ACTEC Law Journal


Despite modern trends in family formation, married individuals with children remain prevalent in the adult population in the United States. To the extent that these individuals forego estate planning, their probate property is distributed at death according to the laws of intestacy of their state of domicile. These laws are motivated by assumptions about probable intent, and on that basis typically prioritize the surviving spouse and children over other potential heirs. However, there is wild jurisdictional variation in the relative interests of the spouse and descendants of married parent decedents under these laws. Historical evidence suggested that most decedents who were survived by a spouse and a child of the marriage wanted all of their property to be allocated to the surviving spouse. However, this article finds that this is no longer the case. Drawing on novel survey data recording the preferred allocation of property between a surviving spouse and child, the article finds that a greater share of respondents prefer dividing the estate between the spouse and child. This is true even when the age of the child and size of the estate are varied. However, the article also offers evidence of heterogeneity in preferences, between married parents and other respondents and on the basis of the respondents’ level of wealth. This suggests that it is time for policymakers to reevaluate historical assumptions about probable intent, and offers insights to policymakers and practitioners grappling with the challenge of furthering the desires of married parents.



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