Wills, Trusts & Estates Prof Blog

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

Saturday, July 2, 2022

Article: Home of the Dispossessed

Allison Anna Tait recently published an article entitled, Home of the Dispossessed, Michigan Journal of Gender & Law, 2022. Provided below is an abstract of the Article:

The objects that people interact with on a daily basis speak to and of these people who acquire, display, and handle them—the relationship is one of exchange. People living among household objects come to care for their things, identify with them, and think of them as a constituent part of themselves. A meaningful problem arises, however, when people who have deep connections to the objects that populate their lived spaces are not those who possess the legal rights of ownership. These individuals and groups—usually excluded from the realm of property ownership along lines of gender, race, and ethnicity—live on an axis of property precarity, persistently subject to the anxieties as well as the realities of dispossession. This Article’s launching point to explore these dispossessions is Henry James’ novel, The Spoils of Poynton, which involves a dispute about the settlement of a father’s estate and describes the battle between mother and son over the furnishings of the family home, Poynton. On a descriptive level, The Spoils of Poynton is a novel about a wife’s dispossession and the gendered nature of inheritance. The novel is also, however, about the exclusions built into property theories of labor and personhood. Accordingly, this Article explicates tactics of dispossession inherent in traditional theories of property ownership, explores the legal claims made to property ownership by those who have been dispossessed, and analyzes the ways in which the meaning of property for these individuals and communities is reconstituted within the political imaginary. The novel therefore tells the story not only of a property conflict between mother and son but also of how individuals who straddle the fragile boundary between personhood and objecthood both experience property as liminal fragments of the rightsholder they could have been and perform their property ownership as a political declaration. In this way, the novel tells the story of what it is like to live in the home of the dispossessed.

July 2, 2022 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Friday, July 1, 2022

Article: Family Law for the One-Hundred-Year Life

Naomi Cahn, Clare Huntington, and Elizabeth S. Scott recently published an article entitled, Family Law for the One-Hundred-Year Life,Yale Law Journal, Columbia Public Law Research Paper, Virginia Public Law and Legal Theory Research Paper, Fordham Law Legal Studies Research Paper, 2022. Provided below is an abstract of the Article:

Family law is for young people. To facilitate child rearing and help spouses pool resources over a lifetime, the law obligates parents to minor children and spouses to each other. Family law’s presumption of young, financially interdependent, conjugal couples raising children privileges one family form—marriage—and centers the dependency needs of children.

This age myopia fundamentally fails older adults. Families are essential to flourishing in the last third of life, but the legal system offers neither the family forms older adults want, nor the support of family care older adults need. Racial and economic inequalities, accumulated across lifetimes, exacerbate these problems. Family law’s failures are particularly pressing in light of a tectonic demographic shift underway in our society: Americans are living longer, with half of all five-year-olds today projected to live past 100. The proportion of older adults as a percentage of our population is also rapidly growing and will soon surpass that of minor children.

This Article argues that family law must adapt to the new old age. At a conceptual level, family law should address the interests and needs of families across the life span, not just those of younger people. And it must reflect three core commitments: centering the dignity and autonomy interests of older persons, addressing structural inequalities, and ensuring that legal mechanisms are efficient and accessible.

This conceptual shift leads to a series of practical reforms to laws governing family formation and family support. The interests of older adults will be better served if they have access to a broader array of family forms and can easily customize these family relationships. We thus propose reforms that decenter marriage as the primary option and make it easier to opt into and out of legal obligations. To support the familial caregiving that is essential to wellbeing, we propose a set of reforms to federal, state, and local laws that would provide economic relief and other support to family caregivers. By offering pluralistic family forms, better support for familial caregiving, and an appreciation of the legal implications of the centrality of relationships in the last third of life, this Article charts a path for family law for the one-hundred-year life.

July 1, 2022 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Thursday, June 30, 2022

Future Returns: Financial Reasons for Same-Sex Couples to Marry

SCOTUSSince the landmark Supreme Court decision, Obergefell v. Hodges in 2015, some couples who made their partnerships work for years without marriage may still be deciding whether or not it is financially sensible to marry now.

