Starting with the Obituaries
I recently came across a great piece of Estates and Trusts scholarship: “Making Things Fair”: An Empirical Study of How People Approach the Wealth Transmission System, by Naomi Cahn and Amy Ziettlow. I was hooked as soon as I read that Cahn and Ziettlow began their data collection by reading every obituary that appeared in Baton Rouge’s most popular newspaper over a seven-month period and then invited the decedents’ adult children and stepchildren to participate in their study. Because Cahn and Ziettlow started with obituaries, and not probate records, they were able to explore testate and intestacy experiences from both inside and outside the probate process. Most significantly, Cahn and Ziettlow’s methodology allowed them to include poor and middle class families, demographic groups that are often altogether ignored in estates and trusts pedagogy and scholarship. Their interviews with decedents’ children suggest that family dynamics often determine inheritance and that black letter law often matters very little. The interviews also show that children greatly appreciate any kind of estate planning by their parents, and Cahn and Ziettlow offer creative suggestions for prodding people to plan.
It is well accepted that estate planning is more complicated (and perhaps more important) when a parent has had multiple marriages and/or stepchildren. Cahn and Ziettlow draw on Robert Ellickson’s work about order without law to illuminate why. Cahn and Ziettlow explain that almost all of their interview subjects wanted “to make things fair,” but doing so became more difficult when more than one set of familial norms was involved. For example, none of the interviewees whose deceased parent’s marriage had lasted until death mentioned wills. In these families, Cahn and Ziettlow write, “there was order without law” and “people acted in accordance with long-held expectations for what was appropriate, with neither recourse or reference to the law.” (357) In contrast, in families where the deceased parent had divorced and remarried, interviewees indicated that either reference to the law or formal legal intervention played a part in making things fair. This was because multiple familial norms were in play and ongoing relationships between the decedent’s various survivors were not a foregone conclusion. By focusing on the importance of familial norms, Cahn and Ziettlow help move the discussion about multiple marriages and the importance of estate planning beyond stereotypes about selfish stepmothers and greedy children from a first marriage.
When data is collected through interviews, the resulting works of scholarship can at times feel “all over.” But this is a small price to pay for the gems of information that such interviews uncover. Sometimes Cahn and Ziettlow’s interviewees confirm what we all intuit or have experienced in our own families—like, for example, that keepsakes can assume “outsized importance.” (327) Other times, however, their interviews suggest patterns that I would not have suspected. For instance, dead hand control—or honoring the decedent’s intent—is one of the sacred canons of estate and trust law. I would have thought that of all the instructions that a person can leave behind, instructions about what to do with bodily remains would be treated as sacrosanct. But in families where the deceased parent’s only marriage ended with death, it was not uncommon to let the surviving spouse’s own preferences control, even if someone who wanted their ashes scattered in a specific place ended up sitting on a mantle instead.
While the article focuses on the transmission of property, Cahn and Ziettlow provide tantalizing tidbits about family dynamics. For example, Cahn and Ziettlow mention that in nine of the forty “single or remarried parent deaths,” the ex-spouse played an “active, hands-on role,” “such as sitting with the dying ex-spouse, regularly making food and even playing a decision-making role after death.” (351) Cahn and Ziettlow describe their article as part of a larger study about intergenerational care of Baby Boomers.
While families sometimes sacrifice dead hand control to further the wishes of the living, Cahn and Ziettlow’s interviewees appreciated any planning that their parents had done, however small. Thus Cahn and Ziettlow discuss ways to nudge individuals toward estate planning. For example, they suggest that government officials provide statutory will forms during standard interactions, such as when a person renews her driver’s license or signs up for Medicare or Social Security. They also suggest that estate planning be formally included at key points in the family formation / dissolution process, such as when a person applies for a state marriage license or files for divorce. On the non-probate front, Cahn and Ziettlow’s work reminds us just how unimportant trust law is for poor and middle class families. Life insurance policies are what matter most, and Cahn and Ziettlow suggest a series of reforms that would increase the likelihood that such policies are in place at the time of death. Cahn and Ziettlow recommend increased consumer disclosure, state law changes that would make it more difficult for policies to lapse because of non-payment, and stringent protections that would discourage policy holders from life insurance policies as the basis for a loan.
Empirical data about how property descends in families is always useful. “Making Things Fair”: An Empirical Study of How People Approach the Wealth Transmission System is particularly valuable because by sharing the responses of their interviewees, Cahn and Ziettlow let us “hear” how poor and middle class families approach property distribution. I am looking forward to being able to incorporate some of their observations into my Estates and Trusts class.