by Lawrence M. Friedman. Stanford University Press, 2009. 230pp. Cloth $60.00. ISBN: 9780804760362. Paper: $22.95. ISBN: 9780804762090.
Reviewed by Ralph Calhoun Brashier, Cecil C. Humphreys Professor of Law, The University of Memphis School of Law. Email: rbrashir [at] memphis.edu.
In DEAD HANDS: A SOCIAL HISTORY OF WILLS, TRUSTS, AND INHERITANCE LAW, Lawrence M. Friedman is at once an erudite scholar and a captivating storyteller examining the annals of estates and trusts law. Bitter fights among survivors over the assets of their loved ones are as old as human existence. So are property owners’ desires to achieve immortality through donative efforts that are sometimes lopsided, quirky, or just downright weird. Then, too, probate lawyers – through ignorance of complex laws or through carelessness – have themselves occasionally proved to be the major impediment to the accomplishment of their clients’ wishes. Using this well-worn backdrop of greed, ambition, and ineptitude, Friedman weaves a deliciously fresh narrative that describes probate statutes and cases with charm and humor while explaining the social and economic forces that drive inheritance law.
Wealth transfers at death play an extremely important role in American society. In the first half of the twenty-first century, trillions of dollars will pass from the dead to the living (through various legal means that Friedman refers to collectively as succession). Considering the far-reaching impact of succession laws on society, it is odd that scholars have largely failed to study the obverse impact: that of society on succession laws. In DEAD HANDS, Friedman examines American social and economic history to suggest why succession laws evolved as they did and to predict how they are likely to evolve in the twenty-first century. Among his general themes, Friedman posits that modern succession laws reflect changes in family structure, the rise of wealth transfer devices that substitute for the traditional will, shifting attitudes about wealth and the wealthy, and the substantial influence of banks and trust companies.
A remarkable trend in American inheritance law during the past one hundred and sixty years is an increasingly generous inheritance provision for widows. (The generosity extends to widowers, too, although widows as a group have undoubtedly reaped a greater benefit from the changes in spousal inheritance laws.) At common law, a widow was not an heir entitled to inherit the land of her deceased husband. Rather, a widow received a dower right that entitled her to a life interest in one-third of the inheritable land her husband had owned at any time during the marriage. Friedman persuasively argues that dower declined in popularity in the United States after 1850 for several reasons. Dower could impair land titles, and Americans were deeply concerned that land be freely alienable. Also, dower [*706] often failed to provide a widow with substantial financial protection, particularly if her husband’s wealth consisted primarily of personal property bequeathed to others. Further, by the late nineteenth century, society was beginning to reevaluate the role of wives and mothers within the family, a reevaluation that would continue through the twentieth century and ultimately lead to the modern treatment of marriage as a partnership. Eventually, states would reject the historical view that only blood relatives can be heirs of a decedent. One by one, states extended heir status to the surviving spouse. Indeed, for decades now the spouse has been the principal heir in American inheritance law.
The fate of children in evolving American inheritance law has been less rosy. The increased inheritance award to the surviving spouse comes primarily at the expense of the decedent’s children. If the decedent dies intestate (that is, without a will), some states now distribute the entirety of the estate to the surviving spouse if neither spouse had children by another partner. Thus, children in nuclear families may be completely excluded from the distribution of a deceased parent’s intestate estate. Paradoxically, as states granted larger and larger intestate shares to surviving spouses over the course of the twentieth century, more and more marriages were ending in divorce. In a characteristically pithy and precise observation, Friedman states, “Marriage may be a weaker reed than it used to be, but you could not prove it through the intestacy laws.”
Friedman does not slavishly detail the social underpinning of every inheritance law that he mentions. His discussion of some forms of inheritance laws, such as laughing heir statutes, consists primarily of case presentations and modern statutory trends. (A “laughing heir” is someone who can chuckle over his good luck at receiving an inheritance from a relative with whom he had, at most, an attenuated relationship.) Nonetheless, even here Friedman typically implicates one or more of his general themes. For example, the modern statutory trend to exclude distant blood relatives as heirs implicates Friedman’s observation that inheritance statutes have grown less concerned about the recognition of bloodlines and more concerned with recognition of “the family of dependence and affection.” Friedman examines this observation (which other probate scholars have explored from different perspectives) in more detail in some parts of the book, including a section on the increased generosity of succession laws towards a decedent’s domestic partner.
The ability of the American parent to disinherit his children is one of the notable features distinguishing our inheritance law from that of European and Latin American countries. Like most observers, Friedman believes that a principal reason parents disinherit their children is not to seek revenge against or to harm the children, but rather to provide for the surviving spouse. He opines that the American approach permitting disinheritance of children is generally fair as applied to traditional families. Of course the problem is that there are fewer and fewer traditional families, and Friedman concedes that the American approach fits poorly when the decedent “was married more than once, and had children with several husbands or wives.” Some scholars have argued [*707] that American law should grant judges more discretion to deviate from a testator’s unreasonable will provisions. Friedman concludes that American inheritance law is not headed in that direction. Instead, “American law is trying harder than ever to make sure that the dead hand gets what it wants.”
