Distributive Justice and Donative Intent

52 Pages Posted: 18 Jul 2017 Last revised: 20 May 2018

Date Written: July 11, 2017


The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. While scholars and reformers have critiqued the intent-defeating effects of formalism in the past, none have examined the resulting distribution of donative errors and connected it to broader social and economic inequalities. Drawing on egalitarian theories of distributive justice, this Article develops a novel critique of formalism in the inheritance law context. The central normative claim is that formalistic wills doctrines should be reformed because they create unjustified inequalities in the distribution of donative errors. In other words, probate formalism harms those who attempt to engage in estate planning without specialized legal knowledge or the economic resources to hire an attorney. By highlighting these distributive concerns, this Article reorients inheritance law scholarship to the needs of the middle class and crystallizes distributive arguments for reformers of the probate system.

Keywords: distributive justice, equality, estate planning, formalism, inequality, inheritance, probate, wills

Suggested Citation

Boni-Saenz, Alexander Antonio, Distributive Justice and Donative Intent (July 11, 2017). 65 UCLA Law Review 324 (2018), Available at SSRN: https://ssrn.com/abstract=3000630

Alexander Antonio Boni-Saenz (Contact Author)

University of Minnesota Law School ( email )

United States

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