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Full-Text Articles in Law
Minimizing Probate-Error Risk, Mark Glover
Minimizing Probate-Error Risk, Mark Glover
University of Michigan Journal of Law Reform
Probate-error risk is the possibility that a court will incorrectly assess the authenticity of a will. By prescribing the method courts use to evaluate the authenticity of wills, the law of will-execution allocates probate-error risk between false-positive outcomes and false-negative outcomes. When a court validates an inauthentic will, it creates a false-positive outcome. When a court invalidates an authentic will, it creates a false-negative outcome. Because false-positive outcomes result in the admission to probate of inauthentic wills and false-negative outcomes result in the denial of probate of genuine wills, both can be characterized as probate errors. This framework has been …
How The Ali's Restatement Third Of Property Is Influencing The Law Of Trusts And Estates, Lawrence W. Waggoner
How The Ali's Restatement Third Of Property Is Influencing The Law Of Trusts And Estates, Lawrence W. Waggoner
Articles
Restatements, once limited to restating existing law, are now substantially devoted to law reform. The ALI's website states its law-reform policy thus: "The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law." In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. A paper in that symposium argued against the ALI's law-reform policy. The authors specifically speculated that the reformist rather than restatist character of the recently completed Restatement (Third) of Property: Wills and Other Donative Transfers (Property Restatement) has "very …
The Creeping Federalization Of Wealth-Transfer Law, Lawrence W. Waggoner
The Creeping Federalization Of Wealth-Transfer Law, Lawrence W. Waggoner
Articles
This article appears in a symposium issue published by the Vanderbilt Law Review on The Role of Federal Law in Private Wealth Transfer. Federal authorities have little experience in making law that governs wealth transfers, because that function is traditionally within the province of state law. Although state wealth-transfer law has undergone significant modernization over the last few decades, all three branches of the federal government—legislative, judicial, and executive—have increasingly gone their own way. Lack of experience and, in many cases, lack of knowledge on the part of federal authorities have not dissuaded them from undermining well-considered state law. The …
Protecting Freedom Of Testation: A Proposal For Law Reform, Eike G. Hosemann
Protecting Freedom Of Testation: A Proposal For Law Reform, Eike G. Hosemann
University of Michigan Journal of Law Reform
This Article addresses a problem ever more pressing in wealthy and aging societies like the United States: interference with freedom of testation by the use of wrongful means such as undue influence or will forgery to acquire benefits through inheritance. A detailed analysis of the remedies against interference with freedom of testation under inheritance law, tort law, and equity reveals that there is currently a significant under-deterrence of this undesirable behavior. Hence, this Article proposes a new remedy in order to protect freedom of testation more effectively: a disinheritance statute barring wrongdoers that have infringed upon someone’s freedom of testation …
Effectively Curbing The Gst Exemption For Perpetual Trusts, Lawrence W. Waggoner
Effectively Curbing The Gst Exemption For Perpetual Trusts, Lawrence W. Waggoner
Articles
In "Effectively Curbing the GST Exemption for Perpetual Trusts," I criticized the Treasury Department’s proposal for dealing with perpetual trusts. My objection is that Treasury’s approach would leave many trusts and much wealth GST-exempt for much longer than Congress originally intended. For perpetual trusts created before enactment, Treasury’s approach would allow them to continue to be unburdened by a durational limit. For perpetual trusts created after the effective date of enactment, Treasury’s approach would still allow them to qualify for the GST exemption, but would have the exemption expire 90 years after the trust was created.
