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A Proposal to Protect Transgender Beneficiaries

Carla Spivack, The Dilemma of the Transgender Heir, 33 Quinn. Prob. L.J. 147 (2020), available at HeinOnline.

A goal of professors is, or should be, to think about legal issues that have not yet arisen but that are likely to arise in the future. By thinking of the issues before they arise, we can work to change the law before courts are forced to deal with the issue with little guidance on a case-by-case basis.

In her thought-provoking article, Professor Carla Spivack identifies the issue of a transgender heir and a bequest that did not contemplate a gender change. Specifically, she identifies a situation in which an elderly relative leaves property to “my daughter” or to “my grandsons,” but the intended recipient no longer identifies as a female, in the case of the daughter, or a male, in the case of a grandson, at the time of the elderly testator’s death. The concern is that other beneficiaries may then seek to invalidate the gift by arguing that the testator did not have a daughter or a particular grandson at the time of death.

Part I of the article focuses on the “expressive function” of law, or the law’s power to make value statements to encourage change or to deter behavior. In the context of transgender individuals, Professor Spivack argues that the law should play an expressive role by expressly including transgender heirs for inheritance purposes into the notion of what constitutes a “family.”

Professor Spivack notes that the issue of ambiguous gifts to transgendered heirs is likely to arise with a growing level of frequency in the future. The issue is particularly important because transgender people have higher unemployment and poverty rates than the population as a whole. The intergenerational transfer of wealth protects people from living precariously, and it determines what society will look like, who has access to social goods, and who wields political power. While it is possible to draft around issues with transgender heirs by using gender neutral terms such as “my child” or “my grandchildren,” gendered descriptions often appear in form documents and in the idiosyncratic wills of wealthy individuals. In short, we need to assume that people will not always draft around it, and the law should provide a solution for when they fail to do so.

In Part II of her article, Professor Spivack attempts to fit the transgender heir into existing will interpretation doctrines. She ultimately concludes that all attempts to do so fail. The problem is that current doctrines would bog courts down with considering complex philosophical questions related to the meaning of gender and identity. Instead, Professor Spivack argues, the focus should be on creating a succession law presumption that focuses on the decedent’s intent.

First, Professor Spivack analyzes the current doctrine of ambiguity. She notes that courts traditionally have allowed for the consideration of extrinsic evidence about intent with a latent (not apparent from the text alone) ambiguity. Now, most courts allow extrinsic evidence to be considered for both latent and patent (obvious from the text) ambiguities. Arguably, a person who has changed gender creates an ambiguity. The issue is that somebody could argue that no ambiguity exists because the person identified in the bequest no longer exists. For example, a person who was once a son named Alex is not the same person as a daughter named Alexa. The son named Alex no longer exists, and the bequest then lapses. While this argument may ultimately fail, it mires courts in the question of whether a change in gender is so fundamental that the former person can be said to no longer exist.

Second, Professor Spivack analyzes the doctrine of reformation of mistakes. The problem is that the mistake to be reformed must concern some fact or law at the time the will was executed. The “mistake of fact” here would be an incorrect belief about the beneficiary’s gender identity at the time the will was executed. This gets into questions about the nature of gender and leads us to the same question, as with ambiguities, about the question of identity. Once again, the person contesting the will will argue that the transgender child is not the same person identified in the document, leading to a lapsed gift.

Third, Professor Spivack analyzes the pretermitted heir doctrine, which protects children from disinheritance if they were born or adopted after the will’s execution. In general, the doctrine creates a presumption that the testator simply forgot to update the will and would not have intended to disinherit the child. With transgender individuals, this doctrine is far more challenging because there often isn’t a discrete point in time, such as with childbirth, when gender changes.

Fourth, Professor Spivack considers the doctrine of “fact of independent significance.” Again, she concludes that this doctrine is insufficient to resolve the issue. The basic doctrine deals with devises that are otherwise outdated because of life events following the document’s execution. For example, a bequest to “my children” should include subsequently born children because the birth of a child is an objective event that would take place regardless of the disposition in the will. The problem with a transgender individual is that a contestant would simply argue that the person identified in the will no longer exists, again leading us to a lapse.

Finally, Professor Spivack looks at two more simple concepts, name changes and provisions in the will, to argue that the transgendered heirs should inherit. Courts commonly allow people who have changed their names to inherit because there is no question that they are the same people as the person identified in the will. That does not resolve the question of whether a person who has changed gender is, in fact, the same person. Could the changing of gender so fundamentally alter who a person is that he or she is no longer the same person? Similarly, wills often contain boilerplate provisions that state that words should not be construed to exclude a different gender. Such provisions also do not resolve the deeper issue of what it means to change gender and whether the person identified is the same person if his or her gender has changed.

In Part III of her article, Professor Spivack focus on the meaning of gender and the cultural basis for the “gender binary.” Here, she gets into the core issue that complicates using current doctrines to resolve these issues. Specifically, what is the meaning of gender? Culturally, at least in the United States in recent memory, men and women are often viewed as opposites. Historically and in other cultures, that has not necessarily been the case. Some cultures have historically had traditions of fluidity between genders, including a third gender. Now, several states, as well as Washington, D.C., now recognize a third gender, and one court in Oregon has recognized a nonbinary gender identity.

In part IV, Professor Spivack focuses on the law’s role in constructing gender. She notes that current legal discourse in the U.S. generally naturalizes the gender binary. This has helped to establish rigid genders as constructed parts of our society. Professor Spivack does not deny the reality that individual identities are often lived at one of two gender poles. She merely tries to recognize their constructed and contingent nature so that we can then focus on the broad policies of focusing on the testator’s intent and family protection.

In Part V, Professor Spivack argues for an addition to the Uniform Probate Code (UPC). Specifically, she proposes that the UPC establish a presumption that the parent or grandparent of a transgender child would want that person to inherit even after the person has changed gender. This presumption could be rebutted if there is clear and convincing evidence that the testator no longer wanted the person with the changed gender to inherit.

Professor Spivack has written a thought-provoking article. While I do not necessarily agree with her view that a rigid, binary view of gender is a relatively new concept, she raises these issues in a thought-provoking way. Her ultimate proposal is a sound one because it helps us to reform our laws in light of modern realities.

Cite as: Sergio Pareja, A Proposal to Protect Transgender Beneficiaries, JOTWELL (March 16, 2021) (reviewing Carla Spivack, The Dilemma of the Transgender Heir, 33 Quinn. Prob. L.J. 147 (2020), available at HeinOnline),

Performers and Portrayers

In 1956, sociologist Erving Goffman wrote his now-classic text, The Presentation of Self in Everyday Life. Consciously or not, Goffman posited, people are invariably actors, their lives spent staging and arranging a string of performances across time and space. Were A and B to meet for a walk, their social interaction would comprise complex impression management techniques with each simultaneously actor, and audience, to the other.

