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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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