The History of U.S. Inheritance Laws
The colonial period:
- Authority over inheritance of personal and real property was handled by one court as opposed to two as it was in Great Britain.
- Intestacy laws turned to a more equal, if not totally equal, intestacy rule for children.
- Virginia introduced the holographic will as an exception to witness requirements.
The American Revolution:
- Equal treatment of children in intestacy spread to all states.
- Entails, or restrictions on land ownership limited to the testator’s descendants, were abolished in most states.
The Nineteenth Century:
- Inheritance rights of a surviving spouse grew: Texas introduced the first surviving spouse homestead right guaranteeing the surviving spouse a life estate in the family home; more states gave personal property inheritance rights to the surviving spouse; all but one state provided a forced share for a surviving spouse; the surviving spouse begins taking through intestacy to the exclusion of children.
- The use of trusts greatly expanded: The spendthrift trust developed to keep creditors away from trust funds, business and pension trusts emerged, and the prudent investor rule emerged.
The Twentieth Century
- The Rise of Federal Taxes: The estate tax, which had been used only during military crisis, became a permanent institution; the gift tax was enacted simultaneously; the generation skipping tax was later introduced.
- Trusts Expand: the dynasty trust resulted when states began abolishing the rule against perpetuities and the living trust became an inexpensive and popular alternative to a will.
The author notes that the field of law as a whole remains a low priority for legislatures, and as a result, new cases involving alternative reproductive technology are solved with laws enacted as early as 1836.
See Adam J. Hirsch, Inheritance: United States Law, 3 Oxford International Encyclopedia of Legal History 235, (Stanly N. Katz ed. 2009).