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

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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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