Dirk Hartog’s Someday All This Will Be Yours:  A History of Inheritance and Old Age is a book about story telling in the law, as well as a rich description of work within families, of the complex relationship between labor, money, and love.   It is also a new and critical (in several senses of that word) text for the developing field of elder law.    Elder law as a discipline  that is just now coming into its own, an event that, not coincidentally, is occurring as the baby boomers begin to hit retirement age and as the sandwich generation has become increasingly vocal.  More than half of all [...]]]> Hendrik Hartog, Someday All This Will be Yours: A History of Inheritance and Old Age (Harvard University Press 2012)

Dirk Hartog’s Someday All This Will Be Yours:  A History of Inheritance and Old Age is a book about story telling in the law, as well as a rich description of work within families, of the complex relationship between labor, money, and love.   It is also a new and critical (in several senses of that word) text for the developing field of elder law.    Elder law as a discipline  that is just now coming into its own, an event that, not coincidentally, is occurring as the baby boomers begin to hit retirement age and as the sandwich generation has become increasingly vocal.  More than half of all law schools now include, in their listed curriculum, a course on elder law.

Hartog, who is the Class of 1921 Bicentennial Professor in the History of American Law and Liberty at Princeton University, is also the author of Man and Wife in America (2000), which served as a legal history of marriage in America from the late 18th century through the middle of the 20th century, and was based on studying how ordinary men and women attempted to use the law either to escape their dissatisfying marriages or to seek shelter through the status of marriage. Someday All This Will Be Yours does something similar, also arguably within the context of family law, by studying how, from the mid-nineteenth to mid-twentieth century, ordinary men and women arranged for their own care as they aged, and then how their alleged caretakers attempted to use the law to make good on these arrangements. Aging individuals used the promise (in these cases, the illusion) of inheritance to induce the needed caretaking at a time when there was no default of Social Security and Medicaid and before the widespread development of pensions.  The book analyzes the resulting conflicts about property inheritance, using an extensive database of more than 200 cases from 19th- and 20th-century New Jersey courts as well as more extensive trial transcripts in 60 of those suits.  Hartog closely, carefully, and painstakingly examines these cases for what they show about changing patterns in care for the elderly, parent-child relations, the tensions between family and commodification, and the development of the common law outside of precedent-setting and frequently cited cases.  As he points out, the cases involve two different “shadowy figures within family la as it has ordinarily been conceived:  the adult child and the elderly person.”  (p. 21)

The book has two major sections, and an epilogue that has a “presentist” kick, which relates this legal history of elder care to contemporary issues.  Hartog starts the book by describing the strategies that elderly people used to induce those around them to provide the requisite care.  There were few executed contracts, although there were some invalidly executed wills, which provided evidence of intent.  Instead, the core inducement was an explicit promise that was allegedly made by the older person that the younger person would receive the family farm or some other property in exchange for providing caretaking services.  The care might consist of physical labor, such as cooking, cleaning, and nursing, or it might consist of companionships, to protect against the loneliness and solitude of aging, and the younger person might be a family member, the spouse of a family member, or a close friend.  The database of cases provides multiple different contexts in which these promises were made.

In the second section, titled “Death and Lawyers,” the book turns to what happened when the older person failed to fully perform on the alleged promise, thereby precipitating the lawsuits that Hartog scrutinizes.  This was when the caretaker consulted with a lawyer, trying to establish the legal grounds for the promised property, an action typically based on contract law.  Once in court, judges had to decide whether the services had been performed gratuitously, with the mere expectation of compensation, or based on an explicit offer and acceptance.  In reading through the range of cases discussed in the book, it is difficult to develop overarching legal principles as to when courts would order relief; indeed, Hartog concedes that “[i]t Is often hard to discern why a case came out as it did . . many of the cases leave the reader uncertain why work revealed by the testimony did or did not entitle the complainant [] to special compensation.”  (pp. 257-58)

