Tuesday, September 17, 2019
This article, part of a Wills, Trusts, and Estates Meets Gender, Race, and Class Symposium, explores the relationship between trusts and gender by looking at the language, myths, and trends that appear in current trust law. After discussing the relationship between gender and inheritance law more generally, the article focuses on the three dominant characteristics: divided ownership; privacy; and existence over time. Using a universe of recent cases, it discusses how gender affects fiduciary and settlor identity, including who is being chosen and by whom to serve as trustee and what language is being used to describe this important role. It then considers the impact of trustee identity and power from the perspective of trust privacy. It concludes by examining trust duration, which captures a larger problem having to do with “objectivity.” In Justice Engendered, Martha Minow explains that the “special burden and opportunity” of the law is to create “opportunities for insight and growth,” to “engender” justice by using language to help “remake the normative endowment that shapes current understandings.” This article argues that an “engendered” approach to trust law uses perspective, rhetoric, and “subtexts” to disrupt rather than ignore or reinforce existing social patterns and myths, to unearth embedded assumptions in language, and to notice when a particular vantage point is being used and “appreciate a perspective other than one’s own.” It concludes that although some courts are taking this “engendered” approach toward trusts and trustees, there is work yet to do.