Disinheritance and the Modern Family Ralph C
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Case Western Reserve Law Review Volume 45 | Issue 1 1994 Disinheritance and the Modern Family Ralph C. Brashier Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Ralph C. Brashier, Disinheritance and the Modern Family, 45 Case W. Res. L. Rev. 83 (1994) Available at: https://scholarlycommons.law.case.edu/caselrev/vol45/iss1/4 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. DISINHERITANCE AND THE MODERN FAMILY Ralph C. Brashiert INTRODUCTION ........................ .. 84 CURRENT LAWS CONCERNING DISINHERITANCE OF SPOUSES AND CHILDREN ..................... 89 A. Dower and Curtesy ..................... 89 B. Community Property ..................... 94 C. The Elective Share ...................... 99 1. The Conventional Elective Share .......... 99 2. The Uniform Probate Code-1969 ........ 103 3. The Uniform Probate Code-1990 ........ 105 D. Forced Heirshipfor Descendants ............. 113 1. Common Law Jurisdictions .............. 113 2. Civil Law Jurisdictions ............... 117 E. Judicial Discretion and Family Maintenance ..... 121 1. England .......................... 121 2. The United States ................... 133 F. Permitting Spousal Disinheritance ............ 136 Ill. NEED AND OBLIGATION IN THE MODERN FAMILY ...... 139 A. Spouses (and, Sometimes, Lovers Too) .......... 140 1. The Forced Share and Paternalism ........ 140 2. Husbands and Wives as Equals .......... 148 3. Partnerships and Protection ............. 151 t Assistant Professor of Law, Cecil C. Humphreys School of Law, University of Memphis. B.M., 1979, Florida State University; M.A., 1982, Eastman School of Music; J.D., 1986, University of Mississippi; LL.M., 1990, Yale University. I am grateful to R.D. Cox, Janet Richards, Nicholas White, and Irma Russell for their suggestions and comments on earlier drafts of this work, and to my student research assistants Elizabeth Holloway and Alicia Klyman. I also gratefully acknowledge the assistance of a University of Memphis Faculty Research Grant during the preparation of the article. CASE WESTERN RESERVE LAW REVIEW [Vol. 45:83 B. Children ............................. 163 1. Legislative Inertia ................... 163 2. Protecting the Minor Child from Disinheritan . 170 a. The legitime .................... 170 b. Testator's family maintenance ........ 172 c. Posthumous obligation of child support . 173 IV. CONCLUSION .................................... 180 I. INTRODUCTION The natural objects of a decedent's bounty are traditionally thought to be his spouse and children t While the statutory protec- tion afforded the disinherited2 surviving spouse has increased sig- nificantly in recent decades, the protection afforded the disinherited child has diminished steadily.' In the United States, only one juris- diction currently provides direct, systematic protection to a child intentionally disinherited by a parent.4 In all other states, the testa- 1. Legislatures apparently believe this is still true, for the intestacy schemes of most states provide first for the decedent's spouse and children, then for other of the decedent's relatives by consanguinity. But see infra note 300 (describing intestacy provision in tradi- tional nuclear family under 1990 Uniform Probate Code (UPC), which provides that the surviving spouse takes the entire estate to the exclusion of the intestate's children). 2. Except when otherwise indicated, the discussion of disinheritance in this article contemplates the scenario in which the testator attempts to minimize estate transfers to spouses (or cohabiting lovers) and children who have not been provided for through the testator's non-probate transfers. 3. The laws regarding disinheritance of children have not changed substantially in re- cent decades, but family structures have changed dramatically. Regrettably, the plight of disinherited children has worsened in light of the serial polygamy and single parenthood characteristic of the late 20th century. See infra notes 257-81 and accompanying text. 4. See infra notes 111-23 and accompanying text (discussing legitime under Louisiana law). See generally THOMAS E. ATKINSON, HANDBOOK OF THE LAW OF WILLS 138-46 (2d ed. 1953) (discussing lack of protection for children disinherited by a parent). Legis- latures have done little under the law of wills to ameliorate this unprotected status in the four decades since the 1953 edition of Atkinson's work. Scholars have sporadically focused their attention on the disinherited American child. Indeed, one of the leading writers on inheritance law indicated in 1940 that a