, a coded will can be uploaded to the blockchain. A notary public and/or witnesses could confirm with the network (via a cryptokey provided by the testator) that the testator intended this document to operate as a will and they were acting as attesting witnesses. This entire transaction would be recorded as a time-stamped “block” that is available to all users through the distributed ledger. It is unlikely that a bad actor would be able to manipulate or compromise the block, which serves as an immutable record of testamentary wishes that can be amended through a later block but not itself changed. The responsibility would fall upon the key custodian to notify the network upon testator’s death. Crawford argues that although there are administrative issues to untangle, a blockchain will is at least as reliable as a holographic testamentary instrument or a defectively executed instrument saved by a curative doctrine.

Professor Crawford’s article is simultaneously pragmatic and novel. This type of scholarship serves as a departure point for further conversation about risks and benefits to society, so as to facilitate change as the product of thoughtful design. It is this implicit contribution that is noteworthy: blockchain technology promises to disrupt existing legal practices and also allow new paths to form, and with innovation comes the need to frame the way in which legal policy within the law of wills and trusts should react and adapt.


Editor’s Note: Reviewers choose for themselves what to review. Trust and Estates Section Editor Bridget Crawford had no part in the editing of this review.

Cite as: Victoria J. Haneman, The Disruptive Potential of Blockchain in the Law of Wills, JOTWELL (December 3, 2020) (reviewing Bridget J. Crawford, Blockchain Wills, 95 Ind. L.J. 735 (2020), available at SSRN), https://trustest.jotwell.com/the-disruptive-potential-of-blockchain-in-the-law-of-wills/.

Teaching Our Students to Counsel Against Funeral Poverty

Victoria J. Haneman, Funeral Poverty, __ Univ. of Richmond L. Rev. __ (forthcoming 2021), available at SSRN.

Twenty years into teaching Estates, Victoria J. Haneman’s Funeral Poverty has made me reconsider my syllabus. Neither I, nor the textbook I use, discuss the death care industry, which includes funeral homes, pre-need sales, crematories, cemeteries, and third-party vendors of goods. Funeral Poverty convinced me that in a course where almost all content is death-related, we need to cover death services.

Professor Haneman writes that in 2019, the median cost of laying a loved one to rest was $9,000—a number that is “particularly stark” when 4 out of 10 Americans report they would have difficulty meeting an unexpected $400 expense. (P. 1.) For the average consumer, death services will be the third largest category of expenses over the course of a lifetime, behind only houses and automobiles. Moreover, “death care in the United States is an area of conspicuous consumption on which lower income families spend far more than high income families. . . . In 2014, the top 1 percent spent significantly less in absolute dollars than everyone else, the middle class fell in line with national averages, and the poor spent a 26% greater share of total expenditures than the national average.” (P. 32.)

Funeral Poverty describes how many families find themselves “begging or borrowing” to cover death service expenses. Crowdfunding has become common among families dealing with unexpected funeral expenses, with GoFundMe staff members coaching funeral organizers on how to optimize the chances of their fundraising campaigns going viral. (Pp. 16-17.) Other families borrow to pay expenses, by either tendering a credit card or receiving a line of credit from the funeral home itself. A market in subprime loans even exists, with one site advertising interest rates as high as 35.99 percent. (P. 18.)

Professor Haneman thoroughly explores why death services “perpetuate inequality and contribute to intergenerational cycles of poverty.” (P. 3.) She discusses a marketplace characterized by vulnerable consumers, inelasticity, information asymmetry, and an absence of price advertising; Federal Trade Commission rules that favor funeral homes over consumers; and a dearth of government programs that help families manage death expenses. Funeral Poverty also explains how well-intentioned laws—like “abuse of corpse” statutes—sometimes have the perverse effect of interfering with efforts to make disposing of the dead less expensive and more environmentally friendly.

Central to Professor Haneman’s analysis of why Americans spend so much on death services is her assertion that we are “extraordinarily distanced from death and have moved the process from home to institution.” (P. 4.) In light of the widespread availability and utilization of hospice, I don’t necessarily agree that Americans are distanced from the process of dying. But most of us are distanced from dead bodies. We have moved from a society where modest home funerals used to be the norm to a society where the dead are taken to funeral homes and costly professional-organized events are customary. This shift has left us with an intrinsic uncomfortableness that leads us to not plan for how to pay for funerary expenses while still alive, and to shy away from conversations in which we might express preferences for inexpensive, environmentally friendly ways of disposing of our bodies.

