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Trusts and Estates
Temple University School of Law
Anderson, Mark F.

A. Power to Transmit Property at Death: Justification and Limitations

Historical Background:
– Jefferson: Property belongs to the living, should revert to society upon death
– Blackstone: inheritance is not a natural right, but arises out of conveyance.
– Locke: children have a natural right to inherit from their parents

vHodel v. Irving (SC, 1987): §207 of Indian Land Consolidation Act denied owners of fractional interests of Indian reservations the right to devise that land to heirs when the fraction is less than 2% of the entire track and earns less than $100 annually, and instead, requires the land escheat to the tribe.
· ISSUE: Whether denying plaintiffs/decedents the right to property to which §207 applies constitutes a taking under the fifth amendment, and thus requires just comensation?
· HELD: YES. The statute denies both the descendent and devisee the property, and it is neither of de minmus value, or effectively bypassed by inter vivos transfers, the total abrogation of the right is unconstitutional.
· RATIONALE: the statute completely abrogates both parties of their right to the property, and does not advance the government purpose
o Regulatory Taking: Not a physical take but a regulation that goes too far – that was what this law did because it took away all control (cannot transfer to heirs)
o Reciprocity of advantage: while some cant leave property when they died, it would go to the tribe members who are under the same limitations
o State law of the domicile at time of death governs
o Publicity rights last the same as copyrights- 70 years after death

vShaw Family Archives v. CMG Worldwide (SDNY, 2007): SFA, the family of a photographer, produced and sold Marilyn Monroe T-shirts for Target in Indiana. MMLLC brought suit claiming the publicity rights belonged to them, Marilyn’s estate. However, at the time of her death, neither California nor NY law (her only 2 domiciles) recognized the right to postmortem publicity rights.
· ISSUE: do the heirs to the estate have the rights of post mortem publicity that as established after her death?
· HELD: NO. Neither NY nor California recognized post mortem publicity rights at the time of her death, and because neither state allows division of interests obtained post mortem, those interests are not passed to the estate.
v While Cali and Indiana have establish the right to devise publicity interests upon death, the deceased must have had those rights At The Time of Death.
v Several months following the decision, the California statute was amended to extend the right to devise publicity interests when those interests did not exist at the time of death. However, district courts in both states found that Monroe was a domiciliary of NY at the time of the death, and has a result, NY law applies.

1. Policy of Passing Wealth at Death:
Pros: Least objectionable arrangement for dealing with property upon death
Con: Perpetuates wide disparities of wealth, concentrates wealth and denies poor equality of opportunity

3. Problem of the Dead Hand Control: Restatement (Third) of Property: Wills and Other Donative Transfers (2003): §10.1 – Donor’s intent determines the meaning of a donative document and is given effect to the maximum extent allowed by law
vFreedom of disposition. Donor’s intention also determines effect of a donative document. Law’s function is to facilitate rather than regulate.
vLimits: Creditors, RAP, Illegal activities, Spousal rights

vShapira v. Union National Bank Youngstown, OH (1974) – rights of the receiver: Dr. Shapira’s will states that his oldest son must marry a Jewish girl whose parents are both Jewish within 7 years of the death to receive his bequest. If not, then it goes to the younger son under the same conditions. If not to the younger son, then to the state of Israel. The son challenges the will on 2 grounds: Constitutional claim: Does this violate the right to marry as protected by the 14th amendment (equal protection violation)? NO. The condition must be reasonable. Gifts conditioned on marrying someone within a particular religious class or faith are reasonable. Public Policy claim: Is the will a restraint on marriage? NO. It is not the court’s duty to judge the testator’s decision but to honor his intention within the limits of the law and public policy. Public policy should not and does not preclude the fulfillment of Dr. Shapira’s wishes.
vComplete restraints on marriage are impermissible but here there was only a partial restraint. The restraint would also be void if the son was already married to a non-Jew because it went against the policy disfavoring divorce.
vHis provision reflects the depth of his convictions.
vPosner’s view: this is decidedly different from contractual relationships because the decedent is dead. There is no room for recontracting.

