A Critical Research Agenda for Wills, Trusts and Estates

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A Critical Research Agenda for Wills, Trusts and Estates

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A Critical Research Agenda for Wills, Trusts and Estates
By Bridget J. Crawford∗ and Anthony C. Infanti±
The law of wills, trusts, and estates could benefit from consideration of its development and impact on people of color; women of all colors; lesbian, gay, bisexual, and transgendered individuals; low-income and poor individuals; the disabled; and nontraditional families. One can measure the law’s commitment to justice and equality by understanding the impact on these historically disempowered groups of the laws of intestacy, spousal rights, child protection, will formalities, will contests, and will construction; the creation, operation and construction of trusts; fiduciary administration; creditors’ rights; asset protection; nonprobate transfers; planning for incapacity and death; and wealth transfer taxation. This essay reviews examples of what the authors call “critical trusts and estates scholarship” and identifies additional avenues of inquiry that might be fruitfully pursued by other scholars who are interested in bringing an “outsider” perspective to their work in this area.
A parent may be critical of a teenager’s revealing outfit. A novel may experience critical success. The bookstore may carry a critical edition of Shakespeare’s sonnets. A particular task may be critical to a mission. The word “critical” has multiple meanings. As we consider the outlines of a “critical” research agenda for wills, trusts and estates, it is important to clarify what we mean by the term. If one understands “critical” to mean judgmental, often in a negative sense, then a critical research agenda may be nothing special. After all, a legal scholar’s stock in trade is identifying a particular law’s shortcomings and proposing remedies to cure its defects. Similarly if “critical” refers to the judgment of a group of evaluators, any trusts and estates scholarship might meet critical acclaim, garner mixed reviews, or face critical oblivion when it is ignored altogether. Or, a “critical” collection of scholarship might be akin to an anthology or compilation of all important academic work on a
∗ Bridget J. Crawford is a Professor of Law at Pace University School of Law. B.A. Yale University. J.D. University of Pennsylvania Law School. ± Anthony C. Infanti is a Professor of Law and the Associate Dean for Academic Affairs at the University of Pittsburgh School of Law. B.A. Drew University. J.D. University of California, Boalt Hall School of Law. LL.M. in Taxation, New York University School of Law.

particular subtopic within the trusts and estates field; that is, the scholarship could be critical in the sense that it is necessary or key to understanding a field.
None of these meanings is what we have in mind when we talk about a “critical” research agenda for trusts and estates. For us, critical scholarship uses an “outsider” perspective as a lens to examine the substance and structure of the law. This means more than just making the obligatory passing reference to race, class, gender, or sexual orientation in a law review article. It means examining why the law has developed the way it has and considering what impact the law has on historically disempowered groups such as people of color; women of all colors; lesbian, gay, bisexual, and transgendered individuals; low-income and poor individuals; the disabled; and nontraditional families.
In the allied area of taxation, a small but steady stream of scholarship has emerged over the past two decades. Taken together, this work constitutes the incipient body critical tax scholarship. Both of us self-identify as members of this “movement.” We contend that scholarship in the area of the law of wills, trusts, and estates could benefit from similar consideration of the structure and operation of the laws of intestacy, spousal rights, child protection, will formalities, will contests, and will construction; the creation, operation and construction of trusts; fiduciary administration; creditors’ rights; asset protection; nonprobate transfers; planning for incapacity and death; and wealth transfer taxation. In each of these areas, it is important to interrogate how and why the law operates to privilege certain kind of people, property, families and transfers.
One might naturally ask why being critical is important in these two “money” areas of the law. It is important because “the suppression of economic personality is intricately connected to the denial of political personality and citizenship. In fact, economic discrimination may be viewed as a key manifestation of political marginalization and social subordination.”1 In other words, understanding (1) how “money law” operates to benefit certain groups and (2) who those groups are helps to reveal structural barriers to economic flourishing and to expose inequality. Inequality in the economic realm often tracks social and political inequality as well.
This essay provides samples of scholarship that fall loosely in the category of what we call “critical” trusts and estates scholarship. Not all of the authors teach primarily in the trusts and estates area, or even in law schools at all. We do not include here the “best” scholarship, but rather a sample of what we found interesting. The work for all of us is to discover
1 Adrienne D. Davis, The Private Law of Race and Sex: An Antebellum Perspective 51 STAN. L. REV. 221, 283 (1999).

