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Rich Data About Dispositive Preferences

  • Yair Listokin & John Morley, A Survey of Preferences for Estate Distribution at Death Part 1: Spouses and Partners, available at SSRN (Jan. 20, 2023).
  • Yair Listokin & John Morley, A Survey of Preferences for Estate Distribution at Death Part 2: Children and Other Beneficiaries, available at SSRN (Jan. 20, 2023).

Some of the most important rules in inheritance law may be out of date. Intestacy statutes distribute the assets of most decedents in the U.S. Because they provide an estate plan by default, they’re supposed to reflect majoritarian preferences. Many such laws, including the 1990 amendments to the Uniform Probate Code (“UPC”), favor ties of marriage and blood. Yet American families are rapidly evolving. Unmarried cohabitation is on the rise. Likewise, skyrocketing rates of divorce and remarriage mean that one child in six now lives in a “blended” family. Arguably, these shifts cast doubt on the Leave It to Beaver conservativism of traditional intestacy regimes.

Unfortunately, the intuition that intestacy statutes are archaic has long been just that—an intuition. There’s little reliable data about what people want to have happen to their property after they die.

Enter Yair Listokin and John Morley, who have posted a pair of sophisticated empirical studies about dispositive preferences on Social Science Research Network: A Survey of Preferences for Estate Distribution at Death Part 1: Spouses and Partners and A Survey of Preferences for Estate Distribution at Death Part 2: Children and Other Beneficiaries.

Listokin and Morley begin by explaining that we know even less about this topic than we think. They observe that policymakers—including the authors of the UPC—rely on studies of probated wills to illuminate what decedents want. Yet Listokin and Morley are skeptical of this choice. For one, because studies of wills only examine testate decedents, they don’t even speak to the wishes of the relevant cohort: intestate decedents. Moreover, probate files only provide superficial information about decedents: bare-bones facts such as the identity of their heirs and beneficiaries and the size of their estate. Finally, as I know too well, harvesting data from probate records is tedious and labor-intensive, which means that papers that employ this technique have small sample sizes.

To overcome these limitations, Listokin and Morley hired YouGov to conduct a nationally representative survey of the dispositive choices of 9,000 Americans. They asked participants to provide an array of valuable information, including their age, state of residence, income, educational level, sexuality, relationship status, number of prior marriages, whether they have adopted children, foster children, or stepchildren, the identity of their other relatives, their political and religious views, and even whether they have pets.

I can’t address all of Listokin and Morley’s eye-opening findings here, but I’ll highlight three. First, Listokin and Morley unearth evidence that the UPC’s policy of privileging spouses may be misguided. Indeed, they discover that married people only prefer to give an average of 52% of their estates to their husband or wife. Strikingly, although about a third of these individuals decided to give their spouse everything, nearly an equal percentage went to the opposite extreme and preferred to leave their spouse nothing. Likewise, although current law generally excludes unmarried cohabitants, members of that group in Listokin and Morley’s sample often wanted their partner to take between 10% and 50% of their estates. Together, these results suggest that intestacy statutes should add nuance to their blunt view of romantic relationships.

Second, Listokin and Morley run a multivariate regression to uncover correlations between a respondent’s traits and the percentage of the estate they want their spouse or partner to take. They find that many of these variables have statistically significant effects. For instance, testate individuals give less to their spouses and partners than their intestate counterparts—a fact that underscores the inappropriateness of using dispositive preferences in wills to gauge dispositive preferences in intestacy. In addition, women and African Americans provide less to their spouse or partner relative to their respective reference categories of men and members of other races. As Listokin and Morley acknowledge, these results raise fraught issues about how granular intestacy law should be. On the one hand, a slate of rules that are finely tuned to personal characteristics might better effectuate decedents’ intent. But on the other hand, there’s something deeply unsettling about, say, “[a] law that grants less to the surviving spouses of Black people than the surviving spouses of White people.”

Third, respondents are unexpectedly generous to their siblings and stepchildren. In most jurisdictions, if someone dies without a spouse or children, their assets flow to their parents. Conversely, Listokin and Morley’s unmarried and childless respondents “treat parents and siblings roughly equally.” Similarly, although intestacy statutes rarely provide a share for stepchildren, Listokin and Morley show that survey participants “prefer their stepchildren over every type of beneficiary other than their spouses and their own legal children.” This preference was especially pronounced for respondents who had lived with “marital stepchildren” (children of the respondent’s spouse).

In sum, Listokin and Morley’s papers are essential reading for anyone who’s thought about intestacy reform.

Cite as David Horton, Rich Data About Dispositive Preferences, JOTWELL (Feb. 12, 2024) (reviewing Yair Listokin & John Morley, A Survey of Preferences for Estate Distribution at Death Part 1: Spouses and Partners (Jan. 20, 2023) and Yair Listokin & John Morley, A Survey of Preferences for Estate Distribution at Death Part 2: Children and Other Beneficiaries (Jan. 20, 2023)), https://trustest.jotwell.com/rich-data-about-dispositive-preferences.

Criminal Law Meets Estates Law: Incarceration and Inheritance

Brittany L. Deitch, Estate to State: Pay-To-Stay Statutes and the Problematic Seizure of Inherited Property, 95 Univ. of Colo. L. Rev. __ (forthcoming 2024), available at SSRN (Mar. 20, 2023).

Criminal law scholars and estates and trusts scholars do not usually travel in similar circles. They do not typically attend the same conferences or read each other’s work. With the exception of the slayer rule, criminal law might even seem irrelevant to estates and trusts law. Yet, Brittany Deitch’s eye-opening article, Estate to State: Pay-To-Stay Statutes and the Problematic Seizure of Inherited Property, illustrates how criminal law and inheritance law intersect to deny currently and formerly incarcerated individuals the ability to inherit, thereby magnifying the racial and economic inequalities created by either criminal law or inheritance law alone.

Deitch’s article exposes the injustices of pay-to-stay laws—statutes that allow the government to seek reimbursement from currently or formerly incarcerated individuals for incarceration-related costs, ranging from medical care and transportation to room and board. Although forty-seven states have some form of pay-to-stay requirement, Deitch focuses on states that expressly allow the government to recover these costs from an inheritance, or that are silent on whether the government may seize inherited assets. In these states, the government may seize an incarcerated (or formerly incarcerated) person’s inheritance to recoup the costs it expended in connection with the distributee’s incarceration. Deitch argues that seizure of an inheritance in these cases infringes the decedent’s testamentary freedom and undermines intestacy law’s goal of preventing escheat. As she explains, a testator would not want assets intended for the benefit of their currently or formerly incarcerated family member or loved one to go to the state. When the decedent is intestate, she observes, seizure of property that would otherwise pass to heirs circumvents intestacy law’s aim of averting escheat whenever possible.

