A harmony between individuality and familial connection would be the cure to treat the excessively pro-testator laws in United States of America. U.S.A. is one of the states who claims to offer absolute freedom to the testator in writing a will. I would be reflecting how this absolute freedom has already been compromised by the use of elective share for spouses. However, the legislators are still hesitant to make laws for the beneficial inheritance of children. This point would help to identify several flaws in the system of absolute freedom. Finally, from my personal understanding, I would provide mechanisms to maintain the integrity of the testator’s freedom and at the same time eliminate the flaws of the system.


Through this research paper, I will critically analyse the testamentary succession laws with respect to wills in U.S.A. These laws in U.S.A. vary from state to state. There are a few things which is common across all the states. One of them is the absolute freedom given to the testator in estate planning. Second is the lack of protection of children under these testamentary laws. My first aim is to highlight laws that protect spouses and children in U.S. and then, analyse whether these are sufficient to protect them from disinheritance. The next objective would be to evaluate whether not granting protection to children helps to maintain the full-fledged liberty of the testator in will writing. Addressal of these two questions will help us realise the gap in the testamentary succession laws with respect to protection of spouses and children.

Testamentary Succession: Background

The following paragraphs would provide a brief of the power and control of a testator. “Under the testamentary succession, absolute freedom has been given to the testator to decide the successor of his estate. The testator may disinherit his children or even spouse. More importance is given to the individual and his intention rather than the family as a unit.”[1] “However, the State of Louisina in U.S., has made a law where children can inherit atleast ¼ share and spouse also gets ¼ share from the property. The rest property can be passed according to the will of the testator. This is also called forced heirship. However, Louisina has also narrowed down this law and has allowed only those children to inherit the property who are below 23 years and are mentally or physically incapable of earning.”[2] Hence, we find that American law is a little less inclined towards protecting the spouse and children. “According to an article, this kind of law has been made because very few testators disinherit both their children and spouse. They disinherit their spouse or children only if they are unworthy or incapable of holding or managing the assets or have misconducted.”[3] Hence, it cannot be said that protection is of utmost necessity. However, I contend this logic. I believe that even if testator disinherits in rare circumstances, protection must be granted to the family. If a parent disinherits the children due to some misconduct, in most instances, it might be extremely unjust and bias to the child.

            “A testator can also impose certain conditions on the land which will be valid unless they are not illegal or opposed to public policy.”[4] “Some testators put restrictions on their spouses to not remarry after their death, and if they do, the surviving spouses would be disinherited. The courts have considered this a restraint on right to inherit and not right to marry.”[5] Some conditions related to restraint on religion have also been held to be valid. “The testators can impose a restriction upon the religion of the future spouse of their children. And if the children marry a person from different religion, they will be disinherited from the property.”[6]  “However, conditions such as someone breaking the marriage in order to inherit has been considered against public policy.”[7] These examples show the level of freedom given to the testator. The common law in U.S. vests the power and control of the property with testator even after his death to a great extent. This preserves people’s individual rights. However, the testator does not have any obligation towards his children after his/her death. The testator may disinherit the children and disown the parental responsibilities at his own discretion. This causes over preservation of the individual rights and exposes the children to insecurity and vulnerability. The sense of individualism is encouraged more than familial protection.

Protection to the spouses in USA

The U.S. government has realised that if an individual is given liberty to disinherit his family from the property, then, the spouses or children may be left to the mercy of state. “Hence, in order to protect the spouses and children the U.S. government has introduced the concept of elective share. Under this a spouse who has not been named in the will, can claim money and some part of the estate out of the testator’s property. The amount of money varies from state to state.”[8] “With respect to the share in estate, in some states, this share depends upon the number of years of marriage. The surviving spouse will get three percent share, if spouse dies in first year and about fifty percent, if the spouse dies after 15 years of marriage or later. However, in some states, number of years of marriage is irrelevant and all the spouses inherit the same amount of money and similar percentage of estate. This share received by the surviving spouse is called the augmented estate which may contain both probate and non-probate assets.”[9] Now, we would examine the laws present under the U.S. legal system to protect the disinherited children.

Highlighting laws that protect children & evaluating the sufficiency of these laws in light of the problems faced by children in US.

The law does not extend direct protection to children, law protects them in an indirect way by providing the elective share to the surviving spouse. “In such cases, the belief was that the elective share would naturally pass down to the children. But, in cases where the surviving spouse betrays or remarries, the children from the first marriage become both vulnerable and unsupported.”[10] Only the State of Louisina protects the children from disinheritance as discussed above. “The State of Albama has a clause wherein those children who might have been disinherited unintentionally are given a share in the testator’s estate. Many states also require the testator to publish a statement in the will which explicitly removes the children from inheritance. If such a statement is not mentioned, the children may inherit on challenging the will.”[11] “The children can also challenge the negative wills on the grounds of undue influence and unsound mind.”[12] “Even if there exists a no contest clause in the will, the aggrieved person can file a suit.”[13] Such resorts are always available to a child depending on the state he resides in. But these are not always helpful as it involves putting the estate into litigation which may take years. Plus, there is no guarantee that the aggrieved party will get the claimed share. “In British Columbia, the laws for testamentary succession are made very clear which enables the litigators to assess the result of the suit in prior and settle the matter outside court. In fact, the courts in British Columbia consider it extremely important to protect the family. They prefer blood relations over individual autonomy.”[14] Hence, even though the states in U.S. have various laws to protect the children, they may prove to be insufficient as the parties have to go through litigation even when the result might be completely uncertain. By now, it is very much comprehensible that only few states extend direct protection to the children.

