Discretion in Property Devolution and Heirs’ Misconduct

Anne-Marie Rhodes (Professor, Loyola University Chicago School of Law) has recently published her article entitled Consequences of Heirs' Misconduct: Moving from Rules to Discretion, 33 Ohio N.U. L. Rev. 975 (2007).

Here is the conclusion to her article:

The changing landscape of modern families and property necessitates an ongoing reconsideration of intestate statutes for the devolution of property. Concerns about an heir's misconduct have historically only been modestly addressed within intestacy, and that remains true today. Nevertheless, recent disinheritance statutes have moved beyond the tradition of an objective rule to granting a judge discretion in certain sensitive circumstances. This legislative grant of discretion is extraordinary. It may mark the beginning of a subjective approach in the disposition of intestate property, one that in balancing the intent of the decedent against society's general public policy in very limited circumstances of heirs' misconduct places a thumb on the scale in favor of the decedent's particular intent. For a system premised on the importance of decedent's intent, it is a step in the right direction and bears watching.