first-year law review

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The Right to Pass On Property: A Civil or Natural Right?

There are two ways at looking at devising property: that it’s a natural right or that it’s a civil right. Blackstone and Jefferson both thought devising property was a civil right because it’s regulated by the government. Locke, however, believed that devising property is a natural right because taking care of our descendants is a God-planted desire and devising property is a way to do that.


In the United States, devising property was viewed as a civil right until 1987 when the Supreme Court decided the landmark case of Hodel v. Irving. In the 19th century, Congress said Indian land would pass to the owners’ children. This resulted in severely fractured interests. To solve the problem, Congress said that such lands would escheat to the tribe. The issue was whether the escheat provision is a taking without just compensation. The Court held that the right to pass on valuable propety to one’s heirs is a valuable right, and the complete abolition of both the descent and devise of a particular class of property may be a taking because the value of the interests, though nominal, isn’t valueless. The right to pass on property is part of the bundle of sticks. Descent and devise may be regulated, but not abolished.


This represented a shift to the natural view of devising property. Note that this doesn’t concern the right to inherit, only the right to devise. Thus, if my parents wrote me out of their will, I wouldn’t be able to assert a right to inherit.


August 27, 2007 - Posted by | Wills & Estates

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