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Public Attitudes About Property Distribution at Death and Intestate Succession Laws in the United States

Published online by Cambridge University Press:  20 November 2018

Mary Louis Fellows ,
Rita J. Simon  and
William Rau
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Abstract

Intestate succession statutes should reflect the distributive preferences of intestate decedents. To date, these distributive preferences could only be inferred from distributive patterns found in wills. This telephone survey of 750 persons living in Alabama, California, Massachusetts, Ohio, and Texas supplements prior will studies and provides new insights concerning public attitudes about property distribution at death. The distributive preferences of the respondents revealed few significant differences that could be attributed to age, education, income, wealth, or occupational status. Two other important findings of this study suggest that a modern intestacy statute should provide that (1) the surviving spouse inherit the entire estate in preference to the decedent's issue or family of orientation and (2) issue who are in the same generation share equally in the estate.

Type
Research Article
Information
American Bar Foundation Research Journal , Volume 3 , Issue 2 , Spring 1978 , pp. 319 - 391
Copyright
Copyright © American Bar Foundation, 1978 

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References

1 See 2 W. Blackstone, Commentaries *10-13; 1 Richard T. Ely, Property and Contract in Their Relations to the Distribution of Wealth 425-27 (London: Macmillan & Co., 1914); Orrin K. McMurray, Modern Limitations on Liberty of Testation, in Rational Basis of Legal Institutions 452 (New York: Macmillan Co., 1923); W. H. Page, Page on the Law of Wills § 1.7, at 26-30 (Bowe-Parker rev. Cincinnati: W. H. Anderson Co., 1960) [hereinafter cited as Page]; David Hughes Parry, The Law of Succession, Testate and Intestate 2 (6th ed. London: Sweet & Maxwell Ltd., 1976); Lewis M. Simes, Public Policy and the Dead Hand 6-20 (Thomas M. Cooley Lectures; Ann Arbor: University of Michigan Law School, 1955); Lawrence M. Friedman, The Law of the Living, the Law of the Dead: Property, Succession, and Society, 1966 Wis. L. Rev. 340. See also notes 46-62 infra and accompanying text for further discussion of testamentary freedom.Google Scholar

2 E.g., The Rule Against Perpetuities. See John Chipman Gray, The Rule Against Perpetuities (4th ed. Roland Gray, ed. Boston: Little, Brown & Co., 1942).Google Scholar

3 E.g., pretermitted heir statutes, see, e.g., Uniform Probate Code § 2-302 (1977 version) [hereinafter cited as UPC], offer some protection to children of the decedent; dower, curtesy, and/or elective share provisions protect the surviving spouse. See, e.g., UPC §§ 2-201 through -207. In addition, the nuclear family is protected in some states through restrictions on bequests for charitable and religious purposes. See, e.g., Ga. Code § 113-107 (1975). Statutes providing for the family homestead and a small amount of personal property as well as temporary support during probate administration offer further protection. See, e.g., UPC §§ 2-401 through -404. Georgia protects the family through the following unique statutory provision:Google Scholar

A testator, by his will, may make any disposition of his property not inconsistent with the laws or contrary to the policy of the State; he may bequeath his entire estate to strangers, to the exclusion of his wife and children, but in such case the will should be closely scrutinized, and, upon the slightest evidence of aberration of intellect, or collusion or fraud, or any undue influence or unfair dealing, probate should be refused.Google Scholar

Ga. Code § 113-106 (1975).Google Scholar

4 Arguably such formalities of will execution as witnesses and a writing can be viewed as a restriction on the freedom of testation, as can rules delineating legal capacity to make a will. Lawrence M. Friedman, The Law of Succession in Social Perspective, in Death, Taxes and Family Property: Essays and American Assembly Report 9, 14-15 (E. Halbach, Jr., ed. St. Paul: West Publishing Co., 1977); Friedman, supra note 1, at 358-59, 365.Google Scholar

5 Intestacy statutes operate not only when the decedent dies without a valid will but also when the will fails to dispose of all the probate assets. In the partial intestacy situation, the intestate succession statutes apply only to that property not disposed of by the will.Google Scholar

6 As a general rule, the law of the decedent's domicile at death governs succession to personal property, and the law of the situs of property governs succession to real property. Restatement (Second) of Conflict of Laws §§ 236, 260 (1971); Robert A. Leflar, American Conflicts of Law 397-400 (3d ed. Charlottesville, Va.: Bobbs-Merrill, Co., 1977).Google Scholar

7 Blackstone, supra note 1, at *208-34.Google Scholar

8 22 & 23 Car. 2, ch. 10 (1670 & 1671).Google Scholar

9 See 7 Richard R. Powell, Powell on Real Property § 993, at 639-44 (R. Rohan rev. ed. New York: Matthew Bender, 1977).Google Scholar

10 For arguments in favor of uniformity of state inheritance laws, including intestate successsion, see William J. Fratcher, Toward Uniform Succession Legislation, 41 N.Y.U.L. Rev. 1037, 1038 (1966); Richard V. Wellman & James W. Gordon, Uniformity in State Inheritance Laws: How UPC Article II Has Fared in Nine Enactments, 1976 B.Y.U.L. Rev. 357, 361-63.Google Scholar

11 7 Powell, supra note 9, § 994, at 644.Google Scholar

12 See 55 A.B.A.J. 976 (1969). Technical amendments were made to the code in 1975, and additions were made in 1977.Google Scholar

13 Ohio, for example, recently enacted a series of probate reforms that are based in part on provisions and concepts introduced by the UPC. See Robertson, Donald L., How the Family Fares: A Comparison of the Uniform Probate Code and the Ohio Probate Reform Act, 37 Ohio St. L.J. 321, 322 (1976).Google Scholar

14 UPC art. II, General Comment to pt. I.Google Scholar

15 See Sussman, Marvin B., Judith N. Cates & David T. Smith, The Family and Inheritance (New York: Russell Sage Foundation, 1970) [hereinafter cited as Sussman]; Allison Dunham, The Method, Process and Frequency of Wealth Transmission at Death, 30 U.Chi. L. Rev. 241 (1963); Edward H. Ward & J. H. Beuscher, The Inheritance Process in Wisconsin, 1950 Wis. L. Rev. 393; Report of the Committee on the Laws of Intestate Succession, England, CMD No. 8310 (1951). Although the Sussman study was not available to the drafters at the time the UPC was written, the drafters used the data of the study in presentations of the UPC to the National Commission on Uniform State Laws. Thomas J. Mulder, Intestate Succession Under the Uniform Probate Code, 3 Prospectus 301, at 304 n. 10 (1970).Google Scholar

16 See Mulder, , supra note 15, at 304 n.10; Richard V. Wellman, Selected Aspects of Uniform Probate Code, 3 Real Prop., Prob., & Tr. J. 199, 204 (1968).Google Scholar

17 See Kossow, Julian R., The New York Law of Intestate Succession Compared with the Uniform Probate Code: Where There's No Will There's a Way, 4 Fordham U.L.J. 233, 237-38 (1976).Google Scholar

18 See Averill, Lawrence H. Jr., Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code Part I, 7 Land & Water L. Rev. 169, 176 (1972); Earl M. Curry, Jr., Intestate Succession and Wills: A Comparative Analysis of Article II of the Uniform Probate Code and the Law of Ohio, 34 Ohio St. L.J. 114, 116 (1973); Fratcher, supra note 10, at 1047; Mulder, supra note 15, at 301, 306; Daniel H. O'Connell & Richard W. Effland, Intestate Succession and Wills: A Comparative Analysis of the Law of Arizona and the Uniform Probate Code, 14 Ariz. L. Rev. 205, 209 (1972).Google Scholar

19 See 1 Ely, supra note 1, at 425-43; Kossow, supra note 17, at 238-39.Google Scholar

20 1 Ely, supra note 1, at 431-43; 7 Powell, supra note §, at f 997. But cf. Sussman, supra note 15, at 1-3 (asserting that the importance of inheritance to the economic maintenance of the family has diminished).Google Scholar

21 See 1 Ely, supra note 1, at 431; G. D. H. Cole, Inheritance, in 8 Encyclopedia of the Social Sciences 35, 36 (1932).Google Scholar

22 Friedman, supra note 4, at 14:Google Scholar

Rules of inheritance and succession are, in a way, the genetic code of a society. They guarantee that the next generation will, more or less, have the same structure as the one that preceded it…. Rules favoring wives and children reinforce the nuclear family. Any radical change in the rules, if carried out, will radically change the society.Google Scholar

See also 1 Ely, supra note 1, at 431.Google Scholar

23 See 1 Ely, supra note 1, at 431-32; Cole, supra note 21, at 37-43.Google Scholar

24 See 1 Ely, supra note 1, at 426-27; Simes, supra note 1, at 21; notes 49-52 infra and accompanying text. See also Friedman, supra note 1, at 355-57.Google Scholar

25 See notes 72-74 infra and accompanying text.Google Scholar

26 A variation on these two groups is found in the Sussman study where the researchers interviewed the survivors of decedents determine if they had wills and, if so, the disposition of the estates provided by them. Sussman, supra note 15, at 45-52.Google Scholar

27 See sources cited in note 15 supra. Google Scholar

28 See Kossow, , supra note 17, at 237 n.24.Google Scholar

29 See Sussman, , supra note 15, at 62-82; Glenn R. Drury, The Uniform Probate Code and Illinois Probate Practice, 6 Loy. Chi. L.J. 303, 315 (1975); Dunham, supra note 15, at 245 n.9, 248-51; Mary Louise Fellows, Rita J. Simon, Teal E. Snapp, & William D. Snapp, An Empirical Study of the Illinois Statutory Estate Plan, 1976 U. Ill. L.F. 717, 717 n.3 [hereinafter cited as Illinois study]; Mulder, supra note 15, at 307-12; Ward & Beuscher, supra note 15, at 411-15; Intestate Succession in New Jersey: Does It Conform to Popular Expectations? 12 Colum. J.L. & Soc. Prob. 253, 256-61, 287 (1976) [hereinafter cited as New Jersey study]; notes 65-71 infra and accompanying text.Google Scholar

30 But see UPC § 3-915, Comment, which suggests that guardianship might not be always necessary in view of the combined effect of UPC §§ 3-915 and 5-103.Google Scholar

31 See, e.g.:Google Scholar

Mr. Zartman [a leading estate planner and probate attorney in Chicago, Illinois]… argues that his clients prefer division by families rather than per capita when descendants of the same degree inherit. This makes Illinois law, which so ordains, preferable in his view to the Code which goes the other way. In my experience, clients prefer what the lawyer suggests to be “normal” when it comes to secondary gifts to descendants.Google Scholar

Wellman, Richard V., A Reaction to the Chicago Commentary, 1970 U. Ill. L.F. 536, 537.Google Scholar

32 See notes 40-44 infra and accompanying text.Google Scholar

33 NFO has two panels: an aggregate panel of slightly over 180,000 families and a 90,000-family balanced panel. The balanced panel is matched to current U.S. Census population estimates for age, income, family size, and population density for each of nine census regions. The state samples used in this survey were selected from the balanced panel.Google Scholar

Market researchers have found that after they have obtained a sample frame that is representative of the city, state, or country or any other geographical unit, the number of persons who do not choose to take part in any given survey is small and such refusal does not bias the responses.Google Scholar

34 For the five states, NFO randomly chose 1,250 families. From this sample, 1,221 attempted contacts were made yielding 750 completed interviews. NFO procedure is to call a family. If contact is not made, the caller moves on to the next name on the list. NFO does not have information on the actual rejection rate for our project, but its actual rejection rate normally runs substantially below 5 percent.Google Scholar

Demographic information on one of the respondents was unavailable, so the sample size used in statistical analysis was 749.Google Scholar

35 This is one of the reasons why NFO has such a high rate of successfully completed inter views. A pretest of the questionnaire, however, produced similar results. Only one telephone respondent out of 19 refused to complete the interview. On the pretest the authors found that respondents developed a lively interest in this research topic. Apparently, inheritance is an issue that many people consider important and interesting.Google Scholar

