Goldburn Maynard

Does the United States only pay lip service to testamentary freedom? When compared to other countries, it does not appear that way. That is, by providing a substantial degree of testamentary freedom, the United States is actually in the minority among nation-states. Most countries have family maintenance or forced succession rules that allow estate plans to be modified by judges after the death of the testator. Needy family members in those countries have a right to petition for a share of the inheritance, regardless of the wishes of the testator. In the U.S., an individual has every right to disinherit a disfavored child, regardless of need. In fact, testamentary freedom is seen as a foundational concept in U.S. inheritance law. Yet, even in the U.S., freedom of disposition is not absolute. In a recent article, Natural Objects and Testamentary Freedom, Kevin Bennardo argues that we do not follow through on our commitment to testamentary freedom. To illustrate, Bennardo focuses on the difficulties faced by nontraditional or eccentric testators.

Rebels might be popular in the American imagination, but this popularity does not extend to rebel testators. We like our testators to go with the grain. The focus of Bennardo’s article is on the seemingly innocuous phrase “the natural objects of one’s bounty.” Because the phrase recurs throughout American laws of succession, it implants society’s judgement on an estate plan. Even when one executes a will to opt out of intestacy, those underlying societal preferences are influential. Being a member of the “natural objects” class is itself a favored status. These dispositions are more likely to be rubberstamped without raising suspicion. Unnatural dispositions, on the other hand, are scrutinized. Testators who make such dispositions risk invalidation of their estate plans and must take special precautions. This is a trap for the unwary or those without resources, typically individuals preparing their own estate plans without attorney input. This fact raises distributional concerns.

A further problem Bennardo identifies is the vagueness of “natural objects” language. This has resulted in divergence across states that still rely on the phrase. Some states have defined the term to mean heirs-at-law, a restrictive interpretation which implies that testators are required to stay within the bounds of intestacy statutes. Other states have been more flexible, leaving the door open for other individuals to join the class. This still results in strange line-drawing. South Dakota, for example, closes the door on collaterals. Too bad if you’re particularly close to one of your South Dakota siblings. This seems to fly in the face of modern realities and can impede the ability to leave property to family, friends, acquaintances, or organizations one might care about.

The “natural objects” language is also pernicious because it comes into play across several domains. The ability to recognize natural objects is a factor in determining whether a decedent had the mental capacity to execute a will. The unnatural nature of a disposition can also give rise to the presumption of undue influence. Not only does the naturalness of a disposition factor into will contests, but it also plays a part in interpreting ambiguous language in a will. Bennardo’s primary concern is not that these rules invariably benefit close family members. Rather, he seems especially bothered that instead of a straightforward family maintenance system we achieve some of the same results in the U.S. in a backhanded manner. We say freedom of disposition but really mean family maintenance with some exceptions, which favor those with resources. Bennardo wants our succession system to reflect its stated priorities. A family maintenance system should explicitly favor family members while one based around testamentary freedom should not favor any class of beneficiaries in this fashion.

Bennardo proposes a simple fix that would solve at least some of the problem: delete descriptions of beneficiaries as “natural” and replace them with a less judgmental word like “intended.” Secondly, Bennardo proposes that the “natural objects” language be removed from the tests for mental capacity and undue influence and from the construction of wills. Under this conception, beneficiaries would be approached neutrally, thus equalizing the treatment of traditional and nontraditional testators. An underlying unanswered question is how do we give testators their full freedom while protecting them from fortune hunters and scammers? The concern is that the law as it currently stands is invalidating too many wills that appear to reflect the legitimate wishes of the testator. A rule that allowed for more flexibility would allow more wills to pass muster but might leave us uncomfortable with some of the wills that make it through probate. No perfect answer exists but Bennardo’s proposal would improve the current situation.

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Solangel Maldonado

I last taught Wills, Estates, and Trusts in Spring 2025 to a large class with a fair number of students who were taking the course because the topic was likely to be tested on the bar exam.¹ Consequently, I was concerned that students would not be as engaged when we covered trusts which, in my experience, students find more challenging to grasp than intestacy or wills. The media’s Herculean efforts to provide coverage of the Rupert Murdoch family trust litigation despite the parties’ attempts to seal the entire court proceeding, however, brought trusts to life. Many students—especially those who were fans of Succession, the HBO series inspired by the Murdoch family’s power struggles—were fascinated and simultaneously disturbed by the use of trusts to preserve wealth and power with minimal regulation. This glimpse into a real-world Succession drama would not have been possible had the litigation remained cloaked in secrecy as Murdoch (the settlor) intended, and as recently enacted trust privacy statutes seem to authorize. In Secrecy in Trust Litigation, Weisbord, Horton, and Cahn expose the latest trend in the race to attract trust business—statutes that seal trust matters automatically—and conclude that these laws perpetuate wealth inequality, undermine judicial decisionmaking, thwart the development of trust law, and are unlikely to survive constitutional scrutiny.

The Article’s contributions are many but I will focus here on three. First, the Article provides a thorough account of how trust matters are sealed: (1) through a common law petition for a protective order in a specific case, which the Article refers to as “ad hoc sealing”, or (2) through recently enacted statutes that authorize sealing of the entire case as a matter of course or upon request, which the Article refers to as “super-sealing” statutes. Although ad hoc sealing requests are not novel, the Article analyses the conflicting standards applied by appellate courts when determining whether a trust matter should be sealed, specifically whether the parties’ privacy interests outweigh the public’s interest and right of access to court proceedings. It also examines a dataset of 1,431 trust matters filed in San Francisco Superior Court from 2014 to 2020 and finds that ad hoc sealing requests are quite rare (only 8 requests in 1,431 trust matters) and that the majority are denied.

Second, the Article demonstrates that states with super-sealing statutes condone a striking deviation from the norm of public access. While super-sealing statutes are in effect in only a handful of states and their application has only been challenged in one case—the Murdoch litigation in which the Nevada Supreme Court dodged the constitutional question—the Article argues that these statutes are unlikely to survive constitutional scrutiny. It shows that super-sealing statutes may violate the First Amendment, which the Supreme Court has interpreted to prohibit restriction of access to court records that have typically been accessible to the public unless the restriction is narrowly tailored. It further explains how these statutes may violate their respective state constitutions which guarantee open courts.

