Category Archives: Trusts & Estates
Sep 21, 2012 Alyssa DiRussoJotwellTrusts & Estates
Sometimes a will is not just a will. In Mark Glover’s recent article, he illuminates the psychological power that the law of wills and the process of estate planning can have. Although I’ve long suspected many of us who work in the world of trusts and estates do so for psychological reasons (what drives us to attempt to control death?), I’ve never seen the connection between psychology and the law of death made so persuasively and concretely.
Professor Glover begins with a useful introduction to therapeutic jurisprudence. It seems a gentle and unobtrusive movement; it largely suggests that, all other things being equal, the law should tilt toward rendering positive psychological consequences rather than negative ones. Fair enough. The model requires an analysis of the impact of laws on people, noting both the negative and positive psychological effect of the constructs law has created. An analysis should lead to an adjustment in the law if the primary goals of the law could be accomplished in a way with better net psychological impact. Continue reading "Estate Planning Is Better Than Xanax"
Jul 23, 2012 Tom GallanisTrusts & Estates
This fascinating book stems from the author’s Ph.D. dissertation at the University of London, supervised by Professor (now the Honorable Mr. Justice) David Hayton and Professors James Penner and Paul Matthews.
The book is a response to academic writing from the United States emphasizing the contractarian or organizational basis of trust law. As Dr. Lau explains, his book sets out to achieve two purposes: “The first is to introduce and defend a property-based economic account of trusts. … The second is to influence legal scholarship on and developments of trusts” (P. 17). Continue reading "Trust as Contract? Organization? Property!"
Jun 4, 2012 Stewart SterkJotwellTrusts & Estates
Under what circumstances should courts permit a donor to undo what appears to be a completed gift – particularly when the gift is embedded in a real or imagined romantic relationship? After surveying existing law, Ruth Sarah Lee concludes that traditional doctrine does not adequately deter donees from subtly misleading donors into making generous gifts that the donor would never make if the donee had been honest about his or her intentions. Although the article’s focus is on a subspecies of lifetime gifts, its conclusions suggest possible application to testamentary gifts, and to how courts might approach doctrines of undue influence and tortious interference.
Although the conventional wisdom is that gifts are gestures of altruism, love, or kindness, that conventional wisdom does little to explain why a donor makes particular gifts. Much recent scholarship recognizes that gift-giving helps build relationships, in part by enhancing trust between donor and donee. Gifts, particularly gifts that require the donor to learn about the donee’s individual preferences, or gifts that are particularly expensive, perform an important signaling function: they indicate to the donee that the donor has an interest in a long-term relationship. As Ms. Lee points out, “[i]f the donor expected only a short-term relationship with the donee, he would not expect enough in return, in terms of affection or trust, for the gift to be worth its cost.” If gifts were freely revocable, they would lose that signaling advantage, because the donor would not be making the same sort of commitment to a relationship with the donee. Nevertheless, as Ms. Lee indicates, engagement gifts are routinely treated as revocable at the donor’s behest if the marriage does not occur. Courts invoke either the theory that the gift was conditioned on occurrence of the marriage, or that the theory that the gift was given only as consideration for the marriage. Continue reading "For Love or Money? Legal Treatment of Golddiggers"
May 4, 2012 Paula MonopoliJotwellTrusts & Estates
Camille M. Davidson,
Mother’s Baby, Father’s Maybe!– Intestate Succession: When Should a Child Born Out of Wedlock Have a Right to Inherit from or Through His or Her Biological Father? 22
Colum. J. Gender & L. 531 (2011), a
vailable at SSRN.
One of the most important and interesting conversations among inheritance law scholars has been the role genetic connection should play in establishing parentage and rendering a nonmarital child eligible to inherit from her father. The advent of easy and reliable genetic testing has crystallized the issue and focused scholars on which paradigm we should adopt now that we no longer need “surrogate” rules in intestacy statutes, e.g., acknowledgement by a putative nonmarital father, to help establish whether a child is likely that man’s child. There is a spectrum in terms of potential paradigms, running from a purely genetic model at one end where a DNA test establishing paternity would make a nonmarital child eligible to inherit even if she had no relationship with her father to a purely functional approach where the father’s behavior and intent would be the linchpin of whether the child is eligible to inherit, regardless of her genetic connection. I would characterize the former model as a “child-centric” model where the interests of the nonmarital child trump that of the father and his other marital children since the nonmarital child does not have to rely on the father to take any affirmative action like acknowledgement in order for the child to be eligible to inherit.
