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Wednesday, October 24, 2012

Article on Probate Definition of Family

SgarySusan N. Gary (Orlando J. and Marian H. Hollis Professor of Law, University of Oregon School of Law) recently published her article entitled The Probate Definition of Family: A Proposal for Guided Discretion in Intestacy, 45 U. Mich. J.L. Reform 787 (2012).  The introduction to the article is below: 

The UPC and statutes in all states provide default rules that direct the distribution of property when a person dies with probate property and without a will. The default rules--intestacy statutes--give the decedent's property to members of the decedent's family, following rigid relationship rules based on legal status. For the most part, functional relationships do not affect inheritance, although a potential heir who murders or abuses the decedent may lose her inheritance.
Although intestacy statutes are only default rules, avoided relatively easily by executing a will or transferring property through various nonprobate means, the intestacy rules will control the distribution of property at death for a significant number of people. People procrastinate when it comes to executing their wills, and a person may assume that the law will give it to her family. A person may not want to incur the cost of having a will prepared, and may dislike the idea of going to a lawyer. Complicated family dynamics may make family members reluctant to discuss estate planning. Whatever the reasons, substantial numbers of decedents will have property distributed pursuant to intestacy statutes.
Intestacy statutes are important not only because they provide rules for the transfer of property when someone dies without a will, but also because they provide the definitions for terms used in wills and trusts. The term “heirs” will be understood based on intestacy statutes and terms like “descendant” and “issue” will usually be given the meaning provided by the intestacy statutes.
In addition, intestacy statutes have an expressive function. Intestacy statutes serve as a statement of what society considers family to be, because they define who counts as a family member. This expressive function is important in validating family members' relationships. As Mary Louise Fellows has written, “At the same time that heirship statutes reflect social norms and values, they also shape the norms and values by recognizing and legitimating relationships.”
The primary goal of intestacy statutes, as stated by the drafters of the UPC and by scholars, is to transfer property according to the probable intent of a decedent who dies without a will. The statutes try to reach the result that most intestate decedents likely would want, with an understanding that anyone can execute a will and avoid the application of the statutes. Recent revisions to the UPC represent attempts to make the intestacy statute more likely to reflect the decedent's intent.
Another goal for intestacy statutes may be to provide support for the decedent's dependents. Some commentators have proposed addressing dependency directly in intestacy statutes rather than providing for dependents' needs only when the dependents receive intestate shares as the relatives closest to the decedent. In addition, the statutes should be perceived to be fair, particularly in the view of those who survive the decedent. By tying intestacy statutes to “family,” the drafters of these statutes hope they will carry out the intent of many decedents, while providing financial support to family members. The statutes also support the family psychologically through the recognition they provide. Unfortunately, for some families the statutes' definitions of family do not match the decedents' definitions.
Intestacy statutes may also have a public policy role in denying inheritance to an heir that has engaged in specified bad behavior. Murdering the decedent will result in the loss of inheritance for most heirs, and states have begun to deny inheritance to heirs who have abused or abandoned children, spouses, and elders. The goal of these provisions may be, in part, to conform to the intent of the decedent who was murdered or abused, while carrying out society's disapprobation of such behavior.
The comments to the UPC note that intestacy statutes should meet these goals within a probate system that prizes “ease of administration and predictability of results.” Increasingly it seems that ease of administration and predictability supersede intent and need as goals of intestacy statutes. Although ease of administration is achieved, intestacy statutes likely do not give effect to the intent of decedents in many cases, may serve to provide intestate shares to relatives who do not “deserve” or do not need the inheritance, and may deny shares to persons who were dependent on the decedent or who were close and helpful to the decedent. Despite many articles advocating better alignment between intestacy statutes and the likely wishes of property owners or the needs of surviving family members, the existing body of statutes has become increasingly “antiquated” and more “like a museum.”
Part I of this Article examines the development of U.S. intestacy law and reviews the current state of the UPC and intestacy statutes around the country. Part I analyzes the definitions of “spouse” and “child,” looking at the UPC definitions and state statutes. Part I also considers statutory limits on inheritance based on behavior. Part II then identifies problems created by the current statutes and argues that guided discretion might provide several advantages over current law. This part explains that some intestacy statutes already use a limited degree of judicial discretion and explains the application of family maintenance, a form of judicial review used in Commonwealth countries. This part reviews scholarly proposals that have advocated the use of discretion in specific aspects of intestacy statutes. Part III presents a proposal for guided discretion, explaining the structure of the statute and the guidance the statute would provide. This part addresses potential criticisms of the proposal and concludes that guided judicial discretion in intestacy  may provide better results for more families than the current statutes.

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