The Riddle of Inheritance: Connecting Continuity and Property

Abstract

Popular intuitions, scholarly works and legal doctrines reveal an embedded tension in property legal theory between testamentary freedom and family protection. The article works through this tension and offers a novel theory of property allocation after death. It introduces the value of continuity to property legal scholarship. This value is drawn from various disciplines such as philosophy, psychology, and anthropology. Continuity embodies a double perspective, combining two interests: the desire to be continued in the world, and the need for roots, to belong to a person or a group. Similarly, the law of inheritance today cannot be correctly characterized solely by reference to testamentary freedom, which addresses only the interest to be continued in the world. There is not just one central focal point, the owner of property, I contend, but actually two focal points, which correspond with the two dimensions of continuity. These two focal points are not independent interests that should be correctly balanced one against the other. Rather, the interests of the owner and her receivers are intertwined, co-dependent, and guided by the same rationale. This argument is supported by a legal analysis of American inheritance law.