ABSTRACT
You can do what you want with your property at death – and after – because it is ‘yours’. This is the ‘fundamental guiding principle’ of American succession law today. Despite occasional criticism over the years, for example, that it goes too far in allowing parents to disinherit children, legal scholars, courts, law reformers, legislators, and practitioners accept donative freedom as succession law’s unshakeable foundation. Every proposal for change – securing a child’s inheritance, protecting surviving spouses, taxing wealthy estates – is met with that refrain: Donative freedom. Today, it has left us a legacy of disinherited children and spouses, dynastic wealth, and thousand-year trusts that accumulate wealth tax-free.
The ideology of donative freedom rests on three pillars; the three disciplines of philosophy, history, and economics are all said to support and justify it. Its philosophical roots lie in the assertion that there is a natural right to property before the state’s involvement and that any governmental intrusion into a property owner’s disposition is just that – an intrusion into that right. The history of the common law of inheritance is read to support an ever-widening definition of donor’s rights. And economic theory is marshaled to enumerate the many welfare-maximizing outcomes deemed to result from donative freedom, like its encouragement of enterprise, savings, and caregiving.
This Article shows that none of this is true. None of the philosophy, history, or economics mustered in support of donative freedom, when scrutinized or subjected to logic, supports the ideology as it has come to manifest in the law. First, we expose the logical fallacy inherent in the ideology’s philosophical justifications. This is the idea that there is some ‘natural’ or ‘inherent’ right to property before state intervention rather than acknowledging that the state’s existence is a necessary precondition to property without which private ownership would not exist. Second, we show that the doctrine’s history has been exaggerated and distorted for ideological ends. Read with attention to historical context, the history is not a story justifying an ever-widening gyre of untethered freedom of disposition, but rather a story of the effort to protect families and the vulnerable, first from the limits of primogeniture and, later, from the devastation wrought by the unregulated nineteenth-century market. Third, we turn to the economic myths purporting to justify donative freedom as an incentive to hard work and productive of positive social outcomes and show, instead, that the doctrine has given rise to laws, planning vehicles, and policies that have socially harmful economic effects.
This Article puts to rest the commonly accepted idea that donative freedom is an essential property right, a historical mandate, and an economic good. It clears space in this area of law to create new and different inheritance rules that allow us to choose the society we want to build. This moment is particularly suited to such disruption.
Gordon, Deborah S and Spivack, Carla, Donative Freedom, Disrupted (February 5, 2025), Drexel University Thomas R Kline School of Law Research Paper Series.
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