Deitch contends that the impact of pay-to-stay laws is not confined to decedents, heirs, and intended distributees but also produce social inequities that harm entire communities. She demonstrates that inheritance seizure policies disproportionately impact less wealthy individuals who lack access to professional estate planning. Sophisticated parties can utilize discretionary or spendthrift trusts to prevent the state from reaching assets bequeathed to incarcerated or formerly incarcerated persons. Deitch further demonstrates that these laws disproportionately harm racial minorities, especially African-Americans. She draws on studies showing that African-Americans are more likely to be incarcerated and on scholarship tracing how anti-miscegenation laws, segregation, redlining, and discriminatory lending have contributed to intergenerational poverty. The cumulative discriminatory impact of those polices have tended to exclude African-Americans from the economic benefits of intergenerational wealth transfers. Using this work, Deitch persuasively argues that pay-to-stay statutes that permit seizure of inheritances exacerbate the racial wealth gap.

While these reasons amply support Deitch’s objections to pay-to-stay statutes, she does not stop there. Turning her attention to other policy implications, she asserts that pay-to-stay laws create perverse incentives and unintended consequences. By shifting some of the costs of mass incarceration onto currently and formerly incarcerated individuals and their families, pay-to-stay laws alleviate public pressure to reduce those costs. As Deitsch observes, “[t]hese statutes’ attempts to create a user-funded system reduce the perceived need for decarceration.” (P. 5.) Moreover, she argues, when the state contracts with private prisons and then seizes an inheritance to defray incarceration-related costs, a for-profit enterprise effectively appropriates property from an innocent individual. Finally, she demonstrates how these laws actually contribute to mass incarceration. By keeping formerly incarcerated persons and their families in poverty, she argues, laws permitting seizure of inheritances inhibit reentry and increase the likelihood of future crime—which often leads to incarceration.

Since the racial reckoning that began with the murder of George Floyd in 2020, estates and trusts scholars have engaged in greater efforts to address how inheritance law perpetuates racial and social inequality. Deitch’s article is the epitome of civically engaged racial and social justice scholarship. She exposes a practice that has dire consequences for communities that the law has marginalized historically and continues to disadvantage today. Deitch concludes that “[w]hat is at stake when the state seizes inherited property is the expansion of the carceral state to deepen the deleterious impact of incarceration on the families and loved ones of the incarcerated person.” (P. 13.)

If Deitch had a magic wand, states would abolish pay-to-stay statutes altogether. She acknowledges, however, that this is unlikely as courts have rejected constitutional challenges to pay-to-stay statutes. Consequently, she urges states, at minimum, to stop seizing inheritances to cover incarceration-related costs. Readers may disagree on whether states should require persons convicted of a crime to reimburse the state for the costs of their punishment. Few readers, however, could justify seizing the property of a person who has not engaged in any wrongdoing. As Deitch illustrates, that is precisely the impact of pay-to-stay statutes when they permit seizure of inheritances. They take property that a decedent expected to pass on to an intended beneficiary or heir and redirect it to the entity (the government) that caused their family great pain.

I thought about Deitch’s article for about a week before writing this Jot. During that time, I found myself asking what can be done if states fail to adopt Deitch’s proposal. Some lawmakers and taxpayers will object to allowing an incarcerated person to receive an inheritance while the state is paying for their medical care, room, and board. But they are less likely to object to diverting the same inheritance to other non-incarcerated members of a decedent’s family. Surely, we can find a way to ensure that inherited property inures to the benefit of a decedent’s own family rather than the state that incarcerated a decedent’s loved one, even if states retain other aspects of their pay-to-stay laws. Deitch invites scholars to consider legal doctrines that would blunt the effect of pay-to-stay laws if lawmakers reject her wise solutions.

Cite as: Solangel Maldonado, Criminal Law Meets Estates Law: Incarceration and Inheritance, JOTWELL (January 24, 2024) (reviewing Brittany L. Deitch, Estate to State: Pay-To-Stay Statutes and the Problematic Seizure of Inherited Property, 95 Univ. of Colo. L. Rev. __ (forthcoming 2024), available at SSRN (Mar. 20, 2023)), https://trustest.jotwell.com/criminal-law-meets-estates-law-incarceration-and-inheritance/.

Crimheritance Law?

Kevin Bennardo & Mark Glover, Crimes Against Probate, 75 Fla. L. Rev. 357 (2023).

We stand at the precipice of a major transfer of wealth: in the coming years, trillions of dollars will pass through the inheritance system to the next generation from millions of decedents. Potential beneficiaries may be tempted to engage in wrongdoing to alter or accelerate these transfers to their own benefit. In Crimes Against Probate, Kevin Bennardo and Mark Glover focus on one such type of wrongdoing: interference with wills. Whether it is through undue influence or fraud, will forgery or will suppression, the inheritance system must deal with this threat to the testator’s donative wishes.

Bennardo and Glover argue that the current legal regime does not adequately deter this type of misconduct, and they provide two major contributions to the literature. First, they offer a clever reconceptualization of the misconduct at issue as evidentiary rather than proprietary in nature. Second, they supply a concrete reform proposal, which is a new criminal offense of intentional or willful interference with probate. Scholars of both criminal law and trusts and estates will have much to learn from this cross-cutting piece of legal scholarship.

The authors first lay out the basic features of the inheritance system and identify the legal problem they will address. Because probate courts focus on the donative intent of the decedent, they are haunted by the so-called worst evidence problem, or the impossibility of calling the decedent to testify as to what they want done with their property after death. Instead, the court must evaluate second-best evidence of donative intent that was produced during life, such as a will. Wrongdoing that affects the content or availability of wills diminishes the evidentiary value of these documents and frustrates the search for donative intent.

The legal system has not been silent on this problem. The tort of intentional interference with inheritance—endorsed by the Restatement (Third) of Torts and accepted by nearly half the states—gives the decedent’s intended beneficiaries a cause of action against wrongdoers who encroach upon property the beneficiaries should receive. In addition, many states criminalize some relevant misconduct, either through specific offenses covering the forging of a will or more general provisions concerning the creation of fraudulent documents.

Bennardo and Glover critique this regulatory regime on several grounds. First, they argue that existing civil and criminal solutions do not adequately deter wrongdoing. Criminal penalties do not cover all transgressions, such as undue influence, and civil remedies do not necessarily provide the punitive damages needed for deterrence, given the manner in which probate courts process the relevant tort. Second, there are theoretical problems with defining the harm in these situations, as the frames of property or economic interference do not fully capture the phenomenon under consideration. Third, donative intent and the worst evidence problem are central to resolving these types of cases, but neither of the available actions in tort or criminal law were designed to resolve them effectively.

The authors then introduce a new theoretical frame that they believe will dissolve some of these tensions. Instead of conceptualizing the harm as one against property rights or an expectancy interest, the authors propose understanding the harm as an evidentiary one. Because the will is meant as evidence of donative intent, tampering with such evidence during the life of the testator or after death constitutes a harm against the proper functioning of the probate process. Thus, in their view, we should shift the inquiry from the donative intent of the testator to the criminal intent of the defendant, an inquiry that the criminal law is well-suited to address.

