Dismantling the Trusts and Estates Canon

Abstract

Law. Thanks to Carla Spivack for her support, to June Carbone and Bridget Crawford for their comments, and to Olivia Soloperto and Christine Kumar for research assistance. Some of the ideas explored in this piece have been developed through work with June Carbone, Nancy Levit, and Amy Ziettlow. I am grateful to the Wisconsin Law Review for making this symposium-and my keynote-possible.

Marginalized legal categories: Social inequality, family structure, and the laws of intestacy

“…The law's preference for traditional family structures is at odds with the growing prevalence of nontraditional families (e.g., Cahn, 2019;Gary, 2002Gary, , 2012Wright & Sterner, 2017). The composition and membership of many contemporary families defy marital and blood relations, and/or extend beyond household boundaries (Brown & Manning, 2009;Cherlin, 2010).…”

“…This would occur if individuals with such family structures lacked wealth to pass on at death or if the wealth they owned was subject to a will or will substitute. 4 While a growing body of legal scholarship challenges the design of the laws of intestacy in light of changing patterns of family formation (e.g., Cahn, 2019;Crawford & Infanti, 2014;Gallanis, 2004;Gary, 2002Gary, , 2012Spitko, 1999;Waggoner, 2015;Wright & Sterner, 2017), detailed demographic analysis of their application is limited. Thus, several questions remain unanswered.…”

“…As a result, the average efficacy of intestacy laws may vary across sociodemographic status groups. This raises the possibility that the laws of intestacy may violate individuals' rights to equal protection under the law by systematically failing to meet the needs of certain sociodemographic groups (Cahn, 2019, fn 50).…”