While these contributions are sufficient to make the Article a must read for anyone interested in open access to courts, the Article’s discussion of the policy issues raised by secrecy in trust litigation are particularly illuminating. It illustrates how super-sealing statutes exacerbate inequality between those with and without substantial wealth. It observes that our inheritance “system is already deeply unfair: it invites the wealthy to bypass probate and forces everyone else to leave a public record of their assets, debts, and (if they make a will) dispositive choices” and argues that “[i]t would be doubly unjust to allow the well-resourced to litigate behind closed doors while continuing to insist that the less fortunate sacrifice their privacy even in non-litigated matters.” (P. 42.) As the Article observes “[s]ealed trust litigation allows the wealthy to ‘purchase’ privacy.” (P. 42.)

In addition, the Article demonstrates how secrecy is likely to negatively impact judicial decisionmaking and the development of trust law—issues that should be of deep concern to lawyers, educators, and the public at large. It explains that secrecy deprives us of precedent. If matters are sealed, the public will lack access to court decisions that may impact future disputes and lawyers may be left unaware of the law in a particular state. Relatedly, it contends that super-sealing statutes may disincentivize judges from taking the time, care, and effort to draft detailed decisions that would aid readers others than the parties in the matter.

Although the Article opposes super-sealing statutes and concludes that there should be a presumption against sealing, it recognizes that restrictions on public access may be warranted in limited cases. It proposes principles that would allow lawmakers to balance parties’ legitimate privacy interests against the public’s right of access to court filings and proceedings. For example, it argues that courts should be required to make clear, specific, and publicly-recorded findings of potential harm in order to seal a matter and give limited weight to litigants’ wishes to seal.

Weisbord, Horton, and Cahn recognize that transparency, on its own, will not make our wealth transfer system more equitable. However, Secrecy in Trust Litigation exposes the many harms of sealing and furthers the effort to create a system in which the applicable inheritance rules do not distinguish between the haves and have-nots.

Editor’s Note: Professor Weisbord is a section editor for Jotwell’s Trusts & Estates section but took no part in the selectediting process for this jot.

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Reid Weisbord

Inheritance law scholarship usually addresses some form of the question: “Who gets what?” But in their remarkable new article, Uneven Ground: New Mexico as a Case Study of a Growing Rural Estate Planning Crisis, Sergio Pareja and Sophie Rane ask another important question: “Where?” Pareja and Rane’s landmark empirical study reveals that, in rural America, cracks are forming in the foundation of wealth transfer law’s basic infrastructure. The consequences are not merely delays or inconvenience. Societal problems include immobilized property, tangled titles, and, ultimately, the loss of intergenerational wealth.

The article opens with a story that captures the problem with unsettling clarity. A New Mexico couple died intestate. Probate was delayed for a few years but was then further complicated by fractionation of the couple’s property among eleven heirs who couldn’t agree on selection of an estate administrator. The probate proceeding was ultimately abandoned. The conclusion: “Today, a small residential parcel lingers in Elias and Eleanor’s names, likely unable to be sold or used as collateral for lending.”

Unfortunately, the story of Elias and Eleanor’s estates cannot be dismissed by scholars as mere anecdote, as the article goes on to explain. What makes Uneven Ground so Jotworthy is its ambition and methodology. Pareja and Rane’s research is the product of a grant-funded empirical study constructed from obituaries, probate files, Medicaid records, and other public data collected from three New Mexico counties—Chaves, Cibola, and Colfax. In a field where probate remains notoriously under-examined, this kind of on-the-ground data collection is especially useful and revelatory.

The result is a localized, record-based portrait of how estate planning and probate actually function in rural communities. This design allows the authors to move beyond abstractions about “access to justice” and, instead, to answer meaningful questions including who drafts wills, how often probate is used, and what happens when it is not. The inquiry’s geographic focus matters because the demographics of rural succession differ from urban and suburban locales. Rural residents tend to be older, less wealthy, and more likely to own property in the form of land and homes rather than liquid financial assets. Title clearance for real property owned at death usually requires probate proceedings unless the owners have undertaken some form of nonprobate estate planning. So, for rural families, probate avoidance or access is often an essential part of the wealth transmission process.

Two empirical findings stand out as particularly notable.

First, the study reveals the extraordinary extent to which rural estate planning depends on a single lawyer or small firm. The article reports that “a single two-person” law firm in Colfax County was responsible for drafting 24.1% of all wills included in the study’s dataset. In Chaves County, more than 25% of all wills were drafted by just one local attorney. Such a high concentration of legal output suggests that access to estate planning in some rural communities is not merely thin, but precariously dependent on individual practitioners whose retirement could directly impact the region’s rate of intestacy.

Second, the study reveals that, in other areas, such as Cibola County, most testators appear to be drafting wills themselves without the assistance of an attorney. Examination of the wills in Cibola County revealed that only a third of those documents were definitely drafted by an attorney. In a field as technical as trusts and estates, where execution formalities, capacity standards, and beneficiary designations can determine whether property passes smoothly or devolves into intestacy, this high rate of non-attorney drafting is remarkable. The scarcity of estate planning specialists and thin reliance on professional expertise raise serious questions about the long-term stability of wealth transmission in those areas.

The authors then document some of the downstream effects of the problems they identify. Probate inaction can lead to tangled titles, where property remains legally titled in the name of a deceased owner many years after death, rendering it unmarketable. They connect the tangled title phenomenon to a series of cascading harms: inability to borrow against property or participate in federal farming programs, difficulty obtaining insurance, barriers to FEMA relief, and vulnerability to tax foreclosure. These harms, in turn, can lead to wealth erosion that compounds over generations.

The article then widens the lens beyond the impact on individual families. Fractionated ownership and heirs property are often framed as private succession problems. Pareja and Rane show, however, that they generate community-level consequences: abandoned properties, rural blight, depressed surrounding land values, and the funneling of wealth out of already-disadvantaged regions. These ripple effects illustrate the real-world impact of probate system failure.

