Review of Dead Hands: A Social History of Wills, Trusts, and Inheritance Law

Mark L. Ascher (Joseph D. Jamail Centennial Chair in Law, The University of Texas School of Law) recently published his review of Lawrence M. Friedman’s Dead Hands: A Social History of Wills, Trusts, and Inheritance Law. The review is entitled But I Thought the Earth Belonged to the Living, 89 Tex. L. Rev. 1149-1177 (2011) and an excerpt is below:

Jefferson famously wrote that “the earth belongs . . . to the living.” Sadly, the statement has never been an accurate restatement of the law, either here or in England, as Anglo-American law long deferred to the Dead Hand. The law of wills allows the dead virtually unfettered discretion in divvying up that which used to belong to them, and probate law generally requires the living to effectuate those desires. The law of trusts allows both the living and the dead to create trusts for the disposition of property over extended periods of time, including long after their death, and the law of fiduciary administration requires the living to manage and enforce these trusts. But Jefferson certainly was not trying to restate the law of the dead. Instead, his statement seems primarily aspirational, encouraging us never to let the control we accord the Dead Hand get completely out of hand. There is also a note of admonition, imploring us never to allow our laws to be used in the establishment of an aristocracy.

For the last several decades, certain trends in the law of the dead have threatened to put us sharply at odds with Jefferson’s vision. Though each of these trends has been legislative, the changes they embody are not the product of, nor can they withstand, serious policy analysis. Instead, they are the product of intense and well-placed lobbying by a few particularly motivated special interest groups. As time goes by, and as more and more people reflect on what has happened, these trends may, therefore, eventually fizzle out. Indeed, there is some evidence that this has already begun to occur. But if these trends continue, and if the changes they embody prove enduring, my own view is that we will have broken faith with one of our most sacred principles, egalitarianism, and that we may even have unleashed developments that could someday threaten the viability of republican government as we know it.

Seemingly written in response to these trends, a trio of intriguing new books takes up the reach and longevity of the Dead Hand. Each in its own way concludes that our laws now cater, as never before, to the wishes of the dead. In a field that is supposedly as moribund as law ever gets, the publication of three new books on essentially the same topic at essentially the same time strongly suggests that something significant is, indeed, afoot. Interestingly, the books disagree, at least to some extent, as to why the trends have developed. Somewhat surprisingly, they also disagree as to the changes’ significance.

This Review takes a close look at one of these books, Dead Hands: A Social History of Wills, Trusts, and Inheritance Law, by Professor Lawrence M. Friedman. Its account of the law of the dead is as close to a toe-tapper as I’ve ever read. It’s a deceptively easy read, however, because Professor Friedman’s considerable skills as an author often mask the complexity of the underlying concepts. It does, however, stake out several positions as to which there is ample room for debate. In considering these positions, this Review borrows heavily from the other two books: From Here to Eternity? Property and the Dead Hand, by Professor Ronald Chester, and Immortality and the Law: The Rising Power of the American Dead, by Professor Ray D. Madoff.

Professor Friedman styles Dead Hands “A Social History of Wills, Trusts, and Inheritance Law.” Yet it often reads less like history and more like an inviting study guide. In the Introduction, Professor Friedman identifies four “leitmotifs.” The first is changes in family structure: “It has shifted emphasis from what we might call the bloodline family to the family of affection and dependence.” These changes, he argues, help to account for rather substantial changes in the law of intestate succession, for example. The second is that we live in an “age of elaborate record keeping, computers, data bases, and vibrant bureaucracies.” So nonprobate transfers are not so risky, and wills no longer rule the roost. The third is “demographic and cultural changes,” not least of which is that we live a lot longer than our ancestors. These changes affect not only when our heirs will receive their inheritance but also what will be left for them. The fourth is “attitudes in society toward wealth and the wealthy.” Though “America was born in revolt against a system of inherited, dynastic wealth,” our laws, according to Professor Friedman, now “favor[] dynastic wealth.”