Are Parents Getting Too Much When Their Children Die Intestate?
Prof. Ronald J. Scalise, Jr. (Louisiana State University) has recently published his article entitled Honor Thy Father and Mother?: How Intestacy Law Goes Too Far in Protecting Parents, 37 Seton Hall L. Rev. 171 (2006). Prof. Scalise states:
American intestacy law frequently forces children to honor financially their father and mother, but little evidence suggests they want to, at least after their own deaths. Although the parent-child relationship is one of the most innate and primordial of all human bonds, this bond does not seem to manifest itself in a child’s sense of financial obligation to his parents after his death.
He then concludes as follows:
[A]lthough parts of our laws on intestacy endorse the presumed will theory, a majority of state statutes addressing parental inheritance do not. Instead, they endorse the duty theory, or a variant thereof, such as the moral duty or expressive theory. Application of these theories is a direct contravention of the presumed will of the decedent, a contravention that affects the lower-income, lower-educated, and underemployed individuals disproportionately more than their wealthier, well-educated counterparts. Returning to a presumed will theory in the context of parental inheritance need not herald a decline in parent/child relations or serve as a concession to a society in which the familial ties seem to be spiraling into a bottomless abyss.
The parent/child bond is still strong. Studies show that a child’s sense of familial obligation is near its zenith in the relationship with his parents. Modern laws, though, must adapt to modern societies. They cannot stand in a paternalistic role seeking to impose the fulfillment of the sense of parental protection and childhood obligation that may have prevailed years, decades, or even centuries ago. Rather, intestacy law must change to reflect societal preferences and desires. To do otherwise is not only ineffective in communicating the intended message, but also serves to endorse a harsh sense of paternalism that fails to accord equal treatment to all those affected by the law.