In Search of the Probate Exception

48 Pages Posted: 12 Jul 2014 Last revised: 22 Nov 2014

See all articles by James E. Pfander

James E. Pfander

Northwestern University School of Law

Michael Downey

Government of the United States of America - U.S. District Court for the Northern District of Illinois

Date Written: June 26, 2014


As a limit on the power of Article III courts, the probate exception has surely earned its place in the old curiosity shop of federal jurisdictional law. Dating from the early nineteenth century, the exception has been said to derive from various sources, including the lack of federal jurisdiction over ecclesiastical matters, the “law” and “equity” limits of Article III, and the structure of our federal government. The Supreme Court’s 2006 decision in Marshall v. Marshall sought to clarify matters, but lower courts continue to debate the breadth of the exception.

In this essay, we go in search of the probate exception. After surveying the ecclesiastical jurisdiction account, the law-and-equity constraints, and the doctrine of federalism, we conclude that these familiar arguments do not offer a persuasive justification for maintaining a gap in federal judicial power. A more promising suggestion appears in Article III’s case-or-controversy requirement. Understood as requiring live disputes between adverse parties, the case-or-controversy requirement might appear to rule out much ex parte or administrative work of the kind commonly conducted in the course of probate proceedings. Yet the federal courts have a long tradition of hearing administrative matters, from the naturalization petitions that arrived on federal dockets in 1790 to the bankruptcy proceedings that unfold each day in the Article III judiciary. Even today, Article III courts entertain applications for FISA warrants on an ex parte basis and conduct ex parte inquiries into applications for the entry of default judgments.

Although the tradition of non-contentious federal jurisdiction casts serious doubt on some broad accounts of the case-or-controversy requirement, we think the best resolution lies in distinguishing cases from controversies, in upholding the power of the federal courts to administer the law only when the original ex parte claim being asserted presents a “case” under federal law, and in continuing to insist on full adverse-party disputes in all “controversies” governed by state law. On that view, federal courts lack the power to entertain stand-alone original ex parte applications for probate so long as they remain creatures of state law. Federal involvement in state law matters requires a “controversy” (and the existence of a controversy may carry ancillary power to issue default judgments on an ex parte basis). But if Congress were to federalize the law of decedents’ trusts and estates, exercising an appropriate source of federal power, Article III courts could hear original petitions for the probate of federal wills as “cases” within the judicial power.

Keywords: judicial power, probate exception, federalism

JEL Classification: K10, K30

Suggested Citation

Pfander, James E. and Downey, Michael, In Search of the Probate Exception (June 26, 2014). Vanderbilt Law Review, Vol. 67, Northwestern Public Law Research Paper No. 14-28, Available at SSRN:

James E. Pfander (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Michael Downey

Government of the United States of America - U.S. District Court for the Northern District of Illinois

United States

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