Post by Sapphire Capital on Aug 15, 2008 21:53:04 GMT 4
Consequences of Heirs' Misconduct: Moving from Rules to Discretion
Anne-Marie Rhodes
Ohio North University Law Review, Vol. 33, p. 975, 2007
Abstract:
This paper will examine the current statutory bars to inheritance of a presumptive heir in the United States, primarily from the perspectives of the statutory conduct required, the theory underlying the statute (whether decedent's intent or public policy), and the consequences on inheritance of that conduct. Legislatures have not moved boldly in this area, perhaps reflecting a general reluctance to wade too far into family matters, allowing a zone of privacy for the day to day details of family affairs. This recognition of legislative limits may proceed from notions of individual autonomy and liberty in consensual matters, or more pragmatically, from concerns about institutional efficiency. We know that every family has issues, and we just don't want to go there. A third possibility is the traditional perspective that the criminal code, not the probate code, is the proper venue for such concerns about misconduct.
It is the thesis of this paper that the legislative reluctance to bar inheritance based on a misconduct continues and that the existing disinheritance statutes reflect a confusion of purpose and an ambiguity of theory. Part I considers the traditional adultery and murder bars to inheritance, and examines their underlying theories and the statutory consequences of the misconduct. Part II moves to the newer statutory bars of abandonment and abuse and similarly examines their theories and consequences. Part III considers the limits of legislative pronouncements on misconduct in the larger context of succession law reform.
papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1118020_code711694.pdf?abstractid=1118020&mirid=3
Anne-Marie Rhodes
Ohio North University Law Review, Vol. 33, p. 975, 2007
Abstract:
This paper will examine the current statutory bars to inheritance of a presumptive heir in the United States, primarily from the perspectives of the statutory conduct required, the theory underlying the statute (whether decedent's intent or public policy), and the consequences on inheritance of that conduct. Legislatures have not moved boldly in this area, perhaps reflecting a general reluctance to wade too far into family matters, allowing a zone of privacy for the day to day details of family affairs. This recognition of legislative limits may proceed from notions of individual autonomy and liberty in consensual matters, or more pragmatically, from concerns about institutional efficiency. We know that every family has issues, and we just don't want to go there. A third possibility is the traditional perspective that the criminal code, not the probate code, is the proper venue for such concerns about misconduct.
It is the thesis of this paper that the legislative reluctance to bar inheritance based on a misconduct continues and that the existing disinheritance statutes reflect a confusion of purpose and an ambiguity of theory. Part I considers the traditional adultery and murder bars to inheritance, and examines their underlying theories and the statutory consequences of the misconduct. Part II moves to the newer statutory bars of abandonment and abuse and similarly examines their theories and consequences. Part III considers the limits of legislative pronouncements on misconduct in the larger context of succession law reform.
papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1118020_code711694.pdf?abstractid=1118020&mirid=3