Consequently, Hartog has not sought to write a history of the development of specific legal doctrine.  Instead, the book is focused on negotiations within relationships, on informal practices that sought legal recognition. More broadly, as he points out in the Epilogue, he is looking at the psychological, emotional, and cultural dilemmas in caring for older people.   During the time period he studied, care was privatized, and older people used the power of property, of inheritance and its corresponding freedom of testation to protect themselves; today, much of elder care has become more public, and older people turn to others not based on power, but as a result of need. Nonetheless, he ends by noting that the stories revealed by the cases, of how to understand one’s role within a family as both parents and children age (the parents become elderly and the children become adults), resonate today, particularly given our increasing longevity

The book touches upon family law, trusts and estates, property, contract, commodification, and (of course) the role of legal history, and  it pulls these together  with wonderful complexity and intertwined themes.   It also should speak to many people on a personal level, whether they feel “’trapped’” into caring for elderly family members, well-compensated for providing this care, or simply honored to do so.

___________________________________________________________________

Naomi Cahn is a professor of law at the George Washington University Law School and author of Red Families v. Blue Families: Legal Polarization and the Creation of Culture (Oxford Univ. Press 2010) (with June Carbone).

A while back, I asked readers who were involved with family cottages (or summer homes or cabins or whatever you want to call them) to tell me their stories. I was curious about how many generations the property had been in your family; how you handled carrying costs, improvements, scheduling and use; whether your property was governed by a tenancy in common or other legal arrangement; and whether that arrangement was rocky or smooth.   Some first-rate sociology had already been done in this area, but I was curious enough to want to supplement with some casual empiricism.

I recently posted the article that grew out of these inquiries on SSRN.  Forthcoming in the Notre Dame Law Review, the article discusses how “identity property” [...]]]> Now for some seasonally-appropriate scholarship:

A while back, I asked readers who were involved with family cottages (or summer homes or cabins or whatever you want to call them) to tell me their stories. I was curious about how many generations the property had been in your family; how you handled carrying costs, improvements, scheduling and use; whether your property was governed by a tenancy in common or other legal arrangement; and whether that arrangement was rocky or smooth.   Some first-rate sociology had already been done in this area, but I was curious enough to want to supplement with some casual empiricism.

I recently posted the article that grew out of these inquiries on SSRN.  Forthcoming in the Notre Dame Law Review, the article discusses how “identity property” is passed along from one generation to the next.  Identity property is that which is valued for what it represents about self and family—a sort of ratcheted-down version of Margaret Radin’s “personhood property.”  In the absence of more sophisticated estate planning, identity property is often inherited by the decedent’s children, who take as tenants in common.   Standard doctrine relies on familial bonds and the unilateral right of partition to mitigate bilateral monopoly problems and to foster cooperation in the management of the children’s common resource.  I argue that with identity property, this standard account is often wrong.  Because courts favor partition by sale, the exit of one tenant often means that the remaining co-tenants will be forced to sell the identity property.  Because the remaining tenants perceive the property as non-fungible, the threat of exit can be powerful enough to exacerbate bilateral monopoly problems and decrease the likelihood of cooperation. 

The article makes use of some of the stories that readers of Concurring Opinions told about their family cottages to elucidate how devisees modify the default rules of a tenancy in common, particularly the right of partition.  What I found most interesting about these stories was how willing some individuals were to radically restrict their right of exit from the co-tenancy and the corresponding belief that a strong right of exit would ultimately work against their collective interest.  The Article ultimately argues that when it comes to identity property, the right of exit through partition should not be as absolute as current law allows. 

For those who are interested in learning more, the abstract and article are available here.

 p.s.  And for those of you who are gearing up for another season in property that is jointly owned with other relatives, rest assured that not one single person who responded to my request reported an entirely smooth arrangement!

Her name is Conchita, a thin, spa-loving, diamond-draped heiress, and she’s at the center of one of America’s nastiest estate battles. She is also a dog—a chihuahua who was the favorite of the late Miami heiress Gail Posner, a daughter of the corporate takeover artist Victor Posner. When Ms. Posner died in March at age 67, Conchita and two other dogs inherited the right to live in her seven-bedroom, $8.3 million Miami Beach mansion, their comfort ensured by a $3 million trust fund.

