- 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Some of the most important rules in inheritance law may be out of date.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.
