Torts and Estates: Remedying Wrongful Interference with Inheritance
GOLDBERG 65 STAN. L. REV. 335.DOC (DO NOT DELETE) 1/26/2013 6:49 PM TORTS AND ESTATES: REMEDYING WRONGFUL INTERFERENCE WITH INHERITANCE John C.P. Goldberg* Robert H. Sitkoff** This Article examines the nature, origin, and policy soundness of the tort of interference with inheritance. We argue that the tort should be repudiated because it is conceptually and practically unsound. Endorsed by the Second Restatement of Torts and recognized by the U.S. Supreme Court in a recent decision, the tort has been adopted by courts in nearly half the states. But it is deeply problematic from the perspectives of both inheritance law and tort law. It undermines the core principle of freedom of disposition that undergirds American inheritance law. It invites circumvention of principled policies encoded in the specialized rules of procedure applicable in inheritance disputes. In many cases, it has displaced venerable and better-fitting causes of action for equitable relief. * Eli Goldston Professor of Law, Harvard University. ** John L. Gray Professor of Law, Harvard University. For helpful comments and suggestions, the authors thank Gregory Alexander, Mark Ascher, John Coates, Glenn Cohen, Richard Epstein, Charles Fried, Thomas Gallanis, Mark Geistfeld, Adam Hirsch, Louis Kaplow, Gregory Keating, Daniel Kelly, Michael Klarman, Diane Klein, Andrew Kull, John Langbein, Melanie Leslie, Gerald Neuman, Marilyn Ordover, Richard Posner, Mark Ramseyer, Jeffrey Schoenblum, Steve Shavell, Henry Smith, Stewart Sterk, Joshua Tate, Lawrence Waggoner, Sarah Waldeck, Benjamin Zipursky, and workshop participants at Harvard Law School, the University of Southern California Confer- ence on Property, Tort, and Private Law Theory, and the William and Mary Private Law Workshop.
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