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
(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), https://trustest.jotwell.com/end-of-life-health-care-decision-making-lessons-for-wills-trusts-and-estates-law/
Thomas E. Simmons, A Trust for Ted’s Head, 88 Miss. L. J. 20 (2019).
Over the past twenty years, a new type of bodily disposition for the deceased has come into vogue. It called cryonics: where the decedent’s body (hereinafter called the “frozen person”) is preserved at low temperature for an indefinite period until medical technology has hopefully advanced enough to revive the frozen person and give him or her renewed life. The chances of revival are estimated to be extremely slim. Nonetheless, there are approximately 250 people currently in cryonic preservation and about a thousand people who have arrangements for cryonic preservation upon their deaths. Four companies currently provide cryonic preservation, and these future frozen people must enter into contracts with these companies to preserve their bodies for an indefinite period of time (well beyond our lifetimes) and to attempt revival when medical technology has sufficiently evolved. But there are serious problems with these contracts.
After explaining the fascinating facts surrounding how the famous baseball player Ted Williams’ head was placed into cryonic suspension, Professor Thomas Simmons points out that breach of a cryonics contract is likely (i.e., mishandling the body, incorrect preservation procedures, mismanagement of the cryonics company, early defrosting, etc.) and that enforcement is problematic. Who would enforce it? The frozen person’s surviving family members (or their descendants)? The frozen person’s estate? Imagine if the cryonics company preserving the body went bankrupt hundreds of years later. Also, Professor Simmons points out that timing is extremely sensitive after death for someone who wants to be cryonically preserved. He explains that a directive in a will for moving the body into cryonic preservation could take many days or even longer to be followed while the body needs to be preserved as quickly as possible. Considering these issues, Professor Simmons proposes that a person planning to be preserved establish a non-charitable purpose trust (a “cryo-trust”) which would be a party to the cryonic contract, have standing to sue on behalf of the frozen person, have financial resources to monitor and enforce the contract, determine when medical technology has advanced sufficiently to attempt resuscitation, possess title to the body, and finally provide financial assistance to the formerly frozen person if resuscitation proves successful.
However, several trust law principles may stand in the way of a cryo-trust. Professor Simmons claims that the Rule Against Perpetuities (RAP), Purpose Trust Rule Against Perpetuities (P-TRAP), and the Beneficiary Principle present challenges to the legal validity of a cryo-trust. Ultimately, Professor Simmons addresses the legal concerns these concepts present (and a way around some of them) and discusses the necessary choice of law and situs selection for a cryo-trust.
But before Professor Simmons lays out his solution to the trust law problems, he briefly describes the interesting history behind human remains directives and how they would be grossly inadequate for this situation. While there are many laws regulating the safety aspects of corpse disposal, the law is quite unclear on how much someone can control the disposition of his or her body after death. In fact, the law is unclear if a corpse is property or “quasi-property.” At Canon Law, a corpse had some traditional burial rights, and courts were reluctant to afford expansive rights beyond that. Even today, the law is unclear about the reach of post-mortem burial directives. However, Professor Simmons proposes that a non-charitable purpose trust is the best way to care for and look after the preserved body, but initially, he must overcome some trust law problems.
First, Professor Simmons discusses how RAP may stand in the way of this proposed cryo-trust. RAP is a centuries-old rule that prohibits the remote vesting of contingent future interests. Essentially, if it is possible that an interest could vest more than twenty-one years past the lifetimes of everyone alive at the time of the interest’s creation, then the interest is void. Certainly, RAP problems could arise from cryo-trust.
Professor Simmons brings up a scenario where the trust would oversee the care for the frozen person and determine when medical technology has advanced enough to attempt resuscitation. If resuscitation failed, the trustee would distribute the remaining trust property in the manner the frozen person provided in the trust terms. However, it is uncertain whether the interest in the frozen person’s beneficiaries would vest at the creation of the trust and thus it would be void under RAP because there is no way to be certain that the attempted resuscitation would occur within the time limit. However, Professor Simmons proposes to structure the trust so that the remaining money goes back to the estate of the frozen person if resuscitation fails. That way, the trust is already vested in the lifetime of the frozen person, thereby avoiding the RAP challenge. Of course, Professor Simmons thinks it would be better to simply select one of the many jurisdictions that have abolished RAP.
Second, Professor Simmons discusses how P-TRAP may present another challenge to a cryo-trust. This rule is concerned about remote trust termination and not remote vesting, which RAP prohibits. Specifically, the non-charitable purpose trust must terminate within the RAP perpetuities period. Clearly, a cryo-trust would last longer than the perpetuities period. The only real solution Professor Simmons gives is to select a jurisdiction that has abolished this rule.
Finally, Professor Simmons analyses the Beneficiary Principle considering cryo-trusts. The Beneficiary Principle requires that a trust have an ascertainable beneficiary because these beneficiaries have standing to correct the trustee if the trustee deviates from the standards of care and loyalty. Because the beneficiary of a cryo-trust is not ascertainable (a frozen person considered as being dead), it would violate the Beneficiary Principle. Professor Simmons proposes that a cryo-trust appoint an “enforcer” to keep the trustee accountable. The enforcer would be a fiduciary to make certain that the trustee carries out all fiduciary duties. However, the trust’s jurisdiction must allow this enforcer role, which is why Professor Simmons believes that situs selection is the most important element for a cryo-trust.
Professor Simmons claims that situs selection is essential because two of the three trust law challenges to cryo-trusts are resolved by situs rules alone. Equally as important are the situs choice of law rules. Choice of law rules must be considered to see if rules favorable to a cryo-trust apply. The location of property owned by a trust is key in choice of law rules—the state where the body is located is likely to dictate the applicable trust laws.
Ultimately, Professor Simmons asserts that a favorable jurisdiction to a cryo-trust would have RAP abolished, have P-TRAP abolished, have the Beneficiary Principle abolished, and allow a purpose trust to hold title to property. Professor Simmons concluded that the Cayman Islands and South Dakota are the best jurisdictions for a cryo-trust as they have already fulfilled the above conditions and give favorable tax treatment to trusts as an added bonus.
