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Uniformity in State Inheritance Laws: How UPC Article II Has Fared in Nine Enactments Richard V

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Uniformity in State Inheritance Laws: How UPC Article II Has Fared in Nine Enactments Richard V Western New England University School of Law Digital Commons @ Western New England University School of Law Faculty Scholarship Faculty Publications 1976 Uniformity in State Inheritance Laws: How UPC Article II Has Fared in Nine Enactments Richard V. Wellman University of Georgia School of Law James W. Gordon Western New England University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.wne.edu/facschol Part of the Estates and Trusts Commons Recommended Citation 1976 BYU L. Rev. 357 (1976) This Article is brought to you for free and open access by the Faculty Publications at Digital Commons @ Western New England University School of Law. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Digital Commons @ Western New England University School of Law. For more information, please contact [email protected]. Uniformity In State Inheritance Laws: How UPC Article II Has Fared In Nine Enactments Richard V. Wellman* James W. Gordon** The Uniform Probate Code was drafted to facilitate mod­ ernization, simplification, and uniformity of state inheritance laws. Since its approval by the National Conference of Commis­ sioners on Uniform State Laws and by the American Bar Asso­ ciation in August 1969, the Code has been enacted in various forms by 11 states. In this article, Messrs. Wellman and Gordon analyze significant deviations from the recommended version of article II in the first nine enactments of the UPC. The authors argue that all but exceptionally meritorious changes in enacted versions of the UPC should give way to the goal of state uniform­ ity in inheritance laws, and find the majority of the changes to be unjustifiable. In evaluating the merits of the changes, the authors consider UPC policies behind individual sections of the Code as well as state reasons for deviations. Article II of the Uniform Probate Code deals with the sub­ stantive rules of intestate succession, family protection, and wills. 1 This article identifies and analyzes the substantial devia­ * Robert Cotton Alston Professor of Law, University of Georgia School of Law; A.B., J.D., University of Michigan; Chief Reporter, Uniform Probate Code, 1967-1970; Educa­ tional Director, Joint Editorial Board for the Uniform Probate Code, 1972. ** A.B., University of Louisville; J.D., University of Kentucky; Member, Kentucky Bar; Research Associate, Joint Editorial Board for the Uniform Probate Code, Summer 1975. The authors gratefully acknowledge the research assistance of Gerald W. Pierce of the third year class, University of Georgia School of Law. 1. UNIFORM PRoBATE ConE [hereinafter cited as UPC]. Article II of the Code contains nine parts: Intestate Succession, Elective Share of Surviving Spouse, Spouse and Children Unprovided For in Wills, Exempt Property and Allowances, Wills, Rules of Construction, Contractual Arrangements Relating to Death, General Provisions, and Custody and Deposit of Wills. This article does not examine state adaptations of Part 2 of art. IT dealing with the elective share of the surviving spouse since deviations from this part of the Code were anticipated, if not encouraged. In fact, the Code's recommendations on this aspect of inheritance law appear to have stimulated am increase in the variety of extant and proposed solutions to problems respecting disinheri­ tance of spouses, demonstrating that it will be many more years before anything resem­ bling a dominant or uniform pattern of American law can be expected to emerge. Even Idaho and Arizona, the first two community property states to accept the Code, followed somewhat different courses in relation to the elective share problem. Alterations in § 2-801 dealing with the doctrine of renunciation also receive no treat­ 357 358 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1976: tions from the provisions of article II that have occurred in the first nine UPC enactments: Alaska,2 Arizona, 3 Colorado, 4 ldaho,5 Montana,6 Nebraska/ North Dakota,8 South Dakota,9 and Utah.10 Part I of the article discusses general policies underlying UPC article IT. Part IT treats the various state adaptations by code section, considering principles behind the individual sections and analyzing deviations from the UPC provisions that were not adopted as recommended. 