Sunday, November 30, 2014
Reid K. Weisbord (Rutgers Law School, Newark) recently published an article entitled, Federalizing Principles of Donative Intent and Unanticipated Circumstances, Vanderbilt Law Review, Vol. 67, No. 6 (2014). Provided below is the abstract from SSRN:
Federal preemption has begun to upend an array of settled principles of state property succession law in an uncertain and inconsistent path toward the development of a federal body of wealth transfer law. As Professor Adam Hirsch documents in his insightful contribution to the Vanderbilt Law Review’s Symposium on the Role of Federal Law in Private Wealth Transfer, the federal displacement of state wealth transfer law is particularly on display in the area of disclaimer rights, which allow the donee of property to refuse acceptance of a donative transfer. Using disclaimer rights as an illustration, this paper argues that federal law, in adjudicating conflicts with state wealth transfer law, would benefit from consideration of a central tenet of donative transfer law — that wealth transfer law facilitates donative intent by responding to circumstances unanticipated by the donor. With the goal of facilitating a more cogent and transparent mode of analysis for developing a federal body of wealth transfer law, this paper applies the principles of donative intent and unanticipated circumstances in three contexts where state disclaimer law has problematically intersected with federal law: (1) federal claims, including federal tax liens; (2) transfers at death governed by ERISA; and (3) bankruptcy law.