36 The demographic information on the respondents was current as of April 1977.Google Scholar

37 Illinois study, supra note 29.Google Scholar

38 To eliminate complicated discussions in the interview, the respondents were not asked to differentiate between probate estate property and other property such as life insurance, pension benefits, or joint tenancy property. Some respondents may have included some or all of these non-probate assets in their estimates and others may not have. The estimates obtained appear valuable despite this problem because the authors were most interested in the relative perceived wealth of the respondents.Google Scholar

39 The respondents were not asked to differentiate among joint tenancies with right of survivorship, tenancies by the entirety, tenancies in common, or community property because these legal distinctions are not likely to be recognized by laypersons.Google Scholar

40 Ward & Beuscher, supra note 15.Google Scholar

41 Dunham, supra note 15.Google Scholar

42 Browder, Olin L., Jr., Recent Patterns of Testate Succession in the United States and England, 67 Mich. L. Rev. 1303 (1969).CrossRefGoogle Scholar

43 Sussman, supra note 15.Google Scholar

44 See note 26 supra. Google Scholar

45 New Jersey study, supra note 29.Google Scholar

46 The federal Constitution does not forbid a state to limit, condition, or even abolish the power of testamentary disposition over property within its jurisdiction. Irving Trust Co. v. Day, 314 U.S. 556, 562 (1942). See Page, supra note 1, § 3.1.Google Scholar

The Wisconsin Supreme Court, however, sharply dissents from this view. It held that under the federal and Wisconsin constitutions “the right to demand that property pass by inheritance or will is an inherent right subject only to reasonable regulation by the legislature.” Nunnemacher v. State, 129 Wis. 190, 202-3, 108 N.W. 627, 630 (1906).Google Scholar

47 See Atkinson, Thomas E., Handbook of the Law of Wills § 5 (2d ed. St. Paul: West Publishing Co., 1953); 1 Ely, supra note 1, at 415-20; Page, supra note 1, § 1.7, at 27-28; E. Adamson Hoebel, The Anthropology of Inheritance, in Social Meaning of Legal Concepts No. 1. Inheritance of Property and the Power of Testamentary Disposition 5-26 (Edmond N. Cahn ed. 1948).Google Scholar

48 See Atkinson, , supra note 47, § 5, at 34-35; 2 F. W. Taussig, Principles of Economics 288-309, 564-66 (4th ed. New York: Macmillan Co., 1939); 6 American Law of Property § 26.1, at 409, and § 26.3 (A. James Casner ed. Boston: Little, Brown & Co., 1952); Calvin Coolidge, The Harmful Economic Effects of Existing Estate Taxation in the United States, 29 Econ. World 305 (1925); A. W. Mellon, Economic Aspects of Estate and Inheritance Taxation, 39 Tr. Companies 708-10 (1924); Jerome Nathanson, The Ethics of Inheritance, in Social Meaning of Legal Concepts, supra note 47, at 74.Google Scholar

49 See Atkinson, , supra note 47, § 5, at 34; Sussman, supra note 15, at 4; Friedman, supra note 1, at 375-76.Google Scholar

50 See Atkinson, , supra note 47, § 5, at 34; Edward C. Halbach, Jr., An Introduction to Chapters 1-4, in Death, Taxes and Family Property, supra note 4, at 3, 4.Google Scholar

51 See Friedman, , supra note 1, at 355-56.Google Scholar

52 See Simes, , supra note 1, at 58-59; 6 American Law of Property, supra note 48, § 26.2, at 411; Friedman, supra note 1, at 356, for discussions of these competing considerations with respect to the Rule Against Perpetuities.Google Scholar

53 See Atkinson, , supra note 47, § 30, at 100; 7 Powell, supra note 9, § 970; Lowell Turrentine, Cases and Text on Wills and Administration 17-26 (2d ed. St. Paul: West Publishing Co., 1962). Besides personal property exemptions, homesteads, and family allowances, most states have a “forced share” statute, which allows the surviving spouse to renounce the will and elect the statutory “forced share.” For criticism of the elective share of the surviving spouse, see Verner F. Chaffin, A Reappraisal of the Wealth Transmission Process: The Surviving Spouse, Year's Support and Intestate Succession, 10 Ga. L. Rev. 447 (1976); Sheldon J. Plager, The Spouse's Non-barrable Share: A Solution in Search of a Problem, 33 U. Chi. L. Rev. 681 (1966).Google Scholar

54 See Atkinson, , supra note 47, § 36, at 141-45. Pretermitted heir statutes protect children from unintended disinheritance by providing that unless the testator indicates an intention to disinherit a child in his will, the child is entitled to receive the portion of the estate he would have received had the testator died intestate. All pretermitted heir statutes apply to children born to the testator after the will was executed; about half of these statutes also apply to children who were living when the will was executed.Google Scholar

55 See Atkinson, , supra note 47, § 35; Page, supra note 1, §§ 3.15-3.19; 7 Powell, supra note 9, § 969; Friedman, supra note 1, at 359.Google Scholar

56 See Ga. Code § 113-106 (1975) (quoted in note 3 supra); Atkinson, supra note 47, § 36, at 139 & n.5, 140 & nn. 6 & 9; Page, supra note 1, § 3.11, at 91 & n.6, 92 & n.8; Edwin M. Epstein, Testamentary Capacity, Reasonableness and Family Maintenance: A Proposal for Meaningful Reform, 35 Temp. L.Q. 231 (1962); Friedman, supra note 1, at 358-59.Google Scholar

57 See Gray, , supra note 2; J. H. C. Morris & W. Barton Leach, The Rule Against Perpetuities (2d ed. London: Stevens & Sons, 1962); Page, supra note 1, §§ 42.8-. 12; Simes, supra note 1, at 32-82; 3 Lewis Simes & Allan F. Smith, The Law of Future Interests §§ 1211-1390 (2d ed. St. Paul: West Publishing Co., 1956); 6 American Law of Property, supra note 48, §§ 24.1-25.118.Google Scholar

58 See Simes & Smith, supra note 57, § 1994.Google Scholar

59 See 6 American Law of Property, supra note 48, §§ 27.1-.23; Note, Conditional Bequests and Devises, 42 B.U.L. Rev. 520, 535-36 (1962).Google Scholar

60 In re Estate of Gerbing, 61 Ill. 2d 503, 337 N.E.2d 29 (1975); In re Onora's Will, 205 Misc. 531, 130 N.Y.S.2d 480 (Sur. Ct. 1954); Dwyer v. Kuchler, 116 N.J. Eq. 426, 174 A. 154 (1934); In re Haight's Will, 51 App. Div. 310, 64 N.Y.S. 1029 (1900); Graves v. First Nat'l Bank, 138 N.W.2d 584 (N.D. 1965). See 6 American Law of Property, supra note 48, § 27.18, at 664-65; Restatement of Property § 427 (1944).Google Scholar

61 Atkinson, supra note 47, § 5, at 31; Page, supra note 1, § 1.7, at 29; Simes, supra note 1, at 56-57; Edmond N. Cahn, Federal Regulation of Inheritance, 88 U. Pa. L. Rev. 297 (1940); Friedman, supra note 1, at 351; Gerald R. Jatscher, The Aims of Death Taxation, in Death, Taxes and Family Property, supra note 4, at 40, 51-55.Google Scholar

62 See, e.g., Newman v. Dore, 275 N.Y. 371, 9 N.E.2d 966 (1937); N.Y. Est., Powers & Trusts Law § 5-1.1 (McKinney 1967 & Cum. Supp. 1977-78). See also Atkinson, supra note 47, § 32, at 113-17; Simes, supra note 1, at 30; Curry, supra note 18, at 134.Google Scholar

63 See 2 Austin Wakeman Scott, The Law of Trusts § 124.3 (3d ed. Boston: Little, Brown & Co., 1967 & Supp. 1977); Barbara W. Schwartz, Estate Planning for Animals, 113 Trusts & Ests. 376 (1974).Google Scholar

64 For an excellent analysis of findings of prior will studies, see Mulder, supra note 15, at 307-12.Google Scholar

65 This proportion of living persons with wills is high compared to findings obtained in some prior studies. See Dunham, supra note 15, at 245 n.9; Illinois study, supra note 29, at 718 n.3. But see Sussman, supra note 15, at 68-69 (58 percent of the survivor population were testate).Google Scholar

66 The significance of the relationship between these demographic characteristics and testacy is as follows:Google Scholar

§Google Scholar

A few general comments on the chi square (χ2) test of significance may be helpful to the reader. The χ2 test differentiates between real and chance differences and is a statistic that measures the discrepancy between observed and expected frequencies. If the observed frequencies agreed completely with the expected, χ2 would be zero. The χ2 increases in size as the observed frequencies depart more and more from the expected frequencies. The question is how large does the difference between the observed and expected frequencies have to be before it is considered a real difference. The question is answered in terms of probability theory; a difference is considered statistically significant if the probability of its occurring by chance is less than 5 in 100 (p < .05). The smaller the probability (p) value, the larger the difference. When the p value is greater than .05 we can assume either that there are no differences or that the differences are due to chance; i.e., they are negligible. The degrees of freedom (df) is a criterion used to determine the probability of the frequency of χ2 Thus for the table shown above, we have established that each demographic characteristic (i.e., family income, age, etc.) is significantly related to testacy because in each instance the probability of such relationship not occurring is at least 8 in 10,000.Google Scholar

67 See, e.g., UPC § 2-401.Google Scholar

68 See, e.g., UPC § 2-402.Google Scholar

69 See, e.g., UPC § 2-403.Google Scholar

70 The total value of these family protection provisions typically exceeds $10,000 in most sates. See, e.g., Alaska Stat. §§ 13.11.070, .125, .130, .135, .140 (1972); Colo. Rev. Stat. §§ 5-11-201 to -202, -402 to -404, 38-41-204 to -205, -208, -211 (1973); Fla. Stat. Ann. §§ 732.201, 207, .401, .403 (West 1976), § 732.402 (West Cum. Supp. 1978); Haw. Rev. Stat. §§ 560:2-201, -401 to -404 (1976); Ill. Rev. Stat. ch. 52, §§ 1, 2, ch. 110§, §§ 2-8, 15-1 to -2 (1977); Wis. Stat. Ann. §§ 852.09, 861.41 (West 1971), §§ 861.05, .31, .33, .35 (West Cum. Supp. 1977-78).Google Scholar

71 Sussman, supra note 15, at 63-64.Google Scholar

72 Some commentators have made this assumption. See, e.g., Browder, supra note 42, at 1313. Others have considered and rejected the assumption. See, e.g., Friedman, supra note 1, at 355; J. D. B. Mitchell, Reports of Committees, 14 Mod. L. Rev. 475, 480 (1951); Wellman & Gordon, supra note 10, at 363.Google Scholar

73 To determine the correct number of total responses, the responses were analyzed by state and compared to the intestacy statute of each of these states. The intestacy statutes in these states, however, are quite complex. For example, under the Alabama intestacy statute, the spouse does not receive any realty but does receive 33 percent of the personalty. The spouse does have the right to elect curtesy or dower. The dower and the personalty share is subject to reduction to the extent of separate property owned by the widow. No respondent residing in Alabama appeared to be aware of these or other subtleties in the statute. The 44.6 percent figure was determined by making assumptions most favorable to the accuracy of the respondents' answers. E.g., in Alabama, a correct answer included: (1) spouse = 33 percent and minor children = 33 percent each, and (2) spouse = 0 and minor children = 50 percent each. Thus the determined percentage of respondents giving accurate responses is probably a substantial overstatement of the respondents' actual knowledge of the intestacy laws.Google Scholar

74 Illinois study, supra note 29, at 723; New Jersey study, supra note 29, at 266.Google Scholar

75 The family of orientation is the family into which the decedent is born.Google Scholar

76 The family of procreation is the family that the decedent establishes through marriage.Google Scholar

77 See Mulder, , supra note 15, at 313; Wellman & Gordon, supra note 10, at 364.Google Scholar

78 See Chaffin, Verner F., Inheritance by Ancestors and Collaterals in Alabama, 6 Ala. L. Rev. 1, 5 (1953); Wellman & Gordon, supra note 10, at 365; New Intestacy Rules II, 96 Sol. J. 738, 739 (1952).Google Scholar