Finally, Uneven Ground resists the temptation to propose a single, sweeping recommendation for reform. The authors argue there is “no silver bullet,” calling instead for a multi-prong reform agenda: expanding the supply of legal services in rural areas, investing in outreach and education, improving probate accessibility, and modernizing transfer mechanisms such as transfer-on-death deeds and heirs property reforms. The strength of these proposals lies in their empirically grounded pragmatism, coupled with the caveat that meaningful progress will not come easily.

Pareja and Rane have done something rare in trusts-and-estates scholarship: they have built an empirical foundation for understanding a crisis hiding in plain sight. Uneven Ground should prompt scholars, policymakers, and practitioners alike to confront how uneven the terrain of inheritance law has become, and to recognize that repairing the rural wealth succession system represents an essential component of the broader access to justice agenda.

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Gerry W. Beyer

Who wouldn’t want to control things, even after death? The chance that your surviving family will not obey your wishes after you die is exactly why you create a last will and testament. We all long to control where our money and property goes, but shouldn’t people also be concerned with what for some of us is most important of all—where our body goes? William A. Drennan’s R.I.P.—A Financial Incentive to Protect Your Cadaver?, suggests a clever way for individuals to control the disposition of their body through financial incentives. This is valuable to everyone who wishes to have a body disposition different from what family members want for them as well as those who desire a unique or untraditional disposition. Drennan’s suggestion of financial incentives gives everyone what they want. You choose how to dispose of your final remains while your survivors get your cash.

In this article, Drennan points out although people have substantial control over what happens to their property after death, they have less power over what actually happens in the disposition of their own bodies. The article explains that state laws permit family members to override decedents’ instructions concerning the handling of their corpse. To address this, Drennan proposes the use of a financial incentive clause that gives the living family members a gift when and if they comply with a decedent’s specific disposition method. The article looks at the practicalities, enforceability, and public policy implications of this proposal while also uncovering philosophical tension between the rights of the dead and the interests of the living.

Historically, disposal of a body was limited to burial or fire cremation, which are still the most common and socially acceptable ways people choose for their final resting place. In recent years, however, the range of lawful ways to dispose of a corpse has expanded to include human composting, alkaline hydrolysis, cryogenic freezing, and plastination. There are accounts of people requesting anything from being buried in a Ferrari to “green burials” where eco-friendly or no embalming fluids are used. Consequently, as newer, unique options become available, traditional burial and cremation practices are declining. These developments increase the likelihood that a decedent’s wishes may conflict with the preference of surviving family members.

The author argues that, despite society’s respect for the dead, state laws and regulations often do not treat a person’s disposition instructions as legally binding. Instead, Drennan explains that courts frequently view these instructions as suggestions rather than directions that must be enforced. Most states, for example, have statutory hierarchies for determining who has decision-making authority, typically granted to surviving spouses or next of kin. Even when there are statutes that honor a decedent’s instructions, ways to enforce them are limited because decedents cannot personally advocate for their own interests. Courts are reluctant to disturb a completed burial or cremation, which makes remedies for violating the decedent’s instructions hard to correct or completely ineffective. As a result, Drennan explains, the living relatives often have ultimate control of the decedent’s body, even when exercising that control goes against the wishes of the decedent.

To resolve the issue, Drennan suggests conditioning a testamentary gift on a designated survivor’s compliance with the testator’s desired method of disposition. Drennan believes that financial incentives for compliance will suffice to ensure that the decedent’s disposition instructions are carried out. The article discusses drafting considerations, including the importance of choosing an appropriate advocate, deciding how much the incentive will be, and incorporating a gift-over provision if the condition is not met. Drennan also stresses the need for clear documentation and verification procedures to ensure that the instructions are met before the testamentary gift is distributed. This drafting technique shifts the power away from the statutory default towards the decedent’s instructions through the potential wealth gain for the person carrying out the instructions. Drennan considers this a strong strategy, although there is no case law addressing the enforceability of clauses such as this one, leaving its effectiveness unknown.

The main concern with this type of clause is that courts might deem it void as against public policy. Some may argue that quick and efficient disposition is essential, that funeral providers require certainty, and that the cost of the disposition method could lead to family conflict. A restriction on the continuing influence of the “dead hand” is potentially enough reason for these clauses to be held unenforceable. Drennan explains that courts may view this kind of control by decedents as injurious to the public welfare, and therefore a violation of public policy. Another issue the author addresses is the uncertainty with regard to funeral homes. While families are sorting out potentially complicated instructions from the decedent, funeral homes might have to store the person’s remains, creating an unideal situation for the funeral director. Lastly, Drennan acknowledges that “leaving it to the living” would promote harmony and compromise within the family, where complications arising the decedent’s instructions could potentially cause a rift. Drennan counters all these concerns with the fact that enforcing such clauses would not harm public welfare but merely reinforce the respect we have for personal autonomy and testamentary intent.

Drennan concludes his article by emphasizing that many individuals are more likely to care about where their cadavers go than any piece of property or money. Beyond this, the article dives deep into philosophical questions about whether postmortem bodily interest actually merits protection by the law. While some theorists argue that the dead can no longer experience hurt and therefore need no protection, others stress the cultural and moral importance of respecting one’s wishes after death. Ultimately, Drennan suggests that the law may be wrong in granting the dead so much control over their property, while according them less say over what happens to their own bodies after death. The proposed financial incentive clause to a designated survivor serves as a practical reform and a challenge to balance the power of the living over the wishes of the dead.

[Special thanks for the outstanding assistance of Allison Monacelli, J.D. Candidate May 2026, Texas Tech University School of Law, in preparing this review.]

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Sarah Waldeck

You should read Reimagining Marital Property At Death because it challenges the conventional conception that death ends the economic partnership between spouses. The authors’ insight that a marriage might (sort of) continue post-mortem prompts a reevaluation of how property is divided between spouses and of what it means to be married.

Professors Ram Rivlin and Shahar Lifshitz begin with mutuality and symmetry, two principles that inform how states divide property between spouses at death. (P. 364.) Symmetry dictates that the division of property should be the same regardless of whether a marriage ends in death or divorce. Because marital assets are divided equally in divorce, they should also be divided equally between the surviving spouse and the dead spouse’s estate. Mutuality dictates that both spouses should be able to devise half the proceeds from the economic partnership, regardless of which spouse dies first. States with an elective share that allows the surviving spouse to claim roughly half of the marital assets accept the principle of symmetry but reject mutuality because they do not provide a mechanism to transfer property from the surviving spouse to the dead spouse’s estate, even if the surviving spouse has a greater share of marital assets. Community property jurisdictions, on the other hand, embrace both symmetry and mutuality. These jurisdictions give spouses equal ownership of property earned during the marriage, thereby enabling each spouse to devise half of the marital property at death.