Are the re other substantive limits on testamentary freedom?
– promoting social order
Why have any limits at all?
– Invalidating trusts or wills that encourage disruption of a family relationship
– Invalidating trusts that are contrary to public policy. Restatement (Third) of Trusts §29(c): cigarette smoker example. Man who put a condition in his will that his wife must smoke 5 cigarettes a day to inherit the house and estate.

– Should have made the provision so that it would be a periodic payment as long as still married b/c could have got married à got the $ and divorced


A. Transfer of Decedant’s Estate pages 38-49
Professional Responsibility

Probate ànon probate way more popular, by not using a will or intesticies à life insurance policy, joint tenancy (real property or joint bank accounts), irrevocable intervivos trust (like a will by another name – transferred title to property to a trustee, provision that when you die the property goes to someone else)

Probate has an advantage to preclude creditors – claims must be filed quickly, if not they are cut off à not so in non-probate

A. The Basic Scheme
1. Introduction:

intestacy – (default rule) background law that lawyers plan around

should reflect what the decedent wanted
distribution of probate property is governed by the statute of descent and distribution of each state

partial intestacy – when the will is poorly drafted disposing of only part of the probate estate
personal property – governed by law of the state where the decedent was domiciled at death

UPC (2008 Amendments):
§2-101: Intestate Estate:
(a) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this Code, except as modified by the decedent’s will.
(b) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his [or her] intestate share.

§2-102: Share of Spouse: The intestate share of a decedent’s surviving spouse is:
(1) the entire intestate estate if:
(i) no descendant or parent of the decedent survives the decedent; or
(ii) all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
(2) the first [$ 300

ving spouses, including intestacy and elective share rights
· Vermont – civil unions are open only to same-sex couples but give many of the same rights as marriage gives
· California –domestic partners – gives full rights to a spousal intestate or elective share

Simultaneous Death: Person succeeds to the property of a decedent only of the person survives the decedent for an instant of time.
USDA (Uniform Simultaneous Death Act) was drafted to deal with this problem
· If there is no sufficient evidence of the order of deaths, the beneficiary is deemed to have predeceased the donor. Thus, neither inherits from the other.
· If 2 joint tenants died, the property is divided in half.
· The same applies to property held in tenancy by the entirety or community property.
· For life insurance, proceeds are distributed as if the insured survived the beneficiary.
· What constitutes “sufficient evidence”?
· Act was reviewed in 1991 after the following case.
· When it’s not clear who actually died first…Which set of parents actually take the money. What should happen? Both sets of parents should get equal amounts. Maybe in cases where there is a common cause of death. There may be a perverse incentive to keep people alive, maybe prolonging their suffering.

vJanus v. Tarasewicz (1985): Husband and wife die after they ingest Tylenol laced with cyanide by an unknown perpetrator prior to its sale in stores. H was pronounced dead shortly after they were found and W was placed on life support for the next 2 days. H’s mother is bringing this action for his $100,000 life insurance policy which named W as the beneficiary and subsequently went to W’s father. Relevant statute states that in the absence of sufficient evidence who did die first: H’s property outside the marriage is disposed of as if he had outlived W. Joint property was divided down the middle. An expert testified that after reviewing Theresa’s EEG, he concluded that it was very likely that the electrical activity was a result of interference from surrounding equipment in the ICU à Theresa was probably brain dead at the time of her admission but it was still unclear as to who died first. Is there sufficient evidence to prove that both victims did not suffer brain death prior to their arrival at the hospital?
vShe was declared dead after him à sufficient enough evidence to say she died after him even if maybe she did not
· Regardless of which standard of death is applied, survivorship is a fact which must be proved by a preponderance of the evidence by the party whose claim depends on survivorship.
· Task is to determine whether the trial court’s finding was against the manifest weight of the evidence. It was held not to be, sufficient evidence that W survived H.

Statutory solution of UPC §§ 2-104 and 2-702 to the problem of sufficient evidence
vratchet up the burden of proof from sufficient evidence to clear and convincing evidence that they did not die simultaneously- presumption they died at the same time