79 Cal. Prob. Code § 229(b) (West Cum. Supp. 1978) (see note 82 infra); La. Civ. Code Ann. arts. 908, 909 (West 1952) (see text at note 92 infra).Google Scholar

80 Under the English common law, lineal ancestors had no right of inheritance. The reason for this is unclear. See 3 W. S. Holdsworth, A History of English Law 175-77 (3d ed. Boston: Little, Brown & Co., 1923); 2 Frederick Pollock & Frederick William Maitland, The History of English Law Before the Time of Edward I, at 286-95 (2d ed. Cambridge: At the University Press, 1905); 7 Powell, supra note 9, § 997, at 658; W. D. Rollison, Principles of the Law of Succession to In testate Property, 11 Notre Dame Law. 14, 38-39 (1935).Google Scholar

81 Cf. Kossow, supra note 17, at 242 n.36; Wellman & Gordon, supra note 10, at 365 (same reasoning applied to deny inheritance by decedent's parents). Moreover, on the grandparents' deaths, the unexpended inheritance would then be shared by the intestate's uncles, aunts, and cousins, with perhaps only a small part going to the intestate's brothers and sisters. Thomas E. Atkinson, Succession Among Collaterals, 20 Iowa L. Rev. 185, 189 (1935).Google Scholar

82 Ala. Code §§ 43-3-1(2), -10 (1975); Alaska Stat. § 13.11.015(2) (1972); Ariz. Rev. Stat. § 14-2103(A)(2) (Cum. Supp. 1977-78); Ark. Stat. Ann. § 61-149(c) (1971); Cal. Prob. Code § 225 (West 1956) (Special provisions concern property acquired from previously deceased spouse, id.§§ 228, 229(b) (West Cum. Supp. 1978); that portion of the estate created by gift, descent, or bequest from the separate property of a parent or grandparent shall go to the parent or grandparent who made such gift, devise, or bequest or from whom the property descended, but if dead, such property shall go to the heirs of such deceased parent or grandparent, id.§ 229(b).); Colo. Rev. Stat. § 15-ll-103(1)(b) (1973); Conn. Gen. Stat. Ann. § 45-276 (West 1960); Del. Code tit. 12, § 503(2) (Cum. Supp. 1977); D.C. Code § 19-308 (1973); Fla. Stat. Ann. § 732.103(2) (1976); Haw. Rev. Stat. § 560:2-103(2) (Supp. 1977); Idaho Code § 15-2-103(b) (Cum. Supp. 1977); Iowa Code Ann. § 633.219(2) (West 1964); Kan. Stat. § 59-507 (1976); Ky. Rev. Stat. §§ 391.010(2), 030(1) (Cum. Supp. 1976); Me. Rev. Stat tit. 18, §§ 851,1001(3) (1964); Md. Est. & Trusts Code Ann. § 3-104(b) (1974); Mass. Ann. Laws ch. 190, §§ 2, 3(2) (Michie/Law. Co-op 1969); Mich. Comp. Laws Ann. § 702.80 (Cum. Supp. 1978-79), § 702.93(4)-(5) (1968); Minn. Stat. Ann. § 525.16(4)(c) (West 1975); 1974 Mont. Laws ch. 365, § 1, at 1387 (to be codified as Mont. Rev. Codes Ann. § 91A-2-103(2)); Neb. Rev. Stat. § 30-2303(2) (1975); Nev. Rev. Stat. § 134.050(3) (1973); N.H. Rev. Stat. Ann. § 561:I(II)(b) (1974); N.J. Rev. Stat. § 3A:2A-35(b) (Cum. Supp. 1978-79) (effective Aug. 29, 1979); N.M. Stat. Ann. § 32A-2-103(B) Supp. 1976-77) N.Y. Est., Powers & Trusts Law § 4-1.1(a)(3) (McKinney 1967); N.C. Gen. Stat. § 29-15(3) (1976); N.D. Cent. Code § 30.1-04-03-20 (1976); Ohio Rev. Code Ann. § 2105.06(E) (Page 1976); Okla. Stat. tit. 84, § 213 (Second) (1971). (There are two exceptions to this general rule: (1) In all cases where the property is acquired by the joint industry of the husband and wife during coverture, and there is no issue, the whole of such estate shall go to the surviving spouse. At the death of the surviving spouse, if any of this property remains, one-half of such property shall go to the heirs of the husband and one-half to the heirs of the wife, according to the right of representation, id. (2) If the parents of a decedent who dies a minor are not living together at the time of the decedent's death, the parent having had care of the decedent shall receive the entire estate, id.§ 213 (Third)); Or. Rev. Stat. § 112.045(2) (1977); Decedents, Estates and Fiduciaries, Pub. Act No. 23, § 1, 1978 Purdon's Pa. Legis. Serv. 33 (West) (to be codified as 20 Pa. Cons. Stat. Ann. § 2103(2) (Purdon)); R.I. Gen. Law §§ 33-1-1 (Second), -10 (Third) (1969); S.D. Compiled Laws Ann. § 29-1-6 (1976); Tenn. Code Ann. § 31-204(2) (Supp. 1977); Tex. Prob. Code Ann. § 38(a)(2) (Vernon 1956); Utah Uniform Prob. Code § 75-2-103(1)(b) (1977); Vt. Stat. Ann. tit. 14, § 551(3) (1974); Va. Code § 64.1-1 (Third) (Cum. Supp. 1977), § 64.1-11 (1973); Wash. Rev. Code Ann. § 11.04.015(2)(b) (Cum. Supp. 1978); W. Va. Code §§ 42-1-1(c), -2-1 (1966); Wis. Stat. Ann. § 852.01(1)(c) (West 1971).Google Scholar

83 Ga. Code § 113-903(5)-(6) (1975); Ill. Rev. Stat. ch. 110§, § 2-1(d) (1977); Ind. Code § 29-1-2-1(c)(3) (1976) (parents inherit equally with brothers and sisters, but the share shall not be less than one-quarter of the net estate); Miss. Code Ann. §§ 91-1-3, -11 (1972); Mo. Ann. Stat. § 474.010(2)(b) (Vernon 1956); S.C. Code § 21-3-20(2), (7)-(8) (1976); Wyo. Stat. § 2-3-101(c)(ii) (1977).Google Scholar

84 La Civ. Code Ann. art. 903 (West 1952).Google Scholar

85 Except for Alabama, Maine, and Texas (see note 88 infra), all states that exclude siblings when both parents survive continue to exclude siblings when only one parent survives. See statutory citations in note 82 supra and Mass. Ann. Laws ch. 190, § 3(3)-(4) (Michie/Law. Co-op 1969); N.Y. Est., Powers & Trusts Law § 4-1.1(a)(4) (McKinney 1967).Google Scholar

86 Ga. Code Ann. § 113-903(5)-(6) (1975); Ind. Code Ann. § 29-1-2-1(c)(3) (1976) (parent in herits equally with brothers and sisters, but the share of the parent shall not be less than onequarter of the net estate); Miss. Code Ann. §§ 91-1-3, -11 (1972); Mo. Ann. Stat. § 474.010(2)(b) (Vernon 1956); S.C. Code § 21-3-20(2), (7)-(8) (1976); Wyo. Stat. § 2-3-101(c)(ii) (1977).Google Scholar

87 Ill. Rev. Stat. ch. 110§, § 2-1(d) (1977).Google Scholar

88 Ala. Code §§ 43-3-1(3), -10 (1975); Me. Rev. Stat. tit. 18, §§ 851, 1001(4) (1964); Tex. Prob. Code Ann. § 38(a)(2) (Vernon 1956).Google Scholar

89 La. Civ. Code Ann. art. 911 (West 1952).Google Scholar

90 Cal. Prob. Code § 227 (West 1956); Me. Rev. Stat. tit. 18, §§ 851, 1001(7) (1964); Mich. Comp. Laws Ann. § 702.80 (Second) (Cum. Supp. 1978-79), § 702.93(4)-(5) (1968); Minn. Stat. Ann. § 525.16(5) (West 1975) (requirement that there be no surviving spouse rather than that the decedent be unmarried; further requirement that the decedent be without issue); Nev. Rev. Stat. § 134.070-.080 (1973); N.H. Rev. Stat. Ann. § 561.2 (1974) (brothers and sisters or their issue are the designated takers; thus, the statute does not require that these persons be the issue of the parent); Okla. Stat. tit. 84, § 213 (Seventh)-(Eighth) (1971).Google Scholar

Except for Minnesota, these statutes have the effect of disinheriting nonmarital children of a minor, as they apply whenever a decedent dies under age and not having been married, regardless of whether issue survive the decedent. See notes 162-79 infra and accompanying text for further discussion of the inheritance right of nonmarital children.Google Scholar

Connecticut has enacted a statute of limited scope for the disposition of property from the estate of a minor who dies unmarried and without issue. If a child dies after his parent's death but before any legal distribution of the parent's estate, that part of the parent's estate that would have gone to the now-deceased child shall be distributed as if the child had predeceased the parent. Conn. Gen. Stat. Ann. § 45-276 (West 1960).Google Scholar

91 Ky. Rev. Stat. § 391.020(1) (1972). California and Hawaii have similar statutes except that the decedent must not be survived by a spouse and it applies to both realty and personalty. Cal. Prob. Code § 229(b) (West 1956) (parent or grandparent); Haw. Rev. Stat. § 560:2-103(4), (5) (Supp. 1977) (grandparent or great-grandparent).Google Scholar

92 La. Civ. Code Ann. art. 908 (West 1952). See also id. art. 909 (applies to dowry that ancestor settled on the decedent).Google Scholar

93 Ky. Rev. Stat. § 391.020(2) (1972).CrossRefGoogle Scholar

94 Cf. Chaffin, supra note 78, at 14-16 (criticism of ancestral estates in general). These provisions, however, have limited practical significance because of the infrequency of a minor dying in testate with property derived from a single parent. See 7 Powell, supra note 9, § 1001, at 676.Google Scholar

95 These problems are most acute for personal property.Google Scholar

96 See notes 103-13 infra and accompanying text.Google Scholar

97 Demographic data concerning the age of unmarried, childless testators studied were not indicated in the published studies. Given the typical age of testators (see notes 64-70 supra and accompanying text), the cases studied presumably involved older persons. The nature of the beneficiaries named in the wills also indicates that the decedents were older. In the Dunham study, 54 percent of those persons survived by only brothers and sisters died testate. Dunham, supra note 15, at 252. Of these testate decedents, 89 percent avoided the statutory succession pattern of equality of distribution among siblings. Id. Also of interest is that 10 of the 15 charitable gifts that occurred in the estates studied appeared in estates in which brothers and sisters were the closest relatives of the deceased. Id. at 254. In the Browder study, there were 53 cases in which no spouse or issue survived. Browder, supra note 42, at 1311. In 5 cases, the testators were not survived by any heirs. Id. at 1312. In 1 case the testator was survived only by parents. Id. In 43 cases, testator was survived by siblings or their issue. Id. Browder classified the wills as follows:Google Scholar

[T]hirteen wills made dispositions limited to persons designated as heirs; twelve excluded all heirs except for nominal bequests; twenty distributed property among one or more heirs and one or more others; twenty-two made gifts to nonrelatives or persons whose identity was not indicated; and eleven included charitable bequests.Google Scholar

Id. In the Sussman study, for the two estates where the decedent testator was survived by parents and siblings, the wills provided for distribution to those siblings who were expected to care for the surviving parents. Sussman, supra note 15, at 95-96. In interviews with 10 survivors who were in a similar situation, the following dispositions were provided in their executed wills: 4 gave their entire estate to their parent or parents; 2 gave the estate to siblings for the specific purpose of caring for parents; 2 gave the parents 50 percent and 75 percent of the estate, respectively, and the balance of the property was given to siblings who were close to the parents; 1 gave the entire estate to siblings, and 1 young decedent gave the estate in the following manner:Google Scholar

