Default Rules in Inheritance Law: A Problem in Search of its Context

153 Pages Posted: 23 Mar 2004

Date Written: March 2004

Abstract

Jurisprudence distinguishes between mandatory rules (which parties are obliged to follow, and hence which apply in all cases) and default rules (which parties are free to override, and hence which apply only in the event that parties fail to opt out of them). This article develops a theoretical framework for the construction of default rules within inheritance law. Its foundational claim is that the modern theory of default rules developed within transactional law provides a model broadly, if not perfectly, applicable to inheritance defaults. Transactional default rule theory suggests that by replicating the hypothetical bargain of a majority of parties, lawmakers can minimize transaction costs. If default rules in inheritance law correspond, by analogy, with the probable intent of a majority (or plurality) of benefactors, lawmakers can achieve the same efficiency. The article looks at, and rejects, other suggested approaches to the formulation of inheritance defaults, which have focused on furthering state interests or on fulfilling an expressive function of law. After setting out a basic theory of inheritance defaults, and comparing it to competitors, the article proceeds to address how inheritance defaults should be structured, and how lawmakers should go about discovering benefactors' probable intent. A final section surveys existing inheritance defaults, identifying ones that surely or likely fail to effectuate probable intent, and hence which merit substantive revision.

Suggested Citation

Hirsch, Adam Jay, Default Rules in Inheritance Law: A Problem in Search of its Context (March 2004). FSU College of Law, Public Law Research Paper No. 111. Available at SSRN: https://ssrn.com/abstract=520483 or http://dx.doi.org/10.2139/ssrn.520483

Adam Jay Hirsch (Contact Author)

University of San Diego ( email )

5998 Alcala Park
San Diego, CA 92110
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
256
Abstract Views
3,182
rank
123,174
PlumX Metrics