and write more of it. To that end, we point out in each of the areas covered in this essay several topics left uncovered and questions that remain to be answered in the hope that others will take up the challenge of adding to this burgeoning literature.
Race is central to the story of American property law. Native Americans lived on land later claimed by colonists and settlers in the name of European monarchs.2 Through a series of sales3 and then treaties4 -many of which came to be criticized as greatly disadvantageous to the Native Americans5 -- European governments took title to land in the area now known as the eastern United States. Settlers received land grants from the crown and then established homes, businesses and agrarian operations,6 many of which benefitted from the labor of enslaved Native Americans and then enslaved Africans.7 The laws of some colonies codified the status of slaves as property, not persons, beginning as early as 1669.8 Slavery developed into a widespread, brutal and exploitative
2 See, e.g., HOWARD ZINN, A PEOPLE’S HISTORY OF THE UNITED STATES 12-16 (1980) (describing pattern of violent capitalistic interactions between Indians and English settlers); WILLIAM CRONON, CHANGES IN THE LAND: INDIANS, COLONISTS, AND THE ECOLOGY OF NEW ENGLAND (2011) (colonists’ changes to land and environment). 3 The most famous of these is perhaps the sale of Manhattan for an alleged twenty-four dollars. See DANIEL J. BOORSTIN, THE AMERICANS: THE NATIONAL EXPERIENCE 259 (1965) (“In 1626, Peter Minuet, in charge of the Dutch settlement on Manhattan Island, paid the Indians sixty gulden for that twenty-thousand acre tract of woodland.”) 4 See, e.g., John R. Wunder, “Merciless Indian Savages” and the Declaration of Independence: Native Americans Translate the Ecunnaunuxulgee Document, 25 AM. INDIAN L. REV. 65, 72 (“Between 1777 and 1785, the states of South Carolina, Georgia, North Carolina, and Virginia forced the Cherokees to cede nearly 10,000 acres.”). 5 Otoe & Missouria Tribe of Indians v. United States, 131 F. Supp. 265, 276-277 (Ct. Cl.) cert. denied, 350 U.S. 848 (1955) (noting that legislative history of Indian Claims Commission Act reflected Congress desire to create remedy in cases “where the Government's dealings with Indians concerning that same property right were less than fair and honorable,” inter alia) . 6 See David A. Thomas, Why the Public Plundering of Private Property is Still a Very Bad Idea, 41 REAL PROP. PROB. & TR. J. 25, 51 (2006) (in seventeenth century Virginia, “by several devices the vast lands of tidewater Virginia began to shift into private ownership. Farmers completing their tenancies might be in position to buy land outright. Settlers could receive land for their work, and if they properly exploited their first grant, they could receive a second grant of equal size without further investment. Likewise, investors received grants in recognition of their stock, with further grants to follow if the first were profitably developed.”). 7 Laurence Armand French, Native American Reparations: Five Hundred Years and Counting, in WHEN SORRY ISN'T ENOUGH: THE CONTROVERSY OVER APOLOGIES AND REPARATIONS FOR HUMAN INJUSTICE 241, 242 (Roy L. Brooks ed., 1999) (Indian slavery was “not unusual” in certain colonies) 8 See Paul Finkelman, Slavery in the United States: Persons or Property? in THE LEGAL UNDERSTANDING OF SLAVERY FROM HISTORICAL TO THE CONTEMPORARY (Jean Allain