Family Caregiving And The Law Of Succession: A Proposal, Thomas P. Gallanis, Josephine Gittler
Family Caregiving And The Law Of Succession: A Proposal, Thomas P. Gallanis, Josephine Gittler
University of Michigan Journal of Law Reform
As the American population ages, the need for long-term care, already great, will become even greater. Some of this care is paid for by government programs, such as Medicaid, and by individual long-term care insurance policies. But the combination of the public fisc and private insurance are, and will continue to be, insufficient to pay for all of the care our seniors and adults with disabilities need. The provision of care in a family residence by one or more family members is an important component of our health care delivery system and must be supported and encouraged by public policy …
The Probate Definition Of Family: A Proposal For Guided Discretion In Intestacy, Susan N. Gary
The Probate Definition Of Family: A Proposal For Guided Discretion In Intestacy, Susan N. Gary
University of Michigan Journal of Law Reform
Intestacy statutes may not match the wishes of many people who die intestate. Changes to the Uniform Probate Code (UPC) include or exclude potential takers, as the drafters attempt to bring the UPC provisions closer to the intent of more intestate decedents. As the UPC tries to fine-tune the intestacy statutes, however, family circumstances continue to get more and more complicated. Families headed by unmarried couples, blended families with children from multiple marriages, and families in which adults raise children who are not legally theirs, have become commonplace. For some decedents, non-family friends and caregivers may be more important than …
Deliberative Accountability Rules In Inheritance Law: Promoting Accountable Estate Planning, Shelly Kreiczer-Levy
Deliberative Accountability Rules In Inheritance Law: Promoting Accountable Estate Planning, Shelly Kreiczer-Levy
University of Michigan Journal of Law Reform
In the last few decades, the emerging trend in trust and estate law has been a steady loosening of the limitations on testamentary freedom. The 1990 Uniform Probate Code pioneered some of these developments. Construction rules are no exception. It is widely accepted that testamentary construction rules should track the owner's presumed intent. In this Article, I argue that there is also room, alongside these intent-furthering rules, for intent-defeating rules in inheritance law. A property owner lacks incentives to internalize the relational, familial, or economic effects of her allocation. Such rules, termed deliberative accountability rules, are therefore designed to foster …
Toward Equality: Nonmarital Children And The Uniform Probate Code, Paula A. Monopoli
Toward Equality: Nonmarital Children And The Uniform Probate Code, Paula A. Monopoli
University of Michigan Journal of Law Reform
This Article traces the evolution of the Uniform Probate Code's (UPC) broad equality framework for inheritance by nonmarital children in the context of the wider movement for legal equality for such children in society. It concludes that the UPC is to be lauded for its efforts to provide equal treatment to all nonmarital children. The UPC's commitment to such equality serves an expressive function for state legislatures and courts to follow its lead. The UPC has fulfilled its promise that all children regardless of marital status shall be equal for purposes of inheritance from or through parents, with one exception: …
Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly
Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly
University of Michigan Journal of Law Reform
Insights from economics and the economic analysis of law may be useful in analyzing succession law, including intestacy and wills as well as nonprobate transfers such as trusts. After surveying prior works that have examined succession from a functional perspective, I explore the possibility of utilizing tools like (i) transaction costs, (ii) the ex ante/ex post distinction, and (iii) rules versus standards, to illuminate the design of the Uniform Probate Code. Specifically, I investigate how these tools, which legal scholars have employed widely in other contexts, may be relevant in understanding events like the nonprobate revolution and issues like "dead …
The Upc Substituted Judgment/Best Interest Standard For Guardian Decisions: A Proposal For Reform, Lawrence A. Forlik, Linda S. Whitton
The Upc Substituted Judgment/Best Interest Standard For Guardian Decisions: A Proposal For Reform, Lawrence A. Forlik, Linda S. Whitton
University of Michigan Journal of Law Reform
The introduction in 1997 of "substituted judgment" as a guiding principle for guardian decisions was a key contribution of the UPC to guardianship reform. The current UPC Section 5-314(a) instructs guardians to "consider the expressed desires and personal values of the ward" when making decisions and to "at all times ... act in the ward's best interest." This dual mandate for guardian decisions was intended to promote the self-determination interests of incapacitated adults. This Article argues that in practice the standard has failed to achieve this goal. It analyzes the shortcomings of UPC Section 5-314(a) and other statutory decision-making standards …
Non-Judicial Estate Settlement, John H. Martin
Non-Judicial Estate Settlement, John H. Martin
University of Michigan Journal of Law Reform