Goffman’s contributions were neither startling then nor dated now. “All the world [was already] a stage” to a 17th century playwright, and as Rush admonished in the late 20th century – Limelight; Moving Pictures (1981) – “we are merely players, performers and portrayers.” Rush continued, casting the limelight as “the universal dream for those who wish to seem,” by contrast to its incompatibility to a life of authenticity, where seeming – and being – are merged. Goffman might have questioned whether such a life were even possible. But it is likely that none of them – not Shakespeare, nor Goffman, nor even Geddy Lee or Neil Peart – could have known the prescience of their observations as applied to the social media platforms on which so many live today. Shelly Kreiczer-Levy and Ronit Donyets-Kedar do, and through Better Left Forgotten: An Argument Against Treating Some Social Media and Digital Assets as Inheritance in an Era of Platform Power, they invite us to think longer and harder (or at least, differently) about what it means to propertize online presentations of self through inheritance.

An Argument Against begins by situating social network sites and the profiles or accounts that accompany them within larger arenas of platform power, digital technologies and assets “proper” as well as the online life – with all of its sociocultural subtext – they engender. That orientation is critical for a luddite such as myself, for whom “technology” is a huge word holding fungible widgets and bits within it. Noting that not all digital assets bear the same characteristics, Kreiczer-Levy and Donyets-Kedar carefully frame the uniquely constitutive force that social network profiles and accounts hold for individual development, actualization and expression, through sweeping yet directed accounts of agency and autonomy, value and vulnerability, and relationship with and to others and self. In a way, their relational focus, including between individuals interacting with (and presenting self to) technology, power platforms, and other individuals or groups, replicates a different sort of interchange that arises whenever questions of ownership are posed. If property is the legal relationship between and among persons and a “thing,” then any question involving property can generally distill to “who has what rights to the ‘thing’ relative to whom, and when”? These authors ask: are social network profiles “property” (crudely, “things”) to which such traditional property concepts as “rights to transfer at death” apply?

Here is what I find to be the most elegant and provocative aspect to the paper. Rather than answer that precise question – although the analysis surveys trends and answers on point, including the Uniform Law Commission’s Uniform Fiduciary Access to Digital Assets Act and some fine scholarship by Professors Naomi Cahn (Virginia) and Natalie Banta (Drake) – the piece largely sidesteps that inquiry as yet another example of “constantly asking the wrong questions.” It is as though the authors are turning the reader by the chin to say “not there, look over here – stop being so distracted, and focus on the hard part.” Either/or binaries with sorting powers are comfortable and alluring for complex law in a complex world. It is tempting to arrange complex sets as rough yes/no questions, either to drive results or rationalize predicate decisions. For example, the authors observe how the very term “digital asset” suggests that a property determination has already been made, shifting the hard theoretical work of characterizing legal interests toward a routine analysis of rights to use, exclude, enjoy, consume, destroy (and most relevant here, “transfer”) it. Once classified as property, social media profiles or access rights thereto, the story would go, are subject to (1) relatively few restraints on alienation or acceptance but (2) relatively free donative and testamentary choice.

To Kreiczer-Levy and Donyets-Kedar, however, making that classification first is a bit like putting a cart before a horse, and even one of a different color. Although never quite coming out and saying so, their work periodically intimates that perhaps social constructions of self are more closely tied to personhood or personal rights, thus not properly inheritable, or at least not unquestionably so. And yet: although these lines are rarely uttered, some things that aren’t property can nevertheless be “bequeathed,” and some things that are property, can’t. If all property rights are relative and capable of yielding to countervailing force, perhaps “law writ large” is captured by the same gilded cage of managed impressions of self. Just maybe, whether an Instagram account is deemed “property” v. person, expression, privacy right, communication, or the rest is peripheral to (or non-determinative for) whether it can transfer at death; just maybe, a heavily covertly influenced expression of self ought die along with its maker. Who would decide, and how? For what it is worth, and no matter what we call it, I favor designated postmortem access to digital assets (including personal social media) if clearly so chosen, pre-death, by a user with capacity. Even if at some level an online persona is a manipulated, hyper-documented, socially flattened simulacrum of self, it is still a created and presented one, whether A’s manipulation of B’s reaction to her was itself manipulated by some corporate actor, C.

Kreiczer-Levy and Donyets-Kedar essentially close by giving to or seeking answers from no one, instead preferring further questions about people, property, privacy, and in a sense, even digital, disembodied and “surviving” consciousness, AI, and what personhood even means mid-stage of an online world. If we are all actors in our own and others’ games, it may be that we all know the score, and that Kreiczer-Levy and Donyets-Kedar themselves also have firm answers to different questions than it might seem that their scholarship asks.

Cite as: Katheleen Guzman, Performers and Portrayers, JOTWELL (February 16, 2021) (reviewing Shelly Kreiczer-Levy & Ronit Donyets-Kedar, Better Left Forgotten: An Argument Against Treating Some Social Media and Digital Assets as Inheritance in an Era of Platform Power, 84 Brook. L. Rev. 703 (2019)),

The Disruptive Potential of Blockchain in the Law of Wills

Bridget J. Crawford, Blockchain Wills, 95 Ind. L.J. 735 (2020), available at SSRN.

Disruptive technologies, like the Internet, often drive new social and organizational arrangements: we now enjoy global interconnectedness and an ease of communication that was previously the stuff of speculative fiction. Blockchain technology has the potential to be similarly transformative, with the Wall Street Journal characterizing blockchain as a foundational technology along the lines of electricity or the world wide web. Bitcoin was created in 2009 as a decentralized, immutable, open source method of peer-to-peer payment that uses a distributed ledger to track all transactions—and this process of recording transactions is what is known as “the blockchain.” Although blockchain technology has been bought into common parlance through its association with popular cryptocurrencies such as Bitcoin, the potential application and broad appeal of blockchain technology eclipses the purpose for which it was originally developed. Blockchain Wills by Bridget J. Crawford tackles the subject of blockchain technology as applied to will execution in an article that is unquestionably my favorite article of 2020.

The best analogy to describe blockchain is that of the tree in the forest. Every ring in the trunk of the tree is like a groove in a record and each groove memorializes important information: the age of the tree; water levels; disasters such as forest fires; rate of growth. Each ring evidences a new block of information related to a specific moment in time, and the information recorded on each ring is accessible and transparent because nobody owns the tree. Like the rings of a tree, a block on the blockchain is immutable. An earlier block is only changed through a later block. The information in each block is simultaneously public and private—the details of a transaction are recorded on the blockchain but the identity of each user is protected with a private key. The blockchain is transparent while also offering security and privacy. One may arguably have complete trust in a system that has removed human error from its process, with each transaction verified through a distributed network and the need for no intermediaries.