[The 25-year-old interviewee] has insurance set up in a trust fund for his younger brothers and sisters, those who are living at home. His mother is the executrix. “I figured Mother would be hard pressed to get them through school. This would be a way of assuring they get to college. Anything left over goes to Mother.” Excluded are any that are married and also a brother who is a priest and a sister who is a nun.Google Scholar

Id. at 96. When no parents survived and the decedent's heirs were only siblings and their descendants, the pattern of disposition was even more diverse, according to Sussman. Only 7 of 36 decedents followed the Ohio intestacy statute of distributing the property equally to siblings or to their descendants per stirpes. Id. at 103-4. Of those survivors with executed wills who were interviewed, 14 of 33 followed the Ohio intestacy statute. Id. See also id. at 104-7 for description of 6 cases where the decedent was survived by siblings or their issue; id. at 111-18 for further discussion of decedents and survivors whose nearest relatives are calculated through their family of orientation; id. at 136-38 for description of deviations from the intestacy statute in the final distribution of intestate decedents' estates.Google Scholar

98 See notes 64-66 supra, the note to table 4 supra, and accompanying text.Google Scholar

99 In the father-brother-sister relation set, the siblings were treated unequally in 33 cases, in cluding 10 cases in which the brother received 100 percent of the estate and 15 cases in which the sister received 100 percent of the estate.Google Scholar

In the father-mother-brother-sister relation set, the siblings were treated unequally in 15 cases, including 5 cases in which the brother received 100 percent of the estate and 6 cases in which the sister received 100 percent of the estate.Google Scholar

100 Father and mother were treated unequally in 81 cases, including 54 cases in which the father received 100 percent of the estate and 11 cases in which the mother received 100 percent of the estate.Google Scholar

101 Accord, Illinois study, supra note 29, at 724.Google Scholar

102 Accord, id. Distribution to siblings rather than parents may not indicate neglect of the parents but rather that the siblings would care for the parents. See note 97 supra. The distribution to siblings rather than to parents may also indicate that the respondents considered their parents financially able to care for themselves.Google Scholar

103 See Mulder, , supra note 15, at 312-13.Google Scholar

104 See note 77 supra and accompanying text.Google Scholar

105 P. W. Hogg, Distribution on Intestacy in Ontario, 11 Osgoode Hall L.J. 479, 501-2 (1973); Mulder, supra note 15, at 312-13; New Intestacy Rules II, supra note 78, at 739.Google Scholar

106 Statutes in 18 jurisdictions provide for a fixed dollar amount to the spouse with the balance of the estate to be shared by the parents or parents and spouse. Alaska Stat. §§ 13.11.010(2), .015(2) (1972); Conn. Gen. Stat. Ann. § 45-276 (West 1960), § 46-12 (West 1978); Del. Code tit. 12, §§ 502(2), 503(2) (Cum. Supp. 1977); Idaho Code §§ 15-2-102(a)(2), (b)(1), -103(b) (Cum. Supp. 1977) (this distribution only applies to the separate property owned by the decedent at death; the spouse receives all the community property owned by the decedent at death); Iowa Code Ann. § 633.212 (West Cum. Supp. 1978-79), § 633.219(2) (West 1964); Me. Rev. Stat. tit. 18, §§ 851, 1001(1), (3)-(5) (1964) (after spouse's share, parents share equally in residue; if only one parent survives, that parent receives one-half the residue and the siblings share equally in the remainder; if no siblings, the surviving parent receives the entire residue); Mass. Ann. Laws ch. 190, § 1(1) (Michie/Law. Co-op Cum. Supp. 1978), ch. 190, §§ 2, 3(2)-(4) (Michie/Law. Co-op 1969); Neb. Rev. Stat. §§ 30-2302(2), -2303(2) (1975); N.H. Rev. Stat. Ann. § 561:1(I)(b), (II)(b) (1974); N.J. Rev. Stat. §§ 3A:2A-34(b), -35(b) (Cum. Supp. 1978-79) (effective Aug. 29, 1979); N.Y. Est., Powers & Trusts Law § 4-1.1(a)(3), (4) (McKinney 1967); N.D. Cent. Code §§ 30.1-04-02(2), -03(2) (1976); Decedents, Estates and Fiduciaries, Pub. Act No. 23, § 1, 1978 Purdon's Pa. Legis. Serv. 33 (West) (to be codified as 20 Pa. Cons. Stat. Ann. §§ 2102(2), 2103(2) (Purdon)); R.I. Gen. Laws §§ 33-1-1 (Second), -5 to -6, -9, -10 (First), (Third) (1969), 2 Est. Planning (P-H) § 2732 (to be codified as R.I. Gen. Laws §§ 33-25-2 to -6) (fixed dollar amount only applies to personalty owned by the decedent at death; spouse receives a life estate in all realty owned by the decedent at death); S.D. Compiled Laws Ann. § 29-1-6 (1976); Utah Uniform Prob. Code §§ 75-2-102(l)(b), -103(l)(b) (1977); Vt. Stat. Ann. tit. 14, § 551(2)-(3) (1974); Wyo. Stat. § 2-3-101(a)(ii) (1977). The UPC also provides for this manner of distribution. UPC §§ 2-102(2), 2-102A(1)(ii), 2-103(2).Google Scholar

Statutes in 10 jurisdictions provide that the spouse receive one-half of the estate and the parent or parents share equally in the remaining one-half of the decedent's estate. Cal. Prob. Code §§ 201, 223 (West 1956) (this distribution only applies to the separate property owned by the decedent at death; the spouse receives all the community property owned by the decedent at death); D.C. Code §§ 19-304, -308 (1973); Haw. Rev. Stat. §§ 560:2-102(2), -103(2) (Supp. 1977); Ky. Rev. Stat. §§ 391.101(2), .030 (Cum. Supp. 1976), §§ 391.020, 392.020 (1972) (minor exceptions to the general pattern of 50 percent to the spouse and 50 percent to the parents); 2 Est. Planning (P-H) f 2701 (to be codified as Md. Est. & Trusts Code Ann. § 3-102(c)), Md. Est. & Trusts Code Ann. § 3-104(b) (1974); Mich. Comp. Laws Ann. § 702.80 (Second) (Cum. Supp. 1978-79), § 702.93 (1968) (minor exceptions to the general pattern of 50 percent to the spouse and 50 percent to the parents); Mo. Ann. Stat. § 474.010(l)(a), (2)(b) (Vernon 1956) (if any siblings survive the decedent, they share equally with their parent or parents in the remaining 50 percent of the decedent's estate); Nev. Rev. Stat. § 123.250 (1977), § 134.050(1) (1973) (this distribution only applies to separate property owned by the decedent at death; the spouse receives all the community property owned by the decedent at death); Okla. Stat. tit. 84, § 213 (Second)-(Third) (1971) (in all cases where the property is acquired by the joint industry of the husband and wife during coverture and there is no issue, the whole of such estate shall go to the surviving spouse. If the decedent is a minor leaving no issue, apparently whether or not the decedent is survived by a spouse, the estate must go to the parents equally if they live together; and if they do not live together, to the parent having had care of the decedent); S.C. Code § 20-3-20(2), (8) (1976) (after spouse's share, parents and siblings share equally in remainder).Google Scholar

Statutes in five jurisdictions provide for unique patterns of distributions between spouse and parent or parents. Ala. Code §§ 43-3-1(2)-(4), -10, -12, -5-1 to -5, -20 to -23, -40 to -53 (1975) (if only one parent survives, siblings share equally with parent in real estate; spouse does have dower and curtesy rights); Ind. Code § 29-1-2-1(a)(3), (c)(2) (1976); La. Civ. Code Ann. arts. 903-904, 911, 915 (West 1952), art. 2382 (West Cum. Supp. 1978) (one-fourth of separate property to each parent surviving, residue to siblings or their descendants; one-half of decedent's share of community property to parents or survivor, one-half to spouse; also, spouse may be entitled to special marital portion); N.C. Gen. Stat. §§ 29-14(3), -15(3) (1976); Tex. Prob. Code Ann. §§ 38(a)(2), (b)(2), 45 (Vernon 1956) (as to separate property, after spouse's share, parents share equally; if only one surviving parent, that parent receives one-half the residue with the siblings sharing equally in the remainder; as to community property, all passes to surviving spouse); Wash. Rev. Code § 11.04.015(l)(a), (c), (2)(b) (Cum. Supp. 1978) (this distribution only applies to the separate property owned by the decedent at death; the spouse receives all the community property owned by the decedent at death).Google Scholar

107 Ariz. Rev. Stat. § 14-2102(1) (1975); Colo. Rev. Stat. § 15-11-102(1)(a) (1973); Fla. Stat. Ann. § 732.102(l)(a) (West 1976); Ga. Code Ann. §§ 113-902, -903(1) (1975); 111. Rev. Stat. ch. 110§, § 2-1(c) (1977); Kan. Stat. § 59-504 (1976); Minn. Stat. Ann. § 525.16(4)(b) (West 1975); Miss. Code Ann. §§ 91-1-7, -11 (1972); 1974 Mont. Laws ch. 365, § 1, at 1387 (to be codified as Mont. Rev. Codes Ann. § 91A-2-102(1)); N.M. Stat. Ann. § 32A-2-102(A)(1), (B) (Supp. 1976-77); Ohio Rev. Code Ann. § 2105.06(D) (Page 1976); Or. Rev. Stat. § 112.035 (1977); Tenn. Code Ann. § 31-203(1) (Supp. 1977); Va. Code § 64.1-1 (Second) (Cum. Supp. 1977), § 64.1-11 (1973); W. Va. Code §§ 42-1-1(b), -2-1 (1966); Wis. Stat. Ann. § 852.01(l)(a)(l) (West 1971).Google Scholar

Arkansas permits the surviving spouse to receive the entire estate only if the decedent and spouse have been married for three years or more. Ark. Stat. Ann. § 61-137 (Cum. Supp. 1975), § 61-149(b)(1971). A surviving spouse married to the decedent for less than three years receives a dower or curtesy interest in addition to 50 percent of the balance of estate. Id.§§ 61-201 to -233 (1971). The remaining estate goes to the parent or parents. Id.§ 61-149(d).Google Scholar

108 Ala. Code §§ 43-3-1(5), -10, -12, -5-1 to -5, -20 to -23, -40 to -53 (1975); Cal. Prob. Code §§ 201, 223 (West 1956) (this distribution only applies to the separate property owned by the decedent at death; the spouse receives all the community property owned by the decedent at death); D.C. Code §§ 19-304, -309 (1973); Iowa Code Ann. § 633.212 (West Cum. Supp. 1978-79), § 633.219(3) (West 1964); Ky. Rev. Stat. §§ 391.010(3), .030 (Cum. Supp. 1976), §§ 391.020, 392.020 (1972); La. Civ. Code Ann. arts. 904, 914-915 (West 1952). art. 2382 (West Cum. Supp. 1978); Me. Rev. Stat. tit. 18, §§ 851, 1001(1), (4)-(6) (1964); Mass. Ann. Laws ch. 190, § 1(1) (Michie/Law. Co-op Cum. Supp. 1978), ch. 190, §§ 3(5)-(6) (Michie/Law. Co-op 1969); Mich. Comp. Laws. Ann. § 702.80 (Second) (Cum. Supp. 1978-79), § 702.93 (1968); Mo. Ann. Stat. § 474.010(1)(a), (2)(b) (Vernon 1956); Nev. Rev. Stat. §§ 123.250, 134.050(2) (1973) (this distribution only applies to the separate property owned by the decedent at death; the spouse receives all the community property owned by the decedent at death); Okla. Stat. tit. 84, § 213 (Second) (1971) (see note 106 supra for discussion of exceptions to this general rule); R.I. Gen. Laws §§ 33-1-1 (Third), -2, -5 to -6, -9, -10 (First), (Third) (1969); S.C. Code § 21-3-20(2)-(5), (8) (1976); S.D. Compiled Laws Ann. § 29-1-6 (1976); Tex. Prob. Code Ann. §§ 38(a)(3)-(4), (b)(2), 45 (Vernon 1956) (this distribution only applies to the separate property owned by the decedent at death; the spouse receives all the community property owned by the decedent at death); Vt. Stat. Ann. tit. 14, § 551(2), (4)-(5) (1974); Wash. Rev. Code § 11.04.015(l)(a), (c), (2)(c) (Cum. Supp. 1976) (this distribution only applies to separate property owned by the decedent at death; the spouse receives all the community property owned by the decedent at death); Wyo. Stat. § 2-3-101(a)(ii) (1977).Google Scholar