Their reform proposal naturally flows from this theoretical shift, and it is to create a new crime of intentional or willful interference with probate. Bennardo and Glover argue that this new offense is broad enough to encompass a variety of types of interference with probate while avoiding over-prosecution through a high scienter requirement coupled with the traditional high burden of proof of criminal prosecutions. The authors are careful to address other criminal law issues in this section, such as how attempted interference might be understood and how the statute of limitations should operate for the offense, given that the criminal conduct might occur well in the past in the case of a forged will. While not providing a recommendation for punishment, they suggest that sentencing be tied to existing punishment ranges for other evidentiary offenses, such as evidence tampering and perjury.

This Article left me pondering several issues both inside and outside of inheritance law, which is one of its major strengths. One topic that piqued my interest was the empirics of deterrence in the inheritance law context. Specifically, the authors at several points adopt the traditional law and economics view of the rational actor to reason about the adequacy of deterrence in the current or alternative legal regimes. I wonder whether real life wrongdoers are sufficiently close to this hypothetical rational actor to bear out the analysis. Do they have accurate enough knowledge of the law in this area to perform the calculus described by the authors about the benefits of success, the costs of failure, and the likelihood of success or failure? Further empirical work would help to illuminate this question. In addition, one might be skeptical of extending the criminal law regime, with all of its attendant social costs, without first having a sounder empirical basis for doing so. Regardless, by introducing a new theoretical frame and a concrete reform proposal, this Article represents an advance in both inheritance law theory and doctrine on the important issue of misconduct concerning wills.

Cite as: Alexander Boni-Saenz, Crimheritance Law?, JOTWELL (January 9, 2024) (reviewing Kevin Bennardo & Mark Glover, Crimes Against Probate, 75 Fla. L. Rev. 357 (2023)), https://trustest.jotwell.com/crimheritance-law/.

Towards resolving a Contradiction of Trust law

Adam S. Hofri-Winogradow, The Irreducible Cores of Trust Obligations, 139 L.Q. Rev. 311 (2023), available at SSRN, (May 30, 2023).

Trust settlors transfer gifts to trustees, but intend to benefit only the trust’s beneficiaries. So trust law ensures that trustees, who legally “own” trust property, are constrained in their actions by legal rules and fiduciary standards. But trusts are also malleable, subject to customization to achieve a settlor’s particular purposes. And that is where, according to Adam Hofri-Winogradow, in his article, “The Irreducible Cores of Trust Obligations,” a trustee’s obligations rest on “an enduring contradiction.” Hofri-Winogradow points out that trustees’ burdens include both duties and liabilities, but that trust settlors sometimes either explicitly exclude certain of these in the trust instrument, or “undermine” them by giving nonfiduciary third parties the power to direct actions of the trustee.

It is easy to see why a complete elimination of a trustee’s legal constraints would by extension eliminate the trust as a useful mechanism. Indeed, a trust without any fiduciary constraints is not a trust at all, it’s simply an equitable charge. But what trustee obligations are essential to the nature of a trust? This is a subject of considerable debate in the U.S. and abroad. Hofri-Winogradow focuses on this “irreducible core” of a trustee’s obligations, and maintains that attempts to find a single essential core are unstable within and across global jurisdictions. Given the many jurisdictions and contexts in which trusts are used, his article represents a fresh perspective on this issue.

American trust law does not use the term “irreducible core,” and instead styles the question as one of “mandatory” versus “default” provisions in trust law. In the U.S., trust settlors, who are given wide latitude to craft trusts as they choose, may exclude a default provision of trust law but are not free to exclude mandatory ones. Most U.S. trust law is default law, but the Uniform Trust Code (UTC), adopted in over half of U.S. jurisdictions, spells out the few mandatory rules that settlors cannot modify or eliminate. However, some of the UTC’s mandatory rules are only suggested, and most adopting states have left these out. Courts have taken differing views of whether certain types of attempts to modify trustees’ obligations and beneficiaries’ rights impinge upon mandatory rules.

Hofri-Winogradow’s article does not focus on U.S. law, but instead offers a comparative perspective across various common law jurisdictions, including also England, Canada, Australia, New Zealand, Hong Kong, Singapore, and Bermuda. But the article’s value for the reader in the U.S. lies in its summary overview of approaches across jurisdictions and contexts, and his insight that the contexts of the cases he examines cause courts to show certain “normative tendencies” that, in turn, reveal core aspects of trusteeship. He suggests that these normative tendencies point to the value of a separate core for at least three different categories of trusts.

The one that I find most interesting where U.S. trust law is concerned is the category of “non-settlor-controlled family trusts using remunerated trustees, some or all beneficiaries of which are minors or otherwise vulnerable.” So-called “silent trusts,” for example, which seem to be gaining popularity in the U.S., would generally fit into this category. Silent trusts typically exclude certain trustee reporting and disclosure requirements, often straining mandatory trust rules in the process. According to Hofri-Winogradow, “core” mandatory rules are important for at least two reasons. First, they bring about “order and predictability” in judicial decisions dealing with settlors who expressly opt out of certain duties or liabilities normally imposed on trustees or who enable the “undermining” of same. Hofri-Winodgradow writes that “[w]ithout an established irreducible core, . . . a large and undefined” number of trustee duties “may be disapplied. An irreducible core provides a floor for such disapplication.” Second, they maintain the trust as a vehicle for benefitting trust beneficiaries.

In the U.S., the UTC’s mandatory rules (the UTC’s “core”) include “the duty of a trustee to act in good faith and in accordance with the terms and purposes of the trust and interests of the beneficiaries,” as well as certain notification and reporting requirements. Although Hofri-Winogradow doesn’t go into this, the UTC has placed some of its notification and reporting requirements in brackets, conceding that an enacting jurisdiction may omit them. Most enacting U.S. states have either modified or deleted these provisions from their trust codes.

Outside the U.S., mandatory rules vary across jurisdictions and contexts., Hofri-Winowgradow briefly reviews rules in some of these as well as the views of certain common law scholars on this issue. He also helpfully provides a chart that summarizes his findings. While observing considerable disagreement among scholars and jurisdictions, Hofri-Winowgradow identifies a “largely agreed core” that includes “trustees’ duties to know and perform the trust terms if any, and to act in good faith for the benefit of the beneficiaries.” This finding seems consistent with the UTC’s approach.

Hofri-Winogradow divides court decisions across jurisdictions into three categories of cases that speak to an irreducible core of trusteeship: (1) those in which courts validate trust provisions that opt out of trustee duties or liabilities (“thin core” findings), (2) those in which courts set aside or invalidate trust provisions that opt out of trustee obligations, and (3) those in which courts “declar[e] or imply[] trustee duties that do not appear in the trust instrument before the court, or that have been expressly excluded.”