Blockchain Wills explores the potential of this technology to disrupt an area of law that is relatively slow to change. The article is divided into four parts: a discussion of the way in which traditionally rigid rules are gradually but inconsistently yielding to the digital age; an introduction to the E-Wills Act and the states that currently recognize electronic wills; the way in which blockchain technology’s anti-fraud features may be used to authenticate electronic wills; and finally, the argument that blockchain wills are a safer and more cost-effective approach that will broaden access to estate planning. Perhaps it is this aspect of the article that is most important in its contribution—Professor Crawford presents a vision of the future in which an important property right (the ability to dispose of one’s property at death) is no longer abrogated by an inability to afford legal services. This article brushes the dust off a doctrinal area of the law that generally embraces tradition and enthrones formality to present an approach by which a disruptive technology may be transformative in broadening access:

In the not-too-distant future, executing a blockchain will likely may be no more difficult than registering online for a class at the local gym. When that day comes, if enough people have appropriate Internet access, then making a will becomes a far less expensive and difficult task then it currently is . . . as the technology advances, it is possible to imagine that executing a blockchain will could be as simple as opening an app on a smartphone or tablet device. Because the use of complex smartphones is more widespread among young people than the elderly, it may be that those who most wish or need to engage in estate planning would not be quick to adopt blockchain wills.

Professor Crawford explains to the reader the way in which “a distributed ledger’s security as a function of design” works to the advantage of the decedent. The person who wishes to create a will (the testator) would notify the network of an intention to make a will and nominate a personal representative (the key custodian). After the key custodian formally accepts their role with the network, a coded will can be uploaded to the blockchain. A notary public and/or witnesses could confirm with the network (via a cryptokey provided by the testator) that the testator intended this document to operate as a will and they were acting as attesting witnesses. This entire transaction would be recorded as a time-stamped “block” that is available to all users through the distributed ledger. It is unlikely that a bad actor would be able to manipulate or compromise the block, which serves as an immutable record of testamentary wishes that can be amended through a later block but not itself changed. The responsibility would fall upon the key custodian to notify the network upon testator’s death. Crawford argues that although there are administrative issues to untangle, a blockchain will is at least as reliable as a holographic testamentary instrument or a defectively executed instrument saved by a curative doctrine.

Professor Crawford’s article is simultaneously pragmatic and novel. This type of scholarship serves as a departure point for further conversation about risks and benefits to society, so as to facilitate change as the product of thoughtful design. It is this implicit contribution that is noteworthy: blockchain technology promises to disrupt existing legal practices and also allow new paths to form, and with innovation comes the need to frame the way in which legal policy within the law of wills and trusts should react and adapt.

Editor’s Note: Reviewers choose for themselves what to review. Trust and Estates Section Editor Bridget Crawford had no part in the editing of this review.

Cite as: Victoria J. Haneman, The Disruptive Potential of Blockchain in the Law of Wills, JOTWELL (December 3, 2020) (reviewing Bridget J. Crawford, Blockchain Wills, 95 Ind. L.J. 735 (2020), available at SSRN),

Teaching Our Students to Counsel Against Funeral Poverty

Victoria J. Haneman, Funeral Poverty, __ Univ. of Richmond L. Rev. __ (forthcoming 2021), available at SSRN.

Twenty years into teaching Estates, Victoria J. Haneman’s Funeral Poverty has made me reconsider my syllabus. Neither I, nor the textbook I use, discuss the death care industry, which includes funeral homes, pre-need sales, crematories, cemeteries, and third-party vendors of goods. Funeral Poverty convinced me that in a course where almost all content is death-related, we need to cover death services.

Professor Haneman writes that in 2019, the median cost of laying a loved one to rest was $9,000—a number that is “particularly stark” when 4 out of 10 Americans report they would have difficulty meeting an unexpected $400 expense. (P. 1.) For the average consumer, death services will be the third largest category of expenses over the course of a lifetime, behind only houses and automobiles. Moreover, “death care in the United States is an area of conspicuous consumption on which lower income families spend far more than high income families. . . . In 2014, the top 1 percent spent significantly less in absolute dollars than everyone else, the middle class fell in line with national averages, and the poor spent a 26% greater share of total expenditures than the national average.” (P. 32.)

Funeral Poverty describes how many families find themselves “begging or borrowing” to cover death service expenses. Crowdfunding has become common among families dealing with unexpected funeral expenses, with GoFundMe staff members coaching funeral organizers on how to optimize the chances of their fundraising campaigns going viral. (Pp. 16-17.) Other families borrow to pay expenses, by either tendering a credit card or receiving a line of credit from the funeral home itself. A market in subprime loans even exists, with one site advertising interest rates as high as 35.99 percent. (P. 18.)

Professor Haneman thoroughly explores why death services “perpetuate inequality and contribute to intergenerational cycles of poverty.” (P. 3.) She discusses a marketplace characterized by vulnerable consumers, inelasticity, information asymmetry, and an absence of price advertising; Federal Trade Commission rules that favor funeral homes over consumers; and a dearth of government programs that help families manage death expenses. Funeral Poverty also explains how well-intentioned laws—like “abuse of corpse” statutes—sometimes have the perverse effect of interfering with efforts to make disposing of the dead less expensive and more environmentally friendly.

Central to Professor Haneman’s analysis of why Americans spend so much on death services is her assertion that we are “extraordinarily distanced from death and have moved the process from home to institution.” (P. 4.) In light of the widespread availability and utilization of hospice, I don’t necessarily agree that Americans are distanced from the process of dying. But most of us are distanced from dead bodies. We have moved from a society where modest home funerals used to be the norm to a society where the dead are taken to funeral homes and costly professional-organized events are customary. This shift has left us with an intrinsic uncomfortableness that leads us to not plan for how to pay for funerary expenses while still alive, and to shy away from conversations in which we might express preferences for inexpensive, environmentally friendly ways of disposing of our bodies.

Which brings me back to why I liked Funeral Poverty. Every day in Estates I discuss death-related material —such as wills, trusts, health care directives, and powers of attorney­— and emphasize the importance of clients paying attention to these issues while they are still alive and have the capacity to do so. Funeral Poverty convinced me that I also need to teach my students about death services, any uncomfortableness with dead bodies notwithstanding.

Cite as: Sarah Waldeck, Teaching Our Students to Counsel Against Funeral Poverty, JOTWELL (November 2, 2020) (reviewing Victoria J. Haneman, Funeral Poverty, __ Univ. of Richmond L. Rev. __ (forthcoming 2021), available at SSRN),

Personalized Intestacy?

Shelly Kreiczer-Levy, Big Data and the Modern Family, 2019 Wisc. L. Rev. 349 (2019), available at SSRN.

