• Selected
• Entire List

Abstract:
This paper will examine the current statutory bars to inheritance of a presumptive heir in the United States, primarily from the perspectives of the statutory conduct required, the theory underlying the statute (whether decedent's intent or public policy), and the consequences on inheritance of that conduct. Legislatures have not moved boldly in this area, perhaps reflecting a general reluctance to wade too far into family matters, allowing a zone of privacy for the day to day details of family affairs. This recognition of legislative limits may proceed from notions of individual autonomy and liberty in consensual matters, or more pragmatically, from concerns about institutional efficiency. We know that every family has issues, and we just don't want to go there. A third possibility is the traditional perspective that the criminal code, not the probate code, is the proper venue for such concerns about misconduct.

It is the thesis of this paper that the legislative reluctance to bar inheritance based on a misconduct continues and that the existing disinheritance statutes reflect a confusion of purpose and an ambiguity of theory. Part I considers the traditional adultery and murder bars to inheritance, and examines their underlying theories and the statutory consequences of the misconduct. Part II moves to the newer statutory bars of abandonment and abuse and similarly examines their theories and consequences. Part III considers the limits of legislative pronouncements on misconduct in the larger context of succession law reform.

heirs, presumptive heirs, inheritance, disinheritance

Abstract:
American children are increasingly being raised in single parent homes, often below or near the poverty line. One consequence is that the issues of child welfare and child support receive significant media and legal attention, and beneficial changes in the legal landscape have occurred. Away from the highly visible and immediate problems of child welfare and child support are less celebrated legal issues, that often graphically underscore the systemic nature of the law's difficulty in dealing with questions of parental irresponsibility. One such example involves the overly of a parent who has abandoned a child, with the disposition of property at that child's death.

In the vast majority of jurisdictions the intestate rules treat an abandoning parent as an equal heir with the non-abandoning parent. Equity requires a different result. Moreover in those jurisdictions where the wrongful death statute applies a dependency standard for distribution, the abandoning parent generally does not share equally in the distribution of wrongful death proceeds, even though that parent would share equally in an intestate distribution. Consistency, as well as equity, requires that an abandoning parent not participate in the property distribution.

This Article will first review the statutory rules governing the distribution of property of an intestate decedent and the distribution of proceeds under wrongful death statutes. Three solutions to the inequity of an abandoning parent as legal heir will be presented. The first solution is a matter of statutory interpretation of parent as heir. The second considers a common law theory that has ancient Roman law origins. The third involves the application of existing statutes.

intestacy, abandoned children