The story reminded me of the following passage from Korzeniewicz & Moran’s 2009 book, Unveiling Inequality:

The magnitude of global disparities can be illustrated by [...]]]> Today, the WSJ covers a tale of trusts & estates intrigue even more compelling than Leona Helmsley’s:

Her name is Conchita, a thin, spa-loving, diamond-draped heiress, and she’s at the center of one of America’s nastiest estate battles. She is also a dog—a chihuahua who was the favorite of the late Miami heiress Gail Posner, a daughter of the corporate takeover artist Victor Posner. When Ms. Posner died in March at age 67, Conchita and two other dogs inherited the right to live in her seven-bedroom, $8.3 million Miami Beach mansion, their comfort ensured by a $3 million trust fund.

The story reminded me of the following passage from Korzeniewicz & Moran’s 2009 book, Unveiling Inequality:

The magnitude of global disparities can be illustrated by considering the life of dogs in the United States. According to a recent estimate . . . in 2007-2008 the average yearly expenses associated with owning a dog were $1425 . . . For sake of argument, let us pretend that these dogs in the US constitute their own nation, Dogland, with their average maintenance costs representing the average income of this nation of dogs.

By such a standard, their income would place Dogland squarely as a middle-income nation, above countries such as Paraguay and Egypt. In fact, the income of Dogland would place its canine inhabitants above more than 40 percent of the world population. . . . And if we were to focus exclusively on health care expenditures, the gap becomes monumental: the average yearly expenditures in Dogland would be higher than health care expenditures in countries that account for over 80% of the world population. (xv)

It should come as no wonder, then, that pelicans in the Gulf may well be getting more attention than Nigerians subject to the “equivalent of the Exxon Valdez spill every year for 50 years.” As writer Ben Ikari puts it,

If this Gulf accident had happened in Nigeria, neither the government nor the company would have paid much attention . . . This kind of spill happens all the time in the delta. . . . The oil companies just ignore it. The lawmakers do not care and people must live with pollution daily. The situation is now worse than it was 30 years ago. Nothing is changing. When I see the efforts that are being made in the US I feel a great sense of sadness at the double standards. What they do in the US or in Europe is very different.

Fractal inequality has sorted individuals into radically different social worlds. And as J. Paul Getty put it, “The meek shall inherit the earth, but not the mineral rights.” Or the Miami Beach mansion.

Image Credit: Details below.

I opened Lawrence Friedman’s Dead Hands: A Social History of Wills, Trusts and Inheritance Law already sold on his central premise: “[b]ig changes in the law of succession necessarily reflect big changes in society” and “smaller, more technical changes” can be just as interesting to those who care about “social meaning and the impact of the law.” My predisposition to agree with Friedman may explain why I was both admiring and disappointed as I read the book.

Let’s begin with the admiration. Friedman deftly weaves explanation of technical legal doctrines, case summaries, and description of the historical and sociological changes that have prompted reform of [...]]]> Lawrence M. Friedman, Dead Hands: A Social History of Wills, Trusts, and Inheritance Law (Stanford University Press, 2009) 230 pp.

I opened Lawrence Friedman’s Dead Hands: A Social History of Wills, Trusts and Inheritance Law already sold on his central premise: “[b]ig changes in the law of succession necessarily reflect big changes in society” and “smaller, more technical changes” can be just as interesting to those who care about “social meaning and the impact of the law.” My predisposition to agree with Friedman may explain why I was both admiring and disappointed as I read the book.

