Category Archives: Trusts & Estates

Less Freedom and More Equality

Apr 16, 2026 Allison Anna TaitTrusts & Estates

Allison Anna Tait

Donative freedom is the guiding principle of inheritance law. This is something that many of us who teach the subject tell students every semester, at the outset of a Wills and Trusts class. We keep repeating this truism because donative freedom turns out to be the answer to many of the questions we encounter, questions about why a certain rule exists or why a court case produces a certain result. What happens less frequently is sustained inquiry into the principle of donative freedom, its history, and the political economy supporting it.

In their article, Donative Freedom, Disrupted, Carla Spivack and Deborah Gordon engage in just such an inquiry, taking on the primacy of donative freedom as an ordering mechanism and foundational principle in inheritance law. Three pillars, Spivack and Gordon tell us, have traditionally supported the edifice of donative freedom: philosophy, history, and economics. These pillars have been reinforced over time, bolstered in their foundation by theorists, legislators, and courts. Nonetheless, Spivack and Gordon observe, reports concerning the strength and utility of these pillars have been greatly exaggerated. Continue reading "Less Freedom and More Equality"

A Proposal for a 529 End-of-Life Plan for Death Care Expenses

Apr 1, 2026 Michael YuTrusts & Estates

Michael Yu

In Tax Sheltering Death Care, Professor Victoria J. Haneman proposes the creation of tax-advantaged 529 End-of-Life (EOL) Plans to incentivize individuals to plan for death care expenses (for funeral, burial, or cremation) in a thoughtful way. Her proposed 529 EOL Plan (which operates like the existing 529 Plan for educational expenses) is “politically strategic in its subtlety” according to Professor Haneman because it “provides both a structure through which savings is incentivized for all and a targeted deathcare benefit is also delivered to our most vulnerable.” (P. 630.)

Before discussing Professor Haneman’s proposed 529 EOL Plan, a brief explanation of existing 529 plans for educational expenses is in order. Professor Haneman notes that her proposal is similar to one type of existing 529 plans (a state-administered tax-deferred investment account for educational expenses) but not to a different type of plan (a prepaid tuition program for in-state post-secondary schools. (Pp. 647-48.) Existing 529 plans allow for an account: (1) to receive contributions, (2) to treat account income as income tax-exempt, and (3) to have account withdrawals be treated as income-tax exempt if the withdrawals are made for a “qualified” educational expense. (P. 648.) Although contributions to existing 529 plans are not deductible for federal income tax purposes, around thirty states allow some type of deduction against state taxes. (P. 648.) Continue reading "A Proposal for a 529 End-of-Life Plan for Death Care Expenses"

Getting In, Getting Out

Mar 13, 2026 Katheleen GuzmanTrusts & Estates

Katheleen Guzman

Q: What happens if a joint tenant sues for partition and then dies?

A: Action ends, survivorship trumps–right?

Easy property questions, simply put and comfortable to ask, suggest easy answers. But particularly in law, and especially when tested against particular facts at a particular time and place, easy questions are also rare. Real property rules feel timeless and immutable—two qualities that are believed to encourage robust markets, avoid litigation, and offer clarity, efficiency, and speed. But context can change everything, and sometimes even the easiest questions become difficult to answer.

What effect does partition have on survivorship? And what effect does survivorship have on litigation? Liam Cronan collects and presents historical evidence to reveal that courts have been too quick to replace research and reason with “survivor takes all.” Through a recent case, Cronan shows that much more may and should turn on the specifics of extant statutes, including even colonial-era ones based upon some long-repealed 17^th-century English law of the land. Continue reading "Getting In, Getting Out"

Leveraging Trust Law to Protect Child Influencers

Feb 11, 2026 Victoria J. HanemanTrusts & Estates

Victoria J. Haneman

Professor Naomi Cahn’s recent article, Trusting Remedies for the Child Influencer Space: Blocked Trust Accounts and Child Beneficiaries, exists at the intersection of centuries-old legal doctrine and the technology-based influencer economy. The family influencer, parent-facilitated influencer, and kidfluencer spaces are thriving (from TikTok sponsorships to YouTube ads), and these are spaces in which federal protections for children are arguably inadequate. Instead, we must rely on limited oversight provided by a patchwork of state privacy and labor laws. A parental conflict of interest is inherent when a child is unable to give informed consent, and parents are overseeing a child who is also a profit center. As with child actors, the question becomes: who is overseeing or regulating the parents? The exploitation of successful children, including actors and athletes, is not a new concern, but current legal infrastructure does not apply neatly to protect child content creators. In her essay, Professor Cahn considers the way the blocked trust account may be reimagined to better protect kidfluencers.