I commend Prof. Simmons for identifying this fascinating issue and for his scholarly and practical analysis. His article is an entertaining read and provides considerable (frozen) food for thought.
[Special thanks for the outstanding assistance of R. William Whitmer, J.D. Candidate May 2021, Texas Tech University School of Law, in preparing this review.]
All areas of the law have certain foundational principles or beliefs that are widely shared. These underlying assumptions often go unchallenged. In the trusts and estates field, these principles include: (1) giving a certain amount of ongoing control to the transferor, or in the case of a decedent, to the “dead hand,” (2) respect for formality, (3) the importance of the traditional, legally-recognized family, and (4) the “wealth” narrative that focuses on the transmission of conventional forms of wealth.
In her thought-provoking article, Professor Naomi Cahn challenges these underlying principles. She, correctly, I believe, identifies the wealth narrative as the “strand…that structures the rest of the field.” For example, she notes that dead-hand control is only important when a decedent dies with wealth to be transferred, and she analyzes how wealth helps transfer privilege and maintain the status quo. Professor Cahn also looks at who has wealth and recognizes that the sociodemographic diversity of who has wealth impacts this area of law. She seeks to get her readers to challenge the foundational principles of the field by considering new perspectives from race, gender, class, and sexual orientation.
Part I of the article celebrates societal changes that are impacting core principles of trusts and estates law. Professor Cahn focuses on three key changes. First, there have been changes to our view of property. At a basic level, the definition of “property” has changed greatly since early in our country’s history when enslaved blacks were legally classified as immovable property. Similarly, restrictions on non-citizens owning certain property have been eliminated over time, and the right of women to own property has changed, as has the value of certain types of property.
Second, while the U.S. generally lauds dead-hand control (including freedom of testation), that control is often limited when it clashes with dominant notions of inheritance. Professor Cahn commends the changes occurring to those notions. For example, after the Civil War, anti-miscegenation statutes prevented African Americans from inheriting from white spouses. Similarly, dower and curtesy limited the testation rights of husbands and wives, and other limitations existed on what property testators could leave to married women. In addition, undue influence was often used to overturn bequests to same-sex partners. Professor Cahn also identifies some issues with formal will requirements, including the fact that women tend to use precatory language while formal wills use the more directive language that men use.
Third, the definition of family continues to evolve. Historically, slave children inherited their status as slaves from their mothers, and nonmarital children could not inherit from their fathers. Today, LGBTQ jurisprudence has begun to question the primacy of bloodlines as the basis for defining families. These changes are altering core principles of trusts and estates law, such as the basic notions of dead-hand control and the primacy of the bloodline.
In Part II, Professor Cahn applies a class lens to trusts and estates law. She notes that more than half of the population do not write wills, yet we use the preferences of people who die testate to make recommendations for intestacy schemes. People who die testate tend to be older, wealthier, and white. This means that the assumptions that we derive from examining how they dispose of their property really just tell us about the preferences of people in that demographic, yet their preferences have an outsized impact on intestacy laws. This creates a potential for bias because we rely upon the preferences of people who, as a group, are more likely to leave wills.
Professor Cahn proceeds to spell out the difference between income and wealth. She notes that income and wealth vary among different races, age groups, and genders. For example, she notes that African Americans in the 50 to 65-year-old age group have about 10 percent of the wealth of whites in that age group. Similarly, Professor Cahn focuses on age and notes that women over age 65 have incomes 25 percent lower than men of the same age, and women in this age group are 80 percent more likely than men to experience poverty. She also notes that women have different amounts of wealth than men in our country. Though the data varies, one report estimates that women control approximately one-fifth of U.S. wealth.
Professor Cahn additionally focuses on the impact of wealth on children and notes that intergenerational wealth accounts for over half of the net worth of American families. Inherited wealth impacts credit, which in turn impacts employment, housing options, access to financial products, and interest rates for borrowing money. In effect, these patterns perpetuate racial inequalities across generations.
In Part III of her article, Professor Cahn notes that focusing on the wealth narrative allows us to see the impact of trusts and estates doctrine on people of varying socioeconomic levels. It also demonstrates the need to change the doctrine to address actual preferences, and it illustrates the benefits of considering alternate experiences and perspectives.
Professor Cahn examines the wealth narrative in two contexts. First, she questions the notion that everybody needs a will. She concludes that it may not hold true for people who prefer that survivors do what they think is best or for families in which it would disrupt family harmony for the person to make such decisions in a will. Second, she considers intestacy and notes that the rules should expand to include civil unions, domestic partners, and stepchildren, in order to reflect the reality of many modern families.
Professor Cahn ends by noting that this approach is likely to lead to challenges of other doctrines as well, such as revocation upon divorce statutes, which are not useful to low-income, unmarried people. She also notes that critically reexamining the trusts and estates canon is only one way to look at issues of social inequality. Larger scale reforms could include changes to labor market policies, universal access to health insurance, free early childhood education, retraining opportunities, and minimum incomes.
Overall, Professor Cahn has written thought-provoking article. By looking at the trusts and estates canon with a critical eye, she is helping us to reform our laws in light of modern realities.
Deborah Gordon, Engendering Trust
, 213 Wisc. L. Rev.
213 (2019), available at SSRN
In her new piece, Engendering Trust, Deborah Gordon takes on the relationship between women, wealth, inheritance, and the trust form. This intricate relationship is a long-standing one—a vintage marriage, so to speak—defined by gendered asymmetries, assumptions, and characterizations that are all grounded in historical norms. The landscape that gives life to this relationship between women and the trust form is replete with overt female archetypes, such as evil stepmothers, acquisitive mistresses, and vulnerable widows, and the linguistic coin of the realm is a highly gendered grammar that reveals these and other idioms of financial authority, avarice, and inexperience.
