Caregiving and the Case for Testamentary Freedom
Joshua C. Tate
Southern Methodist University - Dedman School of Law
UC Davis Law Review, Vol. 42, pp. 129-193, 2008
SMU Dedman School of Law Legal Studies Research Paper No. 00-22
U of Penn Law School, Public Law Research Paper No. 08-19
Almost all U.S. states allow individuals to disinherit their descendants for any reason or no reason, but most of the world's legal systems currently do not. This Article contends that broad freedom of testation is defensible because it allows elderly people to reward family members who are caregivers. The Article explores the common-law origins of freedom of testation, which developed in the shadow of the medieval rule of primogeniture, a doctrine of no contemporary relevance. The growing problem of eldercare, however, offers a justification for the twenty-first century. Increases in life expectancy have led to a sharp rise in the number of older individuals who require long-term care, and some children and grandchildren are bearing more of the caregiving burden than others. Recent econometric studies, not yet taken into account in legal scholarship, suggest a tendency among the American elderly to bequeath more property to caregiving children. A competent testator, rather than a court or legislature, is in the best position to decide how much care each person has provided and to reward caregivers accordingly. Law reform, therefore, should focus on strengthening testamentary freedom while ensuring that caregivers are adequately compensated in cases of intestacy.
Number of Pages in PDF File: 66
Keywords: Estate Planning, Eldercare, Family, Caregiving, History, Property
Date posted: March 25, 2008 ; Last revised: November 24, 2008
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