Document Type

Article

Publication Date

3-21-2017

Abstract

The law of succession grants donors broad freedom to decide how to distribute their property upon death It does so in hopes of increasing social welfare in two general ways First freedom of disposition generates socially beneficial estate planning decisions In particular donors are in the best position to evaluate their own specific circumstances and to make decisions that on the whole produce the greatest utility from the transfer of their estates Second the donor's autonomy over estate planning decisions incentivizes socially beneficial behavior such as productivity during the life of the donor Because the law views freedom of disposition as maximizing social welfare in these ways it generally defers to the estate planning decisions of individual donorsAlthough the law typically relies upon the choices of autonomous decisionmakers to maximize the social welfare that is generated by the inheritance process it regulates inheritance in some circumstances through both prescriptive and proscriptive restrictions of freedom of disposition Prescriptive restrictions are rules that require donors to distribute property in certain ways thereby preventing them from transferring property to other donees By contrast proscriptive restrictions are rules that directly limit freedom of disposition by prohibiting donors from distributing property in particular ways Scholars have catalogued the various ways that the law regulates inheritance however they typically have examined them in isolation without developing an overarching framework for analyzing inheritance regulationThus to better understand the role that inheritance regulation plays within the law of succession this Article analyzes restrictions of freedom of disposition in relation to the law's social welfare goals It does so both by recognizing defects in the donor's decisionmaking process that suggest she might make suboptimal estate planning decisions and by identifying potentially socially detrimental incentives that freedom of disposition can produce It then explores how particular restrictions of freedom of disposition address these social welfare concerns Ultimately this analysis explains how inheritance regulation can maximize social welfare and develops a framework that can aid policymakers in deciding when inheritance regulation is appropriate and how such regulation should be crafted

First Page

411

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