Estate settlement through probate procedures satisfies no one. The public is hostile to the delay, expense, and lack of privacy that accompanies probate. Attorneys respond to public dissatisfaction by counseling probate avoidance. Legislatures facilitate some settlements by enacting simplified procedures for low-value estates. In large measure, the Uniform Probate Code (UPC) was a response to criticisms leveled at probate. Alternative settlement procedures are offered by the UPC, including informal testacy determinations and informal appointment procedures. These alternatives, however, remain imbedded in a judicial system, with it procedural rigidities. The UPC informal settlement alternatives did not silence the criticism. The continued …
Children Of Assisted Reproduction, Kristine S. Knaplund
Children Of Assisted Reproduction, Kristine S. Knaplund
University of Michigan Journal of Law Reform
More than three decades after the birth of the first child conceived through in vitro fertilization, few states have comprehensive statutes to establish the parentage of children born using assisted reproduction techniques (ART). While thousands of such children are born each year courts struggle to apply outdated laws. For example, does a statute terminating paternity for a man who donates sperm to a married woman apply if the woman is unmarried? In 2008, the Uniform Probate Code (UPC) added two much-needed sections on the complicated parentage and inheritance issues that arise in the field of assisted reproduction. Yet it is …
What's In The Third And Final Volume Of The New Restatement Of Property That Estate Planners Should Know About, Lawrence W. Waggoner
What's In The Third And Final Volume Of The New Restatement Of Property That Estate Planners Should Know About, Lawrence W. Waggoner
Articles
Professor John Langbein and I have just concluded a twenty-year project for the American Law Institute to restate the law of donative transfers. The official title of our three-volume Restatement is the Restatement (Third) of Property: Wills and Other Donative Transfers.1 We refer to it herein simply as the Property Restatement. The third and final volume of the work was published in the last days of 2011. Professor Langbein spoke about certain of the initiatives in the two earlier volumes, which set forth the principles governing the law of wills, intestacy, interpretation of instruments, and the nonprobate system. The concluding …
Message To Congress: Halt The Tax Exemption For Perpetual Trusts, Lawrence W. Waggoner
Message To Congress: Halt The Tax Exemption For Perpetual Trusts, Lawrence W. Waggoner
Articles
The federal estate tax is in abeyance this year. The popular press has picked up on the possibility that the estates of billionaires such as the late George Steinbrenner, who owned the New York Yankees, will escape the tax. The House Ways and Means Committee, chaired by Representative Sander Levin of Michigan, and the Senate Finance Committee, chaired by Senator Max Baucus of Montana, are now considering two questions: what the maximum rate and exemption will be when the estate tax returns and whether the tax will be reinstated for this year. Lurking behind the headlines but equally important is …
The Upc Addresses The Class-Gift And Intestacy Rights Of Children Of Assisted Reproduction Technologies, Lawrence W. Waggoner, Sheldon F. Kurtz
The Upc Addresses The Class-Gift And Intestacy Rights Of Children Of Assisted Reproduction Technologies, Lawrence W. Waggoner, Sheldon F. Kurtz
Articles
Editor's Synopsis: Recent years' advances in assisted reproduction technology have enabled the conception of children in ways in addition to the traditional way. The Uniform Probate Code was amended last year to address the status of children born from assisted reproductive technologies for intestacy and class-gift purposes. This article discusses the relevant UPC provisions and offers several hypothetical cases to show how they operate. The article concludes expressing the hope that states will consider the new UPC approach.
The Upc Authorizes Notarized Wills, Lawrence W. Waggoner
The Upc Authorizes Notarized Wills, Lawrence W. Waggoner
Articles
This article reports on a 2008 amendment to the Uniform Probate Code that permits notarization as a method of will execution.
Class Gifts Under The Restatement (Third) Of Property, Lawrence W. Waggoner
Class Gifts Under The Restatement (Third) Of Property, Lawrence W. Waggoner
Articles
The new Restatement (Third) of Property (officially the Restatement (Third) of Property: Wills and Other Donative Transfers), in tandem with the Restatement (Third) of Trusts, is systematically proceeding through the whole field of wills, will substitutes, trusts, and estates. Both of the new Restatements should prove to be handy resources for trust and estate lawyers, not only in preparing to argue cases at both trial and appellate levels, but also in the everyday work of drafting and construing dispositive provisions in wills, trusts, and other types of donative documents. Each Restatement section is followed by a set of Comments explaining …
The 2003 Revised Uniform Estate Tax Apportionment Act, Douglas A. Kahn
The 2003 Revised Uniform Estate Tax Apportionment Act, Douglas A. Kahn
Articles
Editors' Synopsis: This Article describes the significant sections of the 2003 Uniform Estate Tax Apportionment Act (the "2003 Uniform Act'). The Article explains the purpose and operation of the 2003 Uniform Act's various sections and notes some of the differences between the 2003 Uniform Act and its prior version.