11 ment in this article. This section, as approved in the 1969 draft of the UPC, represented a modification ofrecommendations made by a study and drafting committee of the Ameri­ can Bar Association's Real Property, Probate and Trust Law Section. See Special Comm. on Disclaimer Legislation, Disclaimer of Testamentary and Nontestamentary Disposi­ tions-Suggestions for a Model Act, 3 REAL PROP. PRos. & TRUST J. 131 (1968). This ABA study later formed the basis of a separate drafting effort by the National Conference. of Commissioners on Uniform State Laws which resulted, in 1973, in new proposals for uniform state laws regarding renunciation of transfers and successions. UNIFORM Dis­ CLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT; UNIFORM DISCLAIMER OF TRANSFERS UNDER NONTESTAMENTARY INSTRUMENTS ACT; UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT [in 1973 HANDBOOK OF THE NAT'L CONFERENCE OF COMM'RS ON UNIFORM STATE LAws 204, 212, 217]. Recently, the groups that have continued to be concerned with the shape and fate of the Uniform Probate Code adapted UPC § 2-801, a section proposed by the National Conference dealing with renunciation, to the 1973 uniform law. AMENDMENTS TO THE UNIFORM PROBATE CoDE (in 1975 NAT'L CONFERENCE OF COMM'RS ON UNIFORM STATE LAws]. These amendments appear in the 1975 edition of the UPC, re­ cently published by West Publishing Company. In the meantime, several states, including those enacting the Uniform Probate Code, have enacted legislation reflecting various stages of these continuing national drafting efforts. The resulting statutory variants merit comparison, but the topic is essentially unrelated to the theme of deviations from the UPC. Finally, this article does not consider the matters covered in§ 2-803, dealing with the effect of homicide on inheritance. The National Conference of Commissioners placed this section in brackets to indicate they did not attach to it the usual recommendation for uniform enactment. The Com"inissioners expected the deviations that have occurred in all but two enactments of this section. 2. ALASKA STAT. § 13 (1972). 3. ARiz. REv. STAT. ANN. § 14 (Spec. Pamphlet 1974). 4. CoLO. REv. STAT. ANN. § 15-10 to -17 (1973). 5. IDAHO ConE tit. 15 (Supp. 1975). 6. MoNT. REv. ConEs ANN. § 91A (Spec. Uniform Prob. Code Pamphlet 1975). 7. NEB. REv. STAT. §§ 30-2201 to -2902 (Cum. Supp. 1974). 8. N.D. CENT. ConE§ 30.1 (Spec. Uniform Prob. Code Supp. 1975). 9. S.D. UNIFORM PROB. ConE §§ 1-101 et seq. (1975). On February 27, 1976, however, the South Dakota legislature voted in favor of HB 712 to repeal this statute, effective later this year. Despite the repeal of the statute, a discussion of its provisions in this article is merited in view of the overall purpose of the article, which is to weigh reasons for various state changes against the UPC policies behind recommended Code provisions. 10. UTAH ConE ANN. § 75 (Spec. Supp. 1975). 11. Many of the sections in art. II have been adopted in all of the UPC states studied either without modification or with such minor change that the sense of the Code language is preserved. In none of the states were more than a handful of major changes made. Presumably, the unaltered and insignificantly altered sections represent rules of inheri­ 357] UNIFORMITY IN STATE INHERITANCE LAWS 359 I. UPC POLICY GOALS A. In General Analysis of state adaptations of the UPC requires considera­ tion of the policy goals the UPC drafters sought to implement. Those goals include the following: (1) to provide, by law, an ac­ ceptable estate plan for those of modest means who, through reliance or default, leave their estates to be disposed of in accord­ ance with laws governing intestacies;12 (2) to bring probate law into the 20th century by making it responsive to modern atti­ tudes;13 (3) to enable the will to become a more popular instru­ ment for disposition of wealth-at death; 14 ( 4) to facilitate inter vivos and post mortem estate planning by providing clear guide­ lines for draftsmen and maximum flexibility for estate planners;15 (5) to provide substantive rules that facilitate efficient estate administration; 16 and (6) to encourage uniformity of law in an area where a substantial segment of our population is inconven­ ienced by various parochial rules that serve no significant local purpose. 17 Attainment of the first goal, improvement of the law's estate plan, should benefit both the average estate owner and the profes­ sional estate planner. The average estate owner should benefit from Code rules governing intestacy and related procedures that are designed to more accurately reflect the desires of most per­ sons. Estate planners should benefit from the decreased necessity of drawing wills for and administering small estates, where ade­ quate compensation is more the exception than the rule. They also may benefit from new, more precise, inheritance concepts which can be incorporated into custom plans. The second goal, modernizing inheritance rules, reflects the state of present probate law in the United States that perpetuates many historical rules that long ago ceased to make sense. Despite tance that lend themselves more readily to uniform acceptance than those rules expressed in the altered sections. 12. UPC art. TI, pt. 1, General Comment. 13. /d. 14. /d. art. II, pt. 5, General Comment. 15. See, e.g., Moore, Estate Planning Opportunities Which May Be Possible Under the Uniform Probate Code, 1 EsTATE PLANNING 83 (1974); Wellman, Some Effects of the Uniform Probate Code on Estate Planning, 4 INST. EsTATE PLANNING ch. 70-19 (1970).
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