Which brings me back to why I liked Funeral Poverty. Every day in Estates I discuss death-related material —such as wills, trusts, health care directives, and powers of attorney­— and emphasize the importance of clients paying attention to these issues while they are still alive and have the capacity to do so. Funeral Poverty convinced me that I also need to teach my students about death services, any uncomfortableness with dead bodies notwithstanding.

Cite as: Sarah Waldeck, Teaching Our Students to Counsel Against Funeral Poverty, JOTWELL (November 2, 2020) (reviewing Victoria J. Haneman, Funeral Poverty, __ Univ. of Richmond L. Rev. __ (forthcoming 2021), available at SSRN), https://trustest.jotwell.com/teaching-our-students-to-counsel-against-funeral-poverty/.

Personalized Intestacy?

Shelly Kreiczer-Levy, Big Data and the Modern Family, 2019 Wisc. L. Rev. 349 (2019), available at SSRN.

In Big Data and the Modern Family, Shelly Kreiczer-Levy kicks the tires on a provocative idea: using big data to “personalize” the rules of intestate succession. Recently, scholars have suggested that the same miraculous technology that permits big retailers to predict their customers’ purchasing needs to customize the law. For example, in the first extended treatment of the topic, Ariel Porat and Lior Strahilevitz suggest that the government can exploit big data to abandon the conventional one-size-fits-all approach to default rules and instead tailor background principles to individual preferences. Porat and Strahilevitz’s marquee example is intestacy. They note that empirical studies reveal that married fathers are more likely than married mothers to leave their entire estate to their spouse. Thus, they argue that an intestate system that varied with the decedent’s gender would be more likely to carry out his or her intent. But why stop there? Porat and Strahilevitz claim that intestacy statutes could also vary based on the decedent’s job, wealth, health, length of marriage, and age of children. In fact, using an algorithm, a probate court could “determine how an intestate’s estate should be allocated based on an analysis of his consumer behavior during his lifetime.”

Enter Kreiczer-Levy. Her thoughtful article begins by arguing that the rules of intestate succession are outdated. Indeed, as she explains, these principles “are notorious for privileging the nuclear family, to the exclusion of modern forms of associations and relationships.” In turn, Kreiczer-Levy observes that this makes personalized intestacy intriguing. In sharp contrast to the bright lines and rigid barriers of current law, a bespoke regime could effectuate an intestate decedent’s wish to leave assets to a lover, a best friend, or a young person who was treated like a full-blooded child but never adopted.

Nevertheless, Kreiczer-Levy doesn’t give personalized intestacy her full-throated endorsement. One of the article’s great strengths is its lucid exploration of the proposal’s dark side. She begins by collecting objections that others have already levied against personalized law. These concerns include the invasion of privacy required to feed the algorithm and the uncertainty engendered by making legal rules more opaque.

In addition, Kreiczer-Levy offers two more granular reasons for skepticism about personalized intestacy. First, she questions whether policymakers could discern enough relevant information by focusing entirely on the decedent. Unlike, say, a dynamic speed limit, which might hinge on the weather, type of car, and the driver’s record, “inheritance decisions often reflect an evaluation of relationships.” It isn’t clear that any computer is capable of taking the decedent’s demographics, social media foibles, and spending patterns and extrapolating whether he or she favors one child or wants to leave a prized vase to a neighbor. (On the other hand, if policymakers do go down this route, Kreiczer-Levy offers some sensible guidelines for factors that they should consider, such as whether a decedent lived with a prospective heir, supported him or her financially, or entrusted him or her with caregiving).

Second, Kreiczer-Levy contends that personalized intestacy neglects the social dimensions of inheritance. Suppose that a Target-style program disinherits the daughters of left-handed Caucasian men in their 30s. Even if this faithfully reflects what most members of this cohort want, we might not want to enshrine it in a statute. Indeed, because the law shapes public perceptions, such a rubric could normalize gender discrimination. Moreover, being cut out of an estate plan can be emotionally devastating. There’s something troubling about depersonalizing the choice to send such a powerful “message of exclusion.”

In sum, Kreiczer-Levy’s piece is essential reading for anyone interested in either the personalized law phenomenon or the future of trusts and estates.

Cite as: David Horton, Personalized Intestacy?, JOTWELL (October 2, 2020) (reviewing Shelly Kreiczer-Levy, Big Data and the Modern Family, 2019 Wisc. L. Rev. 349 (2019), available at SSRN), https://trustest.jotwell.com/personalized-intestacy/.