Professors Mary Louise Fellows (University of Minnesota Law School) and E. Gary Spitko have published How Should Non-Probate Transfers Matter in Intestacy? in 53 U.C. DAVIS L. REV. 2207 (2020). As American family structures have become more heterogeneous, status-based intestacy statutes have become less suited to promoting donative intent. Indeed, numerous scholars of wealth transfer law have noted the critical need for intestacy law reform to address the needs of decedents whose donative intent does not comport with traditional family norms. Professors Fellows and Spitko propose addressing this concern by looking to intestate decedents’ non-probate transfers, such as a revocable trust, life insurance policy, 401(k) account, brokerage account, or joint tenancy with right of survivorship deed. In 2010, Fellows and Spitko, along with Charles Q. Strohm, published the first study to consider the relationship between donative intent with respect to the probate estate and donative intent as expressed in non-probate transfers. That study utilized a factorial research design to assess public attitudes and offered support for a “new heir” hypothesis, that, depending on the identity of the non-probate transfer and the identity of the existing heir, a decedent would want a non-probate transfer beneficiary who is not otherwise an heir to be treated as an heir. The instant two-part study of estate planners produces additional knowledge about how best to integrate non-probate transfers into intestacy statutes. In the first part of the study, Fellows and Spitko conducted a paper survey of forty-five estate planners. The responses to this survey greatly influenced the second part of the study in which Fellows and Spitko conducted in-person or telephone interviews with nineteen estate planners. The findings reported in this study provide the framework for statutory reform. This study demonstrates that the new heir reform increases the likelihood of promoting intestates’ donative intent in a growing number of twenty-first century familial situations.
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