109 In addition to those 17 state statutes cited in note 107 supra, the following intestate succession laws provide that the surviving spouse receive the entire estate when the decedent is not survived by issue or parents. Alaska Stat. § 13.11.010(1) (1972); Conn. Gen. Stat. Ann. § 46-12 (West 1978); Del. Code tit. 12, § 502(1) (Cum. Supp. 1977); Haw. Rev. Stat. § 560:2-102(1) (Supp. 1977); Idaho Code § 15-2-102(a)(l), (b)(l) (Cum. Supp. 1977); Ind. Code § 29-1-2-1(a)(4) (1976); 2 Est. Planning (P-H) § 2701 (to be codified as Md. Est. & Trusts Code Ann. § 3-102(d); Neb. Rev. Stat. § 30-2302(1) (1975); N.H. Rev. Stat. Ann. § 561:1(I)(a) (1974); N.J. Rev. Stat. § 3A:2A-34(a) (Cum. Supp. 1978-79) (effective Aug. 29, 1978); N.Y. Est., Powers & Trusts Law § 4-1.1(a)(5) (McKinney 1967); N.C. Gen. Stat. § 29-14(4) (1976); N.D. Cent. Code § 30.1-04-02(1) (1976); Decedents, Estates and Fiduciaries, Pub. Act No. 23, § 1, 1978 Purdon's Pa. Legis. Serv. 33 (West) (to be codified as 20 Pa. Cons. Stat. Ann. § 2102(1) (Purdon)); Utah Uniform Prob. Code § 75-2-102(1) (1977).Google Scholar

The UPC also provides for the spouse to receive the entire estate in this situation. UPC §§ 2-102(1), 2-102A (l)(i).Google Scholar

Arkansas only allows the brothers and sisters to share in the estate if the surviving spouse was married to the decedent less than three years. Ark. Stat. Ann. § 61-149(e)-(g) (1971).Google Scholar

110 Dunham studied only 6 cases where there was a surviving spouse but no children. In all but one of these cases the testator gave the surviving spouse all of the property. Dunham, supra note 15, at 253. Browder found that 9 of 13 wills in the sample provided that the spouse receive the entire estate. Browder, supra note 42, at 1308-9. Sussman found that in 33 of 37 cases where the testator was not survived by lineal descendants or ascendants but was survived by a spouse, the spouse received the entire estate. Sussman, supra note 15, at 86-87. In the surivor population, this distribution was found in 34 of 39 cases. Id. at 87. Unfortunately, Sussman does not delineate separate data for those cases where the decedent is survived by a spouse and parent or parents. See id. at 89. In the 226 cases where the lineal kin and a spouse survived the decedent, 85.8 percent of the testators bequeathed the entire estate to the spouse. Within the survivor sample (N= 367), 85.3 percent of the testators bequeathed the entire estate to the spouse.Google Scholar

111 Accord, Illinois study, supra note 29, at 725-26 (58.6 percent of the respondents gave 100 percent to the spouse when both parents were presumed alive; 54.4 percent gave 100 percent to the spouse when only the mother was presumed alive, and 59.7 percent gave the spouse 100 percent when only the father was presumed alive).Google Scholar

112 Of the 55 respondents who had no children, 69.1 percent gave the entire estate to the spouse. See appendix tables A2 and A3 for analysis of responses according to family status and number of years married.Google Scholar

Further investigation concerning distributive preferences of decedents survived by a spouse from a second marriage is necessary. Although special provision in the intestate succession statute for this situation may be appropriate, more evidence is needed before any recommendations can be made.Google Scholar

113 See Ariz. Rev. Stat. §§ 25-211, -214 (1976); Cal. Civ. Code §§ 5105, 5110 (West Cum. Supp. 1978); Idaho Code § 32-906 (1963), construed in Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955 (1940); La. Civ. Code Ann. art. 2398 (West Cum. Supp. 1978), art. 2402 (West 1952); Nev. Rev. Stat. §§ 123.220, .225 (1977); N.M. Stat. Ann. § 57-4A-2 (Cum. Supp. 1975); Tex. Fam. Code Ann. tit. 1, §§ 5.01, .22 (Vernon 1975); Wash. Rev. Code Ann. § 26.16.030 (Cum. Supp. 1978).Google Scholar

114 See note 106 supra. Google Scholar

115 See Mulder, , supra note 15, at 313; Wellman & Gordon, supra note 10, at 364.Google Scholar

116 Sussman, supra note IS, at 89-90.Google Scholar

117 Id. At 90:Google Scholar

118 Of the 120 respondents in this group who originally gave 100 percent of the estate to the spouse, 29 (24.2 percent) decided upon reconsideration of this relation set to allow the mother to share in the estate.Google Scholar

119 Of the 406 respondents in this group who originally gave 100 percent of the estate to the spouse, only 24 (5.9 percent) decided upon reconsideration of this relation set to allow the mother to share in the estate.Google Scholar

120 The research design in this study does not allow a conclusive answer to this question. Specifically, respondents with actual estates in the $50,000-$100,000 range should be asked to assume larger estates. In short, we do not know what would happen when wealthy people imagine that their property holdings have significantly increased. The key point to remember, however, is that more wealthy people do give their entire estates to their spouses. This basic fact contravenes the fixed dollar distribution pattern.Google Scholar

121 For purposes of this discussion the authors assume that a child by a previous marriage of the decedent who is legally adopted by the decedent's spouse of a subsequent marriage will be treated as a natural child of the spouse for all purposes. This assumption corresponds to existing intestate succession statutes and to generally accepted notions of the status of the adopted child with regard to the adoptive parent.Google Scholar

122 Sussman, supra note 15, at 97-98; Dunham, supra note 15, at 257.Google Scholar

123 See Mulder, , supra note 15, at 314-15.Google Scholar

124 See Gibson, William W., Jr., Inheritance of Community Property in Texas a Need for Reform, 47 Tex. L. Rev. 359, 367-68 (1969); Kossow. supra note 17, at 239; O'Connell & Effland, supra note 18, at 211, 213.Google Scholar

125 See, e.g., Gibson, supra note 124, at 367. For a general discussion of guardianship, see William F. Fratcher, Toward Uniform Guardianship Legislation, 64 Mich. L. Rev. 983 (1966); Symposium on Guardianship, 45 Iowa L. Rev. 209 (1960). But see UPC § 3-915, Comment, which suggests that guardianship might not be always necessary in view of the combined effect of UPC §§ 3-915 and 5-103.Google Scholar

126 See Clark, Homer H., Jr., The Law of Domestic Relations in the United States § 6.2 (St. Paul: West Publishing Co., 1968); Harry D. Krause, Family Law in a Nutshell § 18.1 (St. Paul: West Publishing Co., 1977).Google Scholar

127 Ward and Beuscher found that of the 37.4 percent of their sample wills (W = 163) in which testators disinherited one or more heirs, 40 percent of the wills bequeathed all or practically all of the estate to the surviving spouse. Ward & Beuscher, supra note 15, at 413.Google Scholar

Dunham found that in the 22 testate estates where the deceased was survived by spouse and children, 100 percent left all of the property to the surviving spouse. Dunham, supra note 15, at 252. See also id. at 252-53 nn. 21-22 for empirical data of beneficiaries named in employee pensions and death benefits.Google Scholar

Browder found that 26 of 54 testators left their entire estates to their spouse and not to their issue. Browder, supra note 42, at 1307. Of those 18 testators who distributed the estate to both spouse and issue, 6 designed their wills to give to the spouse only that amount equal to the maximum marital deduction for federal estate tax purposes. Id. Google Scholar

Sussman found that for those testators survived by a spouse and lineal kin (ancestors & descendants), 85.8 percent of the decedent testators (N= 226) and 85.3 percent of the testators (N= 367) in the survivor population provided that the spouse receive the entire estate. Sussman, supra note 15, at 89-90. See also id. at 133.Google Scholar

Perhaps even more interesting are the insights provided in the Sussman study from investigation of redistribution of the estate by the families in derogation of the decedent's will and the intestate succession statutes. Redistribution occurred in only 50 of the 360 (14 percent) testate cases for which interviews were obtained, and in 21 cases it was a car that was redistributed. Typically a spouse, as the sole beneficiary, gave the car to a child. In 17 of the remaining 29 cases, the decedent was survived by a spouse and issue. If the spouse was the sole beneficiary, the redistribution involved giving part or all of the estate to the children. From Sussman's case descriptions, these gifts carried out the surviving spouse's estate plan inexpensively and efficiently. If the spouse was not the sole beneficiary, redistribution occurred with children signing over part or all of their bequest to the surviving spouse. Id. at 122-23.Google Scholar

For the intestate cases, major redistributions occurred in over 50 percent of the cases. There were 74 cases in which the intestate decedent was survived by a spouse and lineal kin. In 60 of these cases the intestate succession pattern was not followed. In 19 of the cases, the estates were so small that the family allowances, etc., permitted the spouse to receive the entire estate. In 38 cases, the spouse received either all of the estate or more of the estate than the intestate share provided through redistribution. Id. at 125, 126-27.Google Scholar

Of the 31 cases studied in New Jersey in which testators were survived by spouse and children, the entire estate was bequeathed to the spouse in 80 percent of the wills. New Jersey study, supra note 29, at 278.Google Scholar

128 Statutes in 10 jurisdictions provide that the spouse receive one-half of the estate and the issue share the remaining one-half of the decedent's estate. Haw. Rev. Stat. §§ 560:2-102(2), -103(1) (Supp. 1977); Kan. Stat. §§ 59-504, -506 (1976); Ky. Rev. Stat. §§ 391.010(1), .030 (Cum. Supp. 1976), § 392.020 (1972); (minor exception to the general pattern of 50 percent to the spouse and 50 percent to the children); 2 Est. Planning (P-H) § 2701 (to be codified as Md. Est. & Trusts Code Ann. §§ 3-102(b), -103); Mass. Ann. Laws ch. 190, § 1 (2) (Michie/Law. Co-op Cum. Supp. 1978), ch. 190, §§ 2, 3(1) (Michie/Law. Co-op 1969); Mo. Ann. Stat. § 474.010 (l)(a). (2)(a) (Vernon 1956); Or. Rev. Stat. §§ 112.025, .045(1) (1977); R.I. Gen. Laws §§ 33-1-1 (First), -10 (Second)-(Third) (1969), 2 Est. Planning (P-H) § 2732 (to be codified as §§ 33-25-2 to -6) (the general pattern of 50 percent to spouse and 50 percent to children applies only to personalty owned by the decedent at death; spouse receives a life estate in all realty owned by the decedent at death); Wash. Rev. Code § 11.04.015(l)(a)-(b), (2)(a) (Cum. Supp. 1978) (this distribution only applies to separate property owned by the decedent at death; the spouse receives all the community property owned by the decedent at death); Wyo. Stat. § 2-3-101(a)(ii) (1977).Google Scholar

