Property Transfers to Caregivers: A Comparative Analysis

35 Pages Posted: 19 Oct 2017 Last revised: 6 Sep 2018

See all articles by Adam S. Hofri-Winogradow

Adam S. Hofri-Winogradow

Faculty of Law, Hebrew University of Jerusalem

Richard L. Kaplan

University of Illinois College of Law

Date Written: October 18, 2017

Abstract

Caregivers are key recipients of property transfers, both inter vivos and testamentary. The law's treatment of property transfers to caregivers changes according to the caregiver's relationship to the person cared for. Where caregivers are related to care recipients, the law generally favors the structuring of property transfers to caregivers as capital, rather than income transfers: while the law accepts that the daily work of care, done by people for their relatives, is often uncompensated, many family caregivers receive bequests larger than their intestate shares of the care recipient’s estate. Where, on the other hand, caregivers are not related to care recipients, the law approaches the care relationship using the terminology and frame of labor law. Bequests to non-family caregivers can raise a presumption of undue influence.

In this Article, we examine the approaches taken to property transfers to caregivers by the U.S., Israel and the U.K. The U.S. authorizes the payment of public benefits to family caregivers only in very restricted situations, relying on family caregivers working for free or being compensated by the care recipients. The U.K. provides modest public benefits to many family caregivers. Israel incentivizes the employment of non-family caregivers but will pay family caregivers indirectly when assistance from non-relatives is unavailable. We examine the pros and cons of several approaches to compensating family caregivers, including bequests from the care recipient, public benefits, tax incentives, private salaries paid by the care recipient and claims raised against the recipient’s estate. We conclude that while the provision of public benefits to family caregivers clearly needs to be increased, at least in the U.S., a fully publicly funded model is probably impossible.

Keywords: caregiver, carer, benefits, property transfers, succession, labor

JEL Classification: I3, I31, I38, K11, K31

Suggested Citation

Hofri-Winogradow, Adam S. and Kaplan, Richard L., Property Transfers to Caregivers: A Comparative Analysis (October 18, 2017). 103 Iowa Law Review 1997-2025 (2018); Hebrew University of Jerusalem Legal Research Paper No. 17-45. Available at SSRN: https://ssrn.com/abstract=3055417

Adam S. Hofri-Winogradow (Contact Author)

Faculty of Law, Hebrew University of Jerusalem ( email )

Mt. Scopus Campus
Jerusalem, 9190501
Israel
523592980 (Phone)
523592980 (Fax)

HOME PAGE: http://en.law.huji.ac.il/people/adam-hofri

Richard L. Kaplan

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
(217) 333-2499 (Phone)
(217) 244-1478 (Fax)

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