Property's Immortality

Authors

Shelly Kreiczer-Levy, College of Law & Business (CLB)

Abstract

The law ofpost most-mortem transfers assumes an autonomous individual, free to will their property as they see fit. This Article offers a relational critique of this legal reality, and highlights the implications ofsuch a critique for gender equality. Although property's role in supporting relationships and facilitating cooperation has long been celebrated, post-mortem transfers pose a challenge to relational legal theory. It is commonly held that death puts a stop to all relationships and defies all relational commitments. This Article builds on a different perception of death, and argues that the need to transcend mortality is profoundly relational. Property-related projects can serve as an opportunity to engage in a meaningful endeavor that potentially may outlive its owners. The value of continuity is therefore foundational to understanding of legal rules underlying postmortem transfers by wills or intestate succession. Moreover, this Article radically argues that continuity is not based on autonomy and free will, but is rather a relational and bifocal project. It protects not only the decedent's need to transcend mortality, but is equally about potential recipients' connection to their roots. The legal implications of this novel conceptualization are far reaching. Testamentary freedom should be limited in order to protect certain potential recipients' need for roots. Therefore, courts should hold the power to invalidate wills that disinherit a child that maintained a close relationship with her parents; wills that disinherits daughters simply because they are women; and wills that require gay children to marry a person of the opposite sex.

Disciplines

Estates and Trusts | Housing Law | Law | Law and Gender | Law and Society

Recommended Citation

Shelly Kreiczer-Levy, Property's Immortality, 23 Cardozo J. Equal Rts. & Soc. Just. 107 (2016).
Available at: https://larc.cardozo.yu.edu/cardozoersj/vol23/iss1/5