Friday, August 30, 2013
David Horton (University of California) has recently published an article entitled, Indescendibility, (August 16, 2013). California Law Review, Vol. 102, 2014. Provided below is the introduction to the article:
Supposedly, one of the most important sticks in the bundle of property rights is the power to transfer an asset after death. This Article explores objects and entitlements that defy this norm. Indescendibility — property that cannot be passed by will, trust, or intestacy — lurks throughout the legal system, from constitutional provisions barring hereditary privileges, to statutes that prohibit decedents from bequeathing their valuable body parts, to the ancient but misty doctrine that certain claims do not survive the plaintiff, to more prosaic matters such as season tickets, taxi cab medallions, frequent flier miles, and social media accounts. The Article first identifies the common policy underpinnings of these diverse rules. It compares the related issue of market inalienability — property that can be given away but not sold — and concludes that indescendibility often serves unique objectives. In particular, forbidding posthumous transfer can avoid administrative costs.
The Article then uses these insights to propose reforms to the descendibility of body parts, causes of action, and items made non-inheritable by contract.