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Estates and Trusts
UMKC School of Law
Hanna, Francis M.



I. The Power to Transmit Property at Death: It’s Justification and Limitations
a. The Right to Inherit and the Right to Convey
i. Inherited wealth is allowed in US but is heavily penalized (47% tax)
ii. Heirs are people who are related to you by blood and designated to get your property at death
1. Inheritance—by law
2. Will—by personal designation (no will = intestate, will = testate)
iii. Natural vs. Civil Rights
1. Civil rights are created and established by state
2. natural rights are things that exist w/o state
3. 1987 before then, SC said no natural or civil right to inherit wealth
iv. Hodel v. Irving (1987) (Regulation at issue was the Indian Land Conservation Act which was trying to stop fractionalization of Indian property—Indians passing property by inheritance rather then will meaning property was divided among all heirs and lead to really really small shares, Congress attempted to stop by making shares un-inheritable to individuals, only to tribe)
1. Few federal cases on estates and trusts issues b/c generally is state concern
2. O’Connor uses same line of reasoning for this case as is used for land-use cases
3. Issue: is regulating inheritance a taking?
4. Takings 5th A: can’t take w/o just compensation (must be for public use)—seen as a limitation on the government
5. Importance of case: creates a property right in the decedent to transfer property (NO RIGHT TO RECEIVE SOME ELSE’S PROPERTY AT DEATH)
6. Holding: transfer of property at death is a stick in the bundle of property rights and regulating that is a taking
a. Penn Central 3 Prong Test was used:
i. Investment Backed Expectations of the decedent: favors statute
1. court says isn’t really a factor b/c to qualify must have expectations to do something w/ the property (no right to inherit someone else’s property
ii. Average Reciprocity of Advantage: Favors Statute
1. weighs who is benefited b/c of the statute and who is hurt by the statute
2. person hurt is dead, people benefited are live tribe members, juries almost always favor live people
iii. Character of Government Action: Favors P’s
1. O’Connor says it completely abrogates ability to transfer property at death (questionable b/c could have done through Will, JTWROS, trusts, etc.)—use of these not prevalent in Indian culture
7. Holding: Can’t abolish both devise and descent, but O’Connor indicates that it might be possible to do away w/ only one
8. court chooses to define the rights very narrowly and looks at it as devise/descent / devise/descent which make it a 1:1 ration, instead of a 2:6, which the court didn’t think was enough




Right to transfer at death
(includes, Tenancy by the entirety, JTWROS, Gift Causa Mortis, remainders, devise, and descent)



hat permitted marriage will occur?
1. does internet expand this option?
iii. Pool Size Hypo
1. Do not marry African-American
a. Would bar marriage to 1/8 of population, so not violate pool size restriction, but is it enforceable?
i. No b/c violates public policy
2. Must marry African-American woman
a. Pool size is 1/8 of population—would be okay
b. Public Policy violation?
i. Probably not, preference for child marriage not wrong necessarily
3. Policy:
a. Is this really fair, father can’t be reasonable anymore, he’s dead—no flexibility
b. Typically under Jewish law, if mother is Jewish, you’re Jewish, Shapira made it more difficult b/c can’t cure by having wife convert
c. Don’t want to tear apart families, court only looks at face of document, what if never talk to brother or sister again, is this really result that we want?
d. Destruction of property at death, also a dead hand problem
i. Court prevented executor from tearing down testators house (who didn’t want other people living in it) b/c it was wasteful—could have destroyed during life, but lost that right at death
ii. Justice Hugo Black didn’t want his memoir kept about discussions and destroyed all papers
Probably wouldn’t have destroyed them after death b/c most people fee public had some rights to those papers, suggests greater property rights during life, then after death