The Uniform Probate Code's Elective Share: Time For A Reassessment, Lawrence W. Waggoner
The Uniform Probate Code's Elective Share: Time For A Reassessment, Lawrence W. Waggoner
Articles
In this Article, Professor Waggoner proposes reforms to the Uniform Probate Code's (UPC) treatment of the elective share of the surviving spouse. First, the Article recommends that the UPC adopt a form of presentation that more transparently reflects the normative theories and empirical assumptions underlying the UPC's elective share framework. Second, the Article presents demographic data suggesting that the UPC's current elective share approximation schedule may be inappropriatef or a sizable faction of married couples, those remarryingf ollowing widowhood. Finally, the Article proposes two substantive revisions to the UPC's election share framework-the first proposal is to lengthen the approximation schedule; …
The Uniform Probate Code Extends Antilapse-Type Protection To Poorly Drafted Trusts, Lawrence W. Waggoner
The Uniform Probate Code Extends Antilapse-Type Protection To Poorly Drafted Trusts, Lawrence W. Waggoner
Articles
The Uniform Law Commission' promulgated a revised version of Article II of the Uniform Probate Code (UPC or Code) in 1990, and approved a set of technical amendments in 1993. As Director of Research and Chief Reporter for the Joint Editorial Board for the Uniform Probate Code (Board)2 and reporter for the UPC Article II drafting committee, I was privileged to serve as the principal drafter of these provisions. UPC Article II deals with the substantive rules governing donative transfers - intestacy; spouse's elective share; execution, revocation, and revival of wills; rules of construction for wills and other donative transfers; …
The Uniform Probate Code Upends The Law Of Remainders, Jesse Dukeminier
The Uniform Probate Code Upends The Law Of Remainders, Jesse Dukeminier
Michigan Law Review
Nothing is more settled in the law of remainders than that an indefeasibly vested remainder is transmissible to the remainderman's heirs or devisees upon the remainderman's death. Thus, where a grantor conveys property "to A for life, then to B and her heirs," B's remainder passes to B's heirs or devisees if B dies during the life of A. Inheritability of vested remainders was recognized in the time of Edward I, and devisability was recognized with the Statute of Wills in 1540.
The Revised Uniform Probate Code, Lawrence W. Waggoner
The Revised Uniform Probate Code, Lawrence W. Waggoner
Articles
In 1989 and 1990, Articles II and VI of the Uniform Probate Code (UPC) were revised by the National Conference of Commissioners on Uniform State Laws (NCCUSL). Article II covers the basic law of intestacy, wills, spousal rights, rules of construction, and perpetuities. Article VI deals with multiple-party accounts and transfer-on-death (TOD) security registration. The major innovations in the revised UPC are driven by changes in legal theory. Three grand themes are at work in the new UPC: 1. improving spousal rights and sensitizing them to changes in family structure, 2. curing intent-defeating formalism, and 3. unifying the law of …
Spousal Rights In Our Multiple-Marriage Society: The Revised Uniform Probate Code, Lawrence W. Waggoner
Spousal Rights In Our Multiple-Marriage Society: The Revised Uniform Probate Code, Lawrence W. Waggoner
Articles
The transformation of the American family constitutes one of the great phenomenons of the past two decades. The traditional Leave It to Beaver family no longer prevails in American society. To be sure, families consisting of the wage-earning husband, the homemaking and child-rearing wife, and their two joint children still exist. But divorce rates are astonishingly high and remarriage abounds. In fact, there is an increasing prevalence in the population of marriages that are more likely to end in divorce than others-marriages in which one or both partners were divorced before and marriages of couples who cohabited prior to marriage.