In a discussion of wills, Friedman examines the fall of highly formal rules that once characterized the law of will execution. Traditionally, the slightest failure to comply with the execution requirements of the statute of wills meant that a document could not be probated, even when the evidence was clear that the decedent had intended the document as his will. For example, if a witness failed to sign in the presence of the testator, the paper was meaningless. In recent decades, some courts have become more forgiving of errors in execution. Moreover, legislatures in some states have given courts a dispensing power to ignore execution errors if clear and convincing evidence exists that the decedent intended the document to be his will. Friedman notes that he is hardly the first scholar to discuss the fall of formalism in the law of wills. (Three decades ago, Jesse Dukeminier predicted that lawyers’ fear of malpractice liability would eventually result in simplification of property rules, including the statute of wills and the Rule Against Perpetuities. While lawyers’ concern for their pocketbooks may have contributed to the fall of formalism in the law of wills, Friedman sets forth a different position.) Friedman generally rejects a modern assumption that recent developments concerning will execution have sprung forth from some widespread renunciation of formalism throughout the law. Noting the nineteenth century concern for clear land titles, he suggests that with the advent of title insurance and computerized land records, the need for an unblemished, essentially perfect will is substantially less. He also posits an even more important reason for the fall of formalism: the rise of the will substitute.
Americans increasingly rely upon will substitutes to pass their property at death. Will substitutes such as payable-on-death and transfer-on-death accounts are easy to establish. They require no legal knowledge and no formal ceremony attended by witnesses. For the will to compete with these very serious rivals, the laws concerning its execution and interpretation had to change. But why did legislatures accept will substitutes, which are characterized by lack of formality? Friedman posits that social forces were again at work. People wanted these alternatives to a will, and, very importantly, banks and other financial institutions wanted the business these alternatives provided.
A chapter on trusts explains how, from the late nineteenth century into the twentieth century, courts developed a number of rules that favor dynastic trusts and dead hand control. Friedman notes that judges at this time were often sympathetic to society’s wealthiest citizens, who increasingly made substantial financial contributions to charitable foundations and universities. The dead hand control permitted under these newer trust rules, however, is not the same dead hand control that Americans had opposed in the early history of the United States. The early Americans feared the tying up of land or the freezing of other assets through the trust mechanism. The great bulk of trust [*708] assets in the modern trust, however, are highly liquid. Portfolios consist primarily of personal property and are constantly changing.
As the nature of trust assets changed and investment strategies became more fluid, the Rule Against Perpetuities eventually went into decline. Until recent decades, the Rule was a fixed (and famously complex) limitation on dead hand control. In essence, the Rule requires that certain contingent interests must vest, if at all, within some life in being at the creation of the interest plus twenty-one years. If there is any possibility that such an interest might fail to satisfy the Rule, the interest is invalid from the start. As Friedman points out, many of the newer statutory substitutes for the Rule – for example, a “wait and see” approach with a ninety year limitation for vesting – do not in fact eliminate the Rule’s basic goal of eventually limiting dead hand control. A substantial minority of states, however, has now completely eliminated the Rule, making it possible to set up a trust that can last forever. Friedman notes that banks and trust companies, aware of the money to be made in handling dynasty trusts, successfully lobbied legislatures to abolish the Rule. Billions of dollars of assets have moved to trusts in these states. He opines that the bank lobby could not have been successful had there not been significant cultural changes in attitudes towards wealth and the wealthy. He quotes Joel Dobris: “We like rich folks these days.” If this is true, Friedman argues, it is because we no longer envision the rich as the great robber barons of the nineteenth century; instead, we see people who are in many ways like us.
Friedman concludes by observing that modern developments in the law indeed appear to show increased respect for the dead hand, particularly the dead hand of the wealthy and powerful. But he warns that some of these developments – for example, certain trends in trust law and the demise of the Rule Against Perpetuities – may reflect the influence of rich institutions such as banks and trust companies more than they reflect direct concern for rich individuals. He also notes that, despite the seeming favorable treatment of the dead hand, even perpetual trusts are likely to veer from the intent of the dead settlor over time. Ultimately, he concludes, “the dead run nothing.”
DEAD HANDS is an uncommonly informative, consistently engrossing book that bespeaks much learning and thought. The book breaks new and important ground with its explanation of how social and economic forces have driven and continue to drive succession law in the United States. I recommend the book very highly.
© Copyright 2009 by the author, Ralph Calhoun Brashier.