Estates and Trusts Commons^™

An Advance Directive: The Elective, Effective Way To Be Protective Of Your Rights, Krysta Rae Tate

Mercer Law Review

Death is an eternal theme within all cultures; the Grim Reaper coming to collect a person's soul, death riding in on a pale horse, mythical characters like Hades and Thanatos. A seemingly inescapable proposition emerged over time: the nature of death is unpredictable and unavoidable. Eventually, due to changes in technology, the world's perspective on the nature of death shifted. Advancements in medical technology introduced a plethora of life-sustaining procedures, and death was no longer completely beyond a human's control.

A breakthrough in the medical means used to control the dynamic nature of death occurred when the Georgia General Assembly …

Liberty And Community In Marriage: Expanding On Massey’S Proposal For A Community Property Option In New Hampshire, Jo Carrillo

The University of New Hampshire Law Review

This article argues that intimate partners should have the right to adopt a sharing economy within marriage. Forty-one U.S. states employ a separate property regime for property acquired during marriage; of these, only two allow married couples to opt out of the separate property system and hold their assets as community property. Nine U.S. states are community property states. To encourage equal partnership in marriage, Calvin Massey proposed that New Hampshire, a separate property state, enable a community property option. This essay expands on Massey’s proposal by comparing it to three other marriage reform proposals: two based on privatization, and …

Property Interests In Digital Assets: The Rise Of Digital Feudalism, Natalie M. Banta

Cardozo Law Review

The emergence of digital assets has created a host of new legal questions regarding their status as a property interest. Digital assets consist of intangible interests like e-mail accounts, social media accounts, reward points, and electronic media. These assets seem like a property interest, but because digital assets are a creature of contract, private contracts determine whether an owner can use, sell, transfer, exclude, donate, or dispose of the asset in a testamentary instrument. These digital asset contracts often take an unprecedented step of prohibiting or severely limiting the transfer of digital assets after death. By unilaterally eviscerating a long …

Estate Of Holliday: 'Flping' The Script, Phyllis C. Taite

Other Faculty Publications

No abstract provided.

Airbnb And The Battle Between Internet Exceptionalism And Local Control Of Land Use, Jamila Jefferson-Jones, Stephen R. Miller

Law Faculty Research Publications

No abstract provided.

Wrongful Death Conflicts For Plaintiffs' Attorneys, Thomas Simmons

Faculty Publications

No abstract provided.

The Impact Of Estate Of Howell: Guardianship, Heir Misbehavior, And The Modern Family Within Illinois, 50 J. Marshall L. Rev. 615 (2017), Michael Habic

UIC Law Review

This Comment shall discuss and evaluate the guardianship decision-making standard implemented in Estate of Howell as it relates to guardianships of disabled persons, and why Illinois has the best scheme for safeguarding the assets of a disabled adult when a guardian creates an estate plan on his or her behalf. The discussion is based on the holding in Estate of Howell that a guardian may act on behalf of the disabled adult’s interests and therefore the disabled adult’s last will and testament need not conform to the rules of intestacy, because of the hierarchical substituted judgment and best interests rule …

Foreword--Festschrift In Memory Of Dennis I. Belcher, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In academia, it is customary to honor important milestones in a colleague's career with a festschrift, a collected volume of scholarly essays or reflections on the individual's contributions to his or her field. Very often, festschrifts are assembled to celebrate a retirement, but they are also used to honor the memory of a colleague who has died. The Board of Editors of the ACTEC Law Journal unanimously agreed that our first issue of the 2017-2018 academic year should be in honor and memory of Dennis Belcher. With the encouragement and contributions of many of Dennis's friends and colleagues, we are …

What's Wrong With Partial Intestacy?, Richard F. Storrow

Marquette Law Review

This article questions whether wills law's disapproval of partial intestacy rests on defensible assumptions about testamentary intent. After examining the causes of and antidotes to partial intestacy, I make three primary points. First, the presumption against intestacy applies only to wills that contain an ambiguous bequest of the residue. Second, the law's disapproval of partial intestacy is due in part to its failure to make an important distinction between testamentary intention and dispositive intention. Third, a theory of passive intention, heretofore barely alluded to in the law of wills, supplies the necessary validation of partially intestate estates.

