Article: A Critical Analysis of the Law of Death, Marriage and Wealth

Alyssa A. DiRusso (ACTEC Academic Fellow, Professor of Law at Cumberland School of Law at Samford University) recently published, A Critical Analysis of the Law of Death, Marriage, and Wealth, ACTEC Law Journal, VOLUME 49, Number 1, Fall 2023 (pub 1/24). Provided below is an Introduction:

Whether “until death do us part” is a viable estate planning technique depends upon the wealth of the couple. Federal law regulating asset retention and transfer when death is nigh creates two strikingly different systems. Whereas the federal estate and gift taxes provide powerful incentives and support for marriage, the Medicaid system extends paltry protections and incentivizes divorces or remaining unmarried.

Although family law scholars have robustly criticized the law for its preferences for marriage (and sometimes nonmarriage), a critical trusts and estates perspective can enhance this discussion. The following paper will demonstrate how the zone of overlap between trusts and estates and family law—as marriages near death—is particularly fraught and dysfunctional. Taking Medicaid and the estate tax as examples, this paper will show the way the law entrenches marriage among the already privileged yet threatens it for the poor. Comparing these particular systems creates a compelling foil to contrast marriage at the top and the bottom of the wealth spectrum.