The Probate Definition of Family: A Proposal for Guided Discretion in Intestacy

Intestacy statutes may not match the wishes of many people who die intestate. Changes to the Uniform Probate Code (UPC) include or exclude potential takers, as the drafters attempt to bring the UPC provisions closer to the intent of more intestate decedents. As the UPC tries to fine-tune the intestacy statutes, however, family circumstances continue to get more and more complicated. Families headed by unmarried couples, blended families with children from multiple marriages, and families in which adults raise children who are not legally theirs, have become commonplace. For some decedents, non-family friends and caregivers may be more important than legal relatives. Given the diversity of decedents' family structures and wishes with respect to their property, constructing an intestacy statute based on fixed rules has become ever more problematic. This Article examines the UPC's treatment of the family in the intestacy rules and looks at provisions from other state intestacy statutes. The Article analyzes the definitions of "spouse" and "child" and identifies problems created by the current definitions. The Article reviews some of the many proposals for intestacy reform, especially those that advocate a degree of judicial discretion. After discussing provisions in the UPC and a few state statutes that already permit judicial discretion, the Article proposes an intestacy statute that provides a relatively simple default rule for inheritance and permits judicial discretion, exercised within a framework of statutory guidance, to determine the proper distribution of an intestate's property.