Based on a study of 540 cases involving trust law disputes, Gordon seeks to unearth how courts speak about and incorporate gender in their writing and “where cases show trust law clinging to its gendered past, both in language and effect.” (P. 223.) More specifically, she looks at three “key trust characteristics” in the opinions order to parse the role of gender and its effects. First, Gordon looks at trustee identity and finds that not only do men create marital trusts more frequently than women, but men also name someone other than the surviving spouse as trustee more often than women do. Women, by this measure, have still not gained full access to the world of trusteeship, a world in which—in years gone by—“[a]lmost every well-to-do-man was a trustee.” Pursuing this line of inquiry, it would also be interesting to know who courts choose as trustees in cases requiring the court to appoint one.
The second factor that Gordon studies is trust privacy, that is to say the ability of trust settlors to obscure information from other parties, even beneficiaries. Financial privacy has long been a feature of trusts and has, historically, been so strong that trust documents have been kept secret from beneficiaries themselves. Even now, in South Dakota, trust companies market the fact that state law does not require trustees to notify beneficiaries of their trust interests either as minors or once they reach the age of eighteen. Gordon contends that settlor privacy comes at a price: a lack of transparency that may have gendered results in that the trust’s opacity allows “the private mechanisms of dominance to continue unchecked and unexposed.” Left to flourish in the secretive microclimate of the family trust, gender-based inequalities within the family may tend to persist. Or, returning to the roster of female stereotypes, trust privacy might help reinforce stereotypes about unwitting wives and scheming mistresses. One wealth manager based in the Cayman Islands—a jurisdiction in which privacy is paramount—has observed: “Each client will have at least one trust—maybe four—…and they’re all designed to do different things. Right down to a wife’s structure and a girlfriend’s structure.” Privacy hides family secrets as well as family forms of discrimination and financial manipulation.
Lastly, Gordon looks into trust duration and the possible gendered implications of allowing dynasty trusts through the elimination of the rule against perpetuities. In a new world of trust competition, in which jurisdictions compete for perpetual trust business, Gordon suggests that women might be at a disadvantage. Perpetual trusts, she remarks, have the potential to enshrine the wishes, desires, and biases of the original trust settlor for generations. This possibility is already on the minds of wealth managers, and one family office advisor warns of the perils of wealth structures that are “Monuments to the Founder.” As the family office advisor states: “A key characteristic of the Monument to the Founder is an unwillingness to have to deal with the ‘messiness’ of divergent voices and opinions.” These founders, at least historically, have been “patriarchs” (in telling industry terminology) and their perpetual trusts serve to preserve their patrimonies over multiple lifespans, protecting principal from spouses seeking distributions at divorce and from other such unwanted creditors. From this perspective—women, as spouses, daughters, or “mistresses”—are ancillary to the heroic, male project of legacy creation and preservation.
As Gordon demonstrates through these analyses, the trust form is a gendered wealth transfer vehicle, drenched in the realities of historical practice, industry standards, and cultural narratives. The grammar of the trust continues to be a masculine one and the discourses that circulate in trust law promote a version of femininity grounded in sexualized forms of either vulnerability or avariciousness. Implicit in this inquiry is how these gendered discourses interrelate with gendered economies. The gendering of inheritance practices, and the tools of inheritance like the trust, compound the negative outcomes of gendered labor and income earnings, which lead to gendered wealth gaps.
Ultimately, Gordon tells us that a necessary response is to disrupt these discourses and reimagine the relationship between gender and the trust. Trust law, and those who trade in it, need to reimagine its grammar and reform its embedded assumptions in order to adapt to social change in gender presentation, marriage rules, and family formation. Consequently, Gordon asks us to think about disrupting the myriad of ways in which gender disadvantages women in trust law. This might mean reviewing and revising the ways in which women are portrayed in judicial domains, being attentive to the ways that estate planning practices characterize and authorize women, and generally working to close the gender gaps that the trust form creates.
While working in these ways to “engender” economic and identity justice, however, another front to explore would be the “de-gendering” of the trust. From this perspective, instantiating gender justice would mean creating equity by promoting trust laws and trust grammar that are non-binary and troubling gender itself.
Intents and acts are different things. Intent without act rings hollow or benign, and acts without intent can be perplexing or seem cavalier. But add one to the other—animate the intent through act, i.e. externalize what lives in the mind of one into the world of all—and powerful legalities result. Accidents turn into assaults; manslaughter into murder. Such casual communications as drafts or unsent texts could even become a last will and testament, accepted into probate as dispositive acts. This last context frames the inquiry that Professor David Horton explores with mastery in Wills Without Signatures.
It might seem that the unsigned will is too narrow an issue to warrant consideration. “No such thing,” one might say. “No signature, no intent; no intent, no will.” But with both precision and sweep, Professor Horton deconstructs that claim to build all sorts of bridges between small views and big pictures and much in between. The task is neither light nor insignificant. Old rules die hard. But with the continued relaxation of formalism and formalities, the constant expansion of technology, and the increasingly casual and tech-dependent ways in which people behave, unsigned (at least in the traditional sense) documents might indeed reflect the genuine last wishes of their makers. If so, and if “testamentary freedom” deserves the veneration that law and society claim for it, what can or must be extrapolated about intent/signature interplays demands analytic care.
Orthodox wills law is clear. Mirroring the equation above, valid wills require the confluence of testamentary intent plus formalities (legal acts). This duality makes particular sense within wills law, where the probate context itself generally ensures that the best evidence of the alleged testator’s alleged intent died when she did. By demanding some variation of the (hand)writing, witness, and signature trio, law seeks assurance that testamentary intent as claimed is likely true, and that the proffered document indeed represents the decedent’s near sacred desires. So viewed, the intent actuates the conduct, just as the conduct reveals the intent. But Professor Horton invites the deeper questions that such a calculation makes. In approaching the validity of the unsigned will, he at times sidles (and at other times, squares) up to far larger issues of the tricky interplay between intent, act, and proof—as well as intent, assent, and consent—including the slippery quality found in their testamentary form. Moreover, he does so with range, tying past to present practice and theory in a way that reveals a workable future path.
