Mark Glover, ‘Freedom of Inheritance’

The donor is the primary decision-maker regarding the distribution of her property after death, as the law grants her broad freedom of disposition to decide what property should go to which donees. The rationale underlying freedom of disposition is that the choices of individual donors produce results that maximize social welfare. Policymakers are rightful skeptical that they can craft a mandatory estate plan that fits all situations or that probate courts can consistently and accurately access the merits of particular dispositions of property. By contrast, the donor is in the best position to evaluate her own specific circumstances and to place property in the hands of the donees who will benefit the most.

The donor, however, is not the sole decision-maker regarding the disposition of her property after death. To be sure, she enjoys broad freedom to craft an estate plan to her liking. But when the donor decides to make a gift to a particular donee, the donee must also make a decision. Specifically, she must decide either to accept the gift from the donor or to reject it. Whereas the donor’s discretion to decide which testamentary gifts to make is referred to as freedom of disposition, the donee’s discretion to decide which testamentary gifts to accept or to reject can be labeled ‘freedom of inheritance’.

Although legal scholars have paid much attention to the donor’s freedom of disposition and have explained that it plays an important role in maximizing social welfare, relatively little attention has been paid to the donee’s freedom of inheritance and the role it plays in maximizing the utility generated from the donor’s estate. To fill this analytical void, this Article defines the donee’s freedom of inheritance and identifies how it works in concert with the donor’s freedom of disposition to maximize social welfare. Ultimately, this Article argues that the donee’s freedom of inheritance is an important part of the process of transferring wealth after death and that policymakers should strive to facilitate the donee’s exercise of this freedom when crafting the law of succession.

Glover, Mark, Freedom of Inheritance (March 31, 2016). 2017 Utah Law Review, forthcoming.

First posted 2016-04-18 06:27:18

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