David Horton, ‘Indescendibility’

Supposedly, one of the most important sticks in the bundle of property rights is the power to transfer an asset after death. This Article explores objects and entitlements that defy this norm. Indescendibility – the inability to pass property by will, trust, or intestacy – lurks throughout the legal system, from constitutional provisions barring hereditary privileges, to statutes that prohibit decedents from bequeathing their valuable body parts, to the ancient but misty doctrine that certain claims do not survive the plaintiff, to more prosaic matters such as season tickets, taxi cab medallions, frequent-flier miles, and social media accounts. The Article first identifies the common policy underpinnings of these diverse rules. It compares the related issue of market inalienability – the phenomenon of property that can be given away but not sold – and concludes that indescendibility often serves unique objectives. In particular, forbidding posthumous transfer can avoid administrative costs and signaling problems. The Article then uses these insights to propose reforms to the descendibility of body parts, causes of action, and items made non-inheritable by contract.

David Horton, ‘Indescendibility’. California Law Review, Vol 102, June 2014, No 3.

First posted 2014-08-28 06:18:16

Leave a Reply