Annamarie Vitelli of PNC Private Bank Hawthorn, says couples should consider the costs and benefits of marriage, which include taxes, property protection, health care, and other direct benefits. “Once you are married, a whole array of benefits are open to you that may not be available even if you had a domestic partnership.”

There are many benefits that marriage offers that a domestic partnership doesn’t provide. Vitelli recommends planning ahead and working with professionals to choose the best plans and urges couples to consider a prenuptial agreement to protect individual wealth.

For more Information:

See Abby Schultz “Future Returns: Financial Reasons for Same-Sex Couples to Marry,” Barrons, June 21, 2022.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

June 30, 2022 in Estate Planning - Generally | Permalink | Comments (0)

Opinion: Murder on the high seas: CT’s slayer rule on trial

Marthas-vineyard-charter-fishing-menemshaLast month, Nathan Carman was charged with “murder on the high seas,” after allegedly killing his mother on a boating trip. Carman is also suspected of killing his grandfather, although he has not been charged at this time.

Connecticut, like most states, has a “slayer rule” on the books, which operates on the idea that nobody should profit from their own wrongdoing. Carman’s case is unique and raises two questions: (1) does the slayer rule apply to unintentional killings? And (2) should it apply in the absence of a criminal conviction if the killing is established in probate court?

Currently, Connecticuts slayer rule applies to reckless manslaughter and is triggered only by criminal conviction. 

For more Information:

See Frederick E. Vars “Murder on the high seas: CT’s slayer rule on trial,” New Haven Register, June 18, 2022.

 

June 30, 2022 | Permalink | Comments (0)

Wednesday, June 29, 2022

Oklahoma family learns dad’s remains lost after being donated for medical research

FuneralIn September 2018, the family of Elgie Hall Sr. chose to honor their father's final wishes by donating his body for medical research. They worked with the United Tissue Network and agreed to a two-year placement at the American University of the Caribbean School of Medicine in Sint Maarten, with the remains to be returned to the family after two years.

The error was due to the university’s closure and personnel turnover due to the COVID-19 pandemic. The family has sued the company for breach of contract, negligence, and intentional infliction of emotional distress.

For more Information:

See Ashley Moss “Oklahoma family learns dad’s remains lost after being donated for medical research,” Nexstar Media Wire, June 23, 2022.

June 29, 2022 in Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, June 28, 2022

Six of the Worst Assets to Inherit

Estate planningTrillions of dollars are expected to transfer through generations in the upcoming decades, but not everyone will be pleased with their inheritance, as some assets are considered “better” than others. Cash is considered to be the easiest asset to value and divide. The following six assets are considered to be complicated:

  1. Timeshares
  2. Potentially Valuable Collectibles
  3. Guns
  4. Operating Business
  5. Vacation Properties
  6. Physical Property (especially with sentimental value)

Avoiding complications begins with a thoughtful estate plan that isn’t left to the last minute, which includes discussing the plan with beneficiaries. This can prevent arguments or unfulfilled wishes, and gives beneficiaries the opportunity to express that they might be uninterested in the property. 

For more Information:

See David Rodeck, Elaine Silvestrini “Six of the Worst Assets to Inherit,” Kiplinger, May 11, 2022.

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

June 28, 2022 | Permalink | Comments (0)

Monday, June 27, 2022

Chevy is auctioning off a Corvette NFT, and the winning bidder gets the car, too

ChevyAs automakers join the non-fungible token space, Chevy has announced plans to auction off a Corvette-themed NFT with a twist- the winner will walk away with the block chain and the sports car that inspired the artwork. 

Nick Sullo, an artist hired by Chevy, has created a lime green Corvette Z06 which will be accompanied but a custom-painted 2023 Corvette Z06 color-matched to the the NFT. It will be the only car painted in that color, as Chevy promises not to apply the “Minted Green” color to any other Z06.

