Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, April 1, 2013

Article on Spousal Abuse Barring Inheritance

9228277a41f2160f45fa72e505bb7e2fCarla 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. 


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