institution in the colonies and then the United States.9 The institution denied slaves basic human dignities and treated slaves as legal objects, not legal subjects.10
The obvious intersections of race, property and testation have been rich inspiration for the work of historians and legal scholars alike.11 Stephen Duane Davis II and Alfred L. Brophy provide an example of empirical research in their study of 110 wills probated in Greene County, Alabama from 1831 to 1835 and 1841 to 1845. 12 The testators they studied were primarily wealthy men who left their property to family members, often through sophisticated trusts. Davis and Brophy look in particular at testators who attempted testamentary manumission of their slaves and the legal constraints in Alabama against doing so. Davis and Brophy are careful to identify the limitations of their research, listing the both the qualitative questions that their research did not answer and inviting further comparative empirical study of wills probated in other Alabama counties.
Adrienne D. Davis does a close reading of several probate cases in her exploration, The Private Law of Race and Sex: An Antebellum Perspective.13 In this article, Professor Davis studies a series of judicial decisions involving testamentary transfers by men, mostly white, to women who were former slaves and with whom the testator had a sexual relationship.14 Many of the women in the cases shared children with the testator. Professor Davis is interested in sorting through “those sexual or
ed. 2012), 105-134, 113-114 (describing Virginia law of 1669 providing for immunity for slave owners who caused death when punishing own slaves). 9 See, e.g., DAVID BRION DAVIS, INHUMAN BONDAGE: THE RISE AND FALL OF SLAVERY IN THE NEW WORLD (2006). 10 See, e.g., M. Eugene Sirmans, The Legal Status of the Slave in South Carolina, 16701740, 28 J. S. HIST. 462 (1962) (slaves treated as legal chattel). 11 See, e.g., WE ARE YOUR SISTERS: BLACK WOMEN IN THE NINETEENTH CENTURY (Dorothy Sterling ed. 1984) (identifying 100 wills in which white men transferred property by will to black women); CAROLE SHAMMAS, MARYLYNN SLAMON & MICHEL DAHLIN, INHERITANCE IN AMERICA FROM COLONIAL TIMES UNTIL THE PRESENT (1987); HENDRIK A. HARTOG, SOMEDAY ALL THIS WILL BE YOURS: A HISTORY OF INHERITANCE AND OLD AGE (2012). 12 The Davis-Brophy study is modeled after a similar study conducted in San Bernadino County, California by Stanford Law Professor Lawrence M. Friedman and his co-authors. See Lawrence M. Friedman, et al., The Inheritance Process in San Bernardino, California, 1964: A Research Note, 43 HOUS. L. REV. 1445 (2007). 13 Adrienne D. Davis, The Private Law of Race and Sex: An Antebellum Perspective 51 STAN. L. REV. 221 (1999). 14 Professor Davis explains her rejection of terms like “mistress,” “lover,” or “partner,” among others, to describe these relationships: “Many phrases which appear descriptive, or which I might use as terms of art, carry too much social baggage to be helpful….[M]ost of these terms cannot account for the complexity of nineteenth century male sexual power combined with race and status differences.” Id. at n.17.

biological relationships that yield legal obligations and entitlements and those that do not,”15 and the way that race factors into the determination. She discusses the case of Jolliffe v. Fanning & Phillips,16 in which the nominated executors under one will sought to set aside a subsequentlyexecuted will in which the white testator freed his concubine and their shared children and directed the liquidation of his estate for their benefit. The concubine and children were located in Ohio, but the testator’s will was probated in South Carolina, his presumed domicile. South Carolina law prohibited testamentary manumission of slaves. The court upheld the disposition in favor of the concubine and the shared children on the grounds that they had been freed during the testator’s lifetime (and thus the attempted testamentary manumission was invalid, but the validity of the will itself was undisturbed). While noting the positive outcome for the testator’s intended beneficiaries, Professor Davis examines a tension in the court’s rhetoric between deference to testamentary freedom and overt disapproval of the testator’s private sexual choices.17 The article explains how the law confronted these conflicts between “the ideologies of property and race,” along with other conflicting ideologies of “race, sexuality and gender roles.”18
Another example of an historical exploration of testation and race is Kevin Noble Maillard’s The Color of Testamentary Freedom.19 In that article, Professor Maillard raises questions about the role of race in courts’ willingness to uphold donative transfers. He uses as his focal point two will contests involving the family of Paul Remley of Charleston, South Carolina. The elder Mr. Remley left property to his wife and appointed his son Paul Durbin Remley as administrator. A collateral relative stepped forward to assert that Mr. Remley’s widow was a slave, and as such, the bequest to her was invalid and Paul Durbin Remley was ineligible to serve as administrator.20 This claim was defeated upon community testimony that the widow was treated by her church and other neighbors as white.21 Mr. Remley’s will was upheld only after a judicial showing of the whiteness of his wife, and thus, their children.
When Mr. Remley’s son, Paul Durbin Remley, died three years after his father, he left his estate in trust for the benefit a slave, with whom
15 Id. at 225. 16 44 S.C.L. (10 Rich.) 186 (1856). 17 Davis, supra note 13, at 256 (the court’s opinion “gave legal force to Willis’ [the testator’s] impulse to provide for his black family, even as it strongly condemned the conduct that motivated him”). 18 Id. at 286. 19 Kevin Noble Maillard, The Color of Testamentary Freedom, 62 SMU L. REV. 1783 (2009). 20 Id. at 1797-1798. 21 Id.