Wills Without Signatures begins on 17th century ground, when the pre-Statute of Frauds life for a decedent bequeathing chattels sometimes permitted their deathtime transfer even when no signature was affixed to a writing (or indeed, through no writing at all). By so situating matters within ecclesiastical English law and its colonial counterpart, Professor Horton reveals that notwithstanding the relentless formalism of the later Wills Act, the possibility of an unsigned will is actually less “new” than it seems. He continues by tracing the Australian and American experience with the “harmless error” doctrine, through which even wildly non-compliant documents might be accepted as wills given enough clarity and surety that their makers so intended them. Here is where things get even more interesting, at least where signatures are concerned.
What does a signature add? What does its absence remove? As earlier described, formalists would respond “everything.” But Professor Horton is dissatisfied with both that conclusion and the tepid underperformance of harmless error as its corrective, at least as often applied. For example, to demand “clear and convincing” evidence that a particular decedent intended a particular document to constitute her particular, capital “w” Will would render “blazingly idiosyncratic” any attempt to locate intent (or assent) within—and therefore qualify any “mere” draft, physical/digital file or correspondence awaiting some future finalized product as—having met the standard. Instead, he threads back to then extends a “momentum theory” that he’d sourced to earlier cases and related fields. Thereunder, an unsigned (and given the usual order of things, also likely unwitnessed) document could qualify as a valid will nevertheless whenever facts revealed “formidably” the likelihood that the testator had materially assented to its terms through readiness to soon sign either it or its polished iteration. This, to Professor Horton, could rescue all manner of unexecuted drafts, instructions, or texts—even those that the testator may not yet have read—from testamentary oblivion, as well as encourage a more sympathetic, intent-furthering cast to the problems lurking within digital wills. His theory is imaginative but careful; practical, grounded, but inspired. Moreover, it undertakes to self-limit so as to protect against some “anything goes” view of the will.
Concern might remain over the elasticity of such terms as “formidable, material, ready, and ‘soon’” in imputing final assent to some technically inchoate plan. That said, such imprecision is not new, and as the reality of “circumstantial evidence” reflects, may be unavoidable whenever law peers into affairs of the mind. It would seem peculiar were law quite willing to punish crimes or deter torts based on indirect evidence of intent, yet ignore its fair appearance for death-time gifts, where the decedent to whom it is posthumously assigned will not suffer any negative consequences of finding it anyway. If intent matters (and it does) but accidents and other things happen (which they do), the safer bet for the fairness of probate is to meet testamentary intent where it surfaces, even if in non-traditional ways. Indeed, there must have been at least some intent in play, or there would not even be any testament-like (albeit unsigned) iteration to begin with and with which to later work.
I spent a good part of one 6-year-old summer trying to climb my grandmother’s maple tree. I tried jumping, running starts, ropes, stacked bricks—small solutions that offered no foothold. Later that fall, my mother encouraged me to try again. This time, I pushed off from her shoulders while pulling up into the lowest fork. I kept climbing, pulling down increasingly smaller branches along the way. I’d been looking at problems in the unyielding trunk: bark, roughness, and sap. I’d pictured the payoff as equally limited: the chance to sit in the tree. But as I cleared that initial hurdle, the view changed. And I remember thinking that the higher I could go, the farther I could see, and the more I could, by looking down toward the trunk then up toward the sky, somewhat picture time. In a way, this is what Professor Horton offers to those for whom intent really matters, and it is more than merely the possibility that an “unsigned will” is not, in fact, an oxymoron. He has given us shoulders, perspectives, possibilities, context, more questions worth asking, empathy, and a longer, broader view.
All professional estate planners are familiar with the family limited partnership (FLP) as a gift and estate tax vehicle to create fractional discounts for federal gift tax purposes and to reduce the decedent’s gross estate for federal estate tax purposes. The main thesis of Professors Manns and Todd‘s piece is that a single-member LLC (SMLLC) is “the ideal initial entity in a gifting strategy.” (P. 325.) They contrast the SMLLC with the FLP, which “the literature continues to describe and analyze,” despite the fact that “the actual state law entity now is often an MMLLC [multi-member LLC].” (P. 344.) The professors discuss how an SMLLC “can be used to blunt the negative effects” (P. 325) (arguably, more successfully than an FLP) as to Internal Revenue Code sections 2512, 1015, and 2036, in part because of a Tax Court case, Pierre v. Commissioner.
In Pierre, the Tax Court held that, although an SMLLC may be disregarded under the check-the-box regulations for federal income tax purposes, those regulations do not provide for the LLC to be disregarded for federal gift tax purposes when a donor transfers an ownership interest in an LLC. (P. 344.) Professors Manns and Todd skillfully argue that, based on Pierre, a taxpayer can take advantage of the differing treatments of an SMLLC for federal income tax and federal gift tax purposes in the following situations (I do not cover in this jot all that the professors wrote).
First, as to section 2512 concerns about valuing gifts, SMLLCs offer advantages as a “first step in making gifts of entity interests.” (P. 349.) At the initial creation of a partnership (as opposed to an SMLLC), wealth disappears because the “aggregate value of those partnership interests almost always is less than the total value of the assets transferred to, and now owned by, the partnership, because minority ownership interests in entities are disadvantaged compared to direct ownership of assets.” (Pp. 348-49.) Professors Manns and Todd write that wealth disappearance is “permitted, or rather does not occur, when there is a ‘bona fide sale for an adequate and full consideration in money or money’s worth.'” (citing sections 2035(d), 2036(a), 2037(a), 2038(a)(1), and 2043(a)) (P. 349.) In transactions with donative intent (such as those among family members), the “bona fide sale” exception can apply “when the purpose for creating the entity is either (1) a business purpose or (2) a legitimate and substantial (or sometimes actual) nontax purpose.” (P. 349.) The professors note that a SMLLC created to hold investment assets [prior to making gifts of entity interests] “more easily can fit within the second (legitimate and substantial nontax purpose) prong than an MMLLC can.” (P. 349.)