In Big Data and the Modern Family, Shelly Kreiczer-Levy kicks the tires on a provocative idea: using big data to “personalize” the rules of intestate succession. Recently, scholars have suggested that the same miraculous technology that permits big retailers to predict their customers’ purchasing needs to customize the law. For example, in the first extended treatment of the topic, Ariel Porat and Lior Strahilevitz suggest that the government can exploit big data to abandon the conventional one-size-fits-all approach to default rules and instead tailor background principles to individual preferences. Porat and Strahilevitz’s marquee example is intestacy. They note that empirical studies reveal that married fathers are more likely than married mothers to leave their entire estate to their spouse. Thus, they argue that an intestate system that varied with the decedent’s gender would be more likely to carry out his or her intent. But why stop there? Porat and Strahilevitz claim that intestacy statutes could also vary based on the decedent’s job, wealth, health, length of marriage, and age of children. In fact, using an algorithm, a probate court could “determine how an intestate’s estate should be allocated based on an analysis of his consumer behavior during his lifetime.”

Enter Kreiczer-Levy. Her thoughtful article begins by arguing that the rules of intestate succession are outdated. Indeed, as she explains, these principles “are notorious for privileging the nuclear family, to the exclusion of modern forms of associations and relationships.” In turn, Kreiczer-Levy observes that this makes personalized intestacy intriguing. In sharp contrast to the bright lines and rigid barriers of current law, a bespoke regime could effectuate an intestate decedent’s wish to leave assets to a lover, a best friend, or a young person who was treated like a full-blooded child but never adopted.

Nevertheless, Kreiczer-Levy doesn’t give personalized intestacy her full-throated endorsement. One of the article’s great strengths is its lucid exploration of the proposal’s dark side. She begins by collecting objections that others have already levied against personalized law. These concerns include the invasion of privacy required to feed the algorithm and the uncertainty engendered by making legal rules more opaque.

In addition, Kreiczer-Levy offers two more granular reasons for skepticism about personalized intestacy. First, she questions whether policymakers could discern enough relevant information by focusing entirely on the decedent. Unlike, say, a dynamic speed limit, which might hinge on the weather, type of car, and the driver’s record, “inheritance decisions often reflect an evaluation of relationships.” It isn’t clear that any computer is capable of taking the decedent’s demographics, social media foibles, and spending patterns and extrapolating whether he or she favors one child or wants to leave a prized vase to a neighbor. (On the other hand, if policymakers do go down this route, Kreiczer-Levy offers some sensible guidelines for factors that they should consider, such as whether a decedent lived with a prospective heir, supported him or her financially, or entrusted him or her with caregiving).

Second, Kreiczer-Levy contends that personalized intestacy neglects the social dimensions of inheritance. Suppose that a Target-style program disinherits the daughters of left-handed Caucasian men in their 30s. Even if this faithfully reflects what most members of this cohort want, we might not want to enshrine it in a statute. Indeed, because the law shapes public perceptions, such a rubric could normalize gender discrimination. Moreover, being cut out of an estate plan can be emotionally devastating. There’s something troubling about depersonalizing the choice to send such a powerful “message of exclusion.”

In sum, Kreiczer-Levy’s piece is essential reading for anyone interested in either the personalized law phenomenon or the future of trusts and estates.

Cite as: David Horton, Personalized Intestacy?, JOTWELL (October 2, 2020) (reviewing Shelly Kreiczer-Levy, Big Data and the Modern Family, 2019 Wisc. L. Rev. 349 (2019), available at SSRN),

Towards the Consistent and Equitable Treatment of Phantom Income in Determining Domestic Support Obligations

Timothy M. Todd, Phantom Income and Domestic Support Obligations, 67 Buff. L. Rev. 365 (2019), available at SSRN.

Professor Todd’s article addresses an issue at the intersection of divorce/family law, federal income tax law, and, even, trusts and estates law. For me, the article highlights that the ideal situation for spouses in a divorce (if, among other things, money were no object) is for each of them to have their own divorce/family law attorney, tax attorney, and estate planning attorney. That, or have Professor Todd on call.

The issue addressed in the article is how “phantom income” should be treated by courts in determining a domestic support obligation (whether child support or spousal support or a modification to either one, hereinafter “DSO”). “Phantom income” is “amounts that are includible as [gross] income under the federal tax code but that have not resulted in any actual current cash receipt.” (P. 386.) Individuals obligated to make DSO payments “have argued that phantom income should not be included when calculating such obligations because the individual’s ability to pay has not materially changed.” (P. 386.) Because those individuals never received any current cash receipt, they contend that the court should not increase a DSO based on any phantom income.

Professor Todd briefly discusses three types of phantom income: business pass-through income, cancellation of debt (COD) income, and imputed income from below-market loans and original-issue discounts. (Pp. 376-80.) He then reviews eight cases in which state courts addressed how phantom income should be treated in determining DSOs. A Kentucky court concluded that COD income was not “gross income” for child-support purposes. Kelley v. Kelley, No. 2012-CA-002213-MR, 2014 WL 5359745 (Ky. Ct. App. Oct. 3, 2014). (Pp. 380-82.) A Virginia court, however, concluded that COD income is includible in gross income for child-support purposes. Reigler v. Riegler, 90 Va. Cir. 29 (2015). (Pp. 382-83.) The courts in two California cases concluded that COD income is gross income for child-support purposes. In re Marriage of Kirk, 266 Cal. Rptr. 76 (Ct. App. 1990) and Riddle v. Riddle, 23 Cal. Rptr. 3d 273 (Ct. App. 2005). (Pp. 384-86.) In Ohio, COD income is gross income for spousal-support purposes, Poitinger v. Poitinger, 2005-Ohio-2680, and for child-support purposes, Cyr v. Cyr, 2005-Ohio-504; and business pass-through income is gross income for spousal-support and child-support purposes, Marron v. Marron, 2014-Ohio-2121. (Pp. 386-90.) Finally, a Colorado case addressing a tax withholding-type payment was found to be gross income for child-support purposes (though Professor Todd aptly notes that this payment is not phantom income because another payee did receive the cash). In re Marriage of Stress, 939 P.2d 500 (Colo. App. 1997). (Pp. 388-90.)

Professor Todd proposes two solutions regarding the treatment of phantom income in determining DSOs. The first proposal is “to keep the status quo rule that implicitly (and sometimes explicitly) incorporates the tax definition of [gross] income and includes phantom income in support calculations,” and, the second, “ to implement a charging-order-type remedy to balance the concerns of payors and payees vis-à-vis phantom income.” (P. 401.) Professor Todd’s first proposal, which is “the simplest and easiest option,” reflects “the apparently majority rule” as seen from his survey of eight cases (which Professor Todd notes “does not purport to be an exhaustive survey of all related cases”). (P. 401.)