To illustrate the third category, Hofri-Winowgradow presents a court decision from North Carolina, a jurisdiction that omitted mandatory (but bracketed) accounting and reporting requirements from its version of the UTC. In that case, the court permitted minor beneficiaries to conduct discovery necessary to enforce their rights under the trust, “any contrary provision in the trust instrument notwithstanding.” According to Hofri-Winogradow, “the majority bypassed both the settlor’s choice to exempt the trustee from the duty to provide beneficiaries with trust accounts or reports and the legislature’s choice to make that duty default, rather than mandatory, law.” This is true, to a point. But, in so doing, the majority relied on the non-waivable provision of the UTC and North Carolina trust law mentioned above, which requires a trustee to act in good faith and in the interests of the beneficiaries and recognizes the court’s power to take action in the interest of justice. Nonetheless, Hofri-Winogradow’s summary is apt: the court essentially found that discovery could be compelled due to what Hofri-Winogradow refers to as “the irreducible core of trustee obligations.”

Hofri-Winogradow looks for normative tendencies in the cases he reviews in order to gain insight into court’s responses, which he finds more helpful than “the doctrinal path.” His proposals are not particularly detailed, but he couches them as “a blueprint for further development.” For instance, he sees a need to enhance protections for trust beneficiaries and proposes a core that would subject trustees to “a mandatory duty of care.” His instincts are sound and his normative approach is insightful: trust law depends on some agreement as to a minimum set of mandatory or “core” legal rules. His article represents the beginning of an important discussion about the essential obligations of trusteeship.

Cite as: Kent D. Schenkel, Towards resolving a Contradiction of Trust law, JOTWELL (November 28, 2023) (reviewing Adam S. Hofri-Winogradow, The Irreducible Cores of Trust Obligations, 139 L.Q. Rev. 311 (2023), available at SSRN, (May 30, 2023)), https://trustest.jotwell.com/towards-resolving-a-contradiction-of-trust-law/.

Socially Distanced Wills

Richard F. Storrow, Legacies of a Pandemic: Remote Attestation and Electronic Wills, 48 Mitchell Hamline L. Rev. 826 (2022).

The modernization of probate codes has been a slow and fraught proposition. States have long set different requirements for formalizing wills. To this day there are still states that require strict compliance with all formalities, including that a will be in writing, that it be signed, and that it also be signed by two witnesses. The COVID-19 pandemic forced legislators into an uncomfortable and reluctant embrace of the twenty-first century. In his recent article, Professor Richard F. Sorrow tracks the unprecedented if clumsy implementation of two controversial reforms of traditional wills: remote attestation and electronic wills.

For centuries, in both England and the United States, the steps required to execute a will had to be followed precisely. A small technicality or flaw could invalidate a will. Perhaps a witness was not in the room at the same time as the other witness or the testator signed the will in the wrong place. As Storrow underscores, society’s main concern was distinguishing between authentic and fraudulent wills. England’s influential Wills Act of 1837 attempted to get it right. To ensure that the will represented the wishes of the testator, without interference from anyone else, courts construed the Act to require strict compliance with all of the formalities. This weeded out many fraudulent wills but also some authentic ones. In fact, the application of strict compliance sometimes led to dispositions that were very different from those the testator intended.

Over time this proved unsatisfactory and courts slowly began to find ways to allow slightly defective wills to be probated. In recent decades, with some prodding from courts, commentators, and the Uniform Law Commission, a handful of states have even adopted the harmless error rule, which explicitly allows defective wills to be probated if there is clear and convincing evidence that the decedent intended the instrument to be a will. To date, harmless error has been adopted by fewer than 20 states. When compared to the modernization of trusts, wills have evolved glacially. Storrow underscores this continuing conservatism on the part of legislatures. Despite the rise of electronic documentation and signatures in the world of contracts, the vast majority of legislatures rejected electronic wills in the past few decades. Witnesses still had to be physically present and signatures delivered the old-fashioned way.

To highlight how strange this might be for younger generations, note that the last two apartment leases I signed were completed electronically. I received, reviewed, initialed, and signed all documents on electronic platforms. I did not meet the landlords beforehand. The traditional law of wills, by contrast, has resisted the simplicity and convenience of digital transactions. Legislatures have been especially reluctant to embrace remote attestation: that is, witnesses who observe the testator’s execution or acknowledgement of the will from a separate location via video conferencing technology and then conduct a relay exchange of scanned documents to sign the will. The pandemic changed this calculation. Suddenly remote witnesses became a public health necessity because the traditional formalities were unsafe amid an airborne pandemic. That, in turn, opened up the possibility that courts might finally leave strict compliance behind. However, the reality is more complicated, according to Storrow.

So what did the pandemic teach us? (1) The remote witnessing reforms were mostly temporary and seen as emergency concessions. Most states went back to the normal course of things once social distancing guidelines ended, (2) Allowing for remote witnessing did not mean electronic signatures were permitted—printers, snail mail, etc. were still involved, (3) Many of the executive orders were hastily put together and not well thought out, (4) Questions linger regarding the importance of witnesses being in the same state as the testator.

For those hoping for twenty-first century wills, 2023 will not be the year when those wills become universally available. According to Storrow, we on a much slower trajectory toward wills that would appeal to the digital natives of Gen Z or Alpha. Unfortunately, while a small group of practitioners and experts are keenly interested in modernizing the law of wills, these issues do not generally attract the attention of advocacy groups or the wealthy who tend to favor trusts. Modernization seems to makes sense, but it is by no means a priority. This could be a good thing, given the risk of unintended consequences that would accompany a thorough overhaul of the Wills Act. For the time being, as Storrow shows, we will have increased data and experimentation resulting from the unexpected, but temporary, changes the pandemic brought.

Cite as: Goldburn Maynard, Socially Distanced Wills, JOTWELL (November 9, 2023) (reviewing Richard F. Storrow, Legacies of a Pandemic: Remote Attestation and Electronic Wills, 48 Mitchell Hamline L. Rev. 826 (2022)), https://trustest.jotwell.com/socially-distanced-wills/.

A Path for Wealth and Cultural Restoration for the Gullah-Geechee Residents of the Low Country

Brenda D. Gibson, The Heirs’ Property: Racial Caste Origins & Systemic Effects in the Black Community, __ CUNY L. Rev. __, (forthcoming, 2023) available at SSRN (Aug. 31, 2022).

Professor Gibson provides a unique look at Black land loss through heirs’ property in the Low Country, an area located on the southern tip of South Carolina which includes the Sea Islands. Her paper concludes that “heirs’ property is more a product of the deeply entrenched racial caste system of racist governmental processes and laws that have militated against Black land ownership and wealth.” As such, she indicates that landownership has been a source of wealth mobility for some, but that intestacy succession to property has caused wealth to decline in the Low Country, disproportionately for Black landowners.

