Article On Presumed Will And Duty Theory

Rebecca Friedman (Kasowitz, Benson, Torres & Friedman LLP) recently published an article entitled, Intestate Intent: Presumed Will Theory, Duty Theory, And The Flaw Of Relying On Average Decedent Intent, 49 Real Property, Probate and Trust Law Journal 3 (2015). Provided below is an excerpt from the article:

When an individual dies with only a surviving spouse and a surviving parent, the majority of intestacy statutes give the bulk of the decedent’s property to the spouse and only a small portion to the parent. When an individual dies with only a surviving parent and a surviving sibling, the majority of intestacy statutes give all of the decedent’s property to the parent and nothing to the sibling. The author argues that these property distribution schemes do not accurately reflect intestate intent. The author outlines steps that statute drafters should take to revise intestacy statutes so they effectuate intestate intent with regard to these two property distribution schemes.