Let’s begin with the admiration. Friedman deftly weaves explanation of technical legal doctrines, case summaries, and description of the historical and sociological changes that have prompted reform of estates and trusts law. His chapter on the rule against perpetuities illustrates the point. Readers get a two-page comprehensible summary of the rule’s operation and idiosyncrasies, a brief explanation of various reforms, and the observation that reforms accept the rule’s underlying premise that dead hand control must eventually end. Then Friedman discusses the move to outright abolition of the rule, notes how banks anxious to attract trust monies lobbied for abolition, and seizes the opportunity to mention asset protection trusts. Friedman next writes that abolition and asset protection trusts would not be possible “without a bigger, broader change in the culture,” namely (quoting Joel Dobris) “we like rich folks these days.” Friedman then discusses how culture has changed in ways that make ordinary people feel as though they can relate to the rich. (One might wonder whether this affection for the wealthy will survive the Great Recession.) Last, Friedman speculates about whether abolition of the rule or asset protection trusts pose any real danger to the polity and concludes that neither should keep us up at night. I’m breathless just thinking about all that Friedman manages to cover in this 14-page chapter. Indeed, the same can be said about the entire book. Friedman traverses a tremendous amount of ground in 230 pages: intestacy, wills, will contests, will substitutes, dynastic and caretaker trusts, charitable giving, taxes, and of course the rule against perpetuities. Friedman touches on everything that is likely to be covered in an introductory Estates and Trusts course, plus more.

So there is the primary source of the admiration. What about the disappointment? Friedman focuses on the adoption of various reforms and shows how the reform is reflective of broader change. For example, we would not have seen the decline of dower and the fall of the doctrine of coverture without profound changes in societal conceptions of what it means to be a “wife” or “husband.” Similarly, Friedman sees “a trend, or at least the beginning of a trend” as states “respond to changing times” by extending intestacy rights to domestic partners. But the law of estates and trusts does not always follow a linear path forward; sometimes it sputters and stalls. This kind of gear grinding can be just as revealing about the connection between law and society as when reform is achieved. For instance, there was once widespread anticipation that many states would adopt a community property system. Today just nine states have done so. The 1990 Uniform Probate Code (UPC) has an elective share mechanism designed to reflect the principle that all property earned during the marriage belongs equally to both spouses. But some states that otherwise embraced all or part of the UPC have declined to adopt its elective share provisions. The lukewarm reception for community property principles says quite a lot about definitions of “earn” and “own” and societal conceptions of marriage. Friedman spends very little time on the stalls and sputters, even though they too reflect broader societal trends.

The second reason for my disappointment is probably unfair, as I suspect that I am not Friedman’s target audience. Dead Hands is almost entirely descriptive, albeit sometimes brilliantly so. It provides a lens through which to view the law of succession, but is largely agnostic with respect to the content of the law or its future direction. Those who are well-versed in the law of succession will likely already be familiar with much of what Friedman writes, even if they have not yet seen it so nicely explicated. In other words, estates and trusts experts are unlikely to find much in Dead Hands that is truly new to them.

Dead Hands, however, will be useful to at least two audiences. The first is the contingent of property and family law professors who are “drafted” each year to teach Estates and Trusts and who have not yet had a chance to discover why it is one of the most interesting courses in the curriculum. Dead Hands provides a framework for organizing an introductory course and for helping the students conceptualize the material. The second audience who will benefit from this book is law students, both those who want a clearer sense of the big picture in estates and trusts law and those who are interested more generally in law and society. I may add the book as recommended reading in my introductory Estates course; my Fall students can stay tuned.

[S]ome of those who pay a dead relative’s debts are unaware they may have no legal obligation.

Scott Weltman of Weltman, Weinberg [...]]]> Yesterday’s New York Times had a disturbing article about how successful collection agents “trained in the five stages of grief” are in collecting the debts of the deceased. These agencies aren’t operating through the probate process. Instead, they are collecting from the deceased’s relatives, who have absolutely no legal obligation to pay the debt. It’s true that for some of these relatives, the amount of their inheritance would be reduced by whatever was owed to the creditor. It’s also true that some individuals may believe that they are honoring the memory of the deceased by settling all outstanding obligations. But,

[S]ome of those who pay a dead relative’s debts are unaware they may have no legal obligation.

Scott Weltman of Weltman, Weinberg & Reis, a Cleveland law firm that performs deceased collections, says that if family members ask, “we definitely tell them” they have no legal obligation to pay. “But is it disclosed upfront — ‘Mr. Smith, you definitely don’t owe the money’? It’s not that blunt.”

