You should read Reimagining Marital Property At Death because it challenges the conventional conception that death ends the economic partnership between spouses. The authors’ insight that a marriage might (sort of) continue post-mortem prompts a reevaluation of how property is divided between spouses and of what it means to be married.
Professors Ram Rivlin and Shahar Lifshitz begin with mutuality and symmetry, two principles that inform how states divide property between spouses at death. (P. 364.) Symmetry dictates that the division of property should be the same regardless of whether a marriage ends in death or divorce. Because marital assets are divided equally in divorce, they should also be divided equally between the surviving spouse and the dead spouse’s estate. Mutuality dictates that both spouses should be able to devise half the proceeds from the economic partnership, regardless of which spouse dies first. States with an elective share that allows the surviving spouse to claim roughly half of the marital assets accept the principle of symmetry but reject mutuality because they do not provide a mechanism to transfer property from the surviving spouse to the dead spouse’s estate, even if the surviving spouse has a greater share of marital assets. Community property jurisdictions, on the other hand, embrace both symmetry and mutuality. These jurisdictions give spouses equal ownership of property earned during the marriage, thereby enabling each spouse to devise half of the marital property at death.
Reimagining Marital Property enters new territory by arguing that community property and common law jurisdictions should reject the principle of symmetry. (P. 364.) Professors Rivlin and Lifshitz make the commonsensical and convincing argument that divorce and death are different. The former is initiated by one of the spouses; the latter is imposed on the spouses by forces beyond anyone’s control. Divorce is the end of a failed marriage; death is often the end of a successful one. Most critically, the partnership between spouses can survive death in ways that it cannot survive divorce. (P. 365.)
Reimaging Marital Property leans into theory, sometimes at the risk of obscuring the insightful observations at the article’s core. But the authors’ command of theory is on full display as Professors Rivlin and Lifshitz explain how a spousal partnership can survive even though one spouse has died. They write about insurance-like bargains between spouses (with spouses contributing to the economic partnership during their lifetime knowing that one will live longer and require support) and the non-rivalrous relationship between the surviving and dead spouse (the surviving spouse has economic needs; the dead spouse does not). (P. 366.) But the notion of a “surviving partnership” is most compelling when the authors describe what readers will have witnessed or experienced themselves: “When one spouse dies, there is a sense in which the family still survives, represented by the surviving spouse, who continues to run the family and pursue the projects the couple undertook together, such as—paradigmatically—raising the couple’s children.” (P. 367.) Descriptions of the surviving spouse as the individual “who carries on the joint ventures of the partners” or of “the family home that continues to be the family home” resonate deeply. (P. 367.) Death ends the marriage, but not the spouses’ partnership.
Because the partnership survives, the authors propose a new default rule for community property and common law jurisdictions: all marital property—that is, property that was earned during marriage—goes to the surviving spouse. This default rule is radical even in community property jurisdictions, because the deceased spouse’s estate “cannot assert a claim to the portion of the marital property to which the deceased would have been entitled had the partners divorced.” (P. 368.) But it is particularly radical in common law jurisdictions because the default rule requires a clear delineation between marital and separate property—a delineation that common law states make in divorce but not at death.
Professors Rivlin and Lifshitz recognize that their default rule “does not suit every couple.” (P. 369.) Some spouses will want to use resources to prioritize their personal projects, like supporting children from outside the marriage. Moreover, not all marriages have a level of trust where one spouse can count on the other to continue to pursue the ends that both spouses valued. These spouses can use a will to terminate the surviving partnership. Just as either spouse can file for divorce, either can write a will that severs the surviving partnership and claims their share of the marital property for their estate. In community property jurisdictions, each spouse will have ownership of half of the marital property. But in common law jurisdictions “even the spouse without formal ownership of the assets [would be] entitled to write a will that enables her to claim her half of the family property if she predeceases her spouse.” (P. 372.) In addition to the use of wills, Reimagining Marital Property proposes other ways that spouses can “shape their financial relations…and opt for different sort of marital property regimes,” demonstrating the authors’ awareness that “different marital relationships call for different forms of financial partnerships.” (Pp. 408-409.)
The suggestion that a spouse in a common law state could write a will claiming assets not titled in their name reveals the distance between what Reimagining Marital Property proposes and the current state of the law. But the surviving partnership model also helps rationalize existing Estate law. Consider, for instance, intestate succession. Some community property states give the decedent’s marital property to the surviving spouse but divide separate property between the surviving spouse and the decedent’s other heirs. (P. 380.) Under the Uniform Probate Code, the amount a surviving spouse receives under intestacy depends on whether either spouse had a child from outside the marriage. These rules are usually justified by presumed decedent intent. But in keeping with the surviving partnership model, these rules also reflect the “nature and scope of the marital partnership…and [whether]…the main commitment of both parties is to each other and the joint unit they created together.” (Pp. 382-83.)
Reimagining Marital Property at Death offers a compelling argument for treating death differently from divorce, a bold new default rule, and a model that helps explain and conceptualize already-existing law. In addition, the “surviving partnership” theory at the heart of the article suggests that spouses can cheat death (at least a little). What’s not to like about that?