Reimagining Marital Property enters new territory by arguing that community property and common law jurisdictions should reject the principle of symmetry. (P. 364.) Professors Rivlin and Lifshitz make the commonsensical and convincing argument that divorce and death are different. The former is initiated by one of the spouses; the latter is imposed on the spouses by forces beyond anyone’s control. Divorce is the end of a failed marriage; death is often the end of a successful one. Most critically, the partnership between spouses can survive death in ways that it cannot survive divorce. (P. 365.)

Reimaging Marital Property leans into theory, sometimes at the risk of obscuring the insightful observations at the article’s core. But the authors’ command of theory is on full display as Professors Rivlin and Lifshitz explain how a spousal partnership can survive even though one spouse has died. They write about insurance-like bargains between spouses (with spouses contributing to the economic partnership during their lifetime knowing that one will live longer and require support) and the non-rivalrous relationship between the surviving and dead spouse (the surviving spouse has economic needs; the dead spouse does not). (P. 366.) But the notion of a “surviving partnership” is most compelling when the authors describe what readers will have witnessed or experienced themselves: “When one spouse dies, there is a sense in which the family still survives, represented by the surviving spouse, who continues to run the family and pursue the projects the couple undertook together, such as—paradigmatically—raising the couple’s children.” (P. 367.) Descriptions of the surviving spouse as the individual “who carries on the joint ventures of the partners” or of “the family home that continues to be the family home” resonate deeply. (P. 367.) Death ends the marriage, but not the spouses’ partnership.

Because the partnership survives, the authors propose a new default rule for community property and common law jurisdictions: all marital property—that is, property that was earned during marriage—goes to the surviving spouse. This default rule is radical even in community property jurisdictions, because the deceased spouse’s estate “cannot assert a claim to the portion of the marital property to which the deceased would have been entitled had the partners divorced.” (P. 368.) But it is particularly radical in common law jurisdictions because the default rule requires a clear delineation between marital and separate property—a delineation that common law states make in divorce but not at death.

Professors Rivlin and Lifshitz recognize that their default rule “does not suit every couple.” (P. 369.) Some spouses will want to use resources to prioritize their personal projects, like supporting children from outside the marriage. Moreover, not all marriages have a level of trust where one spouse can count on the other to continue to pursue the ends that both spouses valued. These spouses can use a will to terminate the surviving partnership. Just as either spouse can file for divorce, either can write a will that severs the surviving partnership and claims their share of the marital property for their estate. In community property jurisdictions, each spouse will have ownership of half of the marital property. But in common law jurisdictions “even the spouse without formal ownership of the assets [would be] entitled to write a will that enables her to claim her half of the family property if she predeceases her spouse.” (P. 372.) In addition to the use of wills, Reimagining Marital Property proposes other ways that spouses can “shape their financial relations…and opt for different sort of marital property regimes,” demonstrating the authors’ awareness that “different marital relationships call for different forms of financial partnerships.” (Pp. 408-409.)

The suggestion that a spouse in a common law state could write a will claiming assets not titled in their name reveals the distance between what Reimagining Marital Property proposes and the current state of the law. But the surviving partnership model also helps rationalize existing Estate law. Consider, for instance, intestate succession. Some community property states give the decedent’s marital property to the surviving spouse but divide separate property between the surviving spouse and the decedent’s other heirs. (P. 380.) Under the Uniform Probate Code, the amount a surviving spouse receives under intestacy depends on whether either spouse had a child from outside the marriage. These rules are usually justified by presumed decedent intent. But in keeping with the surviving partnership model, these rules also reflect the “nature and scope of the marital partnership…and [whether]…the main commitment of both parties is to each other and the joint unit they created together.” (Pp. 382-83.)

Reimagining Marital Property at Death offers a compelling argument for treating death differently from divorce, a bold new default rule, and a model that helps explain and conceptualize already-existing law. In addition, the “surviving partnership” theory at the heart of the article suggests that spouses can cheat death (at least a little). What’s not to like about that?

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Allison Anna Tait

Donative freedom is the guiding principle of inheritance law. This is something that many of us who teach the subject tell students every semester, at the outset of a Wills and Trusts class. We keep repeating this truism because donative freedom turns out to be the answer to many of the questions we encounter, questions about why a certain rule exists or why a court case produces a certain result. What happens less frequently is sustained inquiry into the principle of donative freedom, its history, and the political economy supporting it.

In their article, Donative Freedom, Disrupted, Carla Spivack and Deborah Gordon engage in just such an inquiry, taking on the primacy of donative freedom as an ordering mechanism and foundational principle in inheritance law. Three pillars, Spivack and Gordon tell us, have traditionally supported the edifice of donative freedom: philosophy, history, and economics. These pillars have been reinforced over time, bolstered in their foundation by theorists, legislators, and courts. Nonetheless, Spivack and Gordon observe, reports concerning the strength and utility of these pillars have been greatly exaggerated.

Philosophy, the first pillar, supports donor freedom by tying it to constitutive theories of property law, articulated in the writings of John Locke and others of like mind. This vein of philosophy justifies donor freedom by positing that “there is a natural right to property before the state’s involvement and that any governmental intrusion into a property owner’s disposition is just that—an intrusion into that right.” (P. 2.) This is the “earn it, own it” theory of property, which centers individual effort and individual rights. Lost in this framework, of course, are the contributions of the household and community, both direct and indirect, as well as the contributions of the state.

This perspective on property rights has led to numerous unjust outcomes over time, many of them gender-based. For example, without mechanisms to counter this principle—like the elective share or equitable distribution, the contributions of married women to family wealth can easily be discounted and ignored. Similarly, as we are watching happen in real time, this legal perspective allows billionaires to proclaim themselves as “self-made” when in fact they benefitted not only from family support but also from the public infrastructure that allowed their companies to operate, government benefits such as loan programs for small businesses, tax benefits and entitlements, and entrepreneurial grants.

