Freedom of Disposition in American Succession Law

Abstract

The organizing principle of the American law of succession is freedom of disposition. This book chapter surveys freedom of disposition in American succession law--intestacy, wills, trusts, and nonprobate transfers. The chapter also considers the main limits on freedom of disposition, focusing on forced shares for spouses, the Rule Against Perpetuities, and the federal wealth transfer taxes. For the most part, however, the American law of succession facilitates rather than regulates implementation of the decedent’s intent. Most of the American law of succession is concerned with enabling posthumous enforcement of the actual intent of the decedent or, failing this, giving effect to the decedent’s probable intent.

Note: The chapter is based on the author’s remarks at the Conference on Freedom of Testation and its Limits at the University of Lleida, Spain, on 20 April 2018.

Keywords: trusts, estates, freedom of disposition, freedom of testation, probate, non-probate, will substitutes, intestacy, formalities, will contests, construction, fiduciary administration, spendthrift trusts, charitable trusts, future interests, powers of appointment, perpetuities, estate tax

JEL Classification: K11, K34