REIMAGINING MARITAL PROPERTY AT DEATH

Abstract

This paper argues that death should not automatically terminate the marital partnership, and it suggests a novel and comprehensive model for the regulation of marital property upon death. According to the conventional view, the idea of marital partnership implies an equal division of the marital assets upon dissolution. Thus, in the event of death, just as in the event of divorce, the marital partnership comes to an end, and half of the marital property must be allocated to the surviving spouse, while the other half is distributed to the deceased's heirs. Contrary to this conventional view, this paper develops a new theory based on what we term the "surviving partnership." According to this approach, the economic partnership survives the death of one spouse. We justify our theory by focusing on the interests and desires of the spouses as individuals, as well as on the continuity of the familial unit. Our theory has three main legal implications. First, we argue that as a default rule, upon the death of one spouse, the entire marital property should be left in the hands of the survivor, as a matter of family law rather than succession law. For that reason, the law should distinguish between the decedent's portion of the marital property and her separate property. Second, we hold that the norms of will-making, which we view as an expression of the couple's freedom to define death as an event that does indeed terminate the partnership, should be subject to special requirements to ensure fairness and reciprocity between the partners. Therefore, termination of the partnership through a will should either operate reciprocally, regardless of which partner predeceases the other, or require notice to the non-testator spouse to ensure fairness. Third, our view has implications for how the surviving spouse should handle the marital property after her spouse's death, as well as for the norms that will apply to the disposition of the marital property upon her own, subsequent death. We offer a close analysis of current legal norms, demonstrating how the surviving partnership model sheds new light on, and offers amendments and improvements to, hidden aspects of marital property law, succession law, and property law. We conclude by demonstrating how the surviving partnership model is better equipped to deal with contemporary reality characterized by diverse family patterns.

Keywords: Family Law, Wills, Trusts & Estates, Marital Property, Succession Law, Estate Planning, Survivorship