Monday, April 1, 2013
Carla Spivack recently published her article entitled Let's Get Serious: Spousal Abuse Should Bar Inheritance, Mar. 2013. The abstract available on SSRN is below:It’s time that responses to domestic violence reach beyond criminal and family law, using both a systemic approach and invoking the law’s expressive function to intervene across the legal spectrum. This article reaches into the realm of succession law to propose that evidence of spousal abuse should raise a presumption that the transfer was the result of duress, and such evidence, unless rebutted, would bar the abuser from inheriting under the victim’s will and through nonprobate transfers. I also argue that spousal abuse should bar inheritance under intestacy, in the very frequent cases in which a decedent does not leave a will. Unlike the few previous articles that have covered this topic in passing, this one proposes a complete ban - that is, on inheritance under a will, a will substitute (such as a trust or a life insurance policy) or under intestacy - lays out justification for the bar in the context of inheritance law, and offers a detailed plan for implementation. In the context of wills and nonprobate transfers, I use an existing basis for invalidating a will, namely, duress: I argue that spousal abuse constitutes duress under existing doctrine, and that evidence of abuse should create a rebuttable presumption that the will is invalid. With respect to intestacy, I make the same argument that evidence of abuse should raise a rebuttable presumption that the accused is barred from inheriting, and offer justifications and implementation details for the plan.