Dismantling the Trusts and Estates Canon

Abstract

This article steps back and reflects on how new perspectives from gender, race, class, and sexual orientation have challenged existing trusts and estates canonical narratives on a number of different levels, both in terms of deepening trusts and estates but also expanding it—that is, challenging core concepts of the field. Part I celebrates how new perspectives have challenged the core trusts and estates canonical narratives. These new perspectives challenge basic concepts of wealth and do the following: 1) bring in alternative conceptions of wealth and of inheritance; 2) question the biases of inheritance law as they reflect conventional social norms; and 3) contextualize the whole field so that it encompasses elder law, history, sociology, socioeconomics, and other areas. The second Part turns to the structure of wealth and its intergenerational transmission, drawing on sociological and demographic data to show just who is wealthy and how wealth transmission perpetuates inequality, Finally, based on asking what I call “the wealth question,” I suggest future directions that might lead to reexamination of some of the core tenets of trusts and estates: for example, wills may not be appropriate for everyone, and class differences in families show the need to include (or be more deliberate in excluding) alternative families.

Keywords: trusts, estates, wills, domestic relations, property, gender, critical theory

JEL Classification: K36, K11, K34