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45 U. Mich. J.L. Reform 787 (2011-2012)
The Probate Definition of Family: A Proposal for Guided Discretion in Intestacy

handle is hein.journals/umijlr45 and id is 807 raw text is: THE PROBATE DEFINITION OF FAMILY: A PROPOSAL FOR GUIDED DISCRETION IN INTESTACY Susan N. Gary* Intestacy statutes may not match the wishes of many people who die intestate. Changes to the Uniform Probate Code (UPC) include or exclude potential takers, as the drafters attempt to bring the UPC provisions closer to the intent of more in- testate decedents. As the UPC tries to fine-tune the intestacy statutes, however, family circumstances continue to get more and more complicated. Families headed by unmarried couples, blended families with children from multiple marriages, and families in which adults raise children who are not legally theirs, have become commonplace. For some decedents, non-family friends and caregivers may be more important than legal relatives. Given the diversity of decedents'family structures and wishes with respect to their property, constructing an intestacy statute based on fixed rules has become ever more problematic. This Article examines the UPC's treatment of the family in the intestacy rules and looks at provisions from other state intestacy statutes. The Article analyzes the defini- tions of spouse and child and identifies problems created by the current definitions. The Article reviews some of the many proposals for intestacy reform, espe- cially those that advocate a degree of judicial discretion. After discussing provisions in the UPC and a few state statutes that already permit judicial discretion, the Arti- cle proposes an intestacy statute that provides a relatively simple default rule for inheritance and permits judicial discretion, exercised within a framework of statutory guidance, to determine the proper distribution of an intestate's property. INTRODUCTION The UPC and statutes in all states provide default rules that di- rect the distribution of property when a person dies with probate property and without a will. The default rules-intestacy statutes- give the decedent's property to members of the decedent's family, following rigid relationship rules based on legal status.' For the most part, functional relationships do not affect inheritance, OrlandoJ. and Marian H. Hollis Professor of Law, University of Oregon School of Law. The author would like to thank Professor Adam Hirsch for helpful suggestions on a draft of this Article and Zachary Harris and Megan Salsbury-Thayer for valuable research assistance. 1. See, e.g., UNIF. PROBATE CODE §§ 2-102 to -103 (2011), 8 U.L.A. pt. 1, at 36-37 (1998). 787

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