After a brief historical review of the obstacles and hardships of Black landownership since the Reconstruction era, Professor Gibson analyzes how systemic racism has impacted Black land loss in the South, specifically in the Low Country. She begins by explaining how farming was the primary source of income for many Black landowners in Low Country. By the end of the 20th century, however, Black farmers had lost over ninety percent of their land. She attributed these substantial losses to government action, commercial developers, and the complicated nature of heirs’ property.

First, she discusses the history of the United States Department of Agriculture (USDA) subsidizing and facilitating White farmers with their resources. In the early days, the USDA issued subsidies for larger farming operations, owned predominantly by White farmers, while excluding federal support for Black farming operations. Some White farmers received subsidies that incentivized not planting, which resulted in Black tenant farmers losing their jobs and being evicted. The subsidies were used to purchase farm machinery, eliminating the need for Black tenant farmers. Further, she discusses how the USDA retaliated against Black farmers for participating in the Civil Rights movement by refusing loans, restricting their crop production, and interfering in local commissions that distributed federal funds. She also notes that more recently a substantial amount of the bailouts paid under the Trump administration went to White farmers.

Next, Professor Gibson addresses the impact of commercial development. She notes that by 1980 Black landowners in Hilton Head had lost about 1,000 acres to commercial development. Commercial developers are sophisticated in land transactions and understand how to use heirs’ property to their advantage. In doing so, they focused on the waterfront property that caters to the tourist industry. This resulted in a substantial loss of land for Black landowners in the Low Country and a takeover by wealthy White residents.

Finally, Professor Gibson focuses on the problematic ownership model of heirs’ property. When property passes to heirs by intestacy, they co-own their interests as tenants in common. Although this form of ownership ensures equal use of the inherited property, it has proven to be problematic over time, as the number of heirs subdividing property multiplies with the passing of each generation. In due course, the heirs may continue to have a blood relationship but their personal relationships may dwindle or disappear altogether. Fractionalized ownership erodes the value of a tenancy in common and makes it difficult to improve, leverage and sell the property as a whole.

Professor Gibson identifies a number of measures that have been taken to address Black land loss in the Low Country. Several organizations, including the Center for Heirs Property Conservation, the Heirs Property Law Center, and the LEAP Coalition, provide a range of services such as education, pro bono legal assistance, and financial support to prevent land loss. She also explains how the Uniform Partition of Heirs Property Act (UPHPA) was adopted to address partition abuses by commercial developers.

Professor Gibson further explains legal measures that aim to combat land loss through intestate succession. In addition to adopting the UPHPA, South Carolina’s legislature presented a joint resolution to establish the Heirs’ Property Study Committee to examine current and prospective measures to address the challenges created by heirs’ property in South Carolina. She describes the 2018 Farm Bill that targets discriminatory practices of the USDA, grants access to Farm Service Agency elections, and provides alternative documentation for heirs to access the new legal protections. Furthermore, President Biden provided Black farmers with substantial financial relief through grants and loans and established a racial equity commission to address systemic racism caused by past actions of the USDA.

Professor Gibson’s recommendations for further action include making attorneys available to provide pro bono services such as free wills and legal assistance to Black landowners who need representation. She further recommends that courts default to partition in kind rather than partition by sale in order to preserve family property, and that courts should provide diversity, equity, and inclusion training for judges.

This article is valuable because it addresses the multigeneration harms caused by government treatment of Black farmers and the additional problems resulting from heirs’ property—both leading to substantial Black land loss. In addition to losing the land, the residents in the Low Country, specifically the Gullah-Geechee, may also lose their homes, their primary source of income, family wealth, and cultural values. In addition to laws that curtail commercial development and provide financial support, Professor Gibson calls for attorneys to embrace the responsibility of gaining cultural competency and pursuing justice for society at large.

Cite as: Phyllis C. Taite, A Path for Wealth and Cultural Restoration for the Gullah-Geechee Residents of the Low Country, JOTWELL (October 26, 2023) (reviewing Brenda D. Gibson, The Heirs’ Property: Racial Caste Origins & Systemic Effects in the Black Community, __ CUNY L. Rev. __, (forthcoming, 2023) available at SSRN (Aug. 31, 2022)), https://trustest.jotwell.com/a-path-for-wealth-and-cultural-restoration-for-the-gullah-geechee-residents-of-the-low-country/.

Protecting Pets From the Death-Hand

Kaity Y. Emerson & Kevin Bennardo, Unleashing Pets from Dead-Hand Control, 22 Nev. L.J. 349 (2021).

Many of us love and cherish our pets and want to ensure their safety even after we are gone. Some may wish to make specific accommodations for their pets via inter vivos or testamentary pet trusts. Others may “keep it simple” by merely bequeathing their non-human companions to someone they know and trust. But what happens when owners leave provisions in their wills asking for their pets to be euthanized humanely after the owners die? While most courts in the past have refused to enforce these provisions, their justifications vary from the testator’s “true” intent to public policy and the anti-waste doctrine. Kaity Y. Emerson and Kevin Bennardo provide a thoughtful analysis of some of these justifications. They ultimately conclude that the anti-waste doctrine provides the most straightforward argument against dead-hand control. They discuss background on the legal status and value of animals, dead-hand control and its limitations, relevant caselaw, and finally provide their advice on how this issue should be handled in the future.

Pets have consistently been recognized as the personal property of their owners, who are free to treat them as they wish, barring animal cruelty. Courts apply this concept by allowing claims for wrongful death or negligent harm to a pet. In these cases, an owner may recover damages stemming from economic harm, but may not recover for emotional damages or loss of companionship. While courts disagree on the amount of recovery for such charges, even mixed-breed animals can yield some amount of recovery. Like tort law, bankruptcy law also recognizes animals as property. A companion animal may be listed as an asset and is given an exemption, allowing debtors to retain their pets in bankruptcy proceedings. By looking at other areas of law, we see clearly that animals have value as their owner’s personal property.

Even though pets are considered personal property, legislatures have enacted laws to prevent cruelty against animals by their owners. Humane euthanasia, however, does not fall into the category of cruelty, even if it is done for convenience rather than necessity. Many shelters must euthanize pets to preserve resources, and sometimes the procedure is used to put an animal that is living in pain out of its misery.

Testators typically have the freedom to dispose of their property as they see fit, which includes their pets. Our legal system values testamentary freedom and it is vital in motivating individuals to earn and save their assets instead of spending everything they have before their deaths. This dead-hand control, while beneficial, has exceptions. These exceptions include the forced shares for surviving spouses in common law marital property jurisdictions, the Rule Against Perpetuities, the slayer rule, non-enforcement of provisions that would violate public policy, and the anti-waste doctrine. Rules were also adopted to ensure that wills are properly interpreted by limiting extrinsic evidence and prohibiting changes to the language of a will to clarify intent. These rules function to prevent fraud and preserve the testator’s original intent.