The better way to think about property, Spivack and Gordon suggest, is to use Liam Murphy and Thomas Nagel’s theory, elaborated in the context of tax law but equally apt in the inheritance law domain. Their theory goes like this: income and wealth are made possible by government support and if we take government contributions into account—especially at death—the outcome does not necessarily align with outcomes driven by donor freedom. Put differently, we operate on the government’s tab and at death the tab closes and must be paid. Invoking donor freedom is a refusal to acknowledge this tab.

The second pillar that the authors tackle is history. Spivack and Gordon note that “the common law of inheritance is read to support an ever-widening definition of donor’s rights.” (P. 2.) But, they remark, what we take for “a jurisprudential trajectory toward unbridled donative freedom” (P. 14) is more aptly described as a set of developments “whose theme is pro-social and pro-family rather than individualistic.” (P. 14.) As a starting point, the authors remind us that donative freedom was traditionally disallowed in English law on account of primogeniture, one of the most important and central rules of English inheritance mandating that all land passed to eldest sons.

Moreover, even English supporters of donor freedom, like Sir William Blackstone whose commentaries were a cornerstone of legal authority, were moderate in their enthusiasm. Blackstone, for example, favored donor freedom as a means of creating a more equal society rather than vindicating an agenda of radical individualism. Blackstone encouraged donor freedom only insomuch as it created conditions to support the free exchange of property and the increase of “moderate and small landholders,” a class Blackstone considered vital to the success of a country.

Early American legislatures definitively rejected primogeniture as a vestige of decayed aristocratic property rules, a move that glorified donor freedom. However, colonial and early state legislators—like Blackstone—were more interested in preventing wealth concentration and the reification of the privileges of inherited wealth than they were in supporting donor freedom to the exclusion of other values. Anti-aristocratic sentiment nevertheless embedded the notion of donor freedom in American inheritance ideology and two later developments in the nineteenth century cemented the embrace of the concept: the introduction of psychiatric evidence into court proceedings and support for spendthrift trusts through several important judicial opinions.

In the first instance, Spivack and Gordon recount that a wave of broken wills, caused by the introduction at trial of psychiatric evidence concerning the mental state of the testator, “led to a backlash.” (P. 18.) Legal observers were shocked and slightly horrified that the wishes of propertied men were so easily undone by psychiatric evidence and, in response, courts and legislatures worked to confirm the idea that donative freedom was indeed the lodestar of analysis.

The second development was the judicial authorization of spendthrift trusts. Spendthrift trusts, trusts with provisions that prevented beneficiaries from alienating trust property and therefore helped guard against unwanted creditors, were essentially a legal promise that a donor’s wishes and legacy could not be undone by creditors. And while these trusts did receive legal imprimatur, Spivack and Gordon underscore that spendthrift trust rulings were not as broad as they are made out to be and endorsed the “disposition of assets in a prosocial direction.” (P. 23.)

The third and last pillar—economic rationales—is also a weak one according to Spivack and Gordon. The economic rationales that supporters of donative freedom have deployed are varied but they all, the authors tell us, are overrated. One rationale is that donative freedom supposedly motivates people to accumulate and that accumulation has positive downstream effects on the economy as a whole. But trickle-down doesn’t usually work and, the authors observe, “[d]onative freedom does not raise all boats.” (P. 31.) Quite the contrary, donative freedom increases inequality by allowing for wealth preservation mechanisms like domestic asset protection and dynasty trusts. The authors find other economic arguments, such as efficiency in wealth transfer and encouraging caregiving, similarly overstated.

Ultimately, identifying and dismantling these three pillars constitutes the major work of the article and a major contribution to our collective understanding of inheritance theory. But the authors also take care to remind us, in closing, of what the stakes are and why we should care about whether the pillars stand or fall. First and foremost, understanding the weak points in the architecture, where the pillars might crumble, is key to allowing reconstruction. Spivack and Gordon write: “Understanding that donative freedom is not a natural right, a historically ordained doctrine, or a social welfare maximizer is liberating. It frees us to cleanse our political and legal discourse of its corrupting influence and start again.” (P. 42.)

The call to create new frames and to change outcomes is invigorating, a call that is essential if we want to move past the current era, defined by its politics of greed and unfettered celebration of the individual rights of the wealthy. Taking the approach suggested by Spivack and Gordon, attenuation of donative freedom can be redefined not as a limit on individual rights but rather as the recognition of other people’s rights, rights that previously have been obscured from view. Change, stepping away from donor freedom, represents the push to reveal distribution patterns that more accurately reflect the inputs of both community and government and that model political theories of communal flourishing. Change is not redistribution but recalibration.

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Michael Yu

In Tax Sheltering Death Care, Professor Victoria J. Haneman proposes the creation of tax-advantaged 529 End-of-Life (EOL) Plans to incentivize individuals to plan for death care expenses (for funeral, burial, or cremation) in a thoughtful way. Her proposed 529 EOL Plan (which operates like the existing 529 Plan for educational expenses) is “politically strategic in its subtlety” according to Professor Haneman because it “provides both a structure through which savings is incentivized for all and a targeted deathcare benefit is also delivered to our most vulnerable.” (P. 630.)

Before discussing Professor Haneman’s proposed 529 EOL Plan, a brief explanation of existing 529 plans for educational expenses is in order. Professor Haneman notes that her proposal is similar to one type of existing 529 plans (a state-administered tax-deferred investment account for educational expenses) but not to a different type of plan (a prepaid tuition program for in-state post-secondary schools. (Pp. 647-48.) Existing 529 plans allow for an account: (1) to receive contributions, (2) to treat account income as income tax-exempt, and (3) to have account withdrawals be treated as income-tax exempt if the withdrawals are made for a “qualified” educational expense. (P. 648.) Although contributions to existing 529 plans are not deductible for federal income tax purposes, around thirty states allow some type of deduction against state taxes. (P. 648.)

