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.
- See Davidson-Eaton v. Iversen, 519 P.3d 626 (Wyo. 2022); Estate of Polisseni, 176 N.Y.S.3d 903 (N.Y. Sur. 2022).
