Authors

W. D. Macdonald

Files

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Download Full Text (17.1 MB)

Download Front Matter (21 KB)

Download Foreword and Preface (157 KB)

Download Table of Contents (133 KB)

Download One: Matters of Policy; 1. The Existing Confusion (614 KB)

Download 2. Basic Policy Considerations: The Need for Restraints on Disinheritance (648 KB)

Download 3. Basic Policy Considerations: The Cost of Restraints on Disinheritance (243 KB)

Download 4. Basic Policy Considerations: Conclusion (90 KB)

Download Two: Some Lessons from the Past; 5. The Custom of London (404 KB)

Download 6. Inchoate Dower (238 KB)

Download Three: The Case Law; 7. Tests Based on Retention of Control (1311 KB)

Download 8. Tests That Stress the Motive for the Transfer (834 KB)

Download 9. Tests Based on the “Reality” of the Transfer (1037 KB)

Download 10. The Individual Equities (1161 KB)

Download 11. The Role of the Equities in the Judicial Process (209 KB)

Download 12. Deeds and Gifts (724 KB)

Download 13. Trusts (494 KB)

Download 14. Survivorship Devices (452 KB)

Download 15. Contractual Devices (918 KB)

Download 16. Miscellaneous (511 KB)

Download 17. Can the Widow be Treated as a Creditor? (202 KB)

Download 18. Procedure: Who May Sue? (157 KB)

Download Four: Possible Legislative Solutions; 19. Solutions Based on the Retention of the Typical Statutory Share (293 KB)

Download 20. Civil Law Solutions (398 KB)

Download 21. The British Commonwealth “Decedents’ Family Maintenance” Legislation (329 KB)

Download 22. Suggested Model Decedent’s Family Maintenance Act (972 KB)

Download Appendices (1767 KB)

Download Tables (2267 KB)

Download Index (821 KB)

Description

This study seeks the answer to a troublesome question: What should be done about gratuitous inter vivos transfers in alleged "evasion" of the widow's statutory share? My thesis is that the statutory share should be replaced by the type of decedent's family maintenance legislation found in the British Commonwealth, and that this legislation should be buttressed with anti-evasion provisions. Inter vivos "evasions" seem to be a permanent and increasingly serious concomitant of our forced share system. Part I, dealing with matters of policy, explores the chief aggravating factors. These factors include the high rate of remarriage, which induces transfers to children of a prior marriage; the increasing popularity of gratuitous inter vivos property transmission; and the inflexible nature of the typical statutory share. The remainder of Part I is devoted to the search for a criterion with which to judge the work of the courts. Inchoate dower and the ancient custom of London receive separate treatment, in Part II, because of their influence on the cases relating to evasions of the statutory share. These cases are covered in Part III, which comprises the main portion of the book. As an aid to the practicing lawyer the decisions are analyzed in terms of doctrine, of the persuasive evidentiary factors, and of the individual dispositive devices. The study is concerned mainly with postnuptial devices; but antenuptial transfers and spouses' rights in contracts to make a will are also examined in separate appendixes. The decision in each case is also tested in the light of the maintenance and contribution formula. Part IV examines various proposals for legislative change and concludes with a suggested model statute. The statute is based on the British Commonwealth decedent's family maintenance legislation, augmented by anti-evasion provisions.

Publication Date

1960

Publisher

University of Michigan Law School

City

Ann Arbor

Keywords

Spouse’s share, Decedents’ family maintenance, Family allowances, Inter vivos, Disinheritance, Dower, Fraud, Equities, Trusts, Survivorship, Widows, Internal Revenue Code of 1954, Donees, Transfers, Evasions

Disciplines

Civil Law | Estates and Trusts | Family Law

Comments

Published under the auspices of the University of Michigan Law School (which, however, assumes no responsibility for the views expressed) with the aid of funds derived from gifts to the University of Michigan by William W. Cook.

Fraud on the Widow’s Share

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