Testators’ Right to Compensate Caregiving Children Should Be Preserved

Joshua C. Tate (Assistant Professor, Southern Methodist University Dedman School of Law, Visiting Assistant Professor, University of Pennsylvania Law School) has recently posted on SSRN his article entitled Caregiving and the Case for Testamentary Freedom. 

Here is an abstract of his article:

Almost all U.S. states allow individuals to disinherit their descendants for any reason or no reason, but most of the world’s legal systems currently do not. This Article contends that broad freedom of testation is defensible because it allows elderly people to reward family members who are caregivers. The Article explores the common-law origins of freedom of testation, which developed in the shadow of the medieval rule of primogeniture, a doctrine of no contemporary relevance. The growing problem of eldercare, however, offers a justification for the twenty-first century. Increases in life expectancy have led to a sharp rise in the number of older individuals who require long-term care, and some children and grandchildren are bearing more of the caregiving burden than others. Recent econometric studies, not yet taken into account in legal scholarship, suggest a tendency among the American elderly to bequeath more property to caregiving children. A competent testator, rather than a court or legislature, is in the best position to decide how much care each person has provided and to reward caregivers accordingly. Law reform, therefore, should focus on strengthening testamentary freedom while ensuring that caregivers are adequately compensated in cases of intestacy.

Joshua is interested in readers’ comments on his article. You can submit your comments by contacting Joshua by e-mail at jtate@law.upenn.edu.