For over a century, the legal system has vacillated between empowering parents as guardians and constraining them as potential exploiters, from child factory labor to Hollywood stardom. The kidfluencer economy heightens this tension: the “workplace” is not a set or a studio but the family living room, and the “manager” is often a parent with a smartphone. The intimacy of this arrangement makes oversight uniquely difficult and the risk of abuse correspondingly high. Cahn draws a straight line from the Coogan laws of the early twentieth century (designed to safeguard child actors’ wages) to the relatively unregulated frontier of contemporary influencer culture. Continue reading "Leveraging Trust Law to Protect Child Influencers"

Small Gifts, Big Problems

Jan 14, 2026 David HortonTrusts & Estates

David Horton

When I read the premise of Mark Glover’s terrific new article Nominal Bequests—that some small-dollar gifts are problematic—I couldn’t help wonder whether it was a kind of stunt, like writing a novel without using the letter “e.” What could be wrong with testamentary gifts of trivial sums? Even if these bequests were somehow harmful, wouldn’t the payoff from regulating them pale in comparison to the costs? But Glover (who has been publishing up a storm) is waiting in the weeds with creative and thoughtful answers.

For starters, Glover argues that “[s]ome nominal bequests . . . are wasteful” and “undermine the fundamental policies of the law of succession.” He astutely observes that testators invariably make nominal bequests for one of two reasons. First, some are motivated by spite. Glover offers the real-life example of a mother who left each of her four daughters $1 and quips that she “wanted to give [them] something worse than nothing.” Second, Glover notes, other testators are laboring under a mistake of law. They want to disinherit the beneficiary entirely, but they incorrectly believe that they must acknowledge the individual to prevent a court from deeming the individual to be accidentally omitted. Either way, Glover contends, there’s no social value in implementing these testators’ wishes. Freedom of disposition supposedly encourages industry and thrift, but “[t]he donor has no reason to increase her wealth during life to functionally disinherit the beneficiary at death.” Continue reading "Small Gifts, Big Problems"

A Proposed Framework for Privacy Rights After Death

Dec 1, 2025 Sergio ParejaTrusts & Estates

Sergio Pareja

Professors Allen and Rothman have written an excellent piece that addresses an issue of growing importance. While questions about privacy have always existed, technological changes that are occurring at a lightning-fast pace are creating demand for a consistent and clear legal framework. These technological changes include artificial intelligence, social media and email accounts, as well as the ubiquitousness of cameras and recording devices. This raises new questions regarding rights to a person’s name, image, voice, life history, beliefs, and identity after death.

Postmortem privacy refers to privacy protections that continue after death. The traditional view, which has been repeated for over a century, is that privacy rights end with death. The reality is much more nuanced, and courts sometimes do in fact protect some privacy rights after death. The growing importance of digital legacies and technologies makes reevaluating postmortem privacy critically important. Professor Allen and Professor Rothman’s article aims to build a theoretical and legal foundation for recognizing and shaping privacy rights after death. Continue reading "A Proposed Framework for Privacy Rights After Death"

Evaluating Standards for Making Fiduciary Decisions

Nov 4, 2025 Phyllis C. TaiteTrusts & Estates

Phyllis C. Taite

Professor James Toomey analyzes fiduciary principles by comparing two standards, “best interests” and “substituted judgment.” As defined by Toomey, a fiduciary makes a decision in the principal’s best interest when the fiduciary objectively assesses the circumstances. On the other hand, substituted judgment considers the principal’s subjective intent, and thus asks the fiduciary to make the decision the principal would have wanted under the circumstances. Toomey evaluates both models by considering various applications of fiduciary law and assessing whether either standard adequately articulates the legal obligations imposed on fiduciaries.

