39 Pages Posted: 31 Oct 2014 Last revised: 1 Dec 2014
Date Written: November 30, 2014
Testation is supposed to be comprehensive: when we die, we pass everything we own to our friends and family. However, a growing number of valuable things defy this principle. From frequent flyer miles to virtual property to email and social media accounts, some assets expressly state that they cannot be transmitted by will, trust, or intestacy. This invited contribution to the Hastings Law Journal Symposium in honor of Charles L. Knapp analyzes this trend, which I call “contractual indescendibility.” It shows that consumers who challenge non-inheritability provisions face three obstacles. First, they have to prove an ownership interest in the item. Second, they need to invalidate the indescendibility clause under contract law. And third, they must navigate the gauntlet of federal legislation that governs this area. Despite these hurdles, I conclude that companies should not have carte blanche to delete this cherished stick from the bundle of rights.
Keywords: inheritance, wills, trusts, estates, digital assets, frequent flier miles, Airline Deregulation Act, Stored Communications Act, preemption, Northwest Airlines v. Ginsberg, World of Warcraft, Second Life, Facebook, adhesion contracts, unconscionability
Suggested Citation: Suggested Citation
Horton, David, Contractual Indescendibility (November 30, 2014). Hastings Law Journal, Vol. 66, 2015 Forthcoming. Available at SSRN: https://ssrn.com/abstract=2516361