Well, it should be. And apparently I’m not the only one who thinks so. The Times article is currently number 1 on the “most-emailed “ list and many of the more than 200 reader comments are calling for regulation. You only have to read a couple of accounts of an unemployed son-in-law agreeing to assume credit card debt that is not his own or of a widow struggling to pay $5 a month before deciding that such regulation is already past due.

Rajo Devi became the oldest woman in recorded history to ever give birth on November 28, when the 70-year-old delivered a baby girl in India. . . . The baby was conceived through the use of a donor egg that was injected with Ms. Devi’s 72-year-old husband’s sperm. . . . The record age for giving birth has inched up over the years (well, it’s the record if you don’t count Sarah and Abraham in the Bible) passing through the sixth decade — from 62 to 66 to 67 — an occasional woman at a time.

How old was Elizabeth Jee? She was seventy. [...]]]> Maybe that old Elizabeth Jee case — the classic “fertile octogenarian” case — wasn’t so wacky after all. From the NYT:

Rajo Devi became the oldest woman in recorded history to ever give birth on November 28, when the 70-year-old delivered a baby girl in India. . . . The baby was conceived through the use of a donor egg that was injected with Ms. Devi’s 72-year-old husband’s sperm. . . . The record age for giving birth has inched up over the years (well, it’s the record if you don’t count Sarah and Abraham in the Bible) passing through the sixth decade — from 62 to 66 to 67 — an occasional woman at a time.

How old was Elizabeth Jee? She was seventy. Modern medical technology has finally brought us the day that Jee makes some sense. If we want to make sure that there’s no vesting outside of lives-in-being-plus-21, then maybe we do need to strike down poor Elizabeth’s gift.

(Of course, common-law RAP has been abolished, or partially superseded by USRAP, in a large number of U.S. jurisdictions. But that does not mean that RAP is dead. USRAP incorporates the common law formulation in one of its prongs, which really only makes the issue more complicated — because now you may have to check both the common law prong and the wait-and-see prong.)

Jeffrey Toobin has written a must-read article about a $12 million trust that Leona Helmsley established for the benefit of her dog, Trouble. I usually cover the topic of honorary trusts quite quickly, but this semester I’m going to slow down a bit. If nothing else, Trouble’s trust should force students to contemplate the extent to which they are committed to dead-hand control. Beyond the obvious concerns about spending millions on a single dog, as Toobin points out, Trouble herself probably would have been happiest if she had simply been adopted by a dog-loving family.

As an aside, we all know how prickly adult children can get when a step-parent receives the bulk of the decedent’s property. But imagine if the [...]]]>

Jeffrey Toobin has written a must-read article about a $12 million trust that Leona Helmsley established for the benefit of her dog, Trouble. I usually cover the topic of honorary trusts quite quickly, but this semester I’m going to slow down a bit. If nothing else, Trouble’s trust should force students to contemplate the extent to which they are committed to dead-hand control. Beyond the obvious concerns about spending millions on a single dog, as Toobin points out, Trouble herself probably would have been happiest if she had simply been adopted by a dog-loving family.

As an aside, we all know how prickly adult children can get when a step-parent receives the bulk of the decedent’s property. But imagine if the children are disinherited because of a dog . . . .

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor [...]]]> In today’s episode of Law Talk, we hear from George R. R. Martin, the prolific author of the “high fantasy” series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I’ve previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) “The American Tolkien.”

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead’s distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren’t a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn’t one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here’s the interview again. Warning: it’s a big file!

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

For other posts in the “Law and Hard Fantasy” Interview Series, see:

• Fantasy’s Apocalyptic Turn
• The Law and Hard Fantasy Interview Series
• An Interview with Pat Rothfuss

But unlike almost all other catastrophic risks that we face, the costs of divorce can not be fully insured. Because of statutory requirements that limit insurance coverage to “fortuitous events”, and the perception that divorce is elected (at least by one of the parties to the marriage), you can’t buy a policy that will pay you for breach of the marriage contract. Such is the law.

I’m interested in this topic, and so I was quite intrigued to read about a new product being developed by an entrepreneur named John Logan, of [...]]]> Divorce is catastrophic: it increases the rates of suicide and heart disease; can decrease overall well-being for both parents and children; and it significantly hurts the financial position of the parties, especially women.

