The Color of Testamentary Freedom

44 Pages Posted: 14 Jan 2007 Last revised: 27 Jan 2010

Date Written: April 15, 2009


Wills that prioritize the interests of nontraditional families over collateral heirs test courts’ dedication to observing the posthumous wishes of testators. Collateral heirs who object to will provisions that redraw the contours of “family” are likely to profit from the incompatibility of testamentary freedom and social deviance. Thus, the interests of married, white adults may claim priority over nonwhite, unmarried others. Wills that acknowledge the existence of moral or social transgressions — namely, interracial sex and reproduction — incite will contests by collateral heirs who leverage their status as white and legitimate in order to defeat testamentary intent.

This Article turns to antebellum and postwar will contests between disinherited white heirs and mixed-race devisees to question the role of courts in defining “family” and the expectancy of collaterals to uphold this limitation. While other studies have separately examined the myth of testamentary freedom and argued for the legitimacy of diverse families, scholars have paid less attention to the color of inheritance. Drawing on Cheryl Harris’s groundbreaking work on property and racial expectation interests, this Article illustrates the centrality of whiteness in the validation of testamentary transfers. At the same time, it questions the legal resistance to nontraditional families, which substantially weakens the aspirational theory of donative freedom — the cornerstone of Trusts & Estates. Through the intersection of wills law and family law, this Article initiates a critical inquiry of the influence of race in testamentary transfers.

Keywords: miscegenation, mulatto, inheritance, slavery, collateral, sex, antebellum, carolina, race, mistress, cohabitation, disinherit

Suggested Citation

Maillard, Kevin Noble, The Color of Testamentary Freedom (April 15, 2009). Southern Methodist University Law Review, Vol. 62, p. 1783, 2009, Available at SSRN:

Kevin Noble Maillard (Contact Author)

Syracuse University College of Law ( email )

Syracuse, NY 13244-1030
United States

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