A pre-publication draft of Prof. Hirsch’s next article, Advances on Inheritances: Policy, Empirical Evidence, and the Quest for Consistency, which will appear in volume 2027, issue #2, of the University of Illinois Law Review is available on SSRN.
Here is the abstract as posted on SSRN:
This Article explores the problem of benefactors who make gifts to those who eventually inherit from them, either as heirs under intestacy statutes or as beneficiaries under wills. Are gifts treated as advances on inheritances and deducted from the amount heirs or beneficiaries eventually receive? Or do gifts supplement inheritances as separate and unrelated transfers? Under current law in most states, and under the Uniform Probate Code, this issue is addressed by two separate doctrines: (1) advancement, pertaining to intestate estates, where distribution is governed by statute, and (2) ademption by satisfaction, pertaining to estates where distribution is governed by a will. The Article lays out the principal aspects of these cognate doctrines and addresses the public policies applicable to them. The Article offers the first empirical study of the problem, presented in the form of a series of electronic surveys designed to throw light on the relevant policies by exploring the intent and expectations of benefactors. The Article also identifies a host of doctrinal inconsistencies that have cropped up between the rules applicable to advances by benefactors who either have or lack wills. Almost all those inconsistencies have previously gone unnoticed. The Article urges the need to smooth out inconsistencies and suggests structural reforms that would aid lawmakers in doing so. Ultimately, the Article proposes combining the twin doctrines into a single rule as the ideal way to ensure doctrinal consistency.