Step into a Trusts & Estates classroom and you’ll find the first thing most students learn is that the guiding principle in U.S. wealth transfer law is freedom of disposition. As the Restatement (Third) of Property tells us: “The organizing principle of the American law of donative transfers is freedom of disposition. Property owners have the nearly unrestricted right to dispose of their property as they please.” From the very beginning, students are trained to understand that wealth transfer law is designed to facilitate testator intent, which is the lodestar of both rulemaking and interpretation.
Teaching Trusts & Estates from a perspective of critique, accordingly, starts with an inquiry into the foundations of this core principle and an excavation of its genealogy, as defined through critical theory. Focusing on the critical genealogy of unrestricted property disposition rather than the principle itself requires that we identify not the “origins” of inheritance practices but “the accidents, the minute deviations—or conversely, the complete reversals—the errors, the false appraisals, and the faulty calculations that gave birth to those things that continue to exist and have value for us.” (Foucault, Nietzsche, Genealogy, History)
Consequently, in the classroom we not only inquire into the contingencies of history and the social practices that have shaped and reshaped the doctrine; we also focus on outcomes, rules, and reversals that deviate from and push against the principle of freedom of disposition. And indeed, from this perspective, we can glimpse several ways in which freedom of disposition is not all-encompassing but, rather, bounded. Freedom of disposition is bounded for individual testators by the norms of family formation and freedom of disposition is bounded for certain groups by the lack of material resources that would allow them to benefit from rules designed for families with income and wealth. These forms of boundedness, unearthed through critical genealogy, reveal a more nuanced conception of testamentary freedom while underscoring the substantial privileges that come with both family status and wealth.
Our first foray into critical genealogy concerns, appropriately, actual genealogy. At the beginning of the semester, students start by learning the default rules of inheritance –intestacy rules – and the intentions we ascribe to people in the absence of contrary instructions (like a will). Intestacy rules, without any inquiry, divide a decedent’s property into portions and then distribute those portions to heirs. The rules of division map neatly on to a conventional family tree and we teach students how to divide assets between family branches. Property flows like this, replicating patterns like this. Critical genealogy leads us to consider the privileged position of the spouse, the range of individuals who are automatically excluded, and other ways in which inheritance rules perform the family. The critical genealogy approach also leads us to consider the reversals, deviations, and accidents that radically reshape many families and consequently reflect on how to remap the inheritance tree based on a “counter-memory” of what a family looks like.
This mapping of critical genealogy onto conventional genealogy continues when we begin to study wills, testamentary capacity, and undue influence. Freedom of disposition is strong and deeply entrenched, students learn at first, for those who write wills and make estate plans. And those who do write wills often take advantage of this freedom to be expressive, using it to state preferences, express opinions, and make judgments from beyond the grave. The first case we read in the semester is about a father who leaves a gift to his son, conditioned on the son’s marriage to a Jewish woman. The court upholds the bequest. Alternately, testators can disinherit their children, even their minor children, if that is how they choose to express their displeasure or disinterest. Courts support this freedom as well. Upon closer examination, however, testamentary freedom begins to unravel when individuals dispose property in unexpected ways, bequeathing things to unexpected people – especially people who do not figure into the family tree. Constructing and enforcing the concepts of “natural” and “unnatural” in the context of wealth transfer, probate rules provide that gifts to anyone who is not the “natural object” of the testator’s bounty are subject to scrutiny and support claims of incapacity and undue influence. Gifts to caretakers are routinely invalidated or reduced as are gift to neighbors, friends, and other kinds of service providers. Consequently, the same norms of conventional genealogy that underpin intestacy rules also serve as guard-rails in the wills and trusts context, ensuring that the testator’s freedom is cramped and contained by the roots and branches of the traditional family tree.
The second form of bounded freedom – the bounded freedom of those populations who do not have the resources to take full advantage of wealth transfer laws – comes into focus midway through the semester, when we shift from wills to trusts. Here, we continue with the critical genealogy approach but apply it to the study of difference between families rather than the study of intra-family rules and norms. Here, freedom of disposition is not individually limited but instead differentially available to groups based on income and wealth.
Studying trust law basics, students once again, they learn that trust settlors have virtually unlimited freedom to organize and transfer their wealth, in more than name. Memorizing trust law doctrine, students learn how trust settlors can restrict access to trust principal, how trusts can enable both personal and financial privacy, and how trustee discretion shields trust assets from creditor claims. They learn all the features and doctrines that make trust law such a valuable tool for high-wealth families. And, they learn, with money comes customizability: freedom of disposition truly obtains when you have access to sophisticated estate planners, the resources to commission a wealth preservation plan that uses a combination of wills and complex trusts, and the foresight to deploy the asset protection features of long-term, irrevocable family trusts.
Pressing toward a critical genealogy of wealth, students begin to understand not just the genealogy of blood but that of money. We read about how the legal framework of inheritance can either help build or collapse the architecture of wealth inequality and how wealth inequality is textured because of interrelated gender and racial wealth gaps. We discuss the number of billionaires on the Forbes list there by virtue of inherited money, the ways in which family trusts protect the assets of high-wealth families while ordinary-wealth families are left to pay their bills, and the ways in which elite wealth preservation rules defeat even longstanding public policies with respect to spousal property rights and child support. Those who hold wealth possess the freedom to invest, accumulate, and transfer wealth. Those who have less wealth have less freedom. Critical wealth genealogy allows us to unmask the concealed values of wealth consolidation and adds an awareness of how, from a perspective of material conditions, the ideas of freedom and liberty translate into an “endlessly repeated play of dominations.” (Nietzsche, Genealogy, History)
The genealogy project operates, like the documents of wealth transfer that we study, “on a field of entangled and confused parchments, on documents that have been scratched over and re-copied many times” (Nietzsche, Genealogy, History). Through the various texts, codicils, and codes that we read, students can begin to understand, once we take the critical genealogy turn, how theories of wealth transfer work, compete, and co-exist. This critical turn in the Trusts & Estates classroom muddles the common refrain of freedom of disposition, uncovering the ties that bind and the margins that divide.