Introduction to the 2018 Wisconsin Law Review Symposium Issue: Wills, Trusts, and Estates Meets Gender, Race, and Class
by Carla Spivack
I am honored to write the introduction to this Critical Trusts and Estates Symposium issue of the Wisconsin Law Review. I want to thank the membership of the Review for choosing this symposium for their annual issue, and for all the hard work that went into putting together the conference and this issue. I also want to thank the contributors who spoke at the conference and wrote these pieces for helping, over the past few years, to build a body of Critical Trusts and Estates literature and to identify an agenda for this scholarship going forward. Here I seek to name some central ideas of Critical Trusts and Estates and to place the works in this issue in that context.
Dismantling the Trusts and Estates Canon
by Naomi Cahn
The canon of trusts and estates, that is, “the ways of thinking about [trusts and estates] law that are widely shared by legal scholars and especially by legal authorities, like legislators and judges,” consists of several different and well-known strands: respect for dead hand (or transferor) control (up to certain limits); respect for formality; and valuation of the traditional legally-recognized family. Perhaps the most fundamental—and, paradoxically, the most visible and invisible—strand is the “wealth” narrative, which focuses on the transmission of conventional forms of wealth. It is this final strand that I believe structures the rest of the field.
Broken Links: A Critique of Formal Equality in Inheritance Law
by Carla Spivack
There is a recognition of long standing that formal equality in law often fails to lead to substantive fairness on the ground for women, minorities and other disadvantaged groups. This insight has inspired a critique of formal equality jurisprudence in relation to gender and race, in particular. In the context of gender and the family, much attention has focused on post no-fault divorce law, specifically property division upon divorce. There has also been an extensive critique of spousal inheritance law and the ways its formal equality has disadvantaged women due to their longevity and lower average earnings. This article is the first attempt to apply a critique of formal quality to inheritance law as a whole and to show how some of its default rules disadvantage already vulnerable groups across the board and in similar ways. I revisit gender and spousal inheritance, and then discuss the role of the default title of tenancy in common in divesting holders of heirs property—African Americans, Native Americans and others—of property. Ultimately, I argue that default rules which serve some social and policy goals operate to harm these communities and require change.
by Deborah S. Gordon
ANGELO: Believe me, on mine honor,
My words express my purpose.
ISABELLA: Ha? Little honor to be much believ’d,
And most pernicious purpose! Seeming, seeming!
I will proclaim thee, Angelo . . .
ANGELO: Who will believe thee, Isabel?
—William Shakespeare, Measure for Measure
Voice, Strength, and No-Contest Clauses
by Karen J. Sneddon
[H]is will was read, and like almost every other will, gave as
much disappointment as pleasure.
The will is a unilateral written disposition of probate property to be effective upon the will-maker’s death. To have any legal effect, however, the will-maker’s family, beneficiaries, and personal representatives, along with the probate court, need to implement the will provisions. To buttress the strength of the will, the language of the will is definitive, certain, and strong. But when the will relies upon standardized language, the voice of the will-maker is flattened or even non-existent. The absence of the willmaker’s voice may jeopardize the legal effect of the will.
Wills Formalities in the Twenty-First Century
by Bridget J. Crawford
Individuals have executed wills the same way for centuries. But over time, traditional requirements have relaxed. This Article makes two principal claims, both of which disrupt fundamental assumptions about the purposes and functions of wills formalities. First, the traditional requirements that a will must be in writing and signed by the testator in the presence of (or acknowledged before) witnesses have never adequately served their stated purposes. For that reason, strict compliance with formalities cannot be justified by their cautionary, protective, evidentiary, and channeling functions. Reducing or eliminating most of the long-standing requirements for execution of a will is consistent with the true purpose of wills formalities—authenticating a document as the one executed by the testator with the intention of having it serve as the binding directive for the post-mortem distribution of the testator’s property.
Disrupting the Wealth Gap Cycles: An Empirical Study of Testacy and Wealth
by Danaya C. Wright
When many of us think about the wealthy, we assume that they have inherited wealth, trust funds, or at least a history of knowing the right people. There are always a few stories of the hard-working immigrants who pulled themselves up by their bootstraps, as well as the spendthrift scions of wealthy families who manage to squander vast riches in a remarkably short period of time. But we rarely hear about the vast numbers of modest and obscure families that grow wealth carefully from generation to generation, keeping their wealth and their family skeletons away from the spotlight. How those families grow and maintain their wealth is through judicious use of tax mechanisms to minimize income and estate taxes, judicious use of trusts to reduce squandering wealth by irresponsible children and grandchildren, and through estate plans that channel property to those who will protect it, use it wisely, and pass it on in ways that maintain the wealth.
Freedom of Disposition v. Duty of Support: What’s a Child Worth?
by Phyllis C. Taite
Mandating financial responsibility for the care of children during one’s lifetime is without question. Child support laws have been implemented in every state in America based on the inherent duty to financially support dependent children. Some laws even extend that duty to provide financial support to children over the age of eighteen when the child has a disability or pursues higher education.
Big Data and the Modern Family
by Shelly Kreiczer-Levy
Despite numerous reforms over the years, intestate succession rules continue to privilege traditional, white, heterosexual families. It is evident that the one-size-fits-all scheme cannot truly reflect diversity of lifestyles and associations. This Article considers an innovative option that has become increasingly popular in recent years: using big data to create personalized rules, tailored to the personal characteristics of each decedent. This Article explores the promise and drawbacks of personalized intestacy, arguing that personalized default rules fall short in the realm of inheritance, because these rules are personal and inheritance law is inherently relational. It then offers preliminary guidelines for adapting big data techniques to the relational aspects of inheritance.
The Stranger-to-the-Marriage Doctrine: Judicial Construction Issues Post-Obergefell
by Lee-ford Tritt
The recent Supreme Court decision in Obergefell v. Hodges changed the legal understanding of marriage in the United States. By making samesex marriage legal in all fifty states and requiring all states to recognize same-sex marriages from other states, the Court in Obergefell recognized evolving social attitudes toward same-sex marriage and expanded the legal definition of “marriage” to include spouses of the same sex. In so doing, the Court necessarily altered the implication of terms like “spouse,” “husband,” and “wife”—post-Obergefell, courts will need to construe these words in a way that acknowledges an evolving understanding of marriage. Courts have faced similar construction issues before. When the notion of the American family shifted in the mid-nineteenth century to include adopted children as “natural” children, courts struggled to ascertain donative intent behind language like “child,” “children,” and “descendants” that had traditionally excluded adoptees. The legalization and growing popularity of adoption made presumptive exclusion of adoptees for inheritance purposes socially obsolete, but neither society nor the law can move directly from presumptive exclusion to presumptive inclusion. In the adoption context, courts used several construction approaches to ascertain and effectuate donative intent in a period of definitional transition when words with once-plain meaning were inherently ambiguous. The construction approaches used by courts to navigate social and legal change in the context of adoption provide insight by analogy into the circumstances that courts face today, as they must construe language that no longer presumptively excludes same-sex spouses.