But unlike almost all other catastrophic risks that we face, the costs of divorce can not be fully insured. Because of statutory requirements that limit insurance coverage to “fortuitous events”, and the perception that divorce is elected (at least by one of the parties to the marriage), you can’t buy a policy that will pay you for breach of the marriage contract. Such is the law.

I’m interested in this topic, and so I was quite intrigued to read about a new product being developed by an entrepreneur named John Logan, of the SafeGuard Guaranty Corporation: divorce insurance.

There has been significant enthusiasm for the concept. As some noted, you could imagine such insurance having a collateral-benefit: “risk matching” your perspective spouse (or even a first date) based on their premiums. But when you think about the concept a little bit, obvious objections present themselves:

• Fraud and Adverse Selection: Since divorce can be elected, how could an insurance company prevent gaming? Fake marriages seeking divorce payouts might soon abound: would the insurance company have to order Green Card from NetFlix to train its agents? For lack of a cheap way to assess the risk of divorce, and fraudulent marriage, premium rates overall would increase, leading “good” candidates (i.e., those who would never divorce) to opt out of the pool. This divorce insurance externality would be extremely difficult to manage. Indeed, this is why marriage insurance excludes reasons like “change of heart.” I don’t know that it is a soluble problem.
• Public Policy:

Imagine that we could solve the problem of intentional fraud, so the only payouts would go to innocent victims of adulterous spouses. We might still imagine that the common law, which generally prohibits insurance that encourages socially wrongful conduct, would strike such contracts on public policy grounds. The argument would go that the insurance regime, by decreasing the cost of divorce on the victim spouse, in effect increases the incentives for adultery, by reducing the ultimate financial and emotional obligations. In my view, this is a foolish argument, but courts seem to persist in treating insurance as a step-child of the freedom to contract movement.

The externality problem seemed so severe that I decided to go to the source, and emailed John Logan about his product. He was nice enough to chat with me for a few minutes, and I can now share the fruits of that conversation with you.

I started the conversation believing that Logan was offering a true insurance product. A business methods patent the company may have filed stated that divorce insurance is:

1. An insurance policy covering at least some financial consequences of the untimely ending of a contractual relationship between two or more natural persons, which contractual relationship governs the natural persons way of living together.

12. A method of doing business comprising: determining a periodic amount to be charged a prospective participant for divorce insurance; charging that periodic amount to a participant in an insurance program over a period of time; and administering the insurance program.

But when I talked to Logan, he preferred to call the product to be offered a “hybrid insurance/investment product.” The idea is that individuals would buy the right to a payout, in 25 years, of a fixed sum, and in turn promise to pay premiums priced based solely on the total face value of the instrument. The instrument – let’s call it an annuity for ease of reference – has a contingency: if its owner gets divorced, the annuity pays out immediately, at a rate to be calculated based on the time since purchase and the premium rate. That is, the longer you stay in the marriage, and the closer you are to the end of the 25-year annuity, the more money you will get paid on divorce. The product does not seem to intend to graduate premiums at all based on the risks of divorce, or the “why”. It is a fairly simple investment vehicle. The only other bell I learned about was their plan to permit individuals to recapture premiums at any time, so long as they purchase an initial premium rider, which is a bit of departure from ordinary insurance practice.

Because this isn’t an insurance product, Logan plans to market and run his business largely online, with little or no need for the ordinary back-end costs of an insurance business (actuaries, etc.) That said, he still needs an initial capital investment, and is still looking for additional investors before the product launches. He hopes to roll out “divorce insurance” this fall, if the financing lines up. He estimates a premium market approaching $200 billion annually, based on a base premium of something like $1,200 annually per policy.