This problem of disinheritance might look trivial but it is quite a serious matter. “Statistics show that parents have started to disinherit their children more often.”[15] “In a case, one of the parents had disinherited his child only because he could not get his child’s custody. This was done only to take revenge from the custodial parent.”[16] In many instances, even if children are not disinherited, they inherit an extremely tiny portion of their estate. “In ‘Hornung v. Estate of Lagerquist’[17], the spouse gave only $1 out of his $4,00,000 estate to his daughter born from his first marriage.”[18] The number of children born out of wedlock has been rising exponentially. “After 1960s, the children born out of wedlock increased by 500 times in U.S..”[19] “In such circumstances, a lot of times, parents do not see their children as a product of their love and rather perceive them as debts who they will have to take care of.”[20] Sometimes, the surviving spouse after her second marriage may neglect the children from her first marriage even though she has gotten an elective share out of her first marriage. In such cases, the benefit meant to reach the children does not reach them. Hence, stringent laws need to be framed to rescue children from such unhealthy situations.

Assessing the liberty of a testator and measuring the fairness of such freedom

The question which arises after the above discussion is whether the testator has gotten full freedom. “The answer would be a no because the spouse always has an opportunity to claim an elective share even if the testator disinherits her.”[21] However, the children do not have such an opportunity. This only shows how the law is biased against the children only. Even if the U.S. law claims to give full freedom to the testator, it has failed to balance this freedom. “Testators can impose restrictions on the marriage and religion which hampers the freedom of the beneficiary. He can put conditions on the estate and disinherit almost everyone.”[22] “But the children cannot disinherit their parents and the parents can always disinherit their children on any ground, fair or unfair.”[23] The flaw in the law is that it allows for breaching the freedom of another person(beneficiary) at the cost of inheriting the property but it does not impose mandatory heirship that would take away only little freedom of the testator and in return provide security to the children.

“It has been said that children are not made forced heirs, because in the fear of disinheritance, they will take extra care of their parents.”[24] This reason might be true for adult children but, minor children will not fit into this logic. Additionally, not providing enough support to the children will leave them at the mercy of the state which can increase the burden of the state. In my opinion, every child must be assured some share of the property from his parent. This will reduce the insecurity within families and increase the sense of duty between familial generations. The preference of consanguinity over individual autonomy to some extent may help rule out the discriminatory laws. The U.S. law is ambiguous because despite claiming that it gives complete effect to the testamentary intention, it allows for ‘elective share for spouses and prevents children from disinheriting their parents’[25]. Hence, making protective legislations for children would not harm the testamentary freedom as it has already been compromised. In fact, such a step would help achieve a balance between the rights of the testator and beneficiary(spouse and children).

“U.S. law provides for elective share to the spouse on the contribution-based rationale rather than on the basis of need-dependency. If the spouse has been married for a less period of time, she would get less share however, if the spouse has lived with the testator for a long period of time, she will inherit almost 50% share.”[26] The law is less concerned about connection and more about contribution. This is a loophole as the spouse might be in need of financial help after the sudden death of her partner but she would still get less share due to the short span of her marriage. A better way out would be to take every component into consideration while deciding the share for spouse. These factors could include spouse’s contribution, number of children from the testator, need, age and finally, her health. When all these factors are cumulatively considered, the chance of injustice typically reduces. In any case, while giving elective share to the wife, the testamentary intention is wholly ignored. So, it would be advisable to give the property to the spouse after considering everything and not on just one basis. “In a few circumstances, wives are not given a share, for example, when she herself deserts her husband.”[27] If such a reason or a rational in these lines is present, then, the testamentary intent can be given affect wholly. Now, let us consider what kind of laws could help the children without disturbing much of the testamentary intention.

