Tate on Caregiving and Testamentary Freedom

Caregiving and the Case for Testamentary Freedom 

JOSHUA C. TATESouthern Methodist University – Dedman School of Law; University of Pennsylvania Law School

UC Davis Law Review, Vol. 42, No. 1, 2008

Almost all U.S. states allow individuals to disinherit theirdescendants for any reason or no reason, but most of the world’s legalsystems currently do not. This Article contends that broad freedom oftestation is defensible because it allows elderly people to rewardfamily members who are caregivers. The Article explores the common-laworigins of freedom of testation, which developed in the shadow of themedieval rule of primogeniture, a doctrine of no contemporaryrelevance. The growing problem of eldercare, however, offers ajustification for the twenty-first century. Increases in lifeexpectancy have led to a sharp rise in the number of older individualswho require long-term care, and some children and grandchildren arebearing more of the caregiving burden than others. Recent econometricstudies, not yet taken into account in legal scholarship, suggest atendency among the American elderly to bequeath more property tocaregiving children. A competent testator, rather than a court orlegislature, is in the best position to decide how much care eachperson has provided and to reward caregivers accordingly. Law reform,therefore, should focus on strengthening testamentary freedom whileensuring that caregivers are adequately compensated in cases ofintestacy.

Available on SSRN Accepted Paper Series:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1112522