So what to think? Well, first, this is simply not divorce insurance. That doesn’t mean it is a bad investment – I have no idea whether it is or not – but it does not intend to permit individuals to pay an actuarially measured share of the risks of divorce. I imagine that the legal and economic issues I’ve already discussed play a large role in the shaping of this product, but it still left me with some questions. There is obviously a degree of “yuck” factor when thinking about purchasing insurance for divorce – the kind of distaste than long discouraged pre-nups, and which makes proposals like these dead-letters. But this kind of financial vehicle would appeal to me more were I not “forced” to subsidize others’ divorces, and instead were measured at my own risk level. What’s the chance that courts will relax their public policy limitations on insurance anytime soon? Second, another way to approach the legal-fees aspect of this problem is through a prepaid legal service. I don’t know enough about these kinds of contracts, so this is a really ignorant question: how can such services possible get around conflict problems if they don’t counsel the entire couple about the ethical issues at the beginning of the lawyer-client relationship?

Another article, on the prevalence of organ markets, shows how this persistent inequality affects the global supply of and demand for body parts. It pleads for another type of giving:

Fewer than 40 percent of Americans have signed organ-donor cards, and only about half of their families [...]]]> As tax day approaches, Sheryl Sandberg of the Google Foundation has some sobering insights on the “charity gap”–how small a percentage of donations actually help the disadvantaged. “[O]nly 8% of donations provide food, shelter or other basic necessities. At most, an additional 23% is directed to the poor.” International deprivation is not a major concern of most donors; “The most generous estimate shows that only 8% of U.S. individual donations supports international causes of any kind.”

Another article, on the prevalence of organ markets, shows how this persistent inequality affects the global supply of and demand for body parts. It pleads for another type of giving:

Fewer than 40 percent of Americans have signed organ-donor cards, and only about half of their families consent to the donation of a loved one’s organs. . . . Many assume that if they don’t supply the organs, somebody else will. But [even if that is the case,] that somebody won’t be a corpse. It’ll be a fisherman or an out-of-work laborer who needs cash and can’t find another way to get it. The surest way to stop him from selling his kidney is to make it worthless, by flooding the market with free organs. If you haven’t filled out a donor card, do it now.

Both quotes bring to mind a recent quote I’d read, reportedly from an upcoming book by Pope Benedict XVI:

Confronted with the abuse of economic power, with the cruelty of capitalism that degrades man into merchandise, we have begun to see more clearly the dangers of wealth and we understand in a new way what Jesus intended in warning us about wealth.

As Thomas Berg has blogged, “great disparity seems likely to make it harder for people to practice the value of solidarity, that is, ‘see[ing] the “other”. . . not just as some kind of instrument, . . . but as our “neighbor,” . . . to be made a sharer on a par with ourselves in the banquet of life to which all are equally invited by God.’” (citing Solicitudo Rei Socialis, para. 39).

I look forward to seeing what the distinguished legal scholars attending the upcoming Class Crits Workshop (hat tip: Feminist Law Profs) at the SUNY Buffalo Law School have to say on these and related topics. (Note–they are still accepting proposals until April 23).

This discussion is limited in a number of important ways. For example, there are messy jurisdictional questions; there may be questions about the existence of other potential heirs (an interesting possibility, raised in this news article); it seems not outside the realm of possibility that a later will or codicil will surface. There are also a whole array of questions falling under the broad umbrella of undue influence or related impropriety. Conspiracy theorists [...]]]> Anna Nicole Smith’s will is recently available online at various venues, such as CNN. The will, in interaction with the facts, raises a number of questions. It’s practically a real-life law exam. This post will discuss a few of the many issues raised by the will.

This discussion is limited in a number of important ways. For example, there are messy jurisdictional questions; there may be questions about the existence of other potential heirs (an interesting possibility, raised in this news article); it seems not outside the realm of possibility that a later will or codicil will surface. There are also a whole array of questions falling under the broad umbrella of undue influence or related impropriety. Conspiracy theorists are already suggesting that the lawyer, Howard Stern, orchestrated a complicated web of murder. Even less exotic and more mundane possibilities, like plain vanilla undue influence, could still drastically affect the distribution. Finally, there are big question marks relating to the value of the estate. The $80 million question is the litigation over the estate of Ms. Smith’s late husband. The ultimate value of her estate could vary greatly depending on how those issues are ultimately resolved.

