first-year law review

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When a person dies intestate that person dies without a will. Further, if a will’s so poorly drafted that it disposes of only part of the probate estate, the result is partial intestacy. When a person dies intestate, the law of the state where decedent was domiciled at death governs the disposition of personal property, and where the real property is located governs the disposition of real property.


If there’s a surviving spouse, that person is always the first taker, and usually receives the largest share. The order of intestacy is as follows: Spouse, Descendants, Parents, Descendants of decedent’s parents, and finally Grandparents or descendants of grandparents. Each state has a statute that governs what goes where. Under the Uniform Probate Code, the spouse gets everything if no descendant or parent of decedent survives, or all descendants are also descendants of the surviving spouse. If there’s no descendant, but a parent survives, the spouse gets the first $200,000 plus three-fourths of the balance of the estate. If there are descendants and surviving spouse had descendants who aren’t from decedent, the spouse gets $150,000 and half of the balance of the estate. If surviving decedents aren’t descendants of the surviving spouse, the spouse gets $100,000 and half of the estate’s balance. Naturally nonprobate property is excluded from the estate prior to these figures. If there’s no taker, estate goes to the state.


In the case of simultaneous death, the Uniform Simultaneous Death Act says that if no sufficient evidence of the order of deaths, the beneficiary is deemed to have predeceased the donor. If joint tenants die simultaneously, one half is distributed as if A survived, and one half as if B survived.


September 10, 2007 Posted by | Wills & Estates | Leave a comment

Dead Hand Control

Let’s deal with the problem of dead hand control. The question is, To what extent should a person be able to use wealth to influence behavior after death? The reason this is a problem is because in the United States, courts don’t substitute their own judgment for the decedent’s, but it seems like there has to be some limit. In the Restatement 3d on Property, it says, “The donor has the freedom of disposition, and pretty much anything goes as long as the donative transfer doesn’t interfere with spousal rights, creditors’ rights, unreasonable restraints on alienation or marriage, provide for promoting separation or divorce, impermissible racial or other categoric restrictions, provisions encouraging illegal activity, and the rules against perpetuities and accumulations.” So there are several limits on the decedent’s right to dispose of his property as he sees fit.


An interesting case we read was Shapira v. Union National Bank. Here, Dr. Shapira said in his will that his each of his sons must marry a Jewish woman, both of whose parents are Jewish. One of the sons, Dan, took exception to that provision and challenged it. The question in this case was whether the decedent’s provision was constitutional or against public policy. The court held that the right to receive property by will is a creature of the law, and is not a natural right or one guaranteed or protected by either the Ohio or the United States constitution. In Ohio, a testator may legally disinherit his children. Dan argued that enforcing the provision would go against the precedent set in Shelley v. Kraemer that judicial enforcement is the same as state action which restricts the right to marry. Provisions such as Dr. Shapira’s aren’t state action because Dan’s right isn’t restricted, he can marry whomever he wants, he just won’t get the money. Thus, the state isn’t restricting, the dad is, even if the state enforces the will. It is also not contrary to public policy because gifts conditioned on a beneficiary marrying within a particular class or religion constitute only a partial restraint on marriage, which is reasonable and valid and not against policy.


Restatement 2d on Property says a restraint to induce a person to marry within a religious faith is valid if and only if under the circumstances, the restraint doesn’t unreasonably limit the tranferee’s opportunity to marry. However, a will or trust provision is ordinarily invalid if it is intended or tends to encourage disruption of a family relationship.

August 30, 2007 Posted by | Wills & Estates | 1 Comment

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 | Leave a comment