As masters of their personal property, pet owners have a right to decide what should be done to their pets and thus owners may humanely euthanize them while alive. If pet owners request the euthanasia of the pet in their wills and no one objects to it, then their wish will be carried out. Yet, when the provision is questioned, it is often found to be legally unenforceable. Emerson and Bennardo demonstrate this reality through the presentation of two case studies, In re Capers’ Estate and Smith v. Avanzino, where courts held that the euthanasia of a testator’s dogs was legally unenforceable. The court in Capers’ Estate relied on three arguments against the euthanasia provision which are the focus of this article’s discussion.

First, the court in Capers’ Estate argued that the testator did not actually intend for the humane euthanasia of her pets. This analysis stems from the belief that the owner did not truly wish for her pets to die, but rather feared that they would grieve their owner and not receive the same amount of care by another to which they were accustomed. Modern courts continue to cite this rationale, but Emerson and Bennardo note that the argument may not be very effective when testators make it expressly clear that they want their pets euthanized regardless of the circumstances. Additionally, such an argument may lead to the misinterpretation of wills, and the potential for the will to be rewritten in a way that the testator would not have wished.

Second, the court in Capers’ Estate argued that upholding a humane euthanasia provision would violate principles of public policy, specifically a policy in favor of preserving the life of all living creatures. They stated that ending the life of two dogs without a valid reason would go against a person’s ethical duty. They proved this by pointing to the media attention and letters received from the concerned public throughout the case. This argument reappears in more recent appellate opinions, but the large amount of euthanasia and animal deaths that occur daily may discredit this point. Furthermore, no legislation has been passed against widespread euthanasia despite media attention, which detracts from the idea of a public policy to protect all life. The public generally accepts the killing of animals for food, clothing, in shelters, and for laboratory testing, so to say that an individual euthanasia in accordance with a pet owner’s will violates public policy may be a stretch.

Finally, the court in Capers’ Estate argued that the provision violated the public policy principles that relate to anti-waste. The anti-waste doctrine provides that a testator may not attempt to destroy property by a will provision. There is no specified dollar threshold for the anti-waste doctrine, so it may apply even to an item with minimal value. Recent court opinions have relied on this argument less frequently, but the authors argue that it is the most persuasive of the three and the only one necessary to prevail successfully over euthanasia provisions in the future.

Although some may argue that pets do not have value, or even have negative value due to the cost of their care, the treatment of animals in other areas of law clearly indicates their value as personal property. While the anti-waste doctrine is typically not applied to low-value assets, waste can occur when even property of small value is destroyed. Pets are a unique type of property, and often are viewed as having a value greater than their economic cost, making it more likely that people will be motivated to intervene to prevent their destruction. Emerson and Bennardo argue that the anti-waste doctrine is the most effective argument, and the only one of the three that should be utilized in the future.

Through this article, authors Kaity Y. Emerson and Kevin Bennardo shed light on an issue of which many may be unaware, affecting the lives of the animal companions that many hold so dear. I appreciate the clarity that their analysis brings to the issue, and the straightforward solution they present for future courts to implement. This article was both enlightening and enjoyable and will provide its readers with a unique interpretation of the dead-hand control and anti-waste doctrine that they are sure to remember.

[Special thanks for the assistance of Emily Spjut, J.D. Candidate May 2023, Texas Tech University School of Law, in preparing this review.]

Cite as: Gerry W. Beyer, Protecting Pets From the Death-Hand, JOTWELL (September 4, 2023) (reviewing Kaity Y. Emerson & Kevin Bennardo, Unleashing Pets from Dead-Hand Control, 22 Nev. L.J. 349 (2021)), https://trustest.jotwell.com/protecting-pets-from-the-death-hand/.

Inheritance Law for Centenarians

Naomi Cahn, Clare Huntington, & Elizabeth Scott, Family Law for the One-Hundred-Year Life, 132 Yale L.J. 1691 (2023).

Some cultures revere their elders. Ours does not. Ageism is illegal in certain contexts but remains far too prevalent in modern discourse, often imbued with sexism. Elder abuse and financial exploitation of older persons are on the rise. Even respected voices from the medical community have begun to question the social utility of longevity: At age 57, bioethicist Ezekiel Emmanuel controversially declared that he would refuse life-extending medical treatment in his elder years because he does not believe most people “continue to be active and engaged and actually creative past 75.” Dr. Emmanuel acknowledged the existence of outliers, but his gloomy claim about elder productivity is certainly contestable. Surely you can think of senior “outliers” in your own life. My mother, for instance, began practicing law in 1970 and still enjoys maintaining a full caseload with enough work to overwhelm any first-year associate. I clerked for similarly inspirational federal judges who heard and continue to hear cases in their late 80s. But even conceding that productivity declines with age, I hope most readers would agree that respect, dignity, and fairness under the law should never hinge on one’s economic or creative output.

In Family Law for the One-Hundred-Year Life, Naomi Cahn, Clare Huntington, and Elizabeth Scott cast away tired platitudes about the elderly by presenting a bold new vision for autonomy and care in old age. The Article breaks new ground by unflinchingly confronting family law’s failure to serve the needs and preferences of elderly populations, including the growing number of centenarians. The authors argue that “the fundamental problem—conceptually and practically—is that family law is designed for younger people, facilitating child rearing and helping spouses pool resources to build a life together.” That design, in turn, overlooks critical family dynamics that change in old age, i.e., when parent-child caregiving roles reverse, when older persons spend down their savings rather than accumulate new wealth, and when single seniors enter new companionships with estate plans that would be frustrated by marital defaults that presume “financial interdependence.”

Those critiques have enormous implications for inheritance law, which strives to harmonize the rules of property succession with their counterpart doctrines in family law. Consider the plight of an elderly widow who, after a 30-year marriage, inherited considerable assets from her deceased spouse as part of a reciprocal estate plan in which the last to die would leave everything to their joint children. If the widow were to marry a new companion and then die in a separate property state without taking any further action, the new spouse would be entitled to claim an elective share (equal to one third of the augmented estate in many states) that would undo the widow’s longstanding estate plan favoring her children. Similarly, in some states that have not enacted the Uniform Probate Code, the new spouse would be entitled to a share of the decedent’s estate as a pretermitted heir. If the widow had not made a will in the first place and thus died intestate, the new spouse would inherit at least half of her probate estate. Those outcomes are potentially contrary to her intent. Moreover, such disruption to a joint family estate plan would almost certainly frustrate the intent of the original predeceased spouse.

Under current law, the widow could prevent the new spouse from claiming an elective share by executing a premarital agreement. But hammering out a premarital agreement usually requires both parties to retain attorneys, which tends to arouse adversarial contention and unwanted stress at a time when all involved would prefer to focus on wedding plans rather than legal instruments. To simplify the process for modifying marital defaults (including waiver of the elective share), the Article proposes an innovative “marital menu” that would seamlessly allow prospective spouses “to opt out of obligations and expectations that would otherwise flow from marriage.”