In her recent article Mother’s Baby, Father’s Maybe!-Intestate Succession: When Should a Child Born Out of Wedlock Have a Right to Inherit from or Through His or Her Biological Father?, Camille Davidson argues for the adoption of such a child-centric model of establishing paternity in the area of inheritance law. She highlights some of the historical antecedents of our current patchwork of state laws on defining paternity. Davidson also adopts a comparative lens in evaluating how states should embrace the genetic connection between a nonmarital child and her father as dispositive of not only of paternity but of her eligibility to inherit from him. In so doing, Davidson makes a compelling argument for this approach and adds an important voice to the academic conversation in this area of inheritance law. Continue reading "Adopting a “Child-Centric” Model of Paternity for Nonmarital Children"
Apr 20, 2012 Gerry BeyerJotwellTrusts & Estates
Kristine Knaplund’s well-written and researched article, Synthetic Cells, Synthetic Life, and Inheritance, discusses the legal and regulatory implications of new advances in synthetic biology that may one day lead to the creation of synthetic human gametes or embryos that are made without the use of existing genetic materials. The article first discusses the current state of assisted reproduction in the United States and the various techniques that are currently available for individuals with fertility problems. Next the article examines the existing regulations that may apply synthetic gametes and either encourage or prohibit research in this area. Finally, the article tackles the question of who will be the legal parents of a child created using synthetic gametes.
Prof. Knaplund notes that assisted reproduction is “big business” in the United States, with the exchange of eggs (ova) alone being worth $4.5 billion in the United States. The use of in vitro fertilization, where the egg and sperm are joined in a Petri dish and later implanted in a woman’s uterus, was first successfully used in 1978 and since then over 3 million babies have been born worldwide using assisted reproduction technologies (“ART”). Cryopreservation (freezing) of sperm, ova and embryos is commonly used today and preimplantation genetic diagnosis is used to screen for certain genetic or chromosomal diseases. If a synthetic sperm or ovum were created, the user could select for genetic characteristics that are not present in the intended parents. Continue reading "Artificial life but real inheritance?"
Mar 28, 2012 Solangel MaldonadoJotwellTrusts & Estates
I have never had a pet (yes, very sad), so I must admit that in my Estates & Trusts course, I covered the cases involving gifts to pets with some amusement. After reading Frances Foster’s provocative article, Should Pets Inherit?, I will never teach those cases in quite the same way again. Building on many scholars’ (including her own) critiques of U.S. inheritance law’s focus on relationships based on blood, adoption, or marriage to the exclusion on those based on caregiving and affection, Professor Foster expands the universe of beings who should inherit to include non-human family members—pets.
Professor Foster briefly summarizes the rich literature showing that U.S. inheritance law excludes many people Americans consider nearest and dearest to them, including nonmarital partners, friends, and individuals with whom they share a de facto parent-child relationship. As a result, inheritance law often conflicts with and defeats decedents’ wishes to provide for individuals with whom they shared affectionate and supportive relationships. She points out that the law’s exaltation of family status over affection and support is so entrenched that attempts to give property to persons the law does not consider “family” are deemed “unnatural.” In my opinion, many would find few bequests more “unnatural” than dispositions to a pet, which the law deems to be property and as such, cannot inherit under the common law. As Professor Foster points out, bequests to a pet may be used as evidence of testamentary incapacity. After all, who in their right mind would leave property to a pet? However, Professor Foster persuasively demonstrates that given the vast majority of pet owners’ inclusion of their pets in their definition of family and their desire to provide for their pets after they pass, the law should allow and facilitate inheritance by pets. Continue reading "Protecting the True Objects of Decedent’s Bounty—Pets Included"
Mar 14, 2012 Kerry RyanTrusts & Estates
“It is not a matter of the cure being worse than the disease. It is rather, that the cure has become the disease.” This line, written by Leo Schmolka, is quoted in Mark Ascher’s recently published article calling for repeal of (most of) the grantor trust rules. I quote Schmolka here too because he so pithily captures “the irony of using anti-abuse rules to abuse the tax system.” The tax avoidance vehicle of choice is known as an “intentionally defective grantor trust” or “IDGT” (sardonically pronounced “I dig it”). As noted by Ascher, “even their name seethes with irony.”