he fathered to children, and their mixed-race children. Remley’s siblings, whose white racial identity had been challenged in the earlier will contest, then stepped forward to contest the validity of the younger Remley’s bequest for the benefit of his slave family. At the time, South Carolina law prohibited bequests to slaves.22 The case was settled after the enactment of the Thirteenth Amendment outlawing slavery, and the amount of the testamentary trust was sharply reduced.23 Professor Maillard argues that this case illustrates that the court “and collateral heirs ignore testamentary language to reformulate a will to more closely conform to state-mandated schemes of distribution.”24 In other words, race had everything to do with how both generation of Remley family wills were interpreted.
The historical experience of slavery and the law of succession give rise to a contemporary problem in modern-day South Carolina, as explored by Professor Faith Rivers in her work on African-American “heirs’ property” in the Lowcountry of South Carolina. Her article Inequity in Equity: The Tragedy of Tenancy in Common for Heirs’ Property Owners Facing Partition in Equity25 explains South Carolina’s experience of post-Civil War land distribution. Although the South Carolina Land Commission was poorly managed and ultimately benefitted more whites than blacks, these sales, combined with private transactions and federal sales, enabled 16,000 African-Americans to acquire 50,000 acres, mostly in South Carolina’s Lowcountry.26 As Professor Rivers explains, however, a variety of factors -- including low numbers of African-American lawyers, general distrust of private attorneys, and high costs -- kept many Lowcountry landowners from turning to lawyers for advice on property-related issues, such as succession.27 Without a will, the law of intestacy governs the disposition of a decedent’s property, resulting in fractionalization of property interests when, for example, a landowner who is survived by five children and no spouse, each child will take a one-fifth interest in the property as tenants in common. Practically speaking, over generations, property ownership becomes increasingly fractionalized. A single parcel of property may be owned by hundreds of family members, some of whom are only distantly related, and may not know each other at all.28
22 Id. at n.127 (Act to Prevent the Emancipation of Slaves, and for Other Purposes (1841) (citations omitted). 23 Maillard, supra note 19, at 1809. 24 Maillard, supra note 19, at 1804. 25 Faith Rivers, Inequity in Equity: The Tragedy of Tenancy in Common for Heirs’ Property Owners Facing Partition in Equity, 17 TEMP. POL. & CIV. RTS. L. REV. 1 (20072008). 26 Id. at 25. 27 Id. at 26-28 28 “[T]he entire class of heirs’ property owners -- ranging from small, nuclear families of siblings who inherit property from the original purchasers, to hundreds of cousins and