Second, as to section 1015 concerns about a lifetime transfer of property with a built-in loss (which creates an adjusted gain basis and an adjusted loss basis for the donee), the Pierre case, per Professors Manns and Todd, makes section 1015 inapplicable as to an SMLLC. (P. 339.) Under Pierre, the SMLLC is disregarded when an LLC owner transfers an LLC interest such that, for federal income tax purposes, the owner transfers a proportionate share of LLC assets and not an LLC entity interest. (Id.) Accordingly, the value of the proportionate share of the LLC assets does not have a minority interest discount, which would exist if there had been a transfer of an LLC entity interest. Consequently, a taxpayer initially creating an SMLLC never, under section 1015, encounters the complicated situation of a partner having, as to her partnership interest, both an outside basis and an inside basis. (P. 340.)
Third, as to section 2036 concerns about a clawback into the decedent’s gross estate of the value of all property transferred previously to the SMLLC, Professors Manns and Todd point to Estate of Mirowski v. Commissioner. In that case, the Tax Court did not require that the gross estate include property previously transferred to the SMLLC (which transfers reflected valuation discounts allowed). The professors summarized the Mirowski case’s “roadmap for securing valuation discounts when an SMLLC is the starting vehicle for gifting entity interests”: (1) create the SMLLC for “legitimate, actual, significant non tax reasons,” (2) require in the operating agreement capital accounts under the applicable Treasury Regulations, (3) deny in the operating agreement the SMLLC creator from having the discretion to determine distribution amounts, and (4) avoid the negating factors from Estate of Purdue v. Commissioner (such as taxpayer on both sides of the transaction, taxpayer’s dependence on partnership distributions, and taxpayer’s failure to transfer property to the partnership, among other factors). (Pp. 368-69.)
Professors Manns and Todd’s piece is thought-provoking. The literature focuses on the FLP as a federal gift and estate tax vehicle. The professors have successfully posited the SMLLC as “the ideal initial entity in a gifting strategy” (P. 369) to preserve valuation discounts and to preclude gross estate inclusion of property initially transferred to the SMLLC.
Michael J. Higdon, Parens Patriae and the Disinherited Child
(July 2, 2019), available at SSRN
In the United States, parents can disinherit their dependent children. This rule, which I’ll call the “disinheritance power,” is one of the most blazingly idiosyncratic strands of American law. Indeed, no other legal system gives decedents this cruel freedom. And although scholars have criticized the disinheritance power for decades, it remains firmly on the books.
Michael Higdon’s engaging new article attacks this problem from a new angle. Higdon proposes that states use the venerable doctrine of parens patriae as a safety valve against egregious exercises of the disinheritance power.
As Higdon explains, the disinheritance power is anomalous for several reasons. First, it’s a relic. American colonies imported the disinheritance power from England. But because England abandoned the disinheritance power in 1938, the U.S. has fallen far out of step.
Second, other countries do things very differently. In China, Nordic nations, and many civil law regimes, forced heirship gives all children a set percentage of a decedent’s property. Similarly, common law countries such as Australia, Canada, and England boast family maintenance statutes, which empower judges to override a testator’s wishes in the interests of fairness. Thus, by clinging to the disinheritance power, the U.S. “stand[s] alone.”
Third, even within American law, the disinheritance power is a paradox. For one, a living parent must support his or her minor children. It is not clear why this duty ends with the parent’s death. Moreover, although domestic courts and legislators often cite the primacy of testamentary autonomy, they also recognize common-sense limits to this principle. For instance, testators and settlors can’t insulate their assets from spouses or creditors. Likewise, judges invalidate bequests that violate public policy by causing negative externalities. Indeed, a court will refuse to enforce a provision in a will that instructs the executor to tear down the testator’s house because honoring such a provision would “harm the neighbors[ and] detrimentally affect the community.” Bizarrely, though, the disinheritance power invites decedents to saddle the government with the spillover cost of caring for their kids.
In a creative maneuver, Higdon suggests that states curb the disinheritance power through their parens patriae authority. Parens patriae is the government’s prerogative to “act as guardian for those who are unable to care for themselves, such as children or disabled individuals.” It surfaced in seventeenth century Britain, where it initially “only encompassed the Crown’s ability to protect lunatics (the temporarily insane) and idiots (the permanently insane).” (Pp. 26-27.) But due to a typographical error in a 1603 opinion—in which the publisher of Coke’s Reports accidentally substituted the word “infant” for “idiot”—judges soon extended parens patriae to children. Today, courts use the doctrine to override a variety of parental decisions that aren’t in a child’s best interests, including those relating to adoption, liability waivers, and divorce settlements.
Higdon urges courts to apply the doctrine of parens patriae to disinherited children in certain contexts. His thesis is persuasive and nuanced. Rather than aiming for the sky and advocating the abolition of the disinheritance power, he argues that judges should invoke parens patriae to protect “vulnerable child heirs”: “minor children, disabled adult children whose disabilities are such that they remain dependent upon their parents, and adult children who were abused at the hands of the testator parent during their minority.” (P.9.) Yet even when a child falls into one of these camps, Higdon would require the child to demonstrate additional harm, such as a lack of funds from other sources. In this way, Higdon would rein in the disinheritance power without significantly undercutting testamentary freedom.
To borrow a quote from Deborah Batts cited at the beginning of Higdon’s piece, “when it comes to inheritance, American children are in need of a champion.” (P. 3.)
Alberto B. Lopez & Fredrick E. Vars, Wrongful Living
, 104 Iowa L. Rev.
Advance directives are often recommended, but rarely used. The latter fact is an alarming one, and Professors Alberto Lopez and Fredrick Vars tackle this problem in their Article Wrongful Living. After identifying the root causes of this state of affairs, they provide innovative practical and conceptual proposals for implementing the wishes of those who have taken the time to exercise their prospective autonomy. They argue for a tripartite solution to the persistent problem of advance directive underutilization. First, they recommend creating a nationwide registry of advance directives. Second, they suggest that attorneys be exposed to professional discipline and malpractice liability for failing to enter advance directives into said registry. Third, they reconceptualize the nature of the damages that flow from medical interventions that lead to undesired continued life, making wrongful living claims potentially more cognizable to courts. This holistic analysis of advance directives is admirable for providing a realistic blueprint for law reform, and the Article is a must-read for those scholars working in the areas of incapacity planning, health law, and torts.