But even setting aside those questions, the will still leaves a number of interesting issues. Questions that come out of the will itself include whether Anna Nicole Smith’s daughter will be treated as a pretermitted child, and the question of how to treat the lapsed bequest to Anna Nicole Smith’s son, Daniel. We can frame the query in a way that highlights these sub-issues. In fact, it makes quite a nice law-exam-style question.

“Anna executes a will in California in 2001. She leaves her entire estate to her son Daniel, to be held under various trust provisions. She also explicitly disinherits any other relatives, as well as any future spouses or children she might have. Her will contains no residuary clause. In 2006, Daniel dies suddenly, leaving no issue. Later in 2006, Anna’s daughter Dannielynn is born. In 2007, Anna dies. How is her estate distributed under California law?”

Is Dannielynn a pretermitted child?

The answer here is “Yes, but.”

Yes, she is a pretermitted child. That is, she is a child born after the execution of the instrument. Such children are often able to inherit under the California statute, taking an intestate share:

21620. Except as provided in Section 21621, if a decedent fails to provide in a testamentary instrument for a child of decedent born or adopted after the execution of all of the decedent’s testamentary instruments, the omitted child shall receive a share in the decedent’s estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument.

However, exceptions under the California statute include explicit disinheritance:

21621. A child shall not receive a share of the estate under Section 21620 if any of the following is established:

(a) The decedent’s failure to provide for the child in the decedent’s testamentary instruments was intentional and that intention appears from the testamentary instruments.

Given that statutory exception, and the explicit disinheritance on the face of the will, it is clear. Dannielynn does not inherit through the pretermitted child statute.

Does this mean that she is unable to inherit? Not exactly. She cannot take through the will, but she may still be able to claim an intestate share of portions of the estate that pass outside the will.

How is the lapsed gift to Daniel treated?

Good question.

First of all, as a general matter, the deceased do not inherit.

21109. (a) A transferee who fails to survive the transferor of an at-death transfer or until any future time required by the instrument does not take under the instrument. (b) If it cannot be determined by clear and convincing evidence that the transferee survived until a future time required by the instrument, it is deemed that the transferee did not survive until the required future time.

Okay, so what happens to a lapsed gift? Here, the statute diverges into two branches. If the deceased transferee left issue, then the issue take. If not, then the gift passes to any contingent takers; if there are no contingent takers, it passes to the residuary taker; if there is no residuary taker, it falls into the estate.

21110. (a) Subject to subdivision (b), if a transferee is dead when the instrument is executed, or fails or is treated as failing to survive the transferor or until a future time required by the instrument, the issue of the deceased transferee take in the transferee’s place in the manner provided in Section 240. . . . (b) The issue of a deceased transferee do not take in the transferee’s place if the instrument expresses a contrary intention or a substitute disposition. . . .

21111. Except as provided in subdivision (b) and subject to Section 21110, if a transfer fails for any reason, the property is transferred as follows:

(1) If the transferring instrument provides for an alternative disposition in the event the transfer fails, the property is transferred according to the terms of the instrument.

(2) If the transferring instrument does not provide for an alternative disposition but does provide for the transfer of a residue, the property becomes a part of the residue transferred under the instrument.

(3) If the transferring instrument does not provide for an alternative disposition and does not provide for the transfer of a residue, or if the transfer is itself a residuary gift, the property is transferred to the decedent’s estate. . . .

The lapsed gift would go first to Daniel’s issue, but he has none. Next, it would go to the contingent taker, but there is none. Next, it would go to the residuary taker, but again, there is none.

So the most likely answer is, it falls into the estate. Nobody takes under the will, and the entire estate passes in intestacy. From there, we turn to the intestate statute (6401 and 6402). With no surviving spouse, the entire estate passes to the deceased’s children. Which is, in this case, Dannielynn. (And any other children who may be discovered.) So while she doesn’t take under the will (because of the exclusion clause), she stands to take in intestacy. Also, because the property passes in intestacy rather than under the will, the various trust provisions in the will (intended to keep Daniel from receiving all of the property at once) will be ineffective.