Family Caregiving and the Law of Succession: A Proposal

27 Pages Posted: 29 Dec 2012  

Thomas P. Gallanis

University of Iowa - College of Law

Josephine Gittler

University of Iowa - College of Law

Date Written: 2012

Abstract

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 and law. As experts in the law of estate planning and health care, respectively, we address in this Article the following question: How might the American law of succession realistically recognize, support, and promote family caregiving? Our answer is a pragmatic proposal that can be adopted into the Uniform Probate Code (UPC). We propose a modified elective share for a family member who has provided the decedent with substantial uncompensated care in a family residence. (In this context, “family member” excludes the decedent’s surviving spouse, because the UPC already provides a spousal share.) Our approach contrasts with the prevailing law in the U.S., which treats personal services rendered by family members as gratuitous, hence not compensable. The scope and amount of the caregiver’s elective share can be structured by way of analogy to the surviving spouse’s elective share, though with important differences, as we discuss herein.

Keywords: caregiving, family, elderly, succession

Suggested Citation

Gallanis, Thomas P. and Gittler, Josephine, Family Caregiving and the Law of Succession: A Proposal (2012). University of Michigan Journal of Law Reform, Vol. 45, No. 4, Summer 2012; U Iowa Legal Studies Research Paper No. 13-2. Available at SSRN: https://ssrn.com/abstract=2194412

Thomas P. Gallanis (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

Josephine Gittler

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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