Lopez and Vars first perform some necessary brush clearing by discussing the historical and philosophical background of advance directives. They detail the legal history of the device, including its origins in informed consent doctrine, the flurry of state and federal legislative activity that allowed and promoted its use, and the high-profile cases of Karen Ann Quinlan and Nancy Cruzan. They then turn to the thornier philosophical issues around advance directives, focusing on the Ronald Dworkin-Rebecca Dresser debates on their utility or normative desirability. They conclude, unsurprisingly, that advance directives do protect important autonomy or dignity interests, creating a need to analyze how best to legally implement them.
With this conceptual foundation, they turn to examining why advance directives fail to influence medical treatment decisions. One culprit is the current law, which places the onus on the declarant (their term for the person who filled out the advance directive) to notify medical institutions of the existence of the directive. Even when this is done, however, advance directives are often not placed in the medical record in a way that will make them operative in a medical setting. States and the private market have attempted to ameliorate this situation by offering advance directive registries, but these face several practical problems. First, the placement in a registry does not necessarily make the advance directive easily accessible to medical personnel at the moment of decision, as it might require passwords that only the declarant has. Second, there are significant costs to starting up such registries, explaining why many states have not endeavored to create them. Finally, the proliferation of private registries to make up for the lack of public ones actually further complicates the efforts of medical personnel, as it increases search costs to find the registry that houses a particular patient’s legal documents.
This leads to their first proposal: a national centralized registry for advance directives. There are two features that Lopez and Vars identify as must-haves for this registry. First, it must be searchable without needing information from the declarant, as she might not be in a condition to communicate or may have forgotten a login password. Second, the registry must be completely online, which allows for immediate viewing of the relevant documents. This is important as often medical decisions are made in emergency situations, and there is not time for the directive to be mailed or faxed. Lopez and Vars justify such a registry primarily on the basis that it reduces the costs of finding and using advance directives as well as saving on costs due to economies of scale. In response to critics who say that they are merely proposing another government bureaucracy, they point to the relatively successful Organ Procurement and Transplantation Network, a similar database used in emergency situations by medical professionals that is maintained by the Department of Health and Human Services.
But having a registry is only part of the solution. It must be populated with advance directives in order to be effective. To illustrate this point, Lopez and Vars draw an interesting analogy between advance directives and wills, noting that the former is only useful if they are accessible quickly and during the life of the declarant, whereas the latter are only operative and needed some time after death. Thus, their second proposal: Attorneys who safeguard advance directives for their clients must adequately preserve them as they would other client property. The simplest and best way to do this would be to enter the advance directive into the national registry. Failure to do so could (and should, they argue) subject an attorney to both professional discipline and a legal malpractice action, thus creating an incentive for attorneys to comply. Here, the authors analogize registration to the attorney recordation of deeds after a real estate transaction, both of which put third parties on notice of the client’s interests.
Once the registry exists and is populated with a sufficient number of advance directives, the final part of the puzzle is getting medical professionals to use the registry and obey their patients’ memorialized commands. Their third proposal targets medical professionals, who might be subject to various claims for failing to comply with advance directives, specifically ones that require the discontinuation of life-sustaining treatment. Courts have been wary of wrongful life claims, primarily because they find it difficult to conceptualize continued life as a harm, as compared to nonexistence. In a clever move, Lopez and Vars reconceptualize the nature of the harm not as continued life but as a loss of enjoyment of life. The authors note that life-threatening medical events—if survived—are often followed by poor quality of life as compared with life before the medical event. This poor quality of life, in turn, is precipitated by a wrongful medical intervention caused by ignoring the dictates of an advance directive. Thus, the correct measure of damages is the difference between the quality of life in that previous state as compared to the diminished state that a person might find herself in after the wrongful medical intervention.
Whether courts will buy this particular conceptualization of damages is an open question. The harm of ignoring advance directives is more likely an injury to some type of dignity or prospective autonomy interest of the patient. However, as the authors note, courts are just as reluctant to expand dignity torts as they are to accept wrongful life claims. Therefore, the authors may provide a more realistic doctrinal route to recognition of the harms of not honoring advance directives. Coupled with their other proposals for a centralized registry and attorney incentives, we may have a path forward for making advance directives useful and effective.
Nothing incites more dread in law students and professors than the words “Rules Against Perpetuities” (RAP). As states continue to pass laws abolishing or effectively nullifying the doctrine, professors celebrate deleting this topic from their syllabi. Professor Kades demonstrates why, from a social policy perspective, society at large should dread the death of the RAP. In this article, he challenges this trend and demonstrates the negative consequences resulting from dynasty trusts, following the demise of the RAP.
Prof. Kades starts with a brief discussion of wealth and income inequality. Relying, in part, on Thomas Piketty’s research, Prof. Kades discusses how wealth inequality has a greater impact on wealth concentration than income inequality. His research supports the notion that wealth inequality has outpaced income inequity amongst the top wealth holders. He attributes this phenomenon, in part, to a mixture of wealthier individuals earning a higher rate of return on investments and their ability to save a larger part of their income. As inequality grows, individuals have more property to transfer via inheritance.
Prof. Kades argues how growing wealth precipitates increased wealth transfers which in turn contributes to further wealth and inheritance inequality. Prof. Kades provides historical data illustrating periods in which inequality was tempered and when it rose. Tying wealth to property ownership, the research demonstrates that periods of wealth decrease coincide with periods when capital property prices decrease. This history also tends to show that the rate of return on capital assets significantly exceeds the growth rate for world output. He argues this phenomenon further increases wealth and inheritance inequality. As a result, each generation has more capital, which in turn increases their capacity to accumulate yet more capital.
