ABSTRACT
This is the first of two papers presenting the results of a nationally representative survey of 9,000 American adults in which we asked people how they want to distribute their property when they die. In this first paper, we focus on gifts to spouses and nonmarital romantic partners. We find that people give much less to their spouses than conventional wisdom and prior empirical studies would predict. In a traditional family with children, the Uniform Probate Code gives 100% of an intestate decedent’s estate to her spouse. Our respondents prefer to give only about 52%. We also find that people give much more to their nonmarital partners than conventional wisdom would predict. Under the laws of intestacy, no state gives anything to a nonmarital partner. But in our sample, the average gift to a live-in nonmarital partner is 43% for respondents without children and 58% for respondents with neither children nor living parents. We further find that preferences are powerfully correlated with race, class, and gender. Preferred gifts to spouses and partners are lower among women, African Americans, and people of modest means and education.
Our findings highlight the limits of the empirical studies that underpin modern intestacy law. These studies, which examine the wills of deceased people, are incapable of registering the preferences of people without wills and people in unconventional families. They are also insensitive to differences by race, class, and other demographic characteristics. We show that although intestacy law is often said to implement majoritarian preferences, its content is more consistent with a mix of majoritarianism, paternalism, and administrative efficiency.
Listokin, Yair and Morley, John D, A Survey of Preferences for Estate Distribution at Death Part 1: Spouses and Partners (January 20, 2023), Yale Law and Economics Research Paper Forthcoming.
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