92 W. Va. L. Rev. 441 (1989-1990)
Preventing Spousal Disinheritance: An Equitable Solution

handle is hein.journals/wvb92 and id is 453 raw text is: PREVENTING SPOUSAL DISINHERITANCE:
AN EQUITABLE SOLUTION
I.   INTRODUCTION        ....................................................... 441
II.   HISTORICAL BACKGROUND               ........................................ 443
III. FRAUrD ON THE WIDOW'S SHARE: THE JUDICIAL
APPROACH       .......................................        ............. 444
A.     The Problems Presented            by  Will Substitutes ........ 444
B.    The Judicial Approach           ..................................... 446
1.   Illusory Transfer         Test ............................. 446
2,    Intent to Defraud          Test .........           ........ 447
3.    Present Donative Intent            Test ................... 449
4.    Synopsis .................................................. 450
IV.    WEST VIRGINIA         FORCED     SHARE LAW         ......................... 452
V.    STATUTORY ALTERNATIVES ....................................... 455
VI.    CONCLUSION        .......................................................... 457
I. INTRODUCTION
For centuries men and women have wrestled with the problem
of spousal disinheritance.' For every determined effort to devise an
equitable and foolproof mechanism to prevent disinheritance, there
have been equally determined efforts to accomplish exactly that. The
approach used most frequently today in the separate property ju-
risdictions,2 like West Virginia, is the statutory forced share which
1. See infra notes 13-25 and accompanying text.
2. It is important to note that forced share law is a consequence of the concept of separate
ownership of marital property. In the community-property states (community of acquests), each spouse
has an immediate one-half interest in the fruits of the marriage in recognition of the collaborative
nature of marriage, and thus a forced share law is unnecessary (except that California and Idaho
have addressed the problem of migratory spouses through the application of a statutory share to
quasi-community property acquired elsewhere which would have been community property if it had
been earned in a community-property state). See Langbein & Waggoner, Redesigning the Spouse's
Forced Share, 22 REAL PROP., PROB. & TR. J. 303 (1987).

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