The first proposal, Professor Todd concedes, does not solve two timing asymmetries that he identifies. Category I asymmetries are “situations in which cash was received in the past, but the ‘income’ occurs now; for example, cancellation of debt income,” and Category 2 asymmetries are “situations in which the income occurs now, but cash may (or may not) be received in the future, such as pass-through business income.” (P. 401.) Additionally, this first proposal “does not provide clear answers to issues such as tax exclusions, administrative exclusions, and other issues that are specific to tax policy and administration but have no analog in domestic support contexts.” (P. 402.)

While the administrative exclusions and non-analogous issues are beyond the scope of this jot, I wish to discuss one tax exclusion. Professor Todd notes that gifts are excluded from federal gross income “but represent a true asset (or cash) increase” and represent “additional assets a family could use for consumption but that are outside the definition of [federal] gross income.” (Pp. 402-03.) The first proposal of a “strict incorporation of tax concepts does not solve all the phantom-income issues and related issues”, and, “[f]ortunately, there are cases that recognize that [gross] income for tax purposes and [gross] income for DSO purposes (especially for child support) are not coterminous.” (P. 403.) I think that Professor Todd, to add to his argument, could have noted that Kentucky’s and Virginia’s statutes (as seen in his survey of cases) are broader than the federal tax code because they each define gross income for child-support purposes as including “gifts” and “prizes.” I also wonder whether a discussion of inheritances, which are excluded from federal gross income, would be apt.

Professor Todd’s second proposal, a charging-order-type remedy specific for DSOs, can be tailored to a particular divorcing couple. Pursuant to a charging order, “when cash distributions are made from the entity, the distributions for the debtor-member are paid to the holder of the charging order (the creditor).” (P. 403.) This remedy is “ideal in Category 2 situations–those in which there is the potential for a cash flow in the future” so that the charging order can be applied (in an ideal situation, specifically) “against the source of that potential future cash flow.” (P. 404.) I believe that Professor Todd’s proposed charging-order-type remedy, perhaps, invokes yet another issue—whether DSOs (under governing state law or as contracted between the parties) survive the death of the payor or the payee.

I learned a lot reading Professor Todd’s article. The treatment of phantom income in determining DSOs involves the intersection of divorce/family law, federal income tax law, and trusts and estates law. Drafters would be wise to tailor DSOs not only to governing law but also to the divorcing couple’s specific financial situation, including, among other things, their specific assets, income streams, and possible future receipts of property.

Cite as: Michael Yu, Towards the Consistent and Equitable Treatment of Phantom Income in Determining Domestic Support Obligations, JOTWELL (September 2, 2020) (reviewing Timothy M. Todd, Phantom Income and Domestic Support Obligations, 67 Buff. L. Rev. 365 (2019), available at SSRN),

Legacy Control

Andrew Gilden, The Social Afterlife, 33 Harv. J. L. & Tech. 229 (2020), available at SSRN.

The COVID-19 crisis has compelled many of us to move our lives (further) online, creating new social interactions and communities, as well as a larger digital footprint. The pandemic has also forced us to confront the risks and realities of mortality for ourselves and our loved ones.  This highlights an important question: What will happen to our digital legacy after death? Legacy has both economic and noneconomic aspects, and inheritance law has primarily focused on the former. The latter, however, has risen to prominence with the growth of intellectual property rights and social media, both of which often have a stronger cultural or emotional legacy component.  The law as it stands is thus ill-suited to deal with the noneconomic aspects of legacy. In The Social Afterlife, Professor Andrew Gilden tackles this problem with skill and nuance, and his sensible solution is to embrace contextual testation, in which control of each asset is allocated based on the unique socioeconomic context in which it arose. In the process, he provides the reader with an indispensable theoretical roadmap for understanding who might control our legacies.

The Article starts by describing four potential models of legacy stewardship. The first is the traditional model of freedom of disposition, in which the decedent controls who gets what. The decedent possesses the best information about their own social life, but such deference also risks too much dead hand control. The second model is family inheritance, in which control flows to the decedent’s family members. These individuals may also have special knowledge about the decedent, but are also tempted to exclude other relevant stakeholders in the decedent’s legacy, as many celebrity estates have. Empowering family members also hazards their exposure to harmful aspects of a decedent’s life hiding in cyberspace. Does a grieving widow want to know about her husband’s account, on which he may have been pursuing affairs with younger women?

Third, the public domain model subjects a decedent’s property to common ownership. This model recognizes that people outside the immediate family may also have a vested interest in the legacy of the decedent, especially in the case of public figures. Yet the public domain, as the name implies, may fail to provide strong privacy protections and risks that the decedent’s assets will simply flow to the most powerful market actor. Finally, there is the consumer contract model, in which various third-party intermediaries, such as Apple, set the ground rules—through their terms of service—for how the assets they host are handled after death. These third parties may be best able to cater to the needs of their users and reduce the transaction costs of legacy stewardship, but some might be suspicious of entrusting them with such important decision-making power, given their incentives to maximize profit.

All of these models exist in some form in the law now, and the Article performs a synthesis of these different approaches through the concept of a Decentered Decedent. This is a contextual model of legacy stewardship, in which postmortem decision-making power is allocated based on the specifics of the socioeconomic context in which the relevant asset exists. Central to this model is the idea that it is important to avoid “context collapse,” or the situation in which the various aspects of an individual’s life collide in ways that destroy carefully constructed social separations created by that individual. For example, someone may wish to keep socializing with family members or coworkers to Facebook while separately participating in kinky sex communities solely on websites devoted to that purpose. The policy aim, then, is to maintain these separations at death as well as in life.

The Decentered Decedent framework provides a robust theoretical defense of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). This Uniform Act, which has been adopted by a majority of states but which has been subject to some criticism, sets up a multi-tiered system of decision-making authority over digital assets. The highest priority goes to any online tools that contain a user’s expressed wishes for posthumous control. An example is the Facebook Legacy Contact tool, in which an individual can designate a person to take over aspects of their Facebook account in the event of their death. A decedent’s express wishes in a will or trust get second priority. Third priority goes to an intermediary’s terms of service, and this is the most controversial provision. The reason why is that it hands control over to the intermediary instead of family members who might otherwise control assets under intestacy statutes. As it better preserves the decedent’s heterogeneous social lives, however, Professor Gilden finds the RUFADAA to be a promising approach. He goes on to suggest several potential legal tweaks as well, such as legislating the substance of online tools, imposing fiduciary duties on intermediaries, or decoupling the economic and noneconomic aspects of an asset when possible.

In many ways, the Decentered Decedent model is a commonsense extension of the nonprobate revolution to digital assets. Just as life insurance companies manage the insurance payout after death outside of probate, perhaps so too should a social media site independently manage the control of a user’s account after death. But what if context collapse is actually a good to be pursued rather than an evil to be avoided? While we are indeed multifaceted beings, it might be beneficial to acknowledge that fact through a full accounting of a person’s life—or multiple lives—after death, especially if that person had a prominent position in society or culture. Even if a person did not, knowing the unfiltered truth about loved ones may help foster a deeper understanding of lifetime behavior or decisions that may have been perplexing or hurtful at the time due to incomplete information. In short, the revelation of secrets at death may have more ambiguous effects, at least for the living. If this is the case, then maybe context collapse is not so injurious after all.