The RAP comes out of a particular historical context. The English Judiciary, through judicial decisions, converted fee tails to fee simple estate to make land alienable. Alienability remains a primary concern for property owners, but it is not the only justification for the RAP. For example, some scholars justify the RAP as a balance between present and future generations of property owners, although others question the claim that the RAP promotes greater utility than permitting perpetual restrictions. Professor Kades’s view is that property owners seek to avoid restrictions on their control over their devises. The RAP exists to make property more alienable and to limit “dead-hand” control in order to maximize the efficient use of property. Now, however, more than half of the states have abolished or diluted their RAP laws, and the tax laws have not made adjustments to address the consequence of allowing property ownership in perpetuity. Consequently, wealthy donors may place property in trust for descendants multiple generations down and this property may never be taxed if the donor allocates his generation-skipping transfer tax exclusion to the trust and the property remains in trust. Prof. Kades argues the estate tax has the capacity to be one of the most effective weapons against dynastic wealth, but it has been used ineffectively.
Holding accumulated capital in dynasty trusts, combined with the abolition of the RAP, exacerbates wealth and inheritance inequality. Prof. Kades argues that in addition to the negative effects of dynastic wealth, that wealth hoarding itself creates economic harms. He points out the economic health of the United States (U.S) relies on consumption and spending by the government and the private sector. The multiplier effect of government spending increases national income by encouraging consumer spending. However, dynastic trusts are not designed for spending. Instead, dynastic trusts are designed for maximum saving—for generations. As a result, government dollars used to purchase goods and services from businesses owned by dynasty trusts will reduce the multiplier, which negatively impacts the national income and inhibits the government’s ability to stimulate the economy.
Next, Prof. Kades introduces the concept of the “paradox of thrift,” which occurs when too much income is saved. When a large amount of wealth is held in dynastic trusts, it limits the government’s ability to respond to recessions, which has the greatest impact on individuals in the lowest wealth brackets. He argues that a savings rate that maximizes consumption—the “golden rule”—is equal to the sum of the depreciation rate for capital and the rate of growth of the population; he asserts that the U.S. rate has averaged substantially below this rate. In turn, this makes the economy ripe for economic decline.
Capital locked in dynasty trusts has another negative impact. The beneficiaries of dynasty trusts have major restrictions on their access to their property. In contrast, beneficiaries of non-dynastic trusts and estates have the ability to exercise control of their property, such that they may consume or dispose of it at will. They have the freedom to liquidate their property, spend assets, and leave nothing for the next generation. While this wasteful spending may be the type of behavior that estate planning professionals are hired to guard against, he argues donors should not have the power to lock up wealth to prevent future generations from spending it.
As a solution for these problems, Prof. Kades proposes tax-based solutions to curtail the negative effects of dynasty trusts. He highlights how the RAP and estate tax were designed to work together to curtail wealth concentration. Dynastic wealth benefits a few of the wealthiest families but has the potential to harm the majority of society by the negative impact it has on the economy. Even so, Prof. Kades does not advocate for reinstating the RAP. He points out that economists suggest that an effective way to curtail undesirable behavior is to institute a tax at a rate that reflects the external costs imposed on society by the undesirable activity. This solution would allow the government to raise revenue without deadweight loss.
To that end, Prof. Kades proposes taxing perpetuities at the federal level because of the systematic way states have passed laws with “race-to-the bottom” legislation to gain trust business. Further, dynastic wealth has a national impact on the economy, therefore, he argues the solution must be imposed on a national level. He identifies three specific harms associated with dynastic wealth: the paradox of thrift, the failure to save consistently with the golden rule, and the absence of wealth dissipation. In response to these harms, he offers a multilevel approach.
First, he proposes instating a mandatory minimum spending amount for trusts to encourage consumption, and a special income tax on dynasty trusts that have excess savings amounts that pull the national savings rate above the golden rule. Prof. Kades asserts these measures help to avoid the negative externalities associated with depressed consumption. In order for the special tax to be effective, he suggests a tax rate that would equal the amount of excess savings on all dynasty trusts with a savings rate above the golden rule rate based on the trust’s end of year value. The tax would automatically trigger only during times when the national saving rate rises above the golden rule level.
To address the paradox of thrift, Prof. Kades proposes a different short-term tax, since this phenomenon occurs during a recession. He does not propose a specific method, fraction, or amount but suggests the tax should automatically trigger during a recession. The amount should be determined based on the amount needed for employment restoration. Implemented correctly, he argues this tax will operate as an automatic stabilizer to counteract recessions because it will free funds destined for excess savings and redirect them to consumption or production of goods for consumption. Alternatively, he suggests that these funds could be used to cut taxes for low-income households.Together these taxes would discourage the type of excess saving that pose a threat to consumption-based economies.
Overall, Prof. Kades presents compelling proposals to curtail the negative effects of wealth concentration currently exacerbated by dynasty trusts. Relying on Piketty’s work, he outlines the drawbacks of dynasty trusts when combined with the abolition of the RAP in a majority of American jurisdictions. This article methodically outlines the harmful consequences of allowing dynasty trusts to continue without effective measures to combat wealth and inheritance inequality. I recommend this article to professors teaching Property, Trusts and Estates, Taxation, and tax policy courses. I also recommend this article to scholars interested in normative solutions to wealth, income, and inheritance inequality.
Last year I reviewed Adam J. Hirsch, Inheritance on the Fringes of Marriage, which explored whether donors would want their fiancé, ex-fiancé, separated spouse, or divorcing spouse to take a share of their estate. Following this theme of donor intent vis-à-vis a current or former intimate partner, I was particularly interested in Naomi Cahn’s article, Revisiting Revocation Upon Divorce, in which she challenges lawmakers’ assumptions about decedents’ relationships with their former spouses and their former spouses’ relatives after divorce or annulment. Under the 1990 Uniform Probate Code, divorce or annulment revokes any provisions in a will or nonprobate instrument concerning the former spouse. It also revokes bequests to the former spouse’s relatives, including her children from another relationship, parents, siblings, nieces and nephews—the testator’s former stepchildren and in-laws. Although the presumption of revocation may be rebutted in limited circumstances, this is both difficult and rare. Many states follow the 1990 UPC’s approach.
