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In Search of the Probate Exception

Posted by on Wednesday, November 19, 2014 in Articles, Volume 67, Volume 67, Number 6.

In Search of the Probate Exception


As a limit on the power of Article III courts, the probate exception has surely earned its place in the old curiosity shop of federal jurisdictional law. Dating from the early nineteenth century, the exception has been said to derive from various sources, including the lack of federal jurisdiction over ecclesiastical matters, the “law” and “equity” limits of Article III, and the structure of our federal government. The Supreme Court’s 2006 decision in Marshall v. Marshall sought to clarify matters, but lower courts continue to debate the breadth of the exception.

In this Article, we go in search of the probate exception. After concluding that some familiar arguments do not persuasively justify a gap in federal judicial power, we consider Article III’s case-or-controversy requirement. Understood as requiring live disputes between adverse parties, the case-or-controversy requirement might appear to rule out much of the unconstested ex parte or administrative work commonly conducted in the course of probate proceedings. Yet the federal courts have a long tradition of hearing administrative matters, from the naturalization petitions that arrived on federal dockets in 1790 to the bankruptcy proceedings that unfold each day in the Article III judiciary. Even today, Article III courts entertain applications for FISA warrants on an ex parte basis and conduct ex parte inquiries into applications for the entry of default judgments. Like many civil law tribunals, in short, the courts of the United States exercise what in Roman law was referred to as “contentious” and “noncontentious” jurisdiction.

Although the tradition of noncontentious federal jurisdiction cannot easily coexist with some broad statements of Article III’s supposedly inflexible adverse-party requirement, we think the best way to harmonize adversary rhetoric and noncontentious reality lies in the distinction between cases and controversies. We believe Article III permits the federal courts to administer the law only when the ex parte claim being asserted presents a “case” under federal law. At the same time, we think the Constitution requires full adverse-party disputes in all “controversies” governed by state law. On that view, federal courts lack the power to entertain stand-alone ex parte applications for probate so long as they remain creatures of state law. Federal involvement in state law matters requires a “controversy.” But, if Congress were to federalize the law of decedents’ trusts and estates with the exercise of an appropriate source of federal power, Article III courts could hear petitions for the probate of federal wills as “cases” within the judicial power.


James E. Pfander
Owen L. Coon Professor of Law, Northwestern University School of Law.

Michael J.T. Downey
J.D., Northwestern University School of Law, magna cum laude; B.A., Northwestern University.