Article on Antemortem Probate
Katherine M. Arango recently published a Note entitled, Trial and Heirs: Antemortem Probate for the Changing American Family, 81 Brook. L. Rev. 779 (2016). Provided below is a summary of the Note:
The Pritchett-Dunphy-Tucker family has brought the diversity of today’s modern American family center stage and has replaced the Bradys of the 1970s and the Cleavers of the 1950s. The notion of the traditional American family has changed dramatically due to the rise in divorce rates and remarriages, the growing popularity of cohabitating, and the increased acceptance of same-sex couples. Andrew J. Cherlin, a professor of public policy at Johns Hopkins University, acknowledged that “[the] turnover in our intimate partnerships is creating complex families on a scale we’ve not seen before,” and although families have undergone an enormous change, our society is very much still in the midst of a transformation. But the law of succession has failed to keep pace with the emergent population of nontraditional families.
In light of the American family’s changing dynamics, this note first explores how inheritance law could benefit from an antemortem probate statute that would protect a growing population of Americans. It then encourages the drafters of the Uniform Probate Code (UPC) to adopt antemortem probate procedures. Part I of this note considers the American family’s changing structure and explains how current inheritance laws do not protect the changing American family. Part II discusses the background of antemortem probate, including its history and the proposed models for an antemortem statute. This part also describes the antemortem statutes currently in effect in five states and the arguments for and against the antemortem measure. Part III proposes implementing an antemortem probate statute that incorporates aspects of current state statutes and the Administrative Model (which proposes that a state implement an ex parte proceeding in which a decisionmaker considers the testator and the testator’s particular factual circumstances in *782 order to determine a will’s validity). Lastly, Part IV proposes a statute that the drafters of the UPC could adopt.