Donative freedom is the guiding principle of inheritance law. This is something that many of us who teach the subject tell students every semester, at the outset of a Wills and Trusts class. We keep repeating this truism because donative freedom turns out to be the answer to many of the questions we encounter, questions about why a certain rule exists or why a court case produces a certain result. What happens less frequently is sustained inquiry into the principle of donative freedom, its history, and the political economy supporting it.
In their article, Donative Freedom, Disrupted, Carla Spivack and Deborah Gordon engage in just such an inquiry, taking on the primacy of donative freedom as an ordering mechanism and foundational principle in inheritance law. Three pillars, Spivack and Gordon tell us, have traditionally supported the edifice of donative freedom: philosophy, history, and economics. These pillars have been reinforced over time, bolstered in their foundation by theorists, legislators, and courts. Nonetheless, Spivack and Gordon observe, reports concerning the strength and utility of these pillars have been greatly exaggerated.
Philosophy, the first pillar, supports donor freedom by tying it to constitutive theories of property law, articulated in the writings of John Locke and others of like mind. This vein of philosophy justifies donor freedom by positing that “there is a natural right to property before the state’s involvement and that any governmental intrusion into a property owner’s disposition is just that—an intrusion into that right.” (P. 2.) This is the “earn it, own it” theory of property, which centers individual effort and individual rights. Lost in this framework, of course, are the contributions of the household and community, both direct and indirect, as well as the contributions of the state.
This perspective on property rights has led to numerous unjust outcomes over time, many of them gender-based. For example, without mechanisms to counter this principle—like the elective share or equitable distribution, the contributions of married women to family wealth can easily be discounted and ignored. Similarly, as we are watching happen in real time, this legal perspective allows billionaires to proclaim themselves as “self-made” when in fact they benefitted not only from family support but also from the public infrastructure that allowed their companies to operate, government benefits such as loan programs for small businesses, tax benefits and entitlements, and entrepreneurial grants.
The better way to think about property, Spivack and Gordon suggest, is to use Liam Murphy and Thomas Nagel’s theory, elaborated in the context of tax law but equally apt in the inheritance law domain. Their theory goes like this: income and wealth are made possible by government support and if we take government contributions into account—especially at death—the outcome does not necessarily align with outcomes driven by donor freedom. Put differently, we operate on the government’s tab and at death the tab closes and must be paid. Invoking donor freedom is a refusal to acknowledge this tab.
The second pillar that the authors tackle is history. Spivack and Gordon note that “the common law of inheritance is read to support an ever-widening definition of donor’s rights.” (P. 2.) But, they remark, what we take for “a jurisprudential trajectory toward unbridled donative freedom” (P. 14) is more aptly described as a set of developments “whose theme is pro-social and pro-family rather than individualistic.” (P. 14.) As a starting point, the authors remind us that donative freedom was traditionally disallowed in English law on account of primogeniture, one of the most important and central rules of English inheritance mandating that all land passed to eldest sons.
Moreover, even English supporters of donor freedom, like Sir William Blackstone whose commentaries were a cornerstone of legal authority, were moderate in their enthusiasm. Blackstone, for example, favored donor freedom as a means of creating a more equal society rather than vindicating an agenda of radical individualism. Blackstone encouraged donor freedom only insomuch as it created conditions to support the free exchange of property and the increase of “moderate and small landholders,” a class Blackstone considered vital to the success of a country.
Early American legislatures definitively rejected primogeniture as a vestige of decayed aristocratic property rules, a move that glorified donor freedom. However, colonial and early state legislators—like Blackstone—were more interested in preventing wealth concentration and the reification of the privileges of inherited wealth than they were in supporting donor freedom to the exclusion of other values. Anti-aristocratic sentiment nevertheless embedded the notion of donor freedom in American inheritance ideology and two later developments in the nineteenth century cemented the embrace of the concept: the introduction of psychiatric evidence into court proceedings and support for spendthrift trusts through several important judicial opinions.
In the first instance, Spivack and Gordon recount that a wave of broken wills, caused by the introduction at trial of psychiatric evidence concerning the mental state of the testator, “led to a backlash.” (P. 18.) Legal observers were shocked and slightly horrified that the wishes of propertied men were so easily undone by psychiatric evidence and, in response, courts and legislatures worked to confirm the idea that donative freedom was indeed the lodestar of analysis.
The second development was the judicial authorization of spendthrift trusts. Spendthrift trusts, trusts with provisions that prevented beneficiaries from alienating trust property and therefore helped guard against unwanted creditors, were essentially a legal promise that a donor’s wishes and legacy could not be undone by creditors. And while these trusts did receive legal imprimatur, Spivack and Gordon underscore that spendthrift trust rulings were not as broad as they are made out to be and endorsed the “disposition of assets in a prosocial direction.” (P. 23.)
The third and last pillar—economic rationales—is also a weak one according to Spivack and Gordon. The economic rationales that supporters of donative freedom have deployed are varied but they all, the authors tell us, are overrated. One rationale is that donative freedom supposedly motivates people to accumulate and that accumulation has positive downstream effects on the economy as a whole. But trickle-down doesn’t usually work and, the authors observe, “[d]onative freedom does not raise all boats.” (P. 31.) Quite the contrary, donative freedom increases inequality by allowing for wealth preservation mechanisms like domestic asset protection and dynasty trusts. The authors find other economic arguments, such as efficiency in wealth transfer and encouraging caregiving, similarly overstated.
Ultimately, identifying and dismantling these three pillars constitutes the major work of the article and a major contribution to our collective understanding of inheritance theory. But the authors also take care to remind us, in closing, of what the stakes are and why we should care about whether the pillars stand or fall. First and foremost, understanding the weak points in the architecture, where the pillars might crumble, is key to allowing reconstruction. Spivack and Gordon write: “Understanding that donative freedom is not a natural right, a historically ordained doctrine, or a social welfare maximizer is liberating. It frees us to cleanse our political and legal discourse of its corrupting influence and start again.” (P. 42.)
The call to create new frames and to change outcomes is invigorating, a call that is essential if we want to move past the current era, defined by its politics of greed and unfettered celebration of the individual rights of the wealthy. Taking the approach suggested by Spivack and Gordon, attenuation of donative freedom can be redefined not as a limit on individual rights but rather as the recognition of other people’s rights, rights that previously have been obscured from view. Change, stepping away from donor freedom, represents the push to reveal distribution patterns that more accurately reflect the inputs of both community and government and that model political theories of communal flourishing. Change is not redistribution but recalibration.
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