Resolving the Identity Crisis of Default Succession Laws
(associate professor of law, University of Florida) has recently published an article entitled Technical Correction or Tectonic Shift: Default Rule Theories Under the New Uniform Probate Code, 61 Ala. L. Rev. 273 (2010).
An excerpt from the introduction is below:
Using the 2008 UPC Amendments as a springboard for analysis, this Article considers the proper role of succession law default rules. For instance, what is the appropriateness in general of adapting succession laws to advocate or advance particular societal norms?Moreover, should de- fault rules embrace a consequentialist perspective that attempts to secure a particular policy preference?
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To resolve succession law’s identity crisis, this Article argues that succession law should return to its roots and refocus solely on fulfilling the decedent’s intent. The intent of the decedent, rather than a particular view of society’s normative policies, should prevail to control distribution of the decedent’s private property. Because of our longstanding beliefs in the free alienation of private property, succession law must account for the decedent’s choice in how his or her property is distributed after death; what an individual may choose to do with his property during life should not be unduly restricted after his death. Moreover, the default rules that govern succession law should correspond and be in line regardless of whether the decedent dies intestate or testate. The decedent’s intent should control.
Therefore, in an attempt to resolve the identity crisis, this Article articulates and defends a rich positive and normative framework for analyzing and developing succession law default rules. In a departure from previous approaches, this framework attempts to analyze the issue from a process-oriented, rather than a results-oriented, perspective. Accordingly, succession law mandatory rules should only be imposed to protect the decedent’s dispositive wishes or if particular aspects of unregulated transfer of private property at the property owner’s death will have socially deleterious effects on members of society. Otherwise, this Article’s normative claim is that the only goal of succession law default rules should be to effectuate decedent’s intent.
In arriving at this conclusion, Part I considers the default rules of testacy and intestacy, analyzes various policies proffered to justify these rules, and proposes that succession law should return to its original mis- sion of effectuating decedent’s intent. Part II introduces the case study of the 2008 UPC Amendments in a detailed description. Part III then analyz- es whether the primary policy goal of testamentary intent and succession law’s structural goals are effectuated by the 2008 UPC Amendments. Part IV provides recommendations to states considering adoption of the 2008 UPC Amendments on an a la carte basis and also recommends language for practitioners to avoid the new default rules, if adopted in the practi- tioner’s state. Finally, the Article concludes that the 2008 UPC Amendments, though beneficial to a sliver of the emerging nontraditional family demographic, are, in fact, hollow technical tweaks which fall short of changes that would ultimately benefit all families, traditional and nontradi- tional.