However one might come out on that question, what is not in doubt is that Professor Gilden has deepened our theoretical understanding of legacy and the governance mechanisms we might employ to manage it. That makes The Social Afterlife necessary reading for those interested in how inheritance law, intellectual property law, and Internet law all shape legacy control.

Cite as: Alexander Boni-Saenz, Legacy Control, JOTWELL (July 14, 2020) (reviewing Andrew Gilden, The Social Afterlife, 33 Harv. J. L. & Tech. 229 (2020), available at SSRN),

The Rich (Families) Are Different

Allison Anna Tait, The Law of High-Wealth Exceptionalism, 71 Ala. L. Rev. __ (2019), available at SSRN.

In April of 2019 lawyers representing the “Kimberley Rice Kaestner 1992 Family Trust” argued a case against the North Carolina Department of Revenue before the Supreme Court of the United States. A few months later the Court unanimously ruled in favor of the trust in that case. The Court’s decision was a major victory for wealthy families; not so much for ordinary folks who pay state income taxes. You may not have heard of the Kaestner case. No news about it appeared in the New York Times. Ever. But you can and should read Allison Anna Tait’s insightful article, The Law of High-Wealth Exceptionalism. It’s about the Kaestner case. Well, it’s not really about the Kaestner case; actually Tait doesn’t even mention it. But her article is, at least in part, about the category of cases that the Kaestner case belongs to and it is about the state of affairs that brought about the case, and many others like it, and so much more.

In her article, Tait gives us a panoramic perspective—a bird’s eye view—of what she calls “the law of high-wealth exceptionalism.” The law of high-wealth exceptionalism is not any particular law, but rather a collection of favorable laws that, functionally, apply only to high-wealth families. Because, in theory, while anyone could take advantage of a scheme like that which the Kaestner family’s lawyers concocted to externalize the cost of governmental goods and services provided to Kimberley Kaestner by the State of North Carolina, in practice you really need to have a lot of wealth to do so. And as Tait points out, wealthy families “benefit not only from their material resources but also from the fact that most of the population is not familiar with the vast network of laws that govern family wealth and may even be disinterested in [legal] events that are of core concern to the family oligarchs.”

Tait’s larger point is that rich families avail themselves of what she calls “high wealth-exceptionalism,” a phenomenon that she maintains inflicts harm on those of ordinary wealth and is antithetical to democratic governing. More specifically, she shows how wealthy families organize themselves under wealth-management “tools” like family constitutions, private trust companies and private foundations, and take advantage of favorable laws governing trusts and taxation to shift financial risk and tax burdens to those without great wealth. She makes her larger point by breaking down her analysis into three categories: governance, power and privilege.

In the area of governance, high-wealth exceptionalism depends primarily on a concept called the “family constitution.” Tait explains how and why wealthy families cohere under this “widely marketed wealth-preservation tool,” as a way to protect against what is perhaps the family’s biggest fear: generational erosion of family wealth. The family constitution is designed to be the bulwark that gives the lie to the age-old aphorism “from shirtsleeves to shirtsleeves in three generations.” Tait describes how professional wealth managers help families inscribe family constitutions, and the ways in which they unify the family to the common cause of safeguarding family wealth.

Tait further identifies three “critical building blocks” to securing family wealth: private trust companies, family offices and private foundations. Private trust companies are entities that are legally sanctioned to manage family trusts but, unlike ordinary trust companies, they are “exempt from most state regulation.” In return for this light treatment by the state, these companies serve only the wealthy family, “broadly defined.” Private trust companies ensure privacy by evading state reporting requirements thereby keeping most “sensitive financial information” from being revealed to persons outside the family unit. They are also free to invest trust property in investments that might be outside the range of regulated trust companies, such as illiquid assets or stock in a private family business. While taking advantage of trust laws increasingly favorable to the wealthy, these entities also reinforce the sense that the family is a separate sovereign entity, “populated, animated and superintended by the family” itself.

The bulk of family financial management (and sometimes more personal services) is undertaken by the “family office.” The family office is the locus of general family business. Tait points out that family offices enjoy a special exemption from regulatory requirements otherwise imposed on investment advisors. Exemption from SEC registration means that investments can be made in privacy. Family offices are also exempt from compliance with rules for commercial financial institutions, which gives the family substantially more control over investment decisions. Given these and other advantages of family offices, it is no surprise that family offices are “how the super-rich invest.”

The family foundation is the third “critical building block for high-wealth families.” These entities preserve family wealth by substantially reducing the family’s exposure to the federal transfer taxes while “allowing the foundation to fund administrative activities performed by family members.” Properly managed, the private foundation can hold family wealth for generations, sheltering it from taxation while the family maintains control of that wealth. Private foundations are required to distribute only 5% of their income from investments to charity annually, and those distributions are often made to “family –controlled” donor-advised funds. Importantly, family members receive compensation for services to the foundation and can be reimbursed for expenses incurred for foundation business.

After showing us the tools high-wealth families use to preserve and increase their wealth, Tait moves on, in the section of the paper she calls “the measurement of family power, to their negative consequences to the population at-large. Here Tait explains some of the potential consequences of the preferential legal treatment received by high-wealth families. She maintains, for example, that these include increased systemic risk and exposure of the broader population to financial harms. Further, the privileges of conducting private operations free from regulations also makes the discovery of tax avoidance and evasion more difficult, increasing the tax burdens of others. Here she also looks at “the role that family constitutions and the coterie of family-wealth rules unquestioningly play in entrenching” wealth inequality. In this section she also addresses “costs to the democratic state.” The law of high-wealth exceptionalism, she concludes, “is deeply and essentially patrimonialist,” and thereby at odds with democratic functioning.

Having outlined the problems with high-wealth exceptionalism in such detail, Tait concludes by offering some prescriptive ideas to address the phenomenon and “the plutarchic society it cultivates.” These include retracting high-wealth legal privileges, reforming the transfer taxes, and reframing the rights of citizenship. Tait’s suggestions are good and deserve your attention. But the most refreshing aspect of Tait’s work in this piece consists of the light she shines on laws that far too few, even among those interested in the problems wrought by wealth inequality, give their consideration. Unfortunately, most of the rest of us “remain unaware of the many behind-the-scenes efforts to change family-wealth law, what effects those changes might have on their lives, and what the changes might mean on the larger scale, looking forward.” Tait’s article is a step towards fixing that. The Kaestner case, for example, mentioned at the outset of this review, was not just a boring trust tax case that concerned only the wealthy few. Instead, it was a prime example of high-wealth exceptionalism that affects us all and deserves the nation’s attention.