Haneman’s essay raises several important questions. First, do death care expenses truly raise problems that merit legislative attention? Professor Haneman notes the following facts and makes the following points. The third largest category of expense over the lifetime of the average American includes funeral, burial, or cremation costs. (P. 624.) Many people are required to beg or borrow to pay for death care expenses or even to abandon human remains. (P. 624.) Twenty percent of millennials, in particular, have used crowdfunding for death care expenses. (P. 624.) GoFundMe, for example, has indicated that its users had posted more than 125,000 memorial fundraisers, raising at least $330 million each year. (P. 624.) For 2023, the median cost of a funeral in the United States exceeded $9,000 when 40% of Americans had difficulty covering an unexpected $400 expense. (P. 626.) Professor Haneman writes that, as to death care expenses, “lower income families [have been] spending than higher income families in every year studied for almost three decades” (P. 626), noting that “extraordinary levels of consumption relative to overall wealth occur for the at-need consumer, perhaps driven by guilt of loss—but sometimes because of a desire to satisfy community expectations or avoid judgment.” (P. 626, n. 17.)

Next, what issues must be addressed to solve the problem of death care affordability? Professor Haneman identifies the following underlying, overlapping issues. First, consumer behavior relating to death care services is aberrational because of a desire to render death invisible. (P. 625.) Second, the funeral industry has an outsized voice in its own regulation. (P. 625.) Third, there are no reliable and broadly available death care prepayment instruments. (P. 625.) Finally, there is, in general, resistance to “expanding the (arguably inadequate) social safety net in the U.S.” (P. 625.)

As to aberrational consumer behavior, Professor Haneman notes that death care services can be “planned or purchased ‘pre-need’ before death or ‘at-death’ after death.” (P. 635.) Although preplanning is more efficient and inexpensive, death care services in the United States tend to be purchased at death “because we live in a culture that strives to make death and dying invisible.” (P. 635.) Emotions after the death of a loved one may include grief, sadness, confusion, and guilt, which may lead to impulsive and unwise decisions. (P. 636.) Professor Haneman makes the interesting point that the bereaved may seek “confirmation for simple or basic decisions (‘what would you do here?’),” which can be problematic when confirmation is sought from funeral industry professionals who may benefit financially from their own recommendations. (P. 636.)

As to the funeral industry’s outsized role in its own regulation and the industry’s resistance to change, Professor Haneman identifies four market features that the funeral industry uses to drive profits: (1) a lack of transparency, (2) the open casket funeral, (3) regulatory gatekeeping, and (4) the vulnerable grieving consumer. (P. 652.) The foregoing features appear to overlap a bit: practices within the funeral industry inflate the price of death care services marketed to vulnerable, grieving consumers by saddling them with hidden costs. (P. 652.) This may include upselling an open casket funeral, with the casket usually being the single biggest expense in the funeral budget. (P. 652-53.) Open casket costs pay for “preparation of the remains for viewing (embalming, hair, makeup, styling), a viewing and ceremony (facility fees, printed materials, flowers), and cemetery expenses (plot, vault or liner, headstone or marker, flowers, graveside ceremony fees).” (P. 653.) Professor Haneman discusses how excessive regulation of the funeral industry “entrenches status quo and drives up cost for consumers.” (P. 653.) Regulation also can create barriers to new technologies such as alkaline hydrolysis (liquid cremation), natural organic reduction, and promession (freeze drying remains and then burial of the resulting powder). (Pp. 653-55.)

As to the lack of reliable and broadly available death care prepayment instruments, I learned a lot from Professor Haneman’s discussion of the following issues surrounding the use of insurance policies to fund pre-need funeral contracts with specific funeral homes. First, two states (New York and Alaska) prohibit the use of insurance policies to fund pre-need funeral contracts. (P. 642.) Second, many insurance plans are available to consumers only over a certain age. (P. 642.) Third, there may be a waiting period (of a year or more) before insurance benefits are available. (P. 642.) Fourth, the insurance benefits are not necessarily portable to different states and may not transfer to a different funeral home (P. 642.)

Amid all of the foregoing societal and individualized concerns about death care services, a proposal for 529 EOL Plans is, per Professor Haneman, “practical and feasible.” (P. 664.) It would “require only a simple amendment to the Internal Revenue Code to expand the federally tax-advantaged framework” to apply to qualified death care expenses. (P. 664.) It “may be made ‘spend-down eligible’ for Medicaid if irrevocable, with a named funeral agent designated on the account to arrange for use of funds on death.” (Pp. 664-65.) Any balance from the original individual’s 529 EOL Plan “may be transferred to the 529 EOL Plan of a qualified individual (defined to include family members).” (P. 665.)

The income tax treatment of 529 EOL Plans would mirror that of existing 529 Plans. While contributions to a 529 EOL Plan would come from after-tax money, all income earned in a 529 EOL Plan account would be exempt from income tax, and withdrawals from the account (also exempt from income tax) could only be used to pay for qualified death care expenses. (Pp. 648, 665.) Professor Haneman notes that “making these accounts spend-down eligible for Medicaid purposes will require that no unqualified distributions are permitted at all.” (P. 665.) Professor Haneman also tailors her proposal for 529 EOL Plans to lower-income individuals by limiting contributions to an account to a lifetime maximum of $2,500 to $5,000. (P. 667.) Tax refunds, refundable tax credits, and low contribution amounts (possibly from the account owner’s paycheck withdrawal) all could be deposited into a 529 EOL Plan. (P. 667.) Finally, “any remaining account balance can be rolled into the 529 EOL Plan of another owner, up to $3,000.” (P. 667.)

Professor Haneman concludes her article with persuasive arguments in support of “[f]ederal subsidization of deathcare saving” (in the form of 529 EOL Plans) because it expands the social safety net and helps provide for “the basic human need of dignified death care.” (P. 670.) First, she argues that ignoring systemic gaps in society that force grieving survivors to resort to social media and crowdfunding to pay for death care services is a “moral failure” because it “perpetuates systemic inequality by forcing people to beg for assistance”. (P. 670.) Second, “the Internal Revenue Code has served an important role in expanding the social safety net and engaging with poverty mitigation.” (P. 671.) Finally, “expanding the deathcare safety net through the 529 EOL Plan structure is appropriate and necessary because of state-level regulatory capture.” (P. 672.) Professor Haneman contends that, because state regulators of the funeral industry are arguably “captured by industry gatekeeping behaviors that discourage healthy competition,” federal subsidies such as the 529 EOL Plan “will circumvent state-level regulatory capture to shape policies intended to advance healthy competition within the deathcare market and may be directly tailored to do so.” (P. 672.)