The auction will take place between June 20-24, with all proceeds going to DonorsChoose, an education charity. 

For more Information:

See Andrew J. Hawkins “Chevy is auctioning off a Corvette NFT, and the winning bidder gets the car, too,” The Verge, June 14, 2022.

Special thanks to Suzanne Brown Walsh (Attorney, Hartford, CT) for bringing this article to my attention.

June 27, 2022 | Permalink | Comments (0)

Sunday, June 26, 2022

Article: The ‘Pallant v Morgan Equity’ in Australia: Substantive or Superfluous?

Ying Khai Liew and Cristina Poon recently published an article entitled, The ‘Gallant v Morgan Equity’ in Australia: Substantive or Superfluous, Australian Property Law Journal, 2002. Provided below is an abstract of the Article:

The ‘Pallant v Morgan equity’ is a relatively new but well-entrenched constructive trust doctrine in English law. However, its precise status in Australia is uncertain. This paper asks whether the Pallant v Morgan equity is a superfluous or substantive doctrine in Australia. It explores four different equitable doctrines which judges have at one point or other suggested can account for that doctrine, and comes to the conclusion that it is not simply a manifestation of those established doctrines and therefore superfluous in Australian law, but a substantive doctrine with a distinct sphere of application. The paper then discusses the justificatory rationale of the Pallant v Morgan equity, and observes how that justification provides normative ground for understanding the equity as a distinct doctrine.

June 26, 2022 in Trusts | Permalink | Comments (0)

Saturday, June 25, 2022

Article: Freedom of Testamentary Disposition

Paul B. Miller recently published an article entitled, Freedom of Testamentary Disposition, Oxford University Press, Philosophical Foundations of the Law of Trusts, Forthcoming. Provided below is an abstract of the Article:

American law is notoriously solicitous of property owners’ testamentary freedom. Interpretive theorists cannot but acknowledge its centrality to enabling law. Yet freedom of testamentary disposition has attracted criticism on normative grounds for centuries. Indeed, it is widely viewed as one of the most tenuous of incidents of private ownership.

This chapter examines leading arguments offered in defense of wide testamentary freedom of the sort found in American trust law. Viewed, as it has been, within conventional frames of the morality of property – its central preoccupations with autonomy, need, scarcity, and equality – testamentary freedom is widely considered morally suspect. And, indeed, as I explain, arguments from property conventions, autonomy, social utility, and obligations of provision each fail to show that laws enabling wide testamentary freedom are morally defensible.

In the chapter I suggest that testamentary freedom can be defended more robustly on the footing of the morality of gift relationships, with particular attention to the value of testamentary benefaction in enabling the expression of moral motivation, the practice of virtue, and realization of goods essential to the flourishing of a testator’s intended beneficiaries. An advantage of this approach is that it recognizes moral complexity, allowing one to appreciate the value of dispositions that track the focal moral and legal sense of benefactions as gifts, while at the same time pinpointing ways in which some dispositions prove morally defective as gifts despite their legal validity (e.g., spiteful or malicious disinheritance, wasteful or harmful inheritance) and accommodating side constraints responsive to concerns surfaced within the morality of property (e.g., regarding the interests of future generations, and the impact of inheritance on distributive justice). 

June 25, 2022 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Friday, June 24, 2022

Survey: 25% of Americans are delaying retirement due to inflation

Estate planningThe market is currently experiencing one of the largest downturns in recent history, which is not only impacting how people spend money now, but is impacting future plans for retirement.

A quarterly survey conducted by BMO Real Financial Progress Index reports that 25% of Americans reporting plans to delay retirement due to inflation, and 60% of those between 18-34 have pulled back on savings contributions due to rising costs.

Overall, 21% of Americans are putting away less for retirement and 36% have reported reducing their savings as well.

For more information: 

See Dan Grossman, “Survey: 25% of Americans are delaying retirement due to inflation,” KGUN 9 Tucson June 22, 2022.

June 24, 2022 in Estate Planning - Generally | Permalink | Comments (0)