The Article also considers the enforceability of care contracts between an older person and members of her family who would “be paid after the care recipient’s death from the decedent’s estate.” Some courts hold that intra-family caregiving services are gratuitous and non-compensable, often premised on the theory that individuals have a moral obligation to provide care for members of their own family. Recently, some courts have also applied the non-compensability principle to unmarried companions.1 One problem with the non-compensability principle is that post hoc invalidation of care contracts can deter relatives from providing end-of-life care to seniors who would prefer to live independently but lack liquid assets to pay for in-home services.

In contracts that compensate the care provider during the care recipient’s life, “[i]f the older adult is trying to qualify for Medicaid, many states scrutinize the contracts to ensure they are not simply a means for transferring assets from the older adult to the younger relative, helping the older adult satisfy Medicaid’s means-tested eligibility requirements.” The Article explains that, “[p]artly based on the assumption that familial care is provided altruistically, state regulators regularly find that the agreements are, indeed, fraudulent transfers.” The authors expose this doctrine for what it is: “an example of class-based discrimination.” Indeed, “intrafamilial contracts for care are not scrutinized by public authorities unless the care recipient seeks to qualify for public support through Medicaid.”

The Article eloquently concludes by identifying three principles to guide future law reform: (1) autonomy and dignity, enshrining freedom to forge new family relationships and “to tailor the terms of these family relationships,” (2) equality, requiring lawmakers to confront longstanding inequities “along the lines of race, class, gender, and sexual orientation,” and (3) efficiency, with the goal of reducing the costs and burdens of customizing family relationships.

I commend this Article because it ameliorates family law’s blind spot for the elderly and tackles that crucial issue with bold new ideas. Because that scholarly lacuna is particularly glaring with respect to property succession, this Article will prove highly relevant to those who teach or practice Trusts & Estates. Family Law for the One-Hundred-Year Life was a joy to review because it is beautifully written in engaging, approachable prose. I predict it will become a classic work of scholarship, an appealing read for legislators and judges, and, hopefully, a catalyst for law reform.

  1. See Davidson-Eaton v. Iversen, 519 P.3d 626 (Wyo. 2022); Estate of Polisseni, 176 N.Y.S.3d 903 (N.Y. Sur. 2022).
Cite as: Reid Weisbord, Inheritance Law for Centenarians, JOTWELL (July 20, 2023) (reviewing Naomi Cahn, Clare Huntington, & Elizabeth Scott, Family Law for the One-Hundred-Year Life, 132 Yale L.J. 1691 (2023)), https://trustest.jotwell.com/inheritance-law-for-centenarians/.

A Proposal to Limit the Deduction of Funeral Expenses

William A. Drennan, Restricting Funeral Expense Deductions, 126 Dick. L. Rev. 429 (2022).

Law professors have the luxury of devoting time to thinking about ways to improve the law. Often this means looking at niche issues that may not arise with much frequency but that remain important. Professor William Drennan has done this quite well in his interesting article, Restricting Funeral Expense Deductions. The article focuses on the narrow issue of the deductibility of extravagant amounts spent at death by decedents who want to build monuments to themselves. While he does not argue that the law should prevent people from using their money for these expenses, his primary point is that society should not offer them a tax subsidy to do so because it promotes socially undesirable expenditures.

Part I of the article discusses average burials in the United States, extravagant burials in general, and the costs of extravagant burials to society. These costs include the tying up of land, the consumption of natural resources, and environmental damage due to the release of embalming fluids as well as other chemicals and metals into the ground, not to mention the environmental impact of using metals and cutting down trees to build ornate coffins.

I found Professor Drennan’s discussion of the history of burials to be fascinating. He notes that throughout history burial of the dead has been the norm rather than the exception. Early in our country’s history, this just meant burial in the ground in simple containers with no embalming. The Civil War increased the use of embalming because family members wanted to see their lost loved ones one final time, which meant that the body had to be preserved to be transported home. In the middle of the 20th century, very few people were cremated, and there was a growing expectation that a gravesite would be maintained and dedicated to the person in perpetuity. By 2010, burial in perpetual-care cemeteries had become the norm for wealthy Americans despite the growing popularity of cremation.

For some very rich people, there has always been a desire to have an exorbitant burial with a perpetual monument. The earliest examples are the pyramids of Egypt. More recently, in the same spirit, real estate baroness and “Queen of Mean,” Leona Helmsley, dedicated $3 million of her estate for the care and maintenance of a 1,300 square foot, $1.4 million mausoleum in Sleepy Hollow, New York, as final resting place for herself and her husband.

Part II of the article discusses the federal estate tax and specifically focuses on the deduction for funeral expenses. Although the estate tax now only impacts very large estates, its reach changes over time, and it could once again apply to more estates in the future. Currently, the estate tax is effectively a flat tax of 40 percent. The law provides that funeral expenses paid from the estate are deductible in calculating the federal estate tax. This means that, for taxable estates, each dollar paid out for funeral expenses saves 40 cents in taxes, which effectively encourages wealthy taxpayers to spend lavishly on their memorials.

Part III of the article analyzes policy concerns related to burials. Here, Professor Drennan focuses on the reasons why people want to bury the dead in cemeteries, including the desire to treat decedents with respect, a wish to help survivors with their grief, the need to prevent the spread of disease, and a wish to minimize the unpleasantness associated with death. He proposes bifurcating burial expenses into two components: (1) expenses that are compelled by law or social custom, and (2) expenses that are incurred voluntarily by the decedent.

In Part III, Professor Drennan also notes that some state laws hint at this bifurcation by limiting the amount that can be paid for funeral expenses when a decedent is insolvent because that money is effectively coming from the decedent’s creditors. In the same vein, a Treasury Regulation limits the deduction to a “reasonable expenditure for a tombstone, monument, or mausoleum, or for a burial lot,” although, as Professor Drennan observes, this reasonableness requirement may be invalid because it fails to appear in the text of the statute. Even if enforceable, the rule is not broad enough to regulate the tax treatment of extravagant burials because it does not limit deductions for other big ticket expenditures such as ornate coffins.

Professor Drennan identifies three options for reforming our current law. First, Congress could simply repeal I.R.C. § 2053(a)(1), which would preclude an estate from deducting any funeral expenses. Second, Congress could cap the funeral expense deduction at a specific dollar amount. Third, Congress could amend I.R.C. § 2053(a)(1) to limit the deduction to “reasonable” funeral expenses.

After analyzing the three reform options, Professor Drennan endorses a cap on the estate tax funeral expense deduction. Specifically, he would cap it at an amount approximating the average cost of an American burial. One way to do this, without recalculating the average cost each year, would be to adopt the gift tax annual exclusion amount (currently $17,000) as a proxy because that exclusion is periodically adjusted for inflation. This is the approach that he recommends.