To demonstrate the difference between the fiduciary standards, Professor Toomey describes how fiduciary decisions based on substituted judgment focus on probable intent and personal identity of the principal. Alternatively, fiduciary decisions based on best interests do not focus on personal identity, but instead reflect the ideal, efficient choices based on the circumstances. Further, he discusses situations where fiduciaries have blended these two standards. Continue reading "Evaluating Standards for Making Fiduciary Decisions"

A Prescription for Taxation of Dynasty Trusts

Oct 2, 2025 Kent D. SchenkelTrusts & Estates

Kent D. Schenkel

“Only morons pay the estate tax.” That is a bit of hyperbole, of course, from Gary Cohn, the director of the National Economic Council during the first Trump administration. But those paying attention know that the federal transfer taxes don’t work very well. Instead, highly effective estate tax dodges pervade, and these techniques are particularly effective as applied to the largest estates. Brian Galle, David Gamage, and Bob Lord, in their paper, Taxing Dynasties, citing their own empirical study of data culled from the IRS, conclude that these taxes fail to reach at least $4.5 trillion of huge, family-controlled fortunes. And for this, they’ve proposed a meticulous, politically savvy, and technically brilliant prescription.

They point out that most of this $4.5 billion in transferred wealth is held in “dynasty trusts,” which are devices designed to escape wealth transfer tax for generations, if not permanently. Taxing Dynasties proposes an annual “withholding tax” on these trusts. It takes aim at trusts held by those “with more money than they can reasonably spend in a lifetime, the .01% richest citizens,” and would function as a minimum tax on those trusts. The authors’ proposal is not just an academic pipe dream. They are working with at least one Senator to devise legislation incorporating their ideas, which they expect to be introduced in Congress sometime in 2025. Continue reading "A Prescription for Taxation of Dynasty Trusts"

The Double-Edged Sword of Digital Immortality

Sep 4, 2025 Gerry W. BeyerTrusts & Estates

Gerry W. Beyer

What if death was not the end? The rapid rise and advancement of generative artificial intelligence presents the unique opportunity to allow people to speak to loved ones who have passed. Samuel Hoy Brown VII’s Don’t Fear the Reaper? delves into the rapidly growing industry of posthumous communication, an increasingly lucrative industry. This article analyzes the intersection between artificial intelligence, mourning the loss of a loved one, after-death rights, and the law. As Brown explores the ethical effects of posthumous communication through artificial intelligence, he questions consent and the ownership of an individual’s likeness after death.

This article provides a comprehensive examination of the history of artificial intelligence, starting with early chatbot models like ELIZA to today’s highly specialized generative AI tools like HereAfter AI and You. Brown explains how these new specialized AI tools emerged, and how they are capitalizing on the posthumous communication market, promising families who are in mourning an opportunity to participate in “real” conversations with their loved ones. This AI technology uses voice recordings, texts, email communications, letters, and personal stories of the deceased to manufacture conversations for the families to have while they are grieving, and for family members and friends to enjoy for years to come. Some may see this tool as a comfort in the mourning process and as a method of preserving family history, while others may discern the ethical issues that can stem from this technology. Continue reading "The Double-Edged Sword of Digital Immortality"

Placing Limits on Trust Asset Protection

Jul 31, 2025 Goldburn MaynardTrusts & Estates

Goldburn Maynard

The issue of whether trust beneficiaries should be treated differently from individuals who own their assets directly has been a central one in the trusts and estates world for centuries, and it shows no signs of disappearing. While it would be preferable to have a standard, across-the-board response to this matter, its intractable nature reveals a balancing of interests. The trust is a centuries-old fiduciary relationship that is not nefarious in and of itself. Much as they do with corporations, governments find themselves torn between respecting such voluntary arrangements according to their terms or setting them aside to prevent abuse. The purpose of look-through rules is to prevent trusts from undermining other policy goals, such as facilitating debt collection or restricting certain government benefits to individuals who demonstrate financial need.

In a forthcoming article, Professors Adam Hofri-Winogradow & Mark Bennett compare trust look-through approaches taken by five nations: the U.S. (and its states), Canada (and its provinces), England and Wales, Australia, and New Zealand. The authors’ focus is primarily on liability and means-testing avoidance by trust beneficiaries, which they argue is improper. To paint a picture of how weighty and emotion-provoking these issues can be in the real world, consider three examples featuring Gary, a hypothetical trust beneficiary of a $10 million trust set up by his mother Gwen before her death from a terminal illness. Gary’s father, as trustee, in entitled to make distributions to Gary in his sole discretion: Continue reading "Placing Limits on Trust Asset Protection"