Why Shouldn't I Be Allowed to Leave My Property to Whomever I Choose at My Death? (Or How I Learned to Stop Worrying and Start Loving the French)
59 Pages Posted: 23 Jun 2006
This article analyzes whether the ancient common law concepts of dower and curtesy, and their modern day statutory equivalents - the elective share laws - should be substantially modified or eliminated. In modern America, forty-nine of the fifty states and the District of Columbia severely limit freedom of testation vis-à-vis surviving spouses. If, as a policymaker, one believes the marital partnership theory of marriage to be gospel, then by goodness change to community property and be done with it. Do not, as many states have done, choose separate property (an inherently non-partnership, eat-what-you-kill, philosophy) and then try to graft some back-end sorry excuse for community property at death. But if you truly believe, as I think many well-intentioned people do, that this is America, and we have a long tradition of property and testator freedom, then keep your separate property system and completely eliminate your elective share law. Those are really the only two options that have internally consistent logic.
If you eliminate the elective share laws, the sky will not fall. They have been doing it for decades in Georgia and all the empirical evidence shows that things are working just fine thank you. The fact that the privileged can pay their way out of any elective share law - by some estate planning technique or by moving money offshore - and the less financially fortunate cannot, is a real injustice that must be rectified. Let us eliminate the elective share laws for all, not just the well-to-do.
The elective share laws are terribly demeaning and paternalistic to women. Male dominated legislatures, though, continue to perpetuate belittling female stereotypes by saying through elective share laws that women are so incompetent and unable to stand up for themselves that the "little missies" still must be protected by some ancient magical sword. With literally every single disinheritance study showing de minimis rates of disinheritances that are not agreed to by the spouse, elective share laws seem like some ridiculous school child's Rube Goldberg machine trying to solve in as complex a manner as humanly possible a problem that really does not exist. Every few years, mostly male law professors huddle to build a better mousetrap to keep their evil male counterparts from doing something they have little or no desire or motivation to do, and in the process precious freedom - for both men and women - loses out.
Keywords: elective share, forced share, community property, wills, trusts, dower, estate planning, estates, family law, property law, gender studies, marital theory, testamentary freedom
JEL Classification: K11
Suggested Citation: Suggested Citation