A Timeless Problem That Needs a Modern Makeover
The chances are reasonable that you’ll die before making a will. According to most studies, fewer than half of American adults report having a last will and testament that lays out how they want their property divided up, among other final wishes. Though some portion of that group opts for alternative types of estate planning, while others might draft a will late in life, many just never get around to designating their heirs at all.
The stakes can be surprisingly high. If you don’t plan for your demise, you relinquish control of your last wishes to a rickety, decades-old bureaucratic process that will do it for you—and may not include some of the people closest to you. For these cases, every U.S. state has laws that automatically designate their heirs—sometimes called “intestate-succession laws.” These laws differ slightly depending on the locality, but they tend to create a familiar hierarchy for inheritance. If the person has a spouse, the spouse is the first inheritor, and gets much (if not all) of their estate—a cache that may include a house, a stock portfolio, personal items, and more. If they’re not married, the children will become the first inheritors. If they have no children, their biological parents or biological siblings are next in line. In almost no states do non-married, nonbiological family members receive any inheritance if access isn’t explicitly laid out in a will.
Legislators designed current intestacy laws in the mid-20th century to approximate whom they thought the typical American would choose as their heirs. Yet in the decades since, the average family has undergone a radical shift, today comprising people who have children from prior relationships, unmarried partners, or nonbiological children (for instance, a grandmother or close family friend raising a kid). Today, nontraditional families that don’t have wills, in particular, can be thrust into a cruel legal limbo when a loved one dies.
[Read: The rise of the three-parent family]
“Really our law is designed for the nuclear, one-marriage family—the traditional, 1950s type of family—which just doesn’t exist anymore,” Danaya C. Wright, a law professor at the University of Florida who has written about inheritance for nontraditional families, told me. When states were first writing these laws, “virtually no attention” was given to alternative home structures. To this day, end-of-life laws have not caught up to modern families.
People today have a menu of ways to designate what they want after their death. In the U.S., you can add beneficiaries to your bank accounts or a steward to your Facebook profile. In most states, you can also request a transfer-on-death deed that lets you pass down your house without needing a will at all. But wills still hold a lot of power. They remain an important way to transfer property, as well as the main way for parents to designate guardianship of a minor child.
Wills also affect a wide swath of Americans. Many working- and middle-class people have property to pass on, from sentimental items to, in some cases, a house. Yet it’s easy to think of estate planning as the domain of the wealthy, in part because they are the most likely to plan for their death. One 2009 study found that people who earned more than $100,000 a year had more than double the rates of will creation than people who earned less than $25,000 a year. (Revealing how race intersects with wealth, the study also found that white respondents were more than twice as likely to have a will as their nonwhite counterparts.) A more recent 2020 study centered on Alachua County, Florida, came to similar conclusions: The average person to die without a will owned property that was about 40 percent less valuable than that of their will-having peers. In the study, 93 percent of all people studied who died with a will were white; Black people, despite making up a fifth of the county’s population, accounted for only 4 percent of people with wills.
The reasons for these disparities are complicated. In most states, wills have to follow a specific legal process, which includes signing the document in front of two witnesses. Most people hire a lawyer, which might cost several hundred dollars on the low end. Though the experts I spoke with agreed that many reasons might explain why the rate of people who do estate planning is fairly low, “one thing is just general procrastination,” Reid Kress Weisbord, a law professor at Rutgers, told me. “No one likes to think about their death.” At least on the surface, there’s also more incentive for the rich to make a plan: If you have more money to pass on, you might feel like you have more to lose. Wealthy people may be more likely to draw up wills if they are already used to working with—and paying for—lawyers. “I do think there is an access-to-justice issue,” Natalie Lynner, a law professor at Drake University, told me.
[Read: Lessons from Succession for non-billionaire families]
Of the people who don’t plan for their death, nontraditional families are uniquely disadvantaged. In the U.S., the number of cohabiting unmarried partners has nearly tripled in the past 20 years, yet virtually no states incorporate these couples into their inheritance laws. (The exception is New Hampshire, which allows people who have lived together for at least three years and who acknowledge “each other as husband and wife, and [are] generally reputed to be such” to register to receive inheritance rights upon the death of their partner. Registered domestic partners in some states can also receive partial inheritance rights.) A similarly complex position typically faces nonbiological children who are not formally adopted into a family—which can be a long and expensive process. Stepchildren and foster children are also excluded from most state inheritance laws.
Public case law can provide some illustrations. In 1958, the biological family of a then-14-year-old boy, Willis Nakai, asked a priest named William Hannifin to take care of their son. Hannifin accepted, and eventually Nakai started living with him full-time in Utah. Though Hannifin never formally adopted Nakai, for roughly the next 50 years, according to court records, “the two referred to each other as father and son and held themselves out to the community as such.” In 2009, Hannifin died without a will, a spouse, or any biological descendants. Nakai assumed he would be considered next-of-kin by default—but a collection of Hannifin’s “collateral relatives,” a group that can include aunts, uncles, siblings, cousins, and more, petitioned to take over the estate instead. In a 2013 decision, the Utah Supreme Court sided against Nakai: Because he wasn’t ever legally adopted as a son, he had no right to be the default next-of-kin.
These situations can become even more tangled for families when kids are involved. “If you’ve got children by other people, intestacy law is a disaster,” Wright said. Take, for instance, a mother with a biological child, who gets a divorce and then marries a new spouse. If that mother dies without a will, states will pass on most of her assets—the house, the family heirlooms, everything—to the new spouse, while her biological kid will receive a smaller share, if anything. If, say, that spouse later remarries and dies, also without a will, the mother’s biological child could again be cut out of inheriting their mother’s remaining assets, because intestacy laws would prioritize the spouse’s new family.
Some scholars have argued that simply making end-of-life-planning documents more accessible can ameliorate these complications. Weisbord, the Rutgers law professor, has proposed attaching estate-planning documents to the back of every person’s state income-tax returns. Four states so far have created a pathway for digital wills. And about half of states allow homemade, handwritten documents to count as wills—which should benefit working- and middle-class people in particular, because these handwritten documents don’t require a lawyer or witnesses to create. Meanwhile, 11 states allow documents that don’t follow all the will-making rules to still be validated if strong evidence indicates that these documents were intended as wills. These provisions have led courts to count everything from a note scrawled on a tractor to a typed message in Evernote as a legal will. (In countries like Australia, unsent text messages have been validated as wills through a similar rule.)
States could also rewrite intestacy laws to allow for a broader definition of partnership, having largely phased out the concept of common-law marriage, which acknowledged a couple’s commitment to each other based on how long they’d lived together. For unmarried partners, for instance, the law professor E. Gary Spitko has advocated for an accrual system based on how long they have lived together. After three years of cohabitation, under Spitko’s formulation, a person will automatically receive 18 percent of their deceased partner’s property; the percentages increase until, after 15 years together, the person will receive all of the partner’s assets by default. Although England and Wales do not recognize unmarried partners, neighboring Scotland has incorporated them into its inheritance laws to an extent—though courts have ultimate discretion over how much an unmarried partner is entitled to.
The failures of intestacy laws reveal the limits in how our legal system characterizes the family unit. They recognize family based on either a biological relation or a legal contract, like marriage, when in reality it can take so many other forms. “If I’m willing to take someone into my home and live with them and pay for their utilities and the expenses and whatever to put a roof over their head, I do that because I care for them,” Wright, the University of Florida law professor, said. “And if I care for them, I would want to be able to do that after I die.” The spirit of the common-law marriage is worth revisiting today. As a kaleidoscope of new relationship structures enters the mainstream, we need to consider redefining family based on actions, not just legal status.