'Making Things Fair': An Empirical Study of How People Approach the Wealth Transmission System

57 Pages Posted: 8 Mar 2015

See all articles by Naomi Cahn

Naomi Cahn

University of Virginia School of Law

Amy Ziettlow

Institute for American Values

Date Written: 2015


The wealth transmission process is of great concern to many senior citizens in the United States. The American wealth transmission process is designed to respect private ordering. It encourages planning as a means to formalize intent and ensure smoother property transfer at death. Most people do not plan, nor do they use, the formal probate system for distributing property, but there is little research on what the actual wealth transfer process looks like for the majority of Americans. This article challenges the contemporary trusts and estates canon by showing that the nuts and bolts of the inheritance process for many Americans takes place in a different universe outside of probate court, where the black-letter law is only a shadow, keepsakes and heirlooms assume outsized importance, and family dynamics drive outcomes. It is based on a first-ever empirical study of intergenerational care for Baby Boomers. This study shows that the formal laws of the inheritance system are largely irrelevant to how property is actually transferred at death. The contemporary trusts and estates canon focuses on the importance of planning for traditional forms of wealth in nuclear families, rather than wealth that has high emotional, but low financial, value. Alternative family structures and changing forms of wealth challenge this canon, uncovering serious shortcomings in existing means designed to encourage planning and minimize conflict. Instead, this study shows how the logic of "making things fair" has been structuring the way families navigated the distribution process and accessed the law. Consequently, this article recommends that law reform should be guided by the needs of contemporary families, where not only is wealth defined broadly but family too, through ties that are both formal and functional. This means establishing default rules that maximize planning while also protecting familial relationships.

Keywords: trusts and estates, socioeconomic class, families

JEL Classification: K10, K40

Suggested Citation

Cahn, Naomi R. and Ziettlow, Amy, 'Making Things Fair': An Empirical Study of How People Approach the Wealth Transmission System (2015). Elder Law Journal, Vol. 22, No. 325, 2015, GWU Legal Studies Research Paper No. 2015-4, GWU Law School Public Law Research Paper No. 2015-4, Available at SSRN: https://ssrn.com/abstract=2574781

Naomi R. Cahn (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Amy Ziettlow

Institute for American Values ( email )

420 Lexington Avenue
Room 1706
New York, NY 10170

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