Article: Situs and Domicile in Choice of Law for Succession Issues

Christopher A. Whytock (University of California, Irvine, School of Law) recently published an Article titled, Situs and Domicile in Choice of Law for Succession Issues, 97 Tulane Law Review 1181 (forthcoming 2023). Provided below is the Abstract:

The predominant choice-of-law rule for succession issues involving personal property is that those issues are governed by the law of the decedent’s domicile at the time of death. In contrast, the traditional choice-of-law rule for succession issues involving real property is that they are governed by the law of the state where the real property is located—that is, by the law of the situs.

This Article argues in favor of extending the domicile rule to succession issues involving real property. Part II takes a historical look at the situs rule and suggests that it was more a product of historical peculiarities of the English legal system than a result of efforts to design a rational choice-of-law methodology for succession issues. Part III develops the case for extending the domicile rule to real property succession issues by evaluating the situs and domicile rules from the perspectives of succession policy, state interests, estate planning and probate, succession law’s structure, and comparative law. Part IV considers several objections to extending the domicile rule.

The Article concludes that, on balance, the domicile rule is preferable to the situs rule for succession issues involving real property. It argues for a unified approach, according to which the law of the decedent’s domicile generally governs succession issues regardless of whether they involve personal property or real property.