Wills, Trusts & Estates Prof Blog

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

Thursday, November 24, 2011

Tenancy in Common and Inheritance

Waldeck_sarah_lg1Sarah Waldeck (Professor of Law, Seton Hall University, College of Law) recently published her article entitled, Rethinking the Intersection of Inheritance and the Law of Tenancy in Common, Notre Dame Law Review, Forthcoming, May 12, 2011. The abstract available on SSRN is below:

The Article is about "identity property," which it defines as property that is strongly linked to one’s sense of self and family and is valued by its holder primarily for what it represents. Identity property is often jointly inherited by siblings or other relatives, who take as tenants in common. Standard doctrine relies on familial bonds and the unilateral right of partition to mitigate the problem of bilateral monopoly and to foster cooperation in the management of the tenants’ common resource. The Article argues that, in the context of identity property, this standard account is wrong. Rather, because the law favors partition by sale, the exit of one tenant often means that the remaining co-tenants will be forced to sell the identity property. Because the remaining tenants perceive the property as non-fungible, the threat of exit is powerful enough to exacerbate the bilateral monopoly and decrease the likelihood of cooperation. The Article relies on the example of the family cottage to elucidate the meaning of "identity property" and examines the formal agreements that relatives who jointly own cottages make when they decide to opt out of the tenancy in common default rules. These formal agreements reveal a willingness to sacrifice the right of exit in order to increase the odds that co-tenants will continue to own the identity property. The Article argues that the law should heed the message of these formal agreements and adopt a more flexible approach to the inheritance of identity property, including the possibilities of temporal partition and facilitated agreement.

https://lawprofessors.typepad.com/trusts_estates_prof/2011/11/tenancy-in-common-and-inheritance.html

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Comments

You misspelled Seton Hall.

GWB: Thanks for noticing. I've corrected the post.

Posted by: BG | Nov 25, 2011 11:26:41 AM

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