Statutes in 18 jurisdictions provide that the spouse receive one-third of the decedent's estate and the issue share the remaining two-thirds of the decedent's estate. Cal. Prob. Code §§ 201, 221 (West 1956) (this distribution only applies to the separate property owned by the decedent at death; the spouse receives all the community property owned by the decedent at death); D.C. Code §§ 19-303, -305 to -307 (1973); Ill. Rev. Stat. ch. 110§, § 2-1(a) (1977); Ind. Code § 29-1-2-1(a)(1), (c)(1) (1976); Me. Rev. Stat. tit. 18, §§ 851, 1001(1), (2) (1964); Mich. Comp. Laws Ann. § 702.80 (First) (Cum. Supp. 1978-79), § 702.93 (1968) (minor exceptions to the general pattern of one-third to the spouse and two-thirds to the children); Minn. Stat. Ann. § 525.16(l)-(2), (4)(a) (West 1975); Nev. Rev. Stat. §§ 123.250, 134.040(2) (1973) (this distribution applies only to separate property owned by the decedent at death; the spouse receives all the community property owned by the decedent at death); N.Y. Est., Powers & Trusts Law § 4-1.1(a)(1) (McKinney Cum. Supp. 1977-78) (minor exception to the general pattern of one-third to the spouse and two-thirds to the children); N.C. Gen. Stat. §§ 29-14(2), -15(2) (1976); Okla. Stat. tit. 84, § 213 (First) (1971); S.C. Code § 21-3-20(1), (8) (1976); S.D. Compiled Laws Ann. § 29-1-5 (1976); Tenn. Code Ann. §§ 31-203(2), -204(1) (Supp. 1977); Tex. Prob. Code Ann. §§ 38(b)(1), 45 (Vernon 1956) (general pattern of one-third to spouse and two-thirds to children applies only to separate personalty owned by the decedent at death; spouse receives a life estate in one-third of the separate realty owned by the decedent at death; the spouse receives no part of the community property owned by the decedent at death); Vt. Stat. Ann. tit. 14, §§ 401, 461, 474, 551(1) (1974) (spouse receives as much personalty as probate court assigns according to spouse's circumstances but not less than one-third of the estate); Va. Code §§ 64.1-1 (First), -11, -19 (Cum. Supp. 1978); W. Va. Code §§ 42-1-1(a), -2-1, 43-1-1 to -5, -7 to -20 (1966), § 43-1-6 (Cum. Supp. 1978) (spouse receives only a life estate in one-third of the realty owned by the decedent at death).Google Scholar

Statutes in 6 jurisdictions provide for unique patterns of distributions between spouse and issue. Ala. Code §§ 43-3-1(1), -10, -12, -5-1 to -5, -20 to -23, -40 to -53 (1975); Ark. Stat. Ann. § 61-137 (Cum. Supp. 1975), §§ 61-149(a), -201 to -233 (1971); Ga. Code Ann. §§ 113-902, -903(3)-(4) (1975); La. Civ. Code Ann. arts. 902, 915 (West 1952), arts. 916-916.1, 2382 (West Cum. Supp. 1978); Miss. Code Ann. §§ 91-1-7, -11 (1972); N.M. Stat. Ann. §§ 32A-2-102(A)(2), -102(B), -2-103(A) (Supp. 1976-77).Google Scholar

The portion of the estate going to the surviving spouse increases in some of these jurisdictions if the decedent is survived by only one child or the descendants of only one child. Ala. Code § 43-3-10 (1975); Cal. Prob. Code § 221 (West 1956); Ind. Code § 29-1-2-1(a)(2) (1976); Mich. Comp. Laws Ann. § 702.93(4)-(5) (1968); Minn. Stat. Ann. § 525.16 (3) (West 1975); Nev. Rev. Stat. § 134.040(1) (1973); N.Y. Est., Powers & Trusts Law § 4-1.1(a)(2) (McKinney Cum. Supp. 1977-78); N.C. Gen. Stat. §§ 29-14(1), -15(1) (1976); Okla. Stat. Ann. tit. 84, § 213 (First) (1971); S.C. Code § 21-3-20(1), (8) (1976); S.D. Compiled Laws Ann. § 29-1-5 (1976); Tenn. Code Ann. §§ 31-203(2), -204(1) (Supp. 1977) (statute provides that the spouse receive one-third or a child's share of the entire estate, whichever is greater); Vt. Stat. Ann. tit. 14, §§ 461, 474 (1974).Google Scholar

129 UPC §§ 2-102(3), -102A(1)(iii) (this distribution only applies to separate property owned by the decedent at death; the spouse receives all the community property owned by the decedent at death); Alaska Stat. §§ 13.11.010(3), .015(1) (1972); Colo. Rev. Stat. §§ lMl-102(1)(b), -103(1)(a) (1973); Conn. Gen. Stat. Ann. § 45-274 (West 1960), § 46-12 (West 1978); Del. Code tit. 12, §§ 502(3), 503(1) (Cum. Supp. 1977); Fla. Stat. Ann. §§ 732.102(l)(b), .103(1) (West 1976); Idaho Code §§ 15-2-102(a)(3), (b), -103(a) (Cum. Supp. 1977) (this distribution only applies to separate property owned by the decedent at death; the spouse receives all the community property owned by the decedent at death); Iowa Code Ann. § 633.211 (West Cum. Supp. 1978-79), § 633.219(1) (West 1964); Neb. Rev. Stat. §§ 30-2302 (3), -2303(1) (1975); N.H. Rev. Stat. Ann. § 561:1(I)(c), (II)(a) (1974); N.J. Rev. Stat. §§ 3A:2A-34(c), -35(a) (Cum. Supp. 1978-79) (effective Aug. 29, 1979); N.D. Cent. Code § 30.1-04-02(3), -03(1) (1976); Ohio Rev. Code Ann. § 2105.06(B)-(C) (Page 1976) (balance to spouse increases if only one child or his lineal descendants survives); Decedents, Estates and Fiduciaries, Pub. Act No. 23, § 1, 1978 Purdon's Legis. Serv. 33 (West) (to be codified as 20 Pa. Cons. Stat. Ann. §§ 2102(3), 2103(1) (Purdon)); Utah Uniform Prob. Code §§ 75-2-102(l)(c), -103(l)(a) (1977); Wis. Stat. Ann. § 852.01(l)(a)(2), (b) (West 1971) (balance to spouse increases if only one child or his issue survives).Google Scholar

130 Ariz. Rev. Stat. § 14-2102(1) (1975).Google Scholar

131 1974 Mont. Laws ch. 365, § 1, at 1387 (to be codified as Mont. Rev. Codes Ann. § 91A-2-102(1)).Google Scholar

132 See Illinois study, supra note 29, at 730; New Jersey study, supra note 29, at 270-72 (when presented with two contrasting hypothetical, a young parent with minor children and an older parent with young adult children, a larger percentage of the sample participants preferred leaving the entire estate to the spouse in the first hypothetical than in the second).Google Scholar

133 See Illinois study, supra note 29, at 728-29; New Jersey study, supra note 29, at 267-70, 278 (the hypothetical presented a decedent survived by a widow and two children: 30 percent of the telephone survey sample gave the widow all of the estate; but among the New Jersey testators studied, 80 percent gave their entire estate to their spouses). Interestingly, results similar to those obtained in the present study were obtained from a sample testing of a questionnaire designed by Dunham similar to the one used here. Dunham, supra note 15, at 260.Google Scholar

134 An explanation for the discrepancy between prior will studies and the results of the Illinois study was that male decedents dominated the prior studies. In the Dunham study, 37 of the 44 decedents who died leaving a surviving spouse and children were males. Dunham, supra note 15, at 249. Although a similar breakdown of the Sussman study is not available, data indicate that men dominated the surveyed decedent population. Of the 639 decedents surveyed, 402 were males. Sussman, supra note 15, at 71. See also id. at 51 for breakdown by sex of the survivor population. In the Illinois study significantly fewer female respondents than male respondents wanted their spouse to receive the entire estate. Of the male respondents with children, 73.5 percent gave the entire estate to their wives. On the other hand, only 52.6 percent of the female respondents with children wanted their husbands to receive their entire estates. Illinois study, supra note 29, at 729-30, 730 n.12. Although the results were significant, the magnitude of the differences between male and female responses obtained in the Illinois study did not emerge in the present study. See appendix tables A5 and A6.Google Scholar

135 Another explanation for the discrepancy between prior wiU studies and the Illinois study is that persons without children in the Illinois study were less willing to give the entire estate to the spouse when the hypothetical included children. Illinois study, supro note 29. at 729-30. Family status, however, did not appear to affect the distributive preferences of the respondents in the present study.Google Scholar

136 See note 129 supra. Google Scholar

137 Cf. note 115 supra and accompanying text. In the context of a spouse-children situation, commentators frequently suggest possible tax savings. By distributing a portion of a substantial in testate estate to the children instead of the surviving spouse, the UPC provides for federal estate tax savings upon the death of the spouse. See Mulder, supra note 15, at 313-18; Wellman, supra note 16, at 204. The Tax Reform Act of 1976 eliminates this tax savings argument. The increased availability of the marital deduction (50 percent of the adjusted gross estate or $250,000, whichever is greater), I.R.C. § 2056, as well as the unified credit, which essentially permits the first $175,625 in an estate to be free of estate tax, I.R.C. § 2010, effectively eliminates federal estate tax as a consideration in the design of intestate succession statutes.Google Scholar

138 Sussman, supra note 15, at 89-90.Google Scholar

139 Exceptions to this general rule include: Ind. Code § 29-1-2-1(b) (1976); La. Civ. Code Ann. art. 916 (West Cum. Supp. 1978); Okla. Stat. Ann. tit. 84, § 213 (First) (1971); Vt. Stat. Ann. tit. 14, § 465 (1974).Google Scholar

140 Alaska Stat. § 13.11.010(3) (1972); Ariz. Rev. Stat. § 14-2102(2) (1975); Colo. Rev. Stat. § 15-11-102(1)(c) (1973); Conn. Gen. Stat. Ann. § 46-12 (West 1978); Del. Code tit. 12, § 502(4) (Cum. Supp. 1977); Fla. Stat. Ann. § 732.102(l)(c) (West 1976); Idaho Code § 15-2-102(a)(4) (Cum. Supp. 1977); 1974 Mont. Laws ch. 365, § 1, at 1387 (to be codified as Mont. Rev. Codes Ann. § 91A-2-102(2)(A)-(B)). Neb. Rev. Stat. § 30-2302(4) (1975); N.H. Rev. Stat. Ann. § 561:1(I)(d) (1974); N.J. Rev. Stat. § 3A:2A-34(d) (Cum. Supp. 1978-79) (effective Aug. 29, 1979); N.D. Cent. Code § 30.1-04-02(4) (1976); Ohio Rev. Code Ann. § 2105.06(B)-(C) (Page 1976); Decedents, Estates and Fiduciaries, Pub. Act No. 23, § 1, 1978 Purdon's Legis. Serv. 33 (West) (to be codified as 20 Pa. Cons. Stat. Ann. § 2102(4) (Purdon)); Utah Uniform Prob. Code § 75-2-102(l)(d) (1977): Wis. Stat. Ann. § 852.01(l)(a)(3) (West 1971).Google Scholar

141 See Curry, , supra note 18, at 118; W. Garrett Flickinger, Intestate Succession and Wills Law: The New Probate Code, 6 N.M.L. Rev. 25, 28 (1975); O'Connell & Effland, supra note 18, at 211-12.Google Scholar

142 “If there is a spouse and more than one child or their lineal descendants surviving, the first thirty thousand dollars, if the spouse is the natural or adoptive parent of one of the children, or the first ten thousand dollars if the spouse is the natural or adoptive parent of none of the children, plus…”. Ohio Rev. Code Ann. § 2105.06(C) (Page 1976). See Note, Ohio's 1975 Probate Reform Act: Analysis of Major Changes in Ohio's Probate Code, 45 U. Cin. L. Rev. 429, 430-31 (1976).Google Scholar

143 Sussman, supra note 15, at 91-95. See also id. at 128-31 for a description of intestate distribution that involved remarriage.Google Scholar

144 Id. at 93-94.Google Scholar

145 Accord, Illinois study, supra note 29, at 728-32.Google Scholar

146 See tables 11 and 12 supra and note 132 supra and accompanying text.Google Scholar

147 See table 19 and accompanying text infra. Google Scholar

148 See Page, William H., Descent Per Stirpes and Per Capita, 1946 Wis. L. Rev. 3, 11-12, 23-27, 36-37, for a description of the historical development of the law.Google Scholar

149 See notes 128-29 supra. Google Scholar

150 Sussman, supra note 15, at 96-102; Browder, supra note 42, at 1305, 1307; Dunham, supra note 15, at 253-54.Google Scholar

