Abstract

Testamentary freedom is the bedrock of inheritance law. The freedom is curbed in some respects in order to allow spouses and other groups access to an estate. However, there is no restriction on a parent's ability to disinherit their children. This note is a critique of the permitted disinheritance of children in the name of testamentary freedom. According to John Locke, the right to inherit emanates from natural law and should be recognized as such. Through forced heirship, as recognized in other modern nations, the U.S. can respect the natural right of children to inherit and leave room for testamentary freedom. Forced heirship can alleviate the unjustifiable harms imposed on adult children and preserve familial relationships after the death of a parent. Until forced heirship is recognized, disinherited beneficiaries seeking access to an estate must navigate around laws governing no-contest clauses, devices that are often used to disinherit children. In California, that path is through its probable cause exception to no-contest clauses and the intentional interference with an expected inheritance tort. Until forced heirship is recognized, courts should not permit no-contest clauses to effectuate disinheritance but restrict enforcement of no-contest clauses for protecting estates from complicated ownership disputes and outsiders attempting to gain access to an estate.

Keywords

law, inheritance, Locke, children, heir