Cite as: Kent D. Schenkel, The Rich (Families) Are Different, JOTWELL (June 23, 2020) (reviewing Allison Anna Tait, The Law of High-Wealth Exceptionalism, 71 Ala. L. Rev. __ (2019), available at SSRN),

Can the Wealth Tax Effectively Serve as a Backstop to Estate and Gift Taxes?

Jason Oh & Eric Zolt, Wealth Tax Design: Lessons from Estate Tax Avoidance, available at SSRN.

Wealth tax, sometimes confused with estate tax, does not currently exist in the United States but has been proposed by a few political candidates. A wealth tax, if implemented, would be imposed on the wealthiest households based on all property owned including personal property, business interests and capital property with unrealized appreciation. This tax would be an annual tax, unlike the estate tax which is imposed once on the transfer of a taxpayer’s assets at death. Proponents offer the wealth tax as another source of revenue and weapon against wealth inequality. Opponents claim a wealth tax would inhibit economic growth and job creation. Professors Jason Oh and Eric Zolt address the subject of imposing a wealth tax and explore the ways in which estate tax planning strategies may inform how to structure a wealth tax.

First, Professors Oh and Zolt explore the ways in which charitable contributions–and ultimately charitable deductions–reduce the estate tax liability and could erode a wealth tax base. They explain how, over a representative five-year period, charitable testamentary contribution amounts were ten times greater than the amount of lifetime giving by taxpayers with net estates valued between $50 to $100 million. For taxpayers with net estates valued over $100 million, they contributed 20 times more funds in testamentary charitable contributions than lifetime contributions. These scholars posit a wealth tax would likely cause donors to shift from testamentary charitable bequests to lifetime charitable contributions to avoid or significantly reduce wealth tax liability.

Professors Oh and Zolt explain that if an acceleration of lifetime giving occurs, any potential wealth tax base and aggregate income tax liability will both decrease. Further, the donors may be motivated to make lifetime gifts of income-producing property to charitable organizations to reduce their income tax base. Consequently, the net effect on income tax revenue likely would be negative. While social policy goals generally include charitable giving, they explain how wealthier donors primarily give to charitable organizations in which they may retain the most control. These types are charities tend to be private foundations and donor advised funds, not public charities. They contend transfers to public charities are more desirable because donors have released control of the contributions and facilitate reducing wealth concentration and those organizations generally provide a greater public benefit. Conversely, they argue, contributions to private foundations, donor-advised funds and other organizations that permit donors to retain substantial control as trustees or board members promote wealth concentration.

In order to minimize the impact of the relationship between wealth concentration and private foundations, Professors Oh and Zolt discuss proposals by Emmanuel Saez and Gabriel Zucman. Saez and Zucman have proposed treating transfers to private foundations and donor advised funds as disregarded for the purpose of determining the wealth tax base if the organizations are still under the control of donor’s household. Professors Oh and Zolt recognize that taxpayers and advisors may be clever enough to avoid control without really giving up control and question whether the proposals are politically viable. As such, the professors posit, the charitable contribution deduction may be used to effectively nullify wealth tax liability.

Next, Professors Oh and Zolt discuss valuation challenges suggested by critics of wealth taxes. They examine valuation rules under the estate tax and examine how those may translate to a wealth tax. They discuss the generally accepted practice for estate administrators to understate property value to reduce or eliminate estate tax liability. They further describe different types of assets owned by super-wealthy taxpayers, the challenges associated with determining valuation, and six different valuation discounts that significantly reduce tax liability.
These valuation challenges may carry over to a wealth tax, therefore Professors Oh and Zolt explore the additional administrative challenges complicating a wealth tax. On the positive side, a wealth tax can be imposed annually; imposing it on net estates at $50 million and above would subject few taxpayers to the tax, and the information gathered annually may carry over to estates for determining estate tax liability. Further, they identify two key factors that would determine the impact valuation may have for wealth tax purposes: flexibility of valuation estimates and the levels to which taxpayers may negotiate valuation discounts. To the extent taxpayers may own property such as securities, which have set market values, they may be incentivized to shift wealth to assets in which valuation may be manipulated to reduce tax liability.

Professors Oh and Zolt then evaluate whether it may be politically viable to disallow permissible valuation discounts for estate taxes for use in wealth taxes. Historically, congressional support for valuation discounts has been consistent, despite the revenue loss over the years. Instead, Professors Oh and Zolt propose imposing a penalty regime to discourage overly aggressive valuations and using an arbitrator to bridge the gap between taxpayer and IRS valuations. These measures, they propose, focus on raising revenue and make it easier for taxpayers to comply.

Next, Professors Oh and Zolt discuss grantor retained annuity trusts (GRATs) and other “freezing” technique instruments that maximize valuation rules and actuarial estimates to transfer future property without paying transfer taxes. Consequently, these instruments artificially reduce the estate tax base. They theorize that a wealth tax imposed on these instruments will capture taxation on previously untaxed property because the value of the retained interests would be included in the wealth tax base.

Further, Professors Oh and Zolt reveal how estate tax avoidance overpredicts wealth tax avoidance. They explain how other scholars use the revenue generated by the estate tax as a measure for whether an estate tax might be successful in raising revenue. They explain these fallacies by revealing how certain techniques used to minimize or avoid estate and gift taxes, by artificially understating the value of transferred interests, will serve to increase the amount of property included in the wealth tax base. As such, a wealth tax could serve as a backstop for the estate and gift tax.

Professors Oh and Zolt also suggest how attribution rules may be useful to discourage related-persons and familial transfers designed to avoid or minimize a wealth tax. For this to work, they propose attributing all family wealth to the wealthiest family members. They acknowledge this proposal has its own set of questions such as determining how the tax burden will be allocated amongst family members and whether private foundations would be jointly and severally liability for a donor’s wealth tax liability. These questions regarding attribution would also apply to self-settled asset protection trusts and whether the tax would be imposed on donor or beneficiaries, who may not be liquid.

Finally, Professors Oh and Zolt propose that valuation, timing and ownership rules should be identical for estate, gift and wealth taxes to minimize opportunities for avoidance and provide consistency between these taxing structures. For example, a married couple with more than $23 million in estate and gift tax exclusions may transfer property by gift to reduce or eliminate their wealth tax liability. By spreading the gifts amongst various family members, the family wealth may divided such that none of the family members will be subject to a wealth tax even when imposed on households of at $50 million and above. If gaps between the tax structures leave opportunities for avoidance, then both revenue raising and reducing wealth inequity goals will be thwarted. Ultimately, Professors Oh and Zolt agree with imposing wealth reducing measures but believe it may be too complicated to implement and too difficult to gain political support.