The Strange Case Of Dr. Jekyll's Will: A Tale Of Testamentary Capacity, Stephen R. Alton

Faculty Scholarship

Robert Louis Stevenson’s classic novella, The Strange Case of Dr. Jekyll and Mr. Hyde, published in 1886, is the well-known tale of a respected scientist (Dr. Henry Jekyll) who transforms himself into an evil-doer (Mr. Edward Hyde). While the work raises issues of tort and criminal liability, this article analyzes the legal issues presented by one particular and crucial plot device that Stevenson employs—the last will of Dr. Jekyll. This will so obsesses Jekyll’s friend and solicitor, Gabriel John Utterson (through whose eyes the story unfolds), that he is impelled to seek the truth behind his friend’s relationship to Hyde. …

Family Limited Partnerships And Section 2036: Not Such A Good Fit, Mitchell M. Gans, Jonathan G. Blattmachr

Hofstra Law Faculty Scholarship

The IRS has struggled to close down abusive family limited partnerships. At first unreceptive to IRS arguments, the courts eventually embraced section 2036 as an estate-tax tool for attacking such partnerships. Because the section was not designed to apply to partnerships, difficulties have arisen as the courts have struggled with the fit. In its most recent encounter, the Tax Court in Powell grappled with a fit-related issue that implicates the Supreme Court’s landmark decision in Byrum. The Powell court, it will be argued, misread Byrum, conflating the majority opinion with the dissent – and converting the rule-based approach adopted by …

The Elective Share Has No Friends: Creditors Trump Spouse In The Battle Over The Revocable Trust, Angela M. Vallario

All Faculty Scholarship

A revocable trust is a popular estate planning tool used to disinherit a spouse in sixteen jurisdictions. In common law jurisdictions, a surviving spouse, who is dissatisfied with his or her inheritance, has the right to receive an elective share of the decedent's estate regardless of the decedent's estate plan. However, sixteen jurisdictions have defined a dissatisfied spouse's rights with a fractional share of the deceased spouse's "net probate estate," allowing one spouse to disinherit the other, by single-handedly transferring his or her assets to a revocable trust. To add insult to injury seven of these common law jurisdictions have …

Mother. Orator. Woman Suffrage Leader: The Feminist Legacy Of Elizabeth Cady Stanton, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

Honoring Probable Intent In Intestacy: An Empirical Assessment Of The Default Rules And The Modern Family, Danaya C. Wright, Beth Sterner

UF Law Faculty Publications

This article provides preliminary analysis of an empirical study of nearly 500 wills probated in Alachua and Escambia Counties in the State of Florida in 2013. The particular focus of the study is to determine if there are noticeable patterns of property distribution preferences among decedents based on their diverse family relationships. Earlier empirical studies of distribution preferences indicated that a majority of married decedents wanted to give all or most of their estates to their surviving spouses. As a result of these studies, most states amended their probate codes to give surviving spouses a sizable percentage of a decedent …

A Chinese Inheritance, Thomas Simmons

Faculty Publications

The cultural values of a society are often discernible in its laws of succession and intestacy. These laws govern the distribution of a decedent's estate when there is no estate plan in place. Intestacy schemes typically reflect basic societal values. Yet, perhaps remarkably, the laws of intestacy bear consistency across various countries, continents, and cultures, rewarding the closest surviving family members. Upon closer examination, unique characteristics also emerge. The most startling characteristic of Chinese inheritance law is its willingness to invoke judicial review of an heir's conduct in settling upon distribution percentages to govern intestacy. American succession law also considers …

Leach V. Hyatt: Recasting Indefiniteness, Thomas Simmons

Faculty Publications

No abstract provided.

A New Hope: Tortious Interference With An Expected Inheritance In Rhode Island, Rebecca M. Murphy, Samantha M. Clarke

Roger Williams University Law Review

No abstract provided.

Tax Savings With Income-Based Charitable Requests, Christopher R. Hoyt

Faculty Works

No abstract provided.

Social Control Of Wealth In Antebellum New York, William P. Lapiana

Articles & Chapters

No abstract provided.

Wills & Trusts, Gerry Beyer

SMU Annual Texas Survey

No abstract provided.

Personal Reality: Delusion In Law And Science, Joshua C. Tate

Faculty Journal Articles and Book Chapters

The concept of an insane delusion appears in several branches of the law, including contracts, gifts, and wills. Critics of the traditional doctrine have made compelling arguments in favor of its modification or abolition in the context of wills, given that it is often used as an excuse to substitute the values of jurors for those of the testator. Moreover, recent scientific studies have shown correlations between delusions and other cognitive impairments, calling into question the need for an independent doctrine of insane delusion. Nevertheless, there is evidence that not all deluded individuals have additional cognitive biases, and those who …