Private Law Theory

Abstract
Wealth transfer law reform in the United States has been almost singularly dominated by principles of donative autonomy and dispositional freedom. In its unhesitating pursuit of donor preference facilitation, however, wealth transfer law has overlooked important governmental interests in the regulation of gratuitous transfers.

This Article proposes a novel unifying theory for regulating gifts, wills, and trusts by arguing that the law should better account for three aspects of the governmental stake in private wealth transfer: (1) the enforcement of criminal and civil laws, (2) the conservation and allocation of public financial resources, and (3) efficiency in the administration of justice. In light of these sovereignty principles, this Article then examines four contexts of wealth transfer law that exhibit missing or misplaced mandates that undermine governmental interests and, in some instances, donor preferences as well: (1) the permissible scope of trust privacy, (2) enforceability of disclaimers subject to government liens, (3) mandates imposing reformation and the admissibility of extrinsic evidence, and (4) the unenforceability of no contest and arbitration clauses. In each context, this Article proposes reforms to enhance doctrinal coherence and strike a more careful balance between governmental interests and individual autonomy.

Reid Kress Weisbord, The Governmental Stake In Private Wealth Transfer, Boston University Law Review volume 98:1229 (2018).

First posted 2018-11-05 13:35:01