November, 2014
The Role of Federal Law in Private Wealth Transfer: Introduction
Nov. 19, 2014—Introduction Symposium 2014 AUTHOR Centennial Professor in Law, Vanderbilt University Law School.
In Search of the Probate Exception
Nov. 19, 2014—In Search of the Probate Exception ABSTRACT 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...
Federalization of the Law of Charity
Nov. 19, 2014—Federalization of the Law of Charity ABSTRACT To this day, the law of charity is often thought of as a matter for the states. In fact, the crucial law relating to charity is now almost always federal. For certain purposes, state law still determines whether a given entity is “charitable.” It also determines the propriety...
Is Federalization of Charity Law All Bad? What States Can Learn from the Internal Revenue Code
Nov. 19, 2014—Is-Federalization-of-Charity-Law-All-Bad-What-States-Can-Learn-from-the-Internal-Revenue-Code Commentary on Mark L. Ascher, Federalization of the Law of Charity, 67 Vand. L. Rev. 1581 (2014). AUTHOR Professor of Law, Benjamin N. Cardozo School of Law.
The Creeping Federalization of Wealth-Transfer Law
Nov. 19, 2014—The Creeping Federalization of Wealth-Transfer Law ABSTRACT 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...
Destructive Federal Preemption of State Wealth Transfer Law in Beneficiary Designation Cases: Hillman Doubles Down on Egelhoff
Nov. 19, 2014—Destructive Federal Preemption of State Wealth Transfer Law in Beneficiary Designation Cases- Hillman Doubles Down on Egelhoff ABSTRACT The probate codes in about a third of the states contain a so-called divorce revocation provision, applicable both to probate and nonprobate transfers. Such statutes address the situation in which a transferor’s will or will substitute designates...
Probate Law Meets the Digital Age
Nov. 19, 2014—Probate Law Meets the Digital Age ABSTRACT This Article explores the impact of federal law on a state fiduciary’s management of digital assets. It focuses on the lessons from the Stored Communications Act (“SCA”), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to...
The Stored Communications Act and Digital Assets
Nov. 19, 2014—The-Stored-Communications-Act-and-Digital-Assets Commentary on Naomi Cahn, Probate Law Meets the Digital Age, 67 Vand. L. Rev. 1697 (2014). AUTHOR Professor of Law, University of California, Davis, School of Law (King Hall). Thanks to Naomi Cahn for helpful comments.
A Fresh Look at State Asset Protection Trust Statutes
Nov. 19, 2014—A Fresh Look at State Asset Protection Trust Statutes ABSTRACT This Article examines the rise of state asset protection trust (“APT”) statutes. It juxtaposes two apparently contrary trends: an increase in formal legal responses suggesting that the trusts created under these statutes are likely to have at best limited enforceability and an increase in the...
Unconstitutional Perpetual Trusts
Nov. 19, 2014—Unconstitutional Perpetual Trusts ABSTRACT Perpetual trusts are an established feature of today’s estate planning firmament. Yet little-noticed provisions in the constitutions of nine states, including in five states that purport to allow perpetual trusts by statute, proscribe “perpetuities.” This Article examines those provisions in light of the meaning of “perpetuity” as a legal term of...
Perpetuities and the Genius of a Free State
Nov. 19, 2014—Perpetuities-and-the-Genius-of-a-Free-State Commentary on Steven J. Horowitz & Robert H. Sitkoff, Unconstitutional Perpetual Trusts, 67 Vand. L. Rev. 1769 (2014). AUTHOR Associate Professor, SMU Dedman School of Law. For their helpful comments and criticism, I would like to thank Robert Sitkoff and the other participants in the 2014 Vanderbilt Law Review Symposium on “The Role of...
Federal Visions of Private Family Support
Nov. 19, 2014—Federal Visions of Private Family Support ABSTRACT This Article offers a new perspective on the relationship between family and federalism by analyzing why the government—whether state or federal—recognizes family at all. The Article examines the current balance between state and federal authority over family by reviewing the Supreme Court’s recent decisions in Astrue v. Capato,...
Disclaimers and Federalism
Nov. 19, 2014—Disclaimers and Federalism ABSTRACT The beneficiary of an inheritance has the right to disclaim (i.e., decline) it, within limits ordinarily set by state law. This Article examines situations where a beneficiary’s right to disclaim might instead be governed by federal law, as a matter of both existing doctrine and public policy. Issues of federalism arise...
Federalizing Principles of Donative Intent and Unanticipated Circumstances
Nov. 19, 2014—Federalizing-Principles-of-Donative-Intent-and-Unanticipated-Circumstances Commentary on Adam J. Hirsch, Disclaimers and Federalism, 67 Vand. L. Rev. 1871 (2014). AUTHOR Vice Dean, Professor of Law, and Judge Norma L. Shapiro Scholar, Rutgers School of Law–Newark. This Comment was prepared in connection with the Vanderbilt Law Review Symposium on “The Role of Federal Law in Private Wealth Transfer” (February 21,...
Strange Bedfellows: The Federal Constitution, Out-of-State Nongrantor Accumulation Trusts, and the Complete Avoidance of State Income Taxation
Nov. 19, 2014—Strange Bedfellows- The Federal Constitution, Out-of-State Nongrantor Accumulation Trusts, and the Complete Avoidance of State Income Taxation ABSTRACT With the maximum rate of federal income tax at 39.6%, the Obamacare Tax adding another 3.8% tax, and some state income tax rates exceeding 9%, taxpayers in the highest brackets have been seeking to develop strategies to...
Pro and Con (Law): Considering the Irrevocable Nongrantor Trust Technique
Nov. 19, 2014—Pro-and-Con-Law-Considering-the-Irrevocable-Nongrantor-Trust-Technique Commentary on Jeffrey Schoenblum, Strange Bedfellows: The Federal Constitution, Out-of-State Nongrantor Accumulation Trusts, and the Complete Avoidance of State Income Taxation, 67 Vand. L. Rev. 1945 (2014). AUTHOR Whelan W. and Rosalie T. Palmer Professor of Law at Samford University’s Cumberland School of Law. J.D., University of Texas School of Law; B.S., Psychology, Carnegie...