move was unmistakably under way to limit the unfettered freedom of American testators to disinherit children. Joseph Dainow, Limitations on Testamentary Freedom in England, 25 CORNELL L.Q. 337, 338 (1940). Describing then-recent changes in English law, Dainow commented that "[tihe detailed legislative history of the new English reform will serve to orient the unmistakably growing tendency in this country to limit a testator's power of disinheriting the surviving members of his immediate family." Id. That move unfortunately bore no fruit in the form of remedial legislation for disinherited children. Dainow was not the first scholar to express concern over an American testator's 1994] DISINHERITANCE AND THE MODERN FAMILY tor is free to disinherit even needy, minor children, regardless of the size of the estate. One rationale asserted for this lack of protection to the disin- herited child is the American belief in testamentary freedom. Commitment to testamentary freedom, however, has not prevented most state legislatures from enacting substantial statutory protection for disinherited spouses.6 Moreover, the American public has his- ability to disinherit members of his immediate family. In 1928, Professor Laube of Cor- nell examined the problem of the disinherited child and reviewed case law pertaining to the subject. See Herbert D. Laube, The Right of a Testator to Pauperize His Helpless Dependents, 13 CORNELL L.Q. 559, 594 (1928) (concluding that any judicial interpretation of statutory law that enables a father to disinherit his child is contrary to humanity, social interest, and policy, and that the legislature must act to nullify such an interpretation). 5. On the concept of testamentary freedom, see generally MARVIN B. SUSSMAN Er AL., THE FAMILY AND INHERITANCE 4-8 (1970) (discussing the functions, purposes, histo- ry, and limits of testamentary freedom in American society). For a study of American philosophy towards inheritance, see generally RONALD CHESTER, INHERITANCE, WEALTH, AND SOcIETY 34-90 (1982) (tracing the historical evolution of and influences on American philosophy towards the right of inheritance). See also Edmond N. Cahn, Restraints on Disinheritance, 85 U. PA. L. REV. 139, 145 (1936) (listing various historical theories of inheritance). But see infra note 287 (questioning whether "testamentary freedom" is simply an easily asserted platitude masking legislative inertia). See also Dainow, supra note 4, at 338 (discussing the "well-nigh universal conviction" that testamentary freedom is ingrained in the English and Americans, but surmising that such freedom might one day be regard- ed as an "historical accident"). 6. Cf. John H. Langbein & Lawrence W. Waggoner, Redesigning the Spouse's Forced Share, 22 REAL PROP. PROB. & TR. J. 303, 304-05 (1987) (noting that although "America is uniquely the land of testamentary freedom," restrictions on spousal disinheritance are imposed because of the lack of protection spouses receive in marital r operty ownership in non-community property states). See infra notes 17-35, 51-101 and accompanying text (discussing dower and the elective share in common law jurisdictions); infra notes 36-50 and accompanying text (discussing community property). Importantly, in most states there is no inherent right of a decedent to dispose of his assets by will, nor is there an inherent right of family members to succeed to his property. In Estate of Eisenberg, 280 N.W.2d 359, 362 (Wis. Ct. App.), appeal dismissed, 444 U.S. 976 (1979), the male plaintiff failed to convince the court that Wisconsin's then-existing elective share statute was unreasonable based on societal changes in the decade preceding the case. In response to the plaintiff's claims that the statute violated his rights to equal protection and due process under the Constitution, the court noted that "it seems irrefutable that no federal right to dispose of property by will exists under the federal constitution." Id. at 363. Indeed, "[nfights to succession by will are created by the state and may be limited, conditioned, or abolished by it." Id. (quoting Demorest v. City Bank Farmers Trust Co., 321 U.S. 36, 48 (1944)). The court noted, however, that unlike most states, which view the right to make a will as statutory, Wisconsin views the right to make a will as an inherent right. Id. Nev- ertheless, the statute withstood an equal protection challenge under the state constitution. The statute served to promote compelling governmental interests, including the following: encouragement of the marital relationship; protection of each spouse from destitution; institution of a uniform and objective method