Family Protection in the Law of Succession: The Policy Puzzle
57 Pages Posted: 7 Mar 2019 Last revised: 28 Sep 2019
Date Written: 2018
To promote the protection of families, succession law diminishes the power of testation in a variety of ways that shield surviving spouses and children from disinheritance. This article conducts a survey of the law in the fifty states, five main territories, and the District of Columbia and uncovers a remarkable diversity of family-protection provisions. Less apparent than the substance of the provisions themselves are the policies behind them. In a comprehensive study, this article concludes that family-protection provisions seek to prevent decedents from using their testamentary freedom in ways that impoverish those who are dependent upon them or that work unfairness against family members who have contributed in important ways to the accumulation of their wealth. In addition to these concerns is a notable ambivalence about the extent to which family protection statutes should undercut the expectations of those who have been promised a share of a decedent’s estate.
Keywords: wills, intestacy, family protection, elective share, pretermitted child, family allowance, property set-asides, homestead exemption, homestead allowance, exempt property, exempt personalty
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