About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

18 Law & Ineq. 1 (2000)
Adapting Intestacy Laws to Changing Families

handle is hein.journals/lieq18 and id is 7 raw text is: Adapting Intestacy Laws to Changing Families Susan N. Gary* Introduction Intestacy statutes provide for the disposition of a decedent's probate property when the decedent dies without a valid will.1 Intestacy statutes create, in effect, a statutory will-a will in which the government, rather than the individual, determines the dispositive terms.2 An analysis of intestacy law must begin with the recognition that an intestacy statute cannot work equally well for every potential decedent. Indeed, developing an intestacy statute that will meet the needs or wishes of all persons is both unnecessary and impossible. There are too many variations on what decedents want, too many family situations to consider and too many special circumstances surrounding individual decedents. An intestacy statute can serve as a default rule, but a person whose wishes do not fit the default rule must execute a will.3 Any adult with *Assistant Professor of Law, University of Oregon. The author thanks David M. English, Mary Louise Fellows, Alexander B. Murphy, Nancy E. Shurtz, E. Gary Spitko and Dominick Vetri for extremely helpful comments on this Article; Susanna Brennan, Daniel P. McGee and Maria Carnevale for research assistance; and Karen Spradling for administrative and secretarial support. 1. Intestacy statutes only govern the disposition of property held in the decedent's name alone. See JESSE DUKEMINIER & STANLEY M. JOHANSON, WILLS, TRUSTS, AND ESTATES 36-39 (5th ed. 1995). The probate process administers and distributes a decedents property either pursuant to the decedent's will or by intestacy. See id. Property held in a way that avoids probate-in trust, in joint tenancy or subject to a beneficiary designation-will pass pursuant to the trust document, operation of law or contract. See id. 2. Cf. Gerry W. Beyer, Statutoty Fill-in Will Forms-The First Decade: Theoretical Constructs and Empirical Findings, 72 OR. L. REV. 769, 774 (1993) (stating that statutory wills have many benefits, but that improvements could be made). 3. See Lawrence W. Waggoner, Marital Property Rights in TD'ansition, 59 Mo. L. REV. 21, 29 (1994) (Stating: No intestacy regime can hope to be 'suitable' for every person who dies intestate. People whose individuated intention differs from common intention must assume the responsibility of making a will; otherwise, their property will be distributed, by default, according to common intention or,

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most