Tax Sheltering Death Care persuasively argues that 529 EOL Plans would be both beneficial and politically feasible. Professor Haneman summarizes her proposal succinctly: “It is a program that will help to deliver resilience to our most vulnerable consumers and to provide a means by which dignified deathcare options will be available to all.” (P. 674.)

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Katheleen Guzman

Q: What happens if a joint tenant sues for partition and then dies?

A: Action ends, survivorship trumps…right?

Easy property questions, simply put and comfortable to ask, suggest easy answers. But particularly in law, and especially when tested against particular facts at a particular time and place, easy questions are also rare. Real property rules feel timeless and immutable—two qualities that are believed to encourage robust markets, avoid litigation, and offer clarity, efficiency, and speed. But context can change everything, and sometimes even the easiest questions become difficult to answer.

What effect does partition have on survivorship? And what effect does survivorship have on litigation? Liam Cronan collects and presents historical evidence to reveal that courts have been too quick to replace research and reason with “survivor takes all.” Through a recent case, Cronan shows that much more may and should turn on the specifics of extant statutes, including even colonial-era ones based upon some long-repealed 17^th-century English law of the land.

Dismissed at Death ably recounts the origins of the concurrent estate known as the joint tenancy, a story long and often told. Where A and B hold such an interest, the death of the first effects immediate and full ownership by the second via the “survivorship right,” a baked-in result unchanged by any succession plans of the first to die. At common law, it was presumed by default in deeds granting ownership to more than one person where the four unities of time, title, interest and possession existed. Modern law demands express language to override the current statutory presumption in favor of the tenancy in common. But it has always been easy to know a joint tenancy when you saw one: it was either presumed or so unambiguously created as to be unmistakable.

The relative clarity of creation is one thing. Destruction is another. Again, Cronan shares the familiar methods, most basically via conveyance from one joint tenant to another within or beyond the joint tenancy unit. Such severance would destroy the survivorship right by breaking the unities of time and title for the grantee of the interest conveyed.

Partition, whereby co-owners convert their proportionate ownership of an undivided whole into either separate physical portions or divvied proceeds of sale, presents an arresting intersection. As Cronan recaps:

[If] a joint tenant files for partition but dies before it is complete, the right of survivorship and the right to partition inherently conflict. [The filer’s death] implies that their share of the property should pass to the other tenants [who survived], but the [filer’s filing for] partition implies that they wanted to terminate the right of survivorship…[such that] their share of the property should not pass to the other joint tenants.” (P. 236.)

How should a court respond? Here is where Cronan contributes most originally to the discussion. After noting the common “central premise,” i.e. that a joint tenant’s death will simultaneously cause the abatement of the partition action and therefore preserve the right of survivorship, Cronan traces the developmental interplay between statute and common law to reveal the undertheorized and often ahistorical view upon which it rests.

To summarize his research:

1. All common law actions ended if a party died before the action was complete.
2. Absent particularized legislation, a pending action for partition would be no different.
3. Thus, a joint tenancy will survive the mere filing of a partition action with the filing tenant’s interest remaining unsevered from the survivors’ whole.
4. England enacted contrary legislation in the Partition Act of 1696: no partition action shall be abated/dismissed by reason of the death of any joint tenant.
5. “Deeply influenced” by the Act, some colonies and states followed suit.
6. While England later abolished the Partition Act and states are free to do so as well, statutes remain on the books (albeit usually overlooked or misconstrued).
7. As such, many partition actions should survive the death of the filing party where the statute speaks clearly enough and is properly, contextually read.
8. This would effectively continue partition through the filer’s estate and correlatively suspend the right of survivorship during pendency of the action.
9. Possibly resulting in ultimate severance and protecting tenants’ heirs’ longstanding statutory rights to continue a partition suit.

Cronan’s dive into Bracton- and Coke-era scholarship is valuable in itself, as are his reminders about statutory and common law (particularly given resurgent interest in partition under heirs’ property). He urges research care and rights-balancing, while rejecting the position that permitting survival of the partition action necessitates destruction of all survivorship rights. His view instead recognizes that where rights compete—such as the rights of testators to demand “no contest” versus those of contestants to access the courts; the rights of guardians to sell property of incapacitated owners versus those of will beneficiaries to avoid ademption; the rights of executors to liquidate and distribute versus those of beneficiaries to acquire estate assets—resolution will usually demand more nuance than a generalization can provide. There are exceptions to almost every rule, including statutory ones found in the very old books.

Dismissed at Death does more. Notwithstanding its seemingly narrow scope, the hard (or at least, harder) answers that Cronan encourages courts and commentators to seek from the past invite hard and harder questions for tomorrow, including messy ones about when certain property relationships “should” arise (or end) by contrast to when they traditionally “do.” These inquiries explore the gap between intent and sufficient acts, including whether it should be easier to exit an established relationship than get into it to begin with. Recent comparisons of the ease of will revocation (e.g., tearing) against the functions and formalities of their written execution illustrate the problem.

Cronan dances near the edge of a tougher question. Perhaps the mere filing of a partition action, irrespective of the timing of its filer’s death, should itself sever the joint tenancy. Modern courts routinely sidestep old requirements that the four unities be broken, including by finding severance buried within the commission of any act “inconsistent with” its continuation. Add up a few suppositions: joint tenancies are already disfavored and rare; restraints on alienation (even “soft” ones) are too; transactional, litigational, and donative freedoms are valued; “rights representation” is too. Perhaps most importantly, partition is deemed a critical property right, with any joint tenant able unilaterally (and even secretly) to sever survivorship anyway, perhaps through little more than a recorded “note to self.” If so, why shouldn’t the institution of litigation overtly designed to shatter concurrency also manifest intent, sufficiently, for severance to occur? If the fall of formalism in other contexts counts for anything, the question should at least be asked.