151 Dunham, supra note 15, at 253-54.Google Scholar

152 Id. Google Scholar

153 Sussman, supra note 15, at 96-98.Google Scholar

154 Id. at 98-100. See also id. at 123-24 (3 cases of redistribution of testate estate permitting the child who cared for the parent to receive a greater share).Google Scholar

155 Id. at 101.Google Scholar

156 See id. Google Scholar

157 Id. at 97.Google Scholar

158 Id. Google Scholar

159 Accord, Illinois study, supra note 29, at 736-37.Google Scholar

160 See text following note 132 supra. Google Scholar

161 See Sussman, , supra note 15, at 97 (one case involved this situation); Illinois study, supra note 29, at 736-37 (87.8 percent of the respondents treated children equally).Google Scholar

162 Term applied in Krause, supra note 126, § 13.1, at 128.Google Scholar

163 Hooper, Wilfrid, The Law of Illegitimacy 25-27 (London: Sweet & Maxwell, Ltd., 1911). Furthermore, the nonmarital child could not be legitimated by any subsequent act of the parents, such as intermarriage after birth. Note, Illegitimacy, 26 Brooklyn L. Rev. 45, 46 (1959).Google Scholar

164 See Note, supra note 163, at 74-79.Google Scholar

165 For a summary of the Louisiana scheme, see Illegitimates and Equal Protection, 10 U. Mich. J.L. Ref. 543. 550 n.49 (1977).Google Scholar

166 See, e.g., Ala. Code § 43-3-7 (1975); Cal. Prob. Code § 225 (West Cum. Supp. 1978); Cal. Civ. Code § 7003(1) (West 1956); Mass. Ann. Laws ch. 190, § 5 (Michie/Law. Co-op 1969); Ohio Rev. Code Ann. § 2105.17 (Page 1976); Tex. Prob. Code Ann. § 42(a) (Vernon Cum. Supp. 1978).Google Scholar

167 See Note, Inheritance Rights of Illegitimate Children Under the Equal Protection Clause, 54 Minn. L. Rev. 1336, 1337-38 (1970).Google Scholar

168 See, e.g., Ark. Stat. Ann. § 61-141(b) (1971); D.C. Code § 19-318 (1973); Ky. Rev. Stat. § 391.090(3) (1972); Mass. Ann. Laws ch. 190, § 7 (Michie/Law. Co-op 1969) (marriage in addition to either acknowledgment or adjudication of paternity); Miss. Code Ann. § 91-1-15 (1972).Google Scholar

169 Under such a statute, a nonmarital child who was not legitimated could not inherit from his father, even though paternity was satisfactorily shown. Moore v. Terry, 220 Ala. 47, 124 So. 80 (1929).Google Scholar

170 430 U.S. 762 (1977).Google Scholar

171 See Nowak, John E., Ronald D. Rotunda, & J. Nelson Young, Handbook on Constitutional Law 606-7 (St. Paul: West Publishing Co., 1978) for discussion of this case.Google Scholar

172 Trimble v. Gordon, 430 U.S. at 772 n.14.Google Scholar

173 Id. The Court will have another opportunity to consider which type of statutes designed to establish paternity are constitutionally permissible in Lalli v. Lalli, 43 N.Y.2d 65, 371 N.E.2d 481 (1977), cert, granted, 46 U.S.L.W. 3578 (No. 77-115). The New York Court of Appeals upheld the constitutionality of a statute that requires as proof of paternity a judicial determination made during the lifetime of the father.Google Scholar

174 See Note, Recognizing the Father-Illegitimate Child Relationship for Intestate Succession Trimble v. Gordon, 27 DePaul L. Rev. 175, 188 (1977).Google Scholar

175 Most states that permit the nonmarital child to inherit from the father upon prior adjudication of or formal acknowledgment of paternity have established various combinations of alternative requirements for inheritance. E.g., Iowa Code Ann. §§ 595.19, 633.222 (West 1964) (prior proof of paternity; written, or general and notorious recognition, or legitimation by marriage); Kan. Stat. § 59-501 (1976) (notorious or written recognition, or prior adjudication of paternity); N.M. Stat. Ann. § 32A-2-109(B) (Supp. 1976) (marriage, written recognition plus general and notorious recognition, prior adjudication of paternity, or establishment of paternity after death).Google Scholar

The UPC allows the nonmarital child to inherit from the father if the father-child relationship is established under the Uniform Parentage Act [hereinafter cited as UPA]. UPC § 2-109 (alternative subsection (2)). The UPA provides for substantive legal equality for all children regardless of the marital status of their parents. To identify the father, the UPA establishes several rebuttable presumptions to cover instances in which proof of external circumstances indicate a particular man to be the probable father. The UPA also provides for the ascertainment of paternity through court action, whether or not external circumstances presumptively point to a particular man as the father. See Commissioners' Prefatory Note, Uniform Parentage Act (1973). Alternatively, for states that have not adopted the UPA, the UPC, UPC § 2-109 (alternative subsection (2)), allows the nonmarital child to inherit from the father if the father marries the child's natural mother, upon a prior adjudication of paternity, or if paternity is established after the father's death.Google Scholar

176 Trimble v. Gordon, 430 U.S. at 774.Google Scholar

177 Id. at 775.Google Scholar

178 Id. at 775 n.16.Google Scholar

179 The following question was posed to Illinois residents in a telephone interview: Which one of these statements best reflects your opinion?Google Scholar

a) Unless the father leaves a will in which he specifically gives his illegitimate child an in heritance, the illegitimate child should have no right to inherit from its father.Google Scholar

b) If the father does not leave a will, the illegitimate child should inherit from its father the same inheritance to which the child would be entitled if it were of legitimate birth.Google Scholar

c) If the father does not leave a will, the illegitimate child should inherit from its father enough to cover support needs until the child is able to go to work and earn its own living.Google Scholar

Krause, Harry D., Illegitimacy: Law and Social Policy 318 (Indianapolis, Bobbs-Merrill Co., 1971). Of the respondents, 64 percent chose (b), and 31 percent chose (c). In another study conducted in Illinois respondents were asked the following question: “What percentage of your estate would you wish to give each survivor if you were survived only by a minor child from your present marriage and your minor illegitimate child?” Almost 93 percent wanted each child to receive 50 percent of the estate. Illinois study, supra note 29, at 736-37.Google Scholar

180 Page, supra note 148, at 12.Google Scholar

181 See id. at 413-14.Google Scholar

182 See notes 121-28 supra and accompanying text.Google Scholar

183 Distribution of the estate to grandchildren may be advisable for relatively wealthy decedents and their children. Any property received by the child-parent is likely to be used for the benefit of the grandchildren. If part of the decedent's estate is distributed to grandchildren rather than to children, the distribution indirectly assists the children but allows them to avoid income and death taxes as well as administration costs at their death. The wealthier the testator and the child, the greater the savings available to the children from this distribution pattern. This rationale for distributing part of the estate to the grandchildren should not affect the design of an intestate. succession statute. It applies only to wealthy decedents, who are not likely to die intestate. Moreover, to accomplish the distribution properly, individualized planning by the decedent and lawyer is required. For example, a trust for the grandchildren should be established so that guardian administration can be avoided and provision for the special needs of the grandchildren can be obtained.Google Scholar

The argument made in the text suggests that sons- and daughters-in-law should receive the property if the decedent's child predeceased the decedent leaving spouse and issue. To date, no evidence as to decedent's preference for such a distributive pattern has been obtained. Cf. Illinois study, supra note 29, at 742-43; Mulder, supra note 15, at 321-22.Google Scholar

184 Sussman, supra note 15, at 97-98, 102-3; Dunham, supra note 15, at 254.Google Scholar

185 These Findings are not necessarily contrary to the results obtained in the Illinois study in which 55 percent of the respondents in the Illinois sample gave 100 percent of the estate to the child when asked, “What percentage of your estate would you wish to give each survivor if you were survived only by an adult child and his child, that is, your grandchild?” Illinois study, supra note 29, at 738. When these same respondents were asked “What percentage of your estate would you wish to give to each survivor if you were survived by an adult child and a grandchild who was the offspring of a deceased child?” 18.4 percent gave no part of the estate to the grandchild. Id. at 739. Thus, the conflicting results in the two surveys can be explained by the substantial minority of respondents in the Illinois survey who distributed the entire estate to the living son and disinherited the deceased son's family. The 55 percent of the respondents favoring the adult child rather than his or her child apparently included respondents who favor children to grandchildren, regardless of whether or not their parent is alive. When the two questions asked in the Illinois study were combined in this questionnaire into one hypothetical, the citizen preferences were clarified.Google Scholar

186 Persons with smaller estates tended to treat the grandchildren equally more frequently than persons with larger estates, as indicated in the following tabulation:Google Scholar

Treatment of Grandchildren by Estate Size for Currently Married Respondents When One or Both Grandchildren Receive a Portion of the EstateGoogle Scholar

187 See note 183 supra. Google Scholar

188 See Bailey, Edward W., Intestacy in Texas: Some Doubts and Queries, 32 Tex. L. Rev. 497, 506-20 (1954); Chaffin, supra note 53, at 503-6; Charles A. Heckman, The Treatment of Some Traditional Problems of Intestate Succession in the North Dakota Century Code, 45 N.D.L. Rev. 465, 465-75 (1969); Denny O. Ingram, Jr., & Theodore Parnall, The Perils of Intestate Succession in New Mexico and Related Will Problems, 7 Nat. Resources J. 555, 570-82 (1967); Page, supra note 148, at 3-8, 27-39; Herbert E. Ritchie, Methods of Intestate Succession, 14 U. Cin. L. Rev. 508, 513-23 (1940); Lawrence W. Waggoner, A Proposed Alternative to the Uniform Probate Code's System for Intestate Distribution Among Descendants, 66 Nw. U.L. Rev. 626 (1971); Comment, Inheritance by Grandchildren in Their Own Rights and by Representation, 10 Tul. L. Rev. 613, 617-19 (1936). See also Atkinson, supra note 81.Google Scholar

189 Classifying the statutes according to whether they adopt the per stirpes or per capita system for determining primary shares is often difficult because of the ambiguous language found in the statutes and the paucity of cases construing such language. The per stirpes system appears to have been adopted by 17 jurisdictions. Ala. Code §§ 43-3-1(1), -2 (1975); Conn. Gen. Stat. Ann. § 45-274 (West 1960) (see Daniels v. Daniels, 115 Conn. 239, 161 A.94 (1932); Cook v. Catlin, 25 Conn. 387 (1856); D.C. Code § 19-307 (1973) (see McManus v. Lynch, 28 App. D.C. 281 (1906); Iglehart v. Holt, 12 App. D.C. 68 (1898)); Fla. Stat. Ann. § 732.104 (West 1976) (see In re Estate of Davol, 100 So. 2d 188 (Fla. Ct. App. 1958)), in which the court held the earlier case of Broward v. Broward, 96 Fla. 131, 117 So. 691 (1928), which interpreted different language as requiring the per capita system, not determinative for purposes of interpreting existing statutory language); Ga. Code Ann. § 113-903(4) (1975); Ill. Rev. Stat. ch. 110§, § 2-1(a)-(b) (1977) (see Welch v. Wheelock, 242 Ill. 380, 90 N.E. 295 (1909)); Iowa Code Ann. § 633.219(1) (West 1964) (language of statute appears to require the per stirpes system for determining primary shares but no case on point; see Note, Intestate Succession Under the New Iowa Probate Code, 49 Iowa L. Rev. 753, 757-58 (1964)); Kan. Stat. § 59-506 (1976) (language of the statute appears to require per stirpes system for determining primary shares but no case on point; see Jay Scott Brown, Intestate Succession in Kansas, 8 Washburn L.J. 284, 288-91 (1969)); Ky. Rev. Stat. § 391.040 (1972); La. Civ. Code Ann. art. 895 (West 1952); Md. Est. & Trusts Code Ann. § l-210(b) (1974); Minn. Stat. Ann. § 525.16(4)(a) (West 1975) (see Swenson v. Lewison, 135 Minn. 145, 160 N.W. 253 (1916); William L. Eagleton, The New Minnesota Probate Code, 20 Minn. L. Rev. 1, 12-14 (1935); R.I. Gen. Laws § 33-1-7 (1969); S.C. Code § 21-3-20(1) (1976); Utah Uniform Probate Code §§ 75-2-103(l)(a), -106 (1977) (language appears to provide for the per stirpes system for determining primary shares; however, the UPC Comment accompanies the statute, which suggests that the per capita system for determining primary shares was intended); Wyo. Stat. Ann. § 2-3-101(c)(i) (1977).Google Scholar