The Upc's New Survivorship And Antilapse Provisions, Edward C. Halbach Jr., Lawrence W. Waggoner
The Upc's New Survivorship And Antilapse Provisions, Edward C. Halbach Jr., Lawrence W. Waggoner
Articles
Law governing transfers of family property has long struggled with questions of survivorship in their many and varied forms. Important results can and regularly do turn on how such issues are resolved.
Reforming The Law Of Gratuitous Transfers: The New Uniform Probate Code, John H. Langbein, Lawrence W. Waggoner
Reforming The Law Of Gratuitous Transfers: The New Uniform Probate Code, John H. Langbein, Lawrence W. Waggoner
Articles
In the mid-1980s the Uniform Law Commission undertook a landmark revision of the American law of gratuitous transfers. These reforms culminated in a drastically revised Uniform Probate Code ("UPC"). The revisions inspired the Albany Law Review to organize this symposium issue for the purpose of examining the 1990 UPC. In this introductory paper, we point to the main themes of the reform movement, discuss some of the traits and constraints of the uniform law process, and comment on some of the suggestions and insights that appear in the symposium articles.
The Multiple-Marriage Society And Spousal Rights Under The Revised Uniform Probate Code, Lawrence W. Waggoner
The Multiple-Marriage Society And Spousal Rights Under The Revised Uniform Probate Code, Lawrence W. Waggoner
Articles
Nearly everyone knows about the transformation of the American family that has taken place over the last couple of decades. The changes, from the latter half of the 1970s into the present, comprise one of the great events of our age. Articles on one aspect or another of the phenomenon frequent the popular press, and a special edition of Newsweek was recently devoted to the topic.' The traditional "Leave It To Beaver" family no longer prevails in American society. To be sure, families consisting of a wage-earning husband, a homemaking and child-rearing wife, and their two joint children still exist. …
Spousal Probate Rights In A Multiple-Marriage Society, Lawrence W. Waggoner
Spousal Probate Rights In A Multiple-Marriage Society, Lawrence W. Waggoner
Other Publications
Nearly everyone knows about the transformation of the American family that has taken place over the last couple of decades. The changes comprise one of the great events of our age-from the latter half of the 1970's into the present. Articles on one aspect or another of the phenomenon frequent the popular press, and a special edition of Newsweek was recently devoted to the topic. The traditional "Leave It To Beaver" family no longer prevails in American marriage behavior. To be sure, the wage-earning husband, the homemaking and child-rearing wife, and their two joint children-this type of family still exists. …
The Uniform Statutory Rule Against Perpetuities: The Rationale Of The 90-Year Waiting Period, Lawrence W. Waggoner
The Uniform Statutory Rule Against Perpetuities: The Rationale Of The 90-Year Waiting Period, Lawrence W. Waggoner
Articles
The Uniform Law Commissioners promulgated the Uniform Statutory Rule Against Perpetuities in 1986. The perpetuity-reform efforts of the American Law Institute in the Restatement (Second) inspired the Uniform Act. The Restatement and the Uniform Act employ the so-called wait-and-see approach to perpetuity reform. Wait-and-see is a two-step strategy. Step One preserves the validating side of the common-law Rule Against Perpetuities (the common-law Rule): By satisfying the common-law Rule, a nonvested future interest in property is valid at the moment of its creation. Step Two is a salvage strategy for future interests that would have been invalid at common law: Rather …
The Uniform Statutory Rule Against Perpetuities: Oregon Joins Up, Lawrence W. Waggoner
The Uniform Statutory Rule Against Perpetuities: Oregon Joins Up, Lawrence W. Waggoner
Articles
Uniform perpetuity reform is on the march, and Oregon has joined the parade. On January 1, 1990, the Uniform Statutory Rule Against Perpetuities (Uniform Act) became effective in Oregon. Although promulgated only three years ago, the Uniform Act has been enacted in over twenty percent of the states and appears to be on its way toward enactment in several others. Prior to the adoption of the Uniform Act, Oregon followed the common-law Rule Against Perpetuities (common-law Rule). Noted for its unjust consequences, the common-law Rule disregards actual events and invalidates a contingent (nonvested) future interest merely on the grounds of …