I must admit that the application of the doctrine of revocation upon divorce to a former spouse’s relatives has never seemed quite right to me. Maybe it is because I share close relationships with my spouse’s relatives and would continue to want them to benefit from my estate if my marriage were to end in divorce. My expectations are also based on my parents’ own experience with divorced relatives. My mother was very close to her sister’s ex-husband until his death and my father is very close to his brother’s ex-wife. Of course, my own personal experience is not evidence of what most donors would want, but Professor Cahn identifies several developments that demonstrate that the donor’s relationship with the former spouse and the former spouse’s relatives may not necessarily end when the legal relationship is terminated.
Professor Cahn observes that the divorce process has changed since the 1970s from the acrimonious battles often found in family law casebooks in which the petitioner had to prove fault to a kinder and gentler no-fault divorce. She explains that while some divorces are still acrimonious, lawyers now encourage clients to engage in mediation and other collaborative approaches that allow former spouses to co-parent and maintain amicable relationships after divorce. Of course, an amicable relationship and effective co-parenting does not mean that a donor’s testamentary preferences vis-à-vis a former spouse will remain the same after divorce. Nonetheless, I was reminded of Professor Hirsch’s study finding that more than more than 60% of divorcing spouses (those who were in the process of divorcing but do not have a final divorce decree) wished to leave part of their estate to the divorcing spouse. While a donor’s preference vis-à-vis a divorcing spouse might not be the same as her preferences vis-à-vis a former spouse, it suggests that Professor Cahn is wise to question whether revocation upon divorce actually reflects the intent of most donors.
I appreciated Professor Cahn’s policy arguments for revisiting the presumption of revocation upon divorce. She observes that revocation may have disparate effects on women, racial and ethnic minorities, and less wealthy individuals. She explains that as a result of women’s lower earnings, fewer years in the paid workforce, and longer life expectancy, surviving former spouses are likely to be older women with fewer assets for retirement when compared with divorced men. Consequently, revocation of a designation to a former spouse has a disproportionately negative impact on divorced women. She further observes that individuals who do not update their will and nonprobate beneficiary designations after divorce may be less educated and have fewer resources than wealthier individuals who have access to lawyers who will remind them to update their estate plan after divorce and do it for them. Although the effect of revocation on racial and ethnic minorities, who are more likely to divorce but less likely to have a will or assets at death, is much less clear, Professor Cahn wisely cautions that given these gender, racial, and class differences, lawmakers should examine the consequences of the presumption of revocation on different groups.
Professor Cahn’s discussion of several empirical studies involving relationships between former family members further demonstrates that revocation upon divorce may not reflect the donor’s intent, especially when there are children of the marriage. Her own study of adult children caring for a dying parent found that one-fifth of former spouses provided some level of caregiving to the former spouse. As I read this article, I thought about divorced friends and family members and how they might act in similar circumstances. It is not surprising that a mother would help her adult son care for his dying father, even if the mother and father are divorced. It would also not be surprising if the father wanted the mother to continue to benefit from his estate, especially if they maintained a cooperative, and possibly even friendly, relationship. Professor Cahn’s discussion of another study finding that one-quarter of individuals believe that a former daughter-in-law should be included in a will after a divorce similarly demonstrates that revocation upon divorce statutes do not always reflect a donor’s intent.
Despite these changes in the divorce process and post-divorce relationships, Professor Cahn acknowledges that the presumption of revocation upon divorce may serve to effectuate decedent’s intent in some, if not many, cases. The presumption benefits donors who intended to update their estate plan after divorce but never got around to it or assumed that the designation to a former spouse and her family members would automatically be revoked after divorce. Other donors, however, may have expected that the designations they made while married would remain in effect until they affirmatively changed them. Professor Cahn examines other countries’ approaches to designations benefitting a former spouse—some countries have no presumption of revocation upon divorce while others do—to demonstrate that the UPC approach is not necessarily the best approach.
Given the lack of empirical evidence on divorced donors’ intent and the low probability that lawmakers will abolish the presumption of revocation upon divorce any time soon, Professor Cahn proposes practical solutions that would increase the likelihood of effectuating decedent’s intent without unduly burdening the courts. Her stated “goals in exploring these reforms are, first, to develop a more functional approach that would acknowledge caregiving and functional familial relationships, and second, to respect donative intent.” (P. 1907.) I was particularly persuaded by her recommendation that lawmakers retain the presumption of revocation but place a time limit on its application. This proposal, modeled on South Africa’s approach, would provide a divorced donor with some time to change the beneficiary designations but if they are not changed within that time period, the law would presume that the divorced donor intended to keep the designations made before the divorce.
Professor Cahn also proposes amending revocation upon divorce statutes to allow rebuttal of the presumption by extrinsic (but clear and convincing) evidence of donor’s intent. Such evidence might include the relationship between the donor and the former spouse (or the former spouse’s relatives if they are designated beneficiaries) after the divorce, the length of time between the divorce and donor’s death, and any oral statements that indicate intent.
My favorite solutions were those that courts and lawyers could adopt rather easily. Professor Cahn proposes that family courts include advice on divorce filing forms explaining the revocation upon divorce rule (or whatever default rule the state has adopted) and allowing divorcing spouses to make an alternative designation on the form itself. She also reminds family law practitioners to advise their divorcing clients to update their beneficiary designations to reflect their intent, and trust and estate lawyers to draft documents that clarify the status of a designation to a spouse and the spouse’s relatives in the event of divorce. She observes that trusts and estates lawyers routinely draft provisions designating who should take a bequest if “my spouse does not survive me” and can easily add language designating who should take if “my spouse and I divorce.”
Professor Cahn’s article is a must read for anyone interested in recognizing the post-divorce collaborative and caregiving relationships that family law encourages and respecting divorced donors’ intent vis-à-vis a former spouse and the former spouse’s relatives.
Note About the Title: The term “renegotiated families” is taken from Robert E. Emery, Renegotiating Family Relationships: Divorce, Child Custody, and Mediation (1994).