Professor Drennan has written a thought-provoking article. I especially like his bifurcated approach to analyzing burial expenditures. While this may be a niche issue, I think he is correct that an unrestricted deduction does not make sense because it incentivizes behavior that is not particularly good for society. He correctly notes that there are a variety of ways in which we could create a reasonable limitation, and I think tying the cap to the gift tax annual exclusion is a simple solution that would adequately address the problem.

Cite as: Sergio Pareja, A Proposal to Limit the Deduction of Funeral Expenses, JOTWELL (July 6, 2023) (reviewing William A. Drennan, Restricting Funeral Expense Deductions, 126 Dick. L. Rev. 429 (2022)), https://trustest.jotwell.com/a-proposal-to-limit-the-deduction-of-funeral-expenses/.

Economies of Death

Victoria Haneman, Prepaid Death, 59 Harv. J. on Legis. 329 (2022).

Victoria Haneman’s recent article, Prepaid Death, is a call for change in the way that people shop for and ultimately purchase burial and funeral services as well as a plea for policy reforms that would encourage consumers to make these important decisions pre-need rather than at the time of death. At death, the time of need, family members and others involved in the funeral services selection are grieving, vulnerable, and willing to pay exorbitant amounts for things that the decedent might not even have wanted. As Haneman points out: “The pre-need consumer is cost-sensitive and far less likely to make decisions that are time-pressured or driven by guilt. Although decisions may be unfamiliar, there is time to research and familiarize oneself with options and providers — including new and innovative death care technologies that may not be on the menu of choices offered at one’s local funeral home.” She also points out that when consumers have more time to explore their options, low- and middle-income consumers benefit because of increased opportunities to access financing options.

The solution that Haneman suggests is leveraging Internal Revenue Code section 125 and flexible spending account principles. The current Flexible Spending Accounts (FSAs) program allows eligible employees to make voluntary pre-tax contributions for certain qualified benefits that do not currently include death care. One option would be to allow consumers to create a dedicated Death Care Flexible Spending Account funded with pre-tax earnings contributed to this earmarked account. A second option would be to continue using FSAs in their current form but add death care expenses to the list of reimbursable “qualified expenses.”

This proposal constitutes an eminently reasonable approach not only to funding death care expenses but also to nudging consumers toward pre-need shopping. For this proposal alone the article stands as an important contribution in the death care literature. In addition, however, as Haneman takes the reader through her analysis, she identifies three important economies that center around death. First, there is the corporate economy, driven by an industry that is only slowly coming to change and whose practices remain for the most part mired in the past. Second, there are household and family economies that intersect with – and generally suffer from – conventional corporate practices. Lastly, there is a cultural economy that informs and influences consumer decision-making by setting certain standards for burial and linking them to prestige, prosperity, and even sentiment for the deceased. These three economies –networks of exchange, wealth, and resources– are all relevant areas of inquiry about death care that merit pause for further discussion.

In terms of the corporate economy, Haneman tells us not only that “[d]eath has become a large, lucrative, bureaucratic, corporate business over the span of five generations” but also that “[t]he business of death is managed by a death care industrial complex with revenues projected to exceed $68 billion by 2023.” And, for the most part, it is an industry with highly entrenched practices that are both outdated and expensive. Putting a face to the industry, Haneman also notes that “[t]he average funeral director or mortician in the United States is a white (77.6%), middle-aged (51.8 years old) man (69.1%) offering products and services in line with what has been offered for at least half a century.” Moreover, the prepaid funeral industry, as a subset of this corporate economy, has long engendered companies running fraudulent schemes and financial elder abuse. Change is afoot (new burial practices, hip morticians, and cutting edge advertising), Haneman tells us, but it has come late to an industry that has been highly corporatized and highly resistant to innovation.

A related and intersecting economy — or set of multiple economies — is that of household and personal finance. In this realm of personal economy, the concern that drives Haneman, and one that deserves greater attention, is the concept of funeral poverty. Haneman points out that funeral costs are the “the third largest category of expense incurred over a lifetime.” To contextualize the outsized cost of funerals, Haneman reminds the reader that “[i]t is estimated that 40% of Americans would have great difficulty contending with an unexpected $400 expense and fewer than 40% could afford to pay the surprise $1,000 expense out of savings.” Death, in this way, can be both “emotionally devastating” and “economically shattering.” Stepping into the breach, predictably, there are now funeral lenders who target such “subprime” borrowers and “offer financing for funerary expenses with interest rates advertised as high as 35.99%.” Thinking about the ways in which low-income families can more easily bear the unavoidable expense of burying a family member or other loved one is an important component of Haneman’s proposal for pre-need planning, and the ability of every family and household to afford a certain standard of burial service bears further thought and policy intervention. These kinds of interventions would recognize, as Haneman does, that “[a] failure to provide for oneself or one’s dependents is stigmatized and often accompanied by feelings of shame, inadequacy, and inferiority …. [and] [b]ereavement compounds this sense of failure.”

The feelings of shame that come with the inability to afford a “proper” funeral take us directly into the third relevant economy, which is the cultural economy, or a network and exchange of norms and expectations around death. It is not surprising that “lower-income families spend far more than higher-income families, relative to total expenditures [on funeral costs],” but what might be surprising is that “in 2014, the top 1% spent less on funerals than everyone else—in share of total expenditures, but also … in absolute dollars. Conversely, the poor spent a ‘26% greater share of total expenditures than the national average.’” These data points, Haneman suggests, affirm certain historical and cultural norms, in particular the Anglo-American idea that spending on funerals was a way for lower-income families in Edwardian and Victorian England to display status (The Great British Bake Off fans might remember the funeral biscuits many seasons back). What the data points certainly underscore is that there are, as Haneman observes, “many layers undergirding the need for showy, costly, public ceremonies.” These include: “spending to satisfy community expectations, honor cultural traditions, or avoid peer judgment; conspicuous consumption designed to signal the prestige of the family or decedent; spending at a level deemed respectable to honor the deceased or to avoid peer judgment; or a fear of what others in the community will think if spending is limited.” Low-income families will not necessarily buy the most economical funeral services, even if they shop pre-need, and therefore changing the future of funeral planning cannot happen without recognizing and understanding the multiplicity of cultural imperatives that drive consumption.

Asking readers to think about all these interlocking economies, Haneman brings to the fore some of the most interesting and salient aspects of death care and the funeral industry. And in so doing, she highlights perennial questions about corporate power, household budgeting, and the tie between law and culture.

Cite as: Allison Anna Tait, Economies of Death, JOTWELL (June 22, 2023) (reviewing Victoria Haneman, Prepaid Death, 59 Harv. J. on Legis. 329 (2022)), https://trustest.jotwell.com/economies-of-death/.