Trusts and Estates I
Professor Lawrence Waggoner
CHAPTER ONE: Introduction to Family Law
I. The Family Property Lawyer
A. See Roberta Cooper Ramo, Musings of a Family Lawyer, 22 Prob. Law 1, 11-13
B. Text’s goal is to present the social and legal foundations of family property law.
II. Shifting Demographics and Their Implication for a Family Property Lawyer
A. Baby Boomers
1. Boomers will inherit unprecedented wealth from parents.
2. Huge increases in philanthropy expected.
a. “A Survey of the new Rich” The Economist, June 16, 2001 at 3.
b. Phase out of federal estate tax on charitable giving.
B. Bull market of the late 1990’s created an amazing amount of new wealth.
C. Challenges arising from the changing American family profile.
1. The marriage rate fell between 1970 and 1996, while the divorce rate increased.
2. Almost 32% of the births in 1996 were to unmarried mothers, compared with 18% in 1980, and 23% of children live in a home with only their mother.
3. The number of same-sex and opposite-sex couples who are cohabitating has also drastically increased.
4. Increased longevity
a. Defined benefit and contribution retirement plans
b. Post-widowhood romances and remarriages late in life
c. Increased longevity with bad health
d. Increases chances of unusual order of deaths
D. All of these changes will have a significant impact on the family property lawyer’s job, and part of it will be designing solutions to meet these new challenges.
1. For example, the prevalence of divorce and remarriage may have a substantial effect on intergenerational transfers.
2. Additionally, due to the fact that people 85 years of age and older are surviving in record numbers, it will not be uncommon for four living generations to exist at one time.
III. Donative Freedom
A. Cultural Tradition
1. Freedom of disposition is the organizing principle of the American law of donative transfers. American society generally allows and endorses the ability of a property owner to dispose of his wealth however and to whomever he pleases.
a. However, there are issues with the free disposition of large amounts of wealth. It seems to run counter to the American idea that wealth should be earned, rather than inherited (balance freedom of disposition against right of recipient to receive unearned wealth, creation of American “aristocracy”).
b. Most households do not expect to receive an inheritance, or expect to inherit a very small one. Only 5% of the American public expects to receive a large inheritance.
B. Constitutional Protection?
1. Although donative freedom has a strong cultural tradition in Anglo-American law, it is a statutory creation and is not considered to be constitutionally protected against all forms of interference or limitation – indeed, it is not completely unfettered in American law.
a. The Supreme Court has upheld the constitutionality of t
ll of his property, he is said to have died partially intestate, rather than partially testate.
4. Under English law, inheritance of land was called descent and succession to personal property was called distribution.
a. The word inheritance originally meant intestate succession to land. Those who took land by intestacy were called heirs.
b. Statutes on intestate succession are called statutes of descent and distribution.
c. Those who take personal property by intestacy were called distributees or next of kin.
5. Testate succession’s history is similar to that of intestacy.
a. In older usage, a disposition of land by will was a devise, and the one to whom land was given was a devisee.
b. A disposition of personal property was a legacy or bequest, and the recipient was a legatee.
i. Today, these words are used almost interchangeably, esp. devisee and legatee.
ii.UPC § 1-201 defines the word “devise” as “a testamentary disposition of real or personal property.”
6. Most rules of intestate succession to real and personal property follow a single pattern in over two-thirds of American states. However, one important distinction remains in most states.