Mandating financial responsibility for the care of children during one's lifetime is without question. Child support laws have been implemented in every state in America based on the inherent duty to financially support dependent children. Some laws even extend that duty to provide financial support to children over the age of eighteen when the child has a disability or pursues higher education.
Just as entrenched is the right of a decedent to dispose of his property as he pleases, known as freedom of disposition. Every state has intestacy provisions that provide for disposition of property after a decedent's death, trumped by specific wishes of the decedent in the form of a Last Will and Testament or any other testamentary document. When these two principles clash, which public policy principle should prevail, freedom of disposition or duty to financially support children?
The duty to support children should be paramount in any just legal system, especially after death when a source of financial support is no longer available. As such, testamentary freedoms should be subordinate to the duty to financially support children. In order to ensure financial protection of children, forced shares should be implemented to provide financial provisions to minor children in testate estates. Additionally, an elective share system should be adopted to provide minimum financial support to adult children, based on age, in testate estates.
This Article explores historical justifications for favoring freedom of disposition and also provides a comparative analysis of how other countries deal with the duty to support families, specifically children, after death. The selected civil jurisdictions for the focus of this Article are Spain, Louisiana and British Columbia. The selected jurisdictions under common law systems are New Zealand, Canada and the United Kingdom.
Phyllis C. Taite, Freedom of Disposition v. Duty of Support: What's a Child Worth?, 2019 WIS. L. REV. 325, 348 (2019).