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Victoria J. Haneman

Professor Naomi Cahn’s recent article, Trusting Remedies for the Child Influencer Space: Blocked Trust Accounts and Child Beneficiaries, exists at the intersection of centuries-old legal doctrine and the technology-based influencer economy. The family influencer, parent-facilitated influencer, and kidfluencer spaces are thriving (from TikTok sponsorships to YouTube ads), and these are spaces in which federal protections for children are arguably inadequate. Instead, we must rely on limited oversight provided by a patchwork of state privacy and labor laws. A parental conflict of interest is inherent when a child is unable to give informed consent, and parents are overseeing a child who is also a profit center. As with child actors, the question becomes: who is overseeing or regulating the parents? The exploitation of successful children, including actors and athletes, is not a new concern, but current legal infrastructure does not apply neatly to protect child content creators. In her essay, Professor Cahn considers the way the blocked trust account may be reimagined to better protect kidfluencers.

For over a century, the legal system has vacillated between empowering parents as guardians and constraining them as potential exploiters, from child factory labor to Hollywood stardom. The kidfluencer economy heightens this tension: the “workplace” is not a set or a studio but the family living room, and the “manager” is often a parent with a smartphone. The intimacy of this arrangement makes oversight uniquely difficult and the risk of abuse correspondingly high. Cahn draws a straight line from the Coogan laws of the early twentieth century (designed to safeguard child actors’ wages) to the relatively unregulated frontier of contemporary influencer culture.

The mandatory blocked trust is a central feature of modern-day Coogan laws, but most child-influencer work is not currently covered by these laws unless a state has explicitly extended Coogan laws to child-influencer labor. The mandatory blocked trust is a statutorily required financial account into which a parent (or employer) must deposit a fixed percentage of a minor’s earnings, with those earnings “blocked” and inaccessible to parents or guardians but later released to the minor upon their reaching adulthood. It is an approach that offers many advantages to protect the earnings of child influencers with the language of trusteeship and the imposition of fiduciary duties. One must also be mindful of disadvantages. First, the parent establishes the trust and ensures the appropriate flow of money into the trust in the role of settlor (or creator) of the trust. If money is not routed appropriately into the trust, there is no breach of fiduciary duty remedy available against the settlor of the trust. Second, a beneficiary may sue the trustee for breach of fiduciary duty, but this requires both knowledge and access to information that is often not realistic for a minor.

Cahn is concerned that influencer kids are generating substantial revenue while performing labor, and the line between parenting and financial exploitation becomes blurred. Protecting child influencers with a Coogan-style mandatory blocked trust is doctrinally grounded and administratively feasible, but Cahn nicely summarizes the tweaks needed to ensure that it operates as intended to protect child content creators. This essay stands out because of the timeliness of the subject matter (the meteoric rise of “kidfluencers” is a multibillion-dollar phenomenon), and also because of the clarity with which Cahn situates her proposal within existing trust and estate frameworks. This is not speculative law reform in search of a hook: it is a deeply practical intervention rooted in trust law’s core function—preserving assets for beneficiaries.

Trusting Remedies for the Child Influencer Space pushes us to confront the uncomfortable reality that the law often lags behind the development of new technologies. The essay also serves as an important reminder that the trust as a legal arrangement is so durable and flexible that dusty doctrine protecting landed wealth for roughly four centuries continues to endure and is able to once again respond to the cultural moment. Professor Cahn demonstrates that while trust law was never designed with TikTok stars in mind, its enduring principles of fiduciary duty and asset preservation offer a surprisingly powerful scaffold for reform. This essay bridges family law, labor law, privacy law, and fiduciary duties, showing us that trusts and estates scholars have a unique perspective to offer in debates over digital labor and content creation.

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David Horton

When I read the premise of Mark Glover’s terrific new article Nominal Bequests—that some small-dollar gifts are problematic—I couldn’t help wonder whether it was a kind of stunt, like writing a novel without using the letter “e.” What could be wrong with testamentary gifts of trivial sums? Even if these bequests were somehow harmful, wouldn’t the payoff from regulating them pale in comparison to the costs? But Glover (who has been publishing up a storm) is waiting in the weeds with creative and thoughtful answers.

For starters, Glover argues that “[s]ome nominal bequests . . . are wasteful” and “undermine the fundamental policies of the law of succession.” He astutely observes that testators invariably make nominal bequests for one of two reasons. First, some are motivated by spite. Glover offers the real-life example of a mother who left each of her four daughters $1 and quips that she “wanted to give [them] something worse than nothing.” Second, Glover notes, other testators are laboring under a mistake of law. They want to disinherit the beneficiary entirely, but they incorrectly believe that they must acknowledge the individual to prevent a court from deeming the individual to be accidentally omitted. Either way, Glover contends, there’s no social value in implementing these testators’ wishes. Freedom of disposition supposedly encourages industry and thrift, but “[t]he donor has no reason to increase her wealth during life to functionally disinherit the beneficiary at death.”

In addition, Glover provides several crackerjack examples of how nominal bequests can cause headaches. For starters, he shows that they generate perverse results under standing doctrine. Most states bestow the right to challenge a will or a trust upon “interested person[s]”: very roughly, people who would reap a pecuniary benefit from the invalidity of the instrument. Suppose T leaves Son nothing in Will 1 and nothing in Will 2. Son isn’t an “interested person” with standing to contest Will 2 because even if Son won on the merits, Son wouldn’t take anything from Will 1. But now let’s say that T left Son $5 in Will 1. That changes the calculus: Son would take a five spot if he prevailed, which opens the courthouse door and allows him to “disrupt[ T’s] clearly established estate plan.” Similarly, Glover reveals that tiny gifts create administrative costs when a beneficiary who is closely related to the testator dies first. Under antilapse statutes, the predeceasing beneficiary’s descendants take whatever their ancestor was supposed to get. But when that share is a mere token, and there are many such descendants, the executor may spend resources to achieve a goal that has no discernible upside. Finally, Glover explains that the government must take custody of unclaimed property even when the amount is negligible. In turn, this means that the state “incurs costs associated with safekeeping unclaimed bequests, maintaining records, and processing claims.”

Finally, in an imaginative proposal, Glover urges the legal system to treat executors as having a special power of appointment over the de minimis bequest with the “beneficiary being the permissible appointee.” He explains that this would solve the problems he previously flagged by denying standing to the beneficiary and giving a trusted third party the discretion not to distribute the money if doing so would be expensive or burdensome.

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