Delaware may also provide for the per stirpes system for determining primary shares. Prior to 1975, the Delaware statute provided that issue take “by right of representation” which was defined apparently to be the per stirpes system by the following provision: “Distribution among children… in equal degree, shall be in equal portions, but the issue of such of them as shall have died before the intestate shall take according to stocks, by right of representation and this rule shall hold, although the distribution be entirely among such issue.” Del. Code § 1841 (1852) (found in Del. Code tit. 12, § 513 (1974)). A new statute, enacted in 1975, repealed the definitional section and replaced the term “by right of representation” with the term “per stirpes.” 59 Del. Laws ch. 384, § 1 (1973). Presumably the per stirpes system for determining primary shares continues to be the law in Delaware. Del. Code tit. 12, § 503(1) (Cum. Supp. 1977). But see Chaf-fin, supra note 53, at 503 n.307, classifying Delaware as requiring the per capita system.Google Scholar

Mississippi may also provide for the per stirpes system for determining primary shares, but the ambiguous language found in the statute leaves the question open until clarification by the courts. Miss. Code Ann. § 91-1-3 (1972). See Chaffin, supra note 53, at 504 n.305; Comment, An Examination of Various Aspects of Intestate Succession in Mississippi, 37 Miss. L.J. 107, 110 (1965).Google Scholar

190 Cal. Prob. Code §§ 221-222, 250 (West 1956), as construed in Maud v. Catherwood, 67 cal. App. 2d 636, 155 P.2d 111 (1945). The statutes in Nevada, Oklahoma, and South Dakota have language similar to the California statute; however, to date no case in these states has addressed the issue raised in Maud. See Nev. Rev. Stat. §§ 134.040, .140 (1973); Okla. Stat. Ann. tit. 84, § 213 (First) (1971); S.D. Compiled Laws Ann. §” 29-1-5, -14 (1976).Google Scholar

191 See note 189 supra. Google Scholar

192 See Ill. Rev. Stat. ch. 110§, § 2-1 (1977).Google Scholar

193 Again, classifying the statutes according to whether they adopt the per capita method for determining primary shares and the per stirpes or other methods of representation for determining the more remote shares is difficult because of the ambiguous language found in the statutes and the paucity of cases construing such language. The per capita with per stirpes representation system appears to have been adopted by the following jurisdictions. Me. Rev. Stat. tit. 18, §§ 851, 1001(2) (1964) (see Healey v. Cole, 95 Me. 272, 49 A. 1065 (1901)); Mass. Ann. Laws ch. 190, § 3(1) (Michie/Law. Co-op 1969) (see Balch v. Stone, 149 Mass. 39, 20 N.E. 322 (1889)); Mich. Comp. Laws Ann. § 702.80 (First) (Cum. Supp. 1978-79) § 702.93(l)-(5) (1968) (see 1945-46 Op. Att'y Gen. 388); Mo. Ann. Stat. § 474.020 (Vernon 1956); N.H. Rev. Stat. Ann. § 561:1(II)(a) (1974) (see Preston v. Cole, 64 N.H. 459, 13 A. 788 (1888), which in dicta construed language to require per capita with per stirpes representation)); N.Y. Est., Powers & Trusts Law § 4-1.1(a)(1)-(2) (McKinney Cum. Supp. 1977-78) §§ 1-2.14, 4-1.1(a)(6), (b)-(c) (McKinney 1967) (see In re Estate of McKeon, 25 Misc. 2d 850, 199 N.Y.S.2d 158 (1960)); Ohio Rev. Code Ann. §§ 2105.06(A)-(C), .12-.13 (Page 1976) (see Snodgrass v. Bedell, 134 Ohio St. 311, 16 N.E.2d 463 (1938); 20 Pa. Cons. Stat. Ann. § 2104(1)-(2) (Purdon 1975) (see In re Minshall Estate, 36 Del. 329, 67 Pa. D & C 377 (1949)); Tex. Prob. Code Ann. § 43 (Vernon 1956); Va. Code § 64.1-3 (1973); Vt. Stat. Ann. tit. 14, § 551(1) (1974) (see In re Martin's Estate, 96 Vt. 455, 120 A. 862 (1923), which in dicta indicated statute requires per capita with per stirpes representation)); W. Va. Code § 42-1-3 (Cum. Supp. 1978).Google Scholar

Indiana, Tennessee, and Washington have statutes containing the following or very similar language: “If they are all of the same degree of kinship to the intestate, they shall take equally, or if unequal degree, then those of more remote degree shall take by representation.” Ind. Code § 29-1-2-1(c)(1) (1976); Tenn. Code Ann. §§ 31-204(1), -205 (Supp. 1977); Wash. Rev. Code Ann. §§ 11.02.005(3), .04.015(2)(a) (Cum. Supp. 1976). No court has construed this language, but presumably it would be interpreted as per capita with per stirpes representation. See Chaffin, supra note 53, at 504 n.307.Google Scholar

As noted in note 190 supra, Nevada, Oklahoma, and South Dakota have language in their statutes similar to the language construed in Maud v. Catherwood, 67 Cal. App. 2d 636, 155 P.2d 111 (1945), and, therefore, cannot be classified with certainty as per capita with per stirpes representation.Google Scholar

194 See In re Estate of McKeon, 25 Misc. 2d 850, 199 N.Y.S.2d 158 (1960); Kraemer v. Hook, 168 Ohio St. 221, 152 N.E.2d 430 (1958); Ohio Rev. Code Ann. §§ 2105.06(A)-(C), .12-.13 (Page 1976). See also Heckman, supra note 188, at 465-66; Ingram & Parnall, supra note 188, at 573-74; Page, supra note 148, at 7-8.Google Scholar

195 See Bailey, , supra note 188, at 519; William L. Eagleton, Introduction to the Intestacy Act and the Dower Rights Act, 20 Iowa L. Rev. 241, 244, 247-49 (1935).Google Scholar

196 See Waggoner, , supra note 188, at 632-33.Google Scholar

197 Alaska Stat. §§ 13.11.015(1), .030 (1972); Ariz. Rev. Stat. §§ 14-2103(8), -2106 (1975); Ark. Stat. Ann. §§ 61-134, -149 (1971), § 61-135 (Cum. Supp. 1977); Colo. Rev. Stat. §§ 15-11-103(1)(a), -106 (1973); Haw. Rev. Stat. §§ 560:2-103(1), -106 (1976); Idaho Code §§ 15-2-103(a), -106 (Cum. Supp. 1977); 1974 Mont. Laws ch. 365, § 1, at 1387 (to be codified as Mont. Rev. Code Ann. §§ 91A-2-103(1), -106); Neb. Rev. Stat. §§ 30-2303(1), -2306 (1975); N.J. Rev. Stat. §§ 3A:2A-35(a), -38 (Cum. Supp. 1978-79) (effective Aug. 29, 1979); N.M. Stat. Ann. § 32A-2-103(A), -10 (Supp. 1976-77); N.D. Cent. Code §§ 30.1-04-03(1), -06 (1976); Or. Rev. Stat. §§ 112.045(1), .065 (1977); Wis. Stat. Ann. §§ 852.01(1)(b), .03(1) (West 1971).Google Scholar

198 Waggoner, supra note 188, at 630.Google Scholar

199 UPC § 2-106.Google Scholar

200 Model Probate Code § 22(b)-(c) (Ann Arbor: University of Michigan Law School, 1946).Google Scholar

201 N.C. Gen. Stat. §§ 29-15, -16 (1976). See Waggoner, supra note 188, at 630.Google Scholar

202 Waggoner, supra note 188, at 632-53.Google Scholar

203 See Maud v. Catherwood, 67 Cal. App. 2d 636, 651, 155 P.2d 111, 119 (1945) (“appellants urge that [the statute] should be construed to make the provision, ‘fair.’ Undoubtedly appellants mean fair as applied to their view of the facts and the law of this case”). See also Page, supra note 148, at 29 n.76, for a list of cases that have analyzed this question in terms of fairness and equity.Google Scholar

204 Illinois study, supra note 29, at 740-41.Google Scholar

205 Interestingly in 1975, as a result of Lawrence Waggoner's A Proposed Alternative to the Uniform Probate Code's System for Intestate Distribution Among Descendants, 66 Nw. U.L. Rev. 626 (1971), the Joint Editorial Board amended its commentary to UPC § 2-103 and recommended adoption of the per capita at each generation system. If states adopt the per capita at each generation system, adjustments to other statutory provisions may be necessary. E.g., antilapse statute (N.C. Gen. Stat. § 31-42 (1976)).Google Scholar

206 An indication that testators and settlors are not being advised is that no will and trust forms provided by the major banks located in Chicago suggest a dispository provision for distribution to issue in a per capita at each generation manner. The two alternative provisions in dicated below define per capita at each generation when used in a trust or will:Google Scholar

Alternative I: Google Scholar

The term “per capita at each generation” means that property shall be distributed to the persons and in the proportions that the Settlor's personal property would be distributed under the laws of the state of North Carolina in force on the date this instrument was executed if the Settlor had died intestate on the specified date of distribution, domiciled in such state, not married and survived by descendants.Google Scholar

Alternative II: Google Scholar

The term “per capita at each generation” means that property shall be distributed to the persons in the following manner. The estate is divided into as many shares as there are living descendants in the generation nearest to me which contains living descendants on the specified date of distribution and deceased persons in that same generation who left descendants who survive to the specified date of distribution. Each living descendant in the nearest generation to me which contains any living descendants is allocated one share and the remainder of the estate is divided in the same manner as if the descendants already allocated a share and their descendants had predeceased the specified date of distribution.Google Scholar

207 E.g., England's Inheritance (Provision for Family and Dependents) Act, 1975, ch. 63.Google Scholar

208 But see La. Civ. Code Ann. art. 2382 (West Cum. Supp. 1978) (if either spouse dies “rich” leaving the surviving spouse in “necessitous circumstances,” the latter has the right to one-fourth of the decedent's estate if no children survive, but if one, two, or three children, spouse has the right to one-fourth in usufruct only, and if more than three children, spouse shall receive only a child's share in usufruct); Vt. Stat. Ann. tit. 14, § 401 (1974) (the surviving spouse of a decedent shall receive from an intestate decedent's estate that part of the personalty owned by the decedent that the probate court assigns according to the surviving spouse's circumstances and the “estate and degree” of the decedent; but the share of personalty shall not be less than one-third after payment of claims against the estate).Google Scholar

209 See, e.g., Friedman, supra note 4, at 20. Cf. W. D. MacDonald, Fraud on the Widow's Share 301-27 (Ann Arbor: University of Michigan Law School, 1960); Chaffin, supra note 53, at 462-63; Paul G. Haskell, Restraints Upon the Disinheritance of Family Members, in Death, Taxes and Family Property, supra note 4, at 105, 113-14.Google Scholar

210 Cases arising as a result of the discretion accorded the courts in Louisiana provide excellent examples of the kind of litigation that can be expected. See, e.g., Succession of Spencer, 289 So. 2d 850 (La. App. 1974); Succession of W. Harris, 283 So. 2d 325 (La. App. 1973). For review of litigation experience of discretionary legislation in British commonwealth countries, see Elias Clark, Louis Lusky, & Arthur W. Murphy, Cases and Materials on Gratuitous Transfers: Wills, Intestate Succession, Trust, Gifts and Future Interests 208 (2d ed. St. Paul: West Publishing Co., 1977).Google Scholar