•  
  •  
 
Florida A & M University Law Review

Abstract

In the United States (“U.S.”), the foundation of succession law is the freedom of disposition. Priority is placed on the testator’s freedom to choose what happens with their property after they die. Thus, laws governing the distribution of property in both testate and intestate situations are aimed at honoring the testator’s intent. In the U.S., spouses are given preferential treatment under succession laws and intestacy laws. However, children are not given as great a level of protection as spouses and a testator can legally disinherit a child. This approach is unique because several other countries, along with one U.S. state, have some form of a forced inheritance for children. Proponents of a forced inheritance for children note the negative externalities associated with disinheriting kids and have analyzed the potential economic benefits of using a standards-based approach to children’s disinheritance, rather than the U.S. rule allowing disinheritance under all circumstances. On the other hand, research in favor of prioritizing spouses under succession laws shows that there can be economic benefits because it leaves a surviving spouse in a stronger financial position. This article serves as a comparative analysis from an economic perspective of the two succession systems: one where the spouses are prioritized over children and one where children are given a forced share of their parents’ estate. Further, this article argues that rather than a blanket allowance or blanket disallowance of the disinheritance of children no matter the situation, the better approach from an economic perspective could be to adopt a standards-based approach where child disinheritance is allowed only in certain circumstances. This article contributes to the growing area of research that relates economic concepts to succession law.

Download

Included in

Law Commons

Share

COinS