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The Creeping Federalization of Wealth-Transfer Law

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

The Creeping Federalization of Wealth-Transfer Law


This Article surveys areas of federalization of wealth-transfer law. Federal authorities have little experience in making law that governs wealth transfers, because that function is traditionally within the province of state law. Although state wealth-transfer law has undergone significant modernization over the last few decades, all three branches of the federal government—legislative, judicial, and executive—have increasingly gone their own way. Lack of experience and, in many cases, lack of knowledge on the part of federal authorities have not dissuaded them from undermining well-considered state law.
The Article covers these topics: federal preemption of several areas of state law, the development of federal common law as a sometime substitute for preempted state law, the federal tax exemption for perpetual trusts, and the right of posthumously conceived children of assisted reproduction to Social Security survivor benefits.


Lewis M. Simes Professor Emeritus of Law, University of Michigan. Parts of this Article draw on law-reform products for which I am the Reporter: the Restatement (Third) of Property: Wills and Other Donative Transfers, the Uniform Probate Code, and the Uniform Statutory Rule Against Perpetuities. The views expressed are my own and not made on behalf of the American Law Institute or the Uniform Law Commission. For commenting on earlier drafts, I thank Thomas Gallanis, Douglas Kahn, Yale Kamisar, John Langbein, Melanie Leslie, and Stewart Sterk.