An Empirical Assessment of the Potential for Will Substitutes to Improve State Intestacy Statutes

Abstract

This article uses an empirical study to test whether, in the absence of a will, beneficiary designations in will substitutes provide reliable evidence for determining decedents' donative intent in an intestacy statute. No previous scholarship has explored the relationship between will substitute beneficiary designations and intestacy statutes. Throughout this project, we remained mindful that the import of will substitute designations can be ambiguous when it comes to imputing intent with regard to an intestate decedent's probate estate. The empirical study used a factorial research design in which interviewers asked respondents contacted by telephone to react to a series of hypothetical vignettes that differ along one or more dimensions. The survey tested two central hypotheses. The first hypothesis, which we call the new heir hypothesis, was that, if a will substitute beneficiary is not otherwise an heir, the will substitute reveals a decedent's intent to create a new heir. The second hypothesis, which we call the advancement hypothesis, was that, if a will substitute beneficiary is otherwise an heir, the will substitute reveals a decedent's intent to treat the proceeds from the will substitute as an advancement on that heir's share of the probate estate, resulting in a greater portion of the probate estate passing to the decedent's other heirs. We used bivariate and multivariate analyses to evaluate the data. This project goes a long way to identify the issues that must be resolved for will substitutes to play a role in the distribution of an intestate decedent's probate estate. In general, will substitutes should affect the distribution scheme of intestacy statutes only for decedents who die without a surviving spouse or a descendant. These decedents are the very people who we know least about in terms of their likely donative intent, and they should be the focus of any future empirical study regarding will substitutes and inheritance law. Although more empirical study is necessary, based on this study, there is little support for the advancement hypothesis. The results of this study do suggest that the more distantly related the decedent's heirs determined under a traditional intestacy statute, the more likely a decedent would want a will substitute beneficiary who is not otherwise an heir to be treated as a new heir and a will substitute beneficiary who is otherwise an heir to be treated as a favored heir. The results of our empirical study further suggest that the number of will substitute designations and, to a lesser extent, the value of those will substitutes relative to the probate estate matter. Any law reform would have to establish some threshold number and value before taking into account will substitutes in determining the distribution of a decedent's estate. This empirical study has opened up the possibility for a major reform of the intestacy statutes in this country. The question no longer is whether will substitutes should be integrated into intestacy schemes, but how.

Keywords: intestacy, will substitutes, non-probate transfers, donative intent, advancements, de facto partners, factorial research design, escheat