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2015 Jotwell: J. Things We Like [1] (2015)

handle is hein.journals/jotwell2015 and id is 1 raw text is: The Heir Who Laughs, Laughs Last http://trustest.jotwell.com/the-heir-who-laughs-laughs-last/ John V. Orth, The Lau i, 48 Real Prop., Tr. & Est. L.J. 321 (2013). Camille Davidson Professor John V. Orth takes a look at the limitations of intestate succession in his recent article, The Laughing Heir What's So Funny. Unless an individual is the last human being on earth, when he or she dies, a surviving relative will exist. How closely related should the relative be to the decedent in order to inherit the decedent's estate through intestate succession? Common law canons of inheritance did not include a decedent's ancestors as his or her heirs. Surviving spouses were also excluded. If a decedent had no descendants, his or her nearest collateral relatives inherited the estate. As long as there was proof of a blood relationship, a remote collateral could inherit the decedent's estate. Now, in the United States, surviving spouses are heirs. Also, ancestors may inherit when a decedent is not survived by a spouse or descendants. About half of states have unlimited collateral succession. The other half limit intestate succession by collaterals based on either parentelic lines, degree of relationship or some combination of the two. When limitations are strict, the likelihood of a decedent's estate escheating increases. So the question becomes, who has the last laugh? The state or a remote collateral relative. Professor Orth suggests that a 1935 article by Professor David Cavers influenced states to adopt limitations on intestate succession. In the article, Cavers suggested that only descendants of a decedent's parents (first parentelic line) should inherit through intestate succession. His suggested limitation was based on the shift from rural to urban life. He argued that relatives who are scattered in different locales have no sentiment of relationship and family pride diminishes. For such individuals to inherit is a social injustice, according to Cavers, because they suffer no sense of loss. In the years following the Cavers article, many states began to place limitations on intestate succession. Professor Orth challenges the Cavers assertion. No state intestate succession statute lists the emotional reaction of the decedent's death as a requirement for inheritance. There are plenty of close relatives who have no emotional connection to a decedent. So, if intestate succession is an estate plan by default then why do we impose any limits?

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