Thursday, December 22, 2016
Ray D. Madoff recently published an Article entitled, The Law of the American Dead, 3 Savannah L. Rev. 1–14 (2016). Provided below is an abstract of the Article:
This Essay outlines my journey to and through the law of the dead: what brought me to this subject and what I found along the way.
The subject of the Law of the Dead is not really one that most people think of when they think of legal scholarship. Most think of Contracts, Telecommunications, Criminal Law, and other subjects of that ilk. All of those subjects have their dedicated academics, who have all sorts of events in which everyone gets together to discuss their shared interest in these topics. But we Law of the Dead people really had not had this opportunity before. The Savannah Law Review Colloquium was our very first meeting.
So you might wonder what first brought me to this topic.
I first came to this subject by way of the courses I teach: Trusts and Estates, Estate Planning, and Estate Gift Tax. All of these courses are grounded by the principle of freedom of testation. Freedom of testation generally means that in the United States, people can leave their wishes about what they want done with their property, and the law will expend significant effort to actually carry out those wishes. Well, of course, you might think, “yeah, that’s obvious.” But it is not that way everywhere, and it is really not so obvious that it would have to be that way. We could come up with all other rules about what happens to people’s property after death. For example, in some countries, as much as eighty percent of a person’s property must be distributed to the spouse and children after death, allowing that person to control only twenty percent of value to us.