“Earlier in Louisina, all children mandatorily inherited some property however, now, only those children below 23 years can mandatorily inherit.”[28] This reflects that the law is more concerned with the moral duties of the parent towards their children after their demise rather than parental connection or blood relationship. If it were based on consanguinity, then, children above 23 years age would also be entitled to inherit. The benefit of transferring on the basis of consanguinity would be that if a child above 23 years is in equal need of his parents’ estate as that of an 18 year old child, he would have no remedy.  If, not on the basis of consanguinity, property can also be divided based on need. But the law ignores any such need and promotes a generalized assumption that a child above 23 years would be self-sufficient. It also implies that the law by putting a bar on the age is indicating that parents owe a moral obligation towards their children only till 23 years, which is erroneous. These things can be corrected if absolute legal recognition was granted to the moral, social and financial responsibility that a parent owes to their children even after their death irrespective of the age of child. A small share can be provided to the children of the testator by reason of consanguinity(in case of natural born child) and parental connection(in case of adopted child). However, to determine the quantum of every child’s share, factors such as his relations with the testator, need, dependency, age and health must be considered. The advantage of such a law would be that every child would compulsorily get a basic share out of his parent’s estate and only the children who the testator prefers would get more than the basic share. For example, if a child did not have good relations with his parent but is also in need of money, priority can be given to the intent of the testator. Hence, the child would get only a basic share and nothing above that. Such a law would ensure protection of the children and testamentary intention at the same time. Hence, laws must be made such that no party is excessively neglected or favoured.


We can cull out the battle between individualism and familial obligations under U.S. Law. Favouring one side would amount to utter ignorance of the other and so, a balance needs to be created to ensure that both the parties are not placed at a disadvantage. Courts have realised the economic partnership and interdependency between the spouses which made them bring the concept of elective share. Overall, the U.S. law has seen a progress because earlier elective share was fixed and equal for everyone. Now, it is distributed in most of the states based on contribution. But a further improvement of the law would mean considering other necessary factors also for determining the share of spouse. With respect to the duties a parent owes to his children, laws have shrunk. So, the aim must be to recognize the bond between parent and children and draft protective legislations for the children to secure their future. Altogether, this research paper helped us examine the discrepancies in the succession law vis a vis estate planning and also helped us draft some corrective  and creative solutions.

[1] Hodel v. Irving, 481 U.S. 704 (1987).

[2] Madoff, Ray D. “A Tale of Two Countries: Comparing the Law of Inheritance in Seemingly Opposite Systems” (2014) Boston College International and Comparative Law Review, Vol. 37, No. 2, pp 337-338  accessed on 24th June 2021.

[3] Browder, Olin L. “Recent Patterns of Testate Succession in US and England” (1969) Michigan Law Review, Vol. 67, No. 7, pp. 1303-1360  accessed on 24th June 2021.

[4] Hall v Eaton, 259 Ill. App. 3d 319, 631 N.E.2d 805 (Ill. App. Ct. 1994).

[5] Loving v. Virginia, 388 US 1, 12 (1967) ; Commonwealth v. Stauffer, 10 Pa. 350 (1849).

[6] Madoff, Ray D. “A Tale of Two Countries: Comparing the Law of Inheritance in Seemingly Opposite Systems” (2014) Boston College International and Comparative Law Review, Vol. 37, No. 2, pp 340  accessed on 24th June 2021.

[7] Del. Trust Co. v. Fitzmaurice, 27 Del. Ch. 101, 31 A.2d 383 (1943)​.

[8] Chester Ronald “Should American children be protected against disinheritance” (1997) Real Property, Probate and Trust Journal, Vol. 32, No. 3, pp 433 accessed on 24th June 2021.

[9] Ibid, 448.

[10] Ibid, 412.

[11] Ibid, 426.

[12] Scalise, Ronald J. “New Developments in the US Succession Law”, (2006) The American Journal of Comparative Law, Vol. 54, pp. 112  accessed on 24th June 2021.

[13] Ibid, 114.

[14] Chester, Ronald “Should American children be protected against disinheritance” (1997) Real Property, Probate and Trust Journal, Vol. 32, No. 3, pp 413-443 accessed on 24th June 2021.

[15] Higdon, Michael J. “Parens Patriae and The Disinherited Child”, (2020) Washington Law Review, Vol. 95, No. 2, pp 628  accessed on 24th June 2021.

[16] Supra 15.

[17] 473 P.2d 541,543 (Mont. 1970).

[18] Hornung v. Estate of Lagerquist, 473 P.2d 541,543 (Mont. 1970).

[19] Supra 15.

[20] Supra 15.

[21] Chester, Ronald “Should American children be protected against disinheritance”, (1997) Real Property, Probate and Trust Journal, Vol. 32, No. 3, pp 433 accessed on 24th June 2021.

[22] Madoff, Ray D. “A Tale of Two Countries: Comparing the Law of Inheritance in Seemingly Opposite Systems” (2014) Boston College International and Comparative Law Review, Vol. 37, No. 2, pp 340 , accessed on 24th June 2021.

[23] Ibid, 337.

[24] Higdon, Michael J. “Parens Patriae and The Disinherited Child”, (2020) Washington Law Review, Vol. 95, No. 2, pp 633 , accessed on 24th June 2021.

[25] Ibid.

[26] Chester, Ronald “Should American children be protected against disinheritance”, (1997) Real Property, Probate and Trust Journal, Vol. 32, No. 3, pp 447 , accessed on 24th June 2021.

[27] Ibid.

[28] Madoff, Ray D. “A Tale of Two Countries: Comparing the Law of Inheritance in Seemingly Opposite Systems” (2014) Boston College International and Comparative Law Review, Vol. 37, No. 2, pp 337-338 accessed on 24th June 2021.

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