Document Type

Article

Publication Date

1987

Abstract

American forced-share law underwent a major round of reform in the 1960s. The main objective was to prevent the decedent from engaging in "fraud on the widow's share," that is, using nominal inter vivos transfers to evade the surviving spouse's forced-share entitlement. In jurisdictions that follow the Uniform Probate Code of 1969 (UPC), that mischief has been eradicated. The UPC, which is discussed in some detail below, extends the forced-share entitlement to property that has been the subject of inter vivos transfer. In the present article we develop the view that the time has come for a further round of reform of the forced-share system. With concern about evasion largely resolved, we direct attention to the underlying architecture of the forced share. Taking the UPC provisions as our model, we point to serious discrepancies between purpose and practice in the forced-share system, and we propose legislative correctives. We show that our proposal would remedy the worst shortcoming of modern American forced-share law-its astonishing insensitivity to differences in the duration of a marriage. If a marriage ends in death, the statutes currently in force allow the surviving spouse the same entitlement in the decedent's estate whether the marriage lasted five days or five decades. We recommend a means for adjusting the forced share to the duration of the marriage.

Comments

This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.


Share

COinS