Separate from property management concerns, tenancy in common gives rise to the possibility of a forced partition by sale. Legally speaking, if the tenants in common cannot agree on how the property should be used, the appropriate legal remedy is partition. Depending on the jurisdiction, the partition may be in kind, i.e., division of the property into individually-owned interests representing each owner’s fractional interest in the whole,29 or by sale and division of the proceeds. Using cases from the nineteenth century, Professor Rivers reveals that South Carolina’s partition doctrine has roots in the system of slavery, as partition (by sale) was the remedy developed by courts in cases where human beings regarded by law as property, or slaves, comprised part of a decedent’s estate.30 Because South Carolina’s doctrine is partition by sale, then all it takes in contemporary South Carolina Lowcountry is one disgruntled coowner -- or perhaps one approached by an unscrupulous developer -- to force other owners of to sell. Professor Rivers is concerned that owners of “heirs’ property,” as this fractionated Lowcountry property is called, could be subject to pressures from developers to sell their land, thus suffering the fate of Hilton Head Island, South Carolina, which used to have a population that was 90% black and was less than 15% black in 1975.31
In considering how to stem the possible erosion of black-owned property, Professor Rivers notes with approval other jurisdictions’ experience with partition in-kind and rules that would grant a right of first refusal of sorts to co-owners,32 as well as other states’ more protective procedural rules for partition.33
Professor Rivers’ work builds on an earlier article, Through a Colored Looking Glass: A View of Judicial Partition, Family Land Loss, and Rule Setting,34 by Phyllis Craig-Taylor. Professor Craig-Taylor provides a thorough history and overview of the development of the American law of partition and offers a biting critique of the “inconsistencies and potential unfairness” produced in most cases involving a sale of property after judicial partition.35 Professor CraigTaylor argues that African-Americans have been disproportionately
relatives who inherited property over the course of 150 years -- are left to ‘work out among themselves’ how property will be managed.” Id. at 51 (citation omitted). 29 BLACK’S LAW DICTIONARY (9th ed. 2009), partition. 30 Rivers, supra note 25, 39-40. 31 Id. at 30. 32 Id. at 69-71. 33 Id. at 74-75. 34 Phyllis Craig-Taylor, Through a Colored Looking Glass: A View of Judicial Partition, Family Land Loss, and Rule Setting, 78 Wash. U. L.Q. 737 (2000). 35 Id. at 759.

affected by the judicial partition cases, because are more likely than whites to inherit property via intestacy, and thus own fractionated interests in land.36 She also claims that the history of African-Americans in this country causes them to value land ownership more than other types of asset ownership,37 and as such, land ownership is a sort of cultural patrimony being destroyed by judicial partition. Professor Craig-Smith proposes modification of partition laws to make it more difficult to force the sale of property owned as tenants in common, as well as a generous “redemption period,” in which non-selling family members would have the right to buy the property from those wishing to force the sale.38
Palma Joy Strand provides a contemporary perspective on race and inheritance in her article Inheriting Inequality: Weath, Race, and the Laws of Succession.39 Strand is concerned with the ways that inheritance perpetuates wealth disparities between black and white households. She presents data about overallwealth inequality in the United States, and examines wealth disparities among whites and among blacks. She finds a more significant intra-racial disparity among blacks than among whites.40 Strand observes that comparatively fewer blacks than whites receive inheritances.41 She claims that racial wealth disparities are “today’s version of yesterday’s segregation and the slavery of the day before,”42 or, in other words, the present-day consequences of past de facto and de jure discrimination. To remedy racial disparities, Strand suggests treating gifts, bequests, devises and inheritances as income.43 She also notes problems that arise with “heirs’ property,” as Faith Rivers does in her study of South Carolina.44 Strand explains how the failure to probate an estate and clear title to what may be the family’s largest asset -- the home - wealth can erode in a matter of one or two generations. Strand proposes reforming the intestacy statute to eliminate fractionated ownership of small estates consisting of a family home and to simplify transfer of title at death.45 This portion of Strand’s investigation might provide the fruitful
36 Id. at 737 (“African Americans tend not to engage in estate planning; thus disproportionately, their real property passes under the laws of intestacy, making t more likely for property to be owned under the co-ownership forms that are subject to partition.”) (citations omitted). 37 Id. at 737 (“cultural and sociological studies suggest that African Americans value land ownership beyond the market value that the relevant land commands”). 38 Craig-Taylor, supra note 34, at 780-785. 39 Palma Joy Strand, Inheriting Inequality: Wealth, Race, and the Laws of Succession, 89 OR. L. REV. 453 (2010-2011). 40 Id. at 462-463. 41 Id. at 467. 42 Id. at 377 (emphasis in the original). 43 Strand, supra note 39, at 485. 44 See supra notes __ to ___. 45 Strand, supra note 39, at 501.

