Why Shouldn’t I be Allowed to Leave my Property to Whomever I Choose at my Death? (Or How I Learned to Stop Worrying and Start Loving the French)

Terry L.Turnipseed (Assistant Professor of Law, Syracuse University College of Law)has recently authored an article entitled Why Shouldn’tI be Allowed to Leave my Property to Whomever I Choose at my Death? (Or How ILearned to Stop Worrying and Start Loving the French). It will appear in Volume 44, page 737of the Brandeis Law Journal.

Here is the abstract of the article posted on SSRN:

This article analyzes whether theancient common law concepts of dower and curtesy, and their modern daystatutory equivalents – the elective share laws – should be substantiallymodified or eliminated. In modern America, forty-nine of the fifty states andthe District of Columbia severely limit freedom of testation vis-à-vissurviving spouses. If, as a policymaker, one believes the marital partnershiptheory of marriage to be gospel, then by goodness change to community propertyand be done with it. Do not, as many states have done, choose separate property(an inherently non-partnership, eat-what-you-kill, philosophy) and then try tograft some back-end sorry excuse for community property at death. But if youtruly believe, as I think many well-intentioned people do, that this isAmerica, and we have a long tradition of property and testator freedom, thenkeep your separate property system and completely eliminate your elective sharelaw. Those are really the only two options that have internally consistentlogic.

If you eliminate the elective sharelaws, the sky will not fall. They have been doing it for decades in Georgia andall the empirical evidence shows that things are working just fine thank you.The fact that the privileged can pay their way out of any elective share law –by some estate planning technique or by moving money offshore – and the lessfinancially fortunate cannot, is a real injustice that must be rectified. Letus eliminate the elective share laws for all, not just the well-to-do.

The elective share laws areterribly demeaning and paternalistic to women. Male dominated legislatures,though, continue to perpetuate belittling female stereotypes by saying throughelective share laws that women are so incompetent and unable to stand up forthemselves that the “little missies” still must be protected by some ancientmagical sword. With literally every single disinheritance study showing deminimis rates of disinheritances that are not agreed to by the spouse, electiveshare laws seem like some ridiculous school child’s Rube Goldberg machine tryingto solve in as complex a manner as humanly possible a problem that really doesnot exist. Every few years, mostly male law professors huddle to build a bettermousetrap to keep their evil male counterparts from doing something they havelittle or no desire or motivation to do, and in the process precious freedom –for both men and women – loses out.