Fraud on the Widow’s Share

Abstract

This study seeks the answer to a troublesome question: What should be done about gratuitous inter vivos transfers in alleged evasion of the widow\u27s statutory share? My thesis is that the statutory share should be replaced by the type of decedent\u27s family maintenance legislation found in the British Commonwealth, and that this legislation should be buttressed with anti-evasion provisions. Inter vivos evasions seem to be a permanent and increasingly serious concomitant of our forced share system. Part I, dealing with matters of policy, explores the chief aggravating factors. These factors include the high rate of remarriage, which induces transfers to children of a prior marriage; the increasing popularity of gratuitous inter vivos property transmission; and the inflexible nature of the typical statutory share. The remainder of Part I is devoted to the search for a criterion with which to judge the work of the courts. Inchoate dower and the ancient custom of London receive separate treatment, in Part II, because of their influence on the cases relating to evasions of the statutory share. These cases are covered in Part III, which comprises the main portion of the book. As an aid to the practicing lawyer the decisions are analyzed in terms of doctrine, of the persuasive evidentiary factors, and of the individual dispositive devices. The study is concerned mainly with postnuptial devices; but antenuptial transfers and spouses\u27 rights in contracts to make a will are also examined in separate appendixes. The decision in each case is also tested in the light of the maintenance and contribution formula. Part IV examines various proposals for legislative change and concludes with a suggested model statute. The statute is based on the British Commonwealth decedent\u27s family maintenance legislation, augmented by anti-evasion provisions.https://repository.law.umich.edu/michigan_legal_studies/1017/thumbnail.jp