basis for additional scholarship, in an effort to create sensible rules that are easy to administer and ones that do justice.
Most of the scholarship involving race and testation tends to be historical. The relative availability of formal court records make wills particularly ripe for empirical and qualitative studies. To be sure, much work remains to be done to reveal how testators in different parts of the country historically have disposed of their property and how past sociolegal and political events caused patterns of testation to change. Formal legal documents such as wills and trusts can reveal a wealth of information about the racial attitudes and hierarchies of previous generations. Existing scholarship focuses on slavery in the American South. Scholars might choose to explore historic wills in the Midwest or West, areas with different historic experiences of racial inclusion and exclusion. Stories of patterns of testation and property ownership among people of Chinese, Japanese and Mexican ancestry, among others, are waiting to be told.
Contemporary wills practice, particularly as it relates to race, is another wide-open scholarly ground waiting to be occupied. Cross-racial studies of wealth accumulation and transmission could effectively move scholarship in this area out of a black-white binary to reveal more nuanced understandings of different attitudes and behaviors concerning wealth and inheritance. There appears to be no substantial legal scholarship addressing contemporary Asian-American, Latino or Native American testation.
Robust critical scholarship in the area of wills, trusts and estates might fruitfully begin to look behind the study of wills themselves to intersections of race with other areas. For example, consider patterns and practices of planning for incapacity and death. Are some racial groups more likely to execute living wills and health care proxies? If so, why is this the case? What cultural factors might influence those practices? On the subject of trusts, scholars might look at the extent to which charitable giving, particularly in the form of trusts, has been used to replicate or disrupt racial hierarchies. A worthwhile scholarly project might be mapping judicial responses to them in different historical and contemporary contexts. A variety of “Indian funds” are held by the federal government,46 and academic inquiry of the operation of these trusts could fruitfully illuminate issues of self-determination and ownership that are of great importance to Native Americans. There is so much more to discover about the intersections of race with wills, trusts and estates.
46 See, e.g., American Indian Trust Fund Management Reform Act of 1994, Pub. L. No. 103-412, 108 Stat. 4293 (1994) (codified as amended at 25 U.S.C.S. §§ 4001-61(2012)).

Scholarship in the area of wills, trusts and estates that is concerned with gender tends to address one of three questions: (1) How are women’s wills different than men’s wills? (2) How does the probate process or the substance of wills that have been probated implicate questions of gender? (3) How does gender inform attitudes toward estate planning?
A. Women’s and Men’s Wills
An excellent example of scholarship in this first category is Kristine Knapulund’s article The Evolution of Women’s Rights in Inheritance.47 Knaplund made a detailed study of 246 probate files from Los Angeles County, California in 1893.48 She locates her work in the larger historical context of the 1861 California Married Womens’ Property Act which allowed women to manage and control their separate property and subsequent legislative changes enacted in 1872 that gave women full control over their separate property.49 Knaplund found that a substantial number of women executed wills (29% of testate decedents were women)50, that women were more likely than men to leave their property to children or family members than to a surviving spouse,51 and that property left to women typically passed outright, and not in trust.52 Professor Knaplund’s archive-based methodology is consistent with the same empirical tradition that informed earlier studies by Steven Duane Davis II and Alfred L. Brophy,53 among others.54 Knaplund’s work enhances understanding of “women as an economic force in California” in
47 Kristine S. Knaplund, The Evolution of Women's Rights in Inheritance, 19 HASTINGS WOMEN'S L.J. 39 (2008). 48 Id. at 5-6. 49 Id. 50 Id. at Figure 6. 51 Id. at 39. 52 Knaplund, supra note 47, at 39. 53 See supra notes __ and accompanying text. 54 Knaplund cites to seven other empirical studies of wills with “comparable methodology” to the one deployed in her project: Steuart Henderson Britt, The Significance of the Last Will and Testament, 8 J. OF SOC. PSYCHOL. 247 (1937); Allison Dunham, The Method, Process and Frequency of Wealth Transmission at Death, 30 U. CHI. L. REV. 241 (1962-63); Lawrence M. Friedman, Patterns of Testation in the 19th Century: A Study of Essex County (New Jersey) Wills, 8 AM. J. OF LEGL HIST. 24 (1964); Contemporary Studies Project, A Comparison of Iowans’ Dispositive Preferences with Selected Provisions of the Iowa and Uniform Probate Codes, 63 IOWA L. REV. 1941 (1977-78); Olin L. Browder, Jr., Recent Patterns of Testate Succession in the United States and England, 67 MICH. L. REV. 1303 (1968-69); Edward J. Ward and J.J. Beuscher, The Inheritance Process in Wisconsin, 1950 WIS. L. REV. 393 (1950). See also Davis and Brophy, supra note ___.