Ascher’s article makes three main points: 1) the grantor trust rules are obsolete; 2) their continued existence leads to significant erosion of our income and transfer tax bases; and 3) as a result the grantor trust rules (or at least most of them) should be repealed. To be sure, most of these points are not new, and indeed, two other recent articles cover similar ground. However, Ascher’s is by far the most comprehensive and, in my opinion, persuasive of the three. Continue reading "Repeal the Grantor Trust Rules"
Feb 13, 2012 Lynda Wray BlackJotwellTrusts & Estates
In his May, 2011 article, Who Are The Beneficiaries of Fisk University’s Stieglitz Collection?, Alan L. Feld presents an intriguing case study. Charitable giving is not new, nor are the issues of donor standing, beneficiary standing or the doctrine of cy pres. In fact, the issues arising from the obsolescence or dis-utility of charitable gifts recently have captured the attention both of the general public and the academy. Professor Susan N. Gary’s article entitled, The Problems With Donor Intent: Interpretation, Enforcement, and Doing the Right Thing, 85 Chi-Kent L. Rev. 977 (2010) presented a comprehensive analysis of the legal issues implicated in a variety of noteworthy failed charitable gifts.
By focusing on the Stieglitz Collection, a muti-million dollar collection of artwork housed and maintained at Fisk University in Nashville, Professor Feld’s article serves as an important complement to the somewhat longer piece by Professor Gary. Professor Feld raises important issues including the role of the state’s attorney general in overseeing charitable trusts, fidelity to the all too often enigmatic intent of the donor, the tension between the doctrine of cy pres and literal interpretation of conditions on gifts, the importance of determining the charitable beneficiaries, and questions of who has standing to sue to enforce charitable purposes. Professor Feld presents compelling reasons for expanding the legal standing of the beneficiaries of a charitable trust. Continue reading "The Failings of Donor Intent"
Jan 9, 2012 Anne-Marie RhodesTrusts & Estates
In 2009, the Illinois Supreme Court upheld a decedent’s right to make a gift with a religious restriction, the “Jewish Clause.” Estate of Feinberg was extensively reported, bitterly litigated, and placed a white-hot spotlight on gifts with restrictive or discriminatory conditions attached. In Some Arguments Against Discriminatory Gifts and Trusts, 31 Oxford J. Legal Stud. 303 (2011), Matthew Harding presents arguments to eliminate the freedom to discriminate in the disposition of property, whether for charitable or private purposes. Harding’s primarily-UK focus and philosophical arguments offer a wider and refreshing view of this public policy debate. The end result is a sharpened understanding of our own system.
Harding’s thesis is that the common law can and should develop to eliminate the freedom to discriminate in the disposition of property by gift or trust, whether for charitable or private purposes. He rejects the counterargument of a donor’s personal autonomy. Harding divides his article into two equal parts: Can the common law prohibit discriminatory gifts and, should the common law do so? Continue reading "Philosophizing about Discriminatory Gifts"
Nov 21, 2011 Camille DavidsonTrusts & Estates
Browne C. Lewis,
Graveside Birthday Parties: The Legal Consequences of Forming Families Posthumously, 60
Case W. Res. L. Rev. 1159 (2009-2010), available at
SSRN.
“Procreation is no longer left to the living” proclaims Professor Browne Lewis in this essay entitled Graveside Birthday Parties: The Legal Consequences of Forming Families Posthumously. (P. 1159) She explores three legal issues that have resulted from posthumous reproduction. Specifically she addresses the issues of parentage, procreative freedom, and probate. Professor Lewis examines the steps that must be taken to identify the legal parents of posthumously conceived children. She further discusses the rights of the deceased gamete providers. Finally, she focuses on the inheritance rights of these posthumously conceived children.
In the not so distant past, a fertile man and woman needed to have sexual intercourse to create a baby. A traditional family consisted of a husband, wife and their children. The children were either the biological children of the husband and wife or their adopted children. A child who was born into a marital union was considered legitimate and one born outside of the marriage was illegitimate. Reproductive technology has altered the American family. Intercourse is no longer necessary to create a baby. Although reproductive technology has resulted in many medical miracles, the legal community has been slow to respond to the medical advancements. Further, the legal community must deal with mistakes that inevitably occur. Continue reading "Unforeseen Consequences of Post-Mortem Procreation"