This is an interesting article that provides information to debate and vet the political and normative viability of a wealth tax. I was particularly fascinated with the comprehensive evaluation of how the wealth tax, if implemented, should be structured in concert with the estate and gift tax. This article is helpful to professors, scholars and politicians to teach, research and continue to debate the issue of wealth taxes.

Phyllis C. Taite, Can the Wealth Tax Effectively Serve as a Backstop to Estate and Gift Taxes?, JOTWELL (May 25, 2020) (reviewing Jason Oh, Eric Zolt, Wealth Tax Design: Lessons from Estate Tax Avoidance, available at SSRN (2020)),

End-of-Life Health Care Decision Making: Lessons for Wills, Trusts and Estates Law

Jane B. Baron, Fixed Intentions: Wills, Living Wills, and End-of-Life Decision Making, 87 Tenn. L. Rev. __ (forthcoming, 2020), available at SSRN.

For years, I have tried to understand why my father refuses to execute a will or an advance directive, even though my sisters and I have asked him to please “make plans for the future.” As a not-so-subtle nudge, I have told him stories of siblings torn apart by disagreements over health care decisions when a parent is incompetent and disagreements over property distribution after a parent’s death—family feuds that might have been prevented by an advance directive or a will, respectively. After reading Jane Baron’s article, Fixed Intentions: Wills, Living Wills, and End-of-Life Decision Making, I have a clearer understanding of the reasons that might underlie my father’s reluctance.

In the article, Baron challenges estates law’s fundamental assumptions that: (1) all or most individuals have intentions with regard to the disposition of their property at death, (2) these intentions are fixed, and (3) these intentions should be recorded in a written document. Drawing on studies of end-of-life health care decision making that explain why efforts to increase the use of advance directives have failed, Baron concludes that similar reasons may apply in the property distribution context. Specifically, she argues, if some individuals do not care to make decisions about their medical treatment should they become incompetent, it is likely that some individuals similarly do not care to make decisions about disposition of their property after death.

Baron acknowledges that some individuals do wish to make health care decisions post-competency, as demonstrated by execution of advance directives, but she notes that studies have shown that these intentions are often fluid. Patients change their minds and contradict the preferences they expressed in the advance directive, or the health care proxy challenges the advance directive as inconsistent with the patient’s true preferences. Baron argues that the numerous instances of testators who attempt to change their wills by making handwritten notations on them or by making oral statements that are inconsistent with the dispositions expressed in their wills strongly suggest that the intentions recorded in testamentary instruments are similarly fluid. Intentions may shift depending on a number of factors, including changes in health and relationships with family members, which make wills unreliable indicators of testators’ intentions—at least in some cases.

Baron concedes that decisions about property distributions after death are not the same as those involving end-of-life health care. She recognizes that because wills operate at death, not incompetence, and thus do not affect the testator or have any financial implications for the testator, wills may not be as emotionally challenging as end-of-life health care decisions. She also acknowledges that health care decision making might inherently be more complex due to the number of potential illnesses, medical conditions, and interventions that no individual could foresee.

However, Baron identifies a number of similarities between the two that demonstrate the relevance of the studies on end-of-life health care decision making to estates law. She points out that both wills and advance directives may take effect long after execution during which health status, family circumstances, or relationships may have changed, thereby affecting the individual’s preferences. She also argues that the cognitive biases that limit individuals’ abilities to predict preferences—such as how their wishes might change as they near death or are in an emotional state—apply in both the end-of-life medical treatment and end-of-life property distribution contexts.

These observations are critical to estates law given its central focus on honoring individuals’ fixed intentions, even though only a minority of American adults have a will. As Baron notes, the testator’s intention is the polestar of estates law, including intestacy law which aims to distribute property based on the imputed intentions of the majority of decedents if only they had recorded their intentions. But Baron questions the law’s assumption that most individuals have fixed intentions. In her view, “[t]he literature on end-of-life health care decision making suggests that the group of individuals for whom conventional wills law is inapposite may be larger than has previously been understood.” (P. 25.) She contends that the studies on end-of-life health care decision making “suggest that [individuals’] failure to make wills is not a function of irresponsibility, but of more complex emotions.” (P. 25.) She stresses that “[e]nd-of-life property decisions require people to confront death, family, and property in one simultaneous act,” and thus, “it is not entirely surprising that faced with these potent forces many individuals will not actually want to make final decisions.” (P. 25.)

Baron’s recommendations are wisely modest, raising questions for further study rather than proposing radical reforms without empirical support. Given the lack of empirical evidence about individuals’ reasons for making a will or not making one, or the reasons and frequency with which individuals’ preferences about the wills they made change, Baron calls for research examining individuals’ attitudes and preferences. Under our current fixed-intentions paradigm, the attorney’s role is assumed to be that of a scrivener who records the client’s wishes. But as Baron explains, if research reveals that some individuals do not wish to make specific decisions about how to distribute their property after they die and that testators’ preferences are influenced by their emotional state and the way in which the attorney frames possibilities, it may lead to a reexamination of the law’s assumptions about the role of estates attorneys and how they should counsel clients.

While Baron does not suggest radical changes at this moment, she does ask thought-provoking questions. If the research reveals that some individuals’ intentions with respect to the distribution of their property at death are fluid, should wills law consider a conversational model currently used in the end-of-life health care decision making context, she asks? She does not suggest that the law discard formal wills but rather that it consider giving effect to a testator’s informal statements in cases in which persuasive evidence demonstrates that the testator’s preferences have shifted. In her view, “if, as the studies of end-of-life health care decisions suggest, preferences are unstable and changing, why should the earlier-formed preferences stated in a will control over later-formed preferences not stated in a documentary document? Why not accept alternative ways of expressing end-of-life property decisions?” (P. 48.)

After reading Baron’s compelling article, I was left with one burning question. What might this research on individuals’ intentions with respect to end-of-life property distribution suggest the law do, if anything, to encourage individuals like my father who are likely to refuse to make a will even if the law were to consider informal expressions of their preferences? Is intestacy the only solution for individuals who do not wish to decide who should get what upon their death? Or, should the law consider a conversational model of estate planning that includes the individual and their family members? Would individuals who reject formal wills benefit from a conversation with an estates attorney and family members about their values and goals even if it does not result in a formal will? Some families are attempting to engage in these conversations but are doing so without the benefit of an attorney or the guidance of the law. What is the role of law and attorneys when individuals reject formal wills?

Baron’s article unsettles our assumptions and leaves the reader wanting to know more. That is the measure of excellent legal scholarship. It is a must-read piece for practitioners, teachers, and students alike.

Cite as: Solangel Maldonado, End-of-Life Health Care Decision Making: Lessons for Wills, Trusts and Estates Law, JOTWELL (April 27, 2020) (reviewing Jane B. Baron, Fixed Intentions: Wills, Living Wills, and End-of-Life Decision Making, 87 Tenn. L. Rev. __ (forthcoming, 2020), available at SSRN),