Testamentary Freedom and Gender Discrimination

As I've been working on testamentary devises in the Shenandoah Valley before the Civil War I've been thinking a great deal about the differences in how male testators treat their wives and daughters from how they treat their sons.  The key difference Doug Thie and I have been focused on is fathers who leave property in trust to their daughters and outright to their sons (and often how they make their sons trustees of the property left in trust to their daughters).  I've been interpreting this in a somewhat positive fashion -- as in they are leaving property in trust so that their son-in-laws can't get their mitts on the property.  

There's also a piece of this that I hope Dana Remus and I will be talking about in a paper down the road on how the pre-War trusts that restricted the beneficiaries' (most frequently daughters') rights to alienate their interests led the way to spendthrift trusts.  The cartoon version of the story of the spendthrift trust is that it emerged in the northeast as a way of protecting spendthrift children from losing their inheritance.  We're now thinking this may be been more a way of protecting women's property from their husbands (and there were some substantial restrictions on the wives' rights over the trust property, so that their husbands could not coerce them into giving up their property.)  These trusts pre-dated in many cases the married women's property acts of the 1840s and 1850s -- and also provided often more protection than those acts did.  And can I add that I think this trend emerged first in the south -- which is a theme Stephen Davis and I hypothesized in our forray into probate in an affluent county in Alabama before the War.  (Richard Chused has told some of this story already in his important work on the Married Women's Property Acts.)  The trusts smack of -- literally -- paternalism, of course.  I think there's also an important story to tell here about the gendered nature of the origins of the spendthrift trust.

Anyway, I see an important new paper, "Property and Belongingness: Rethinking Gender-Biased Disinheritance," by Shelly Kreiczer-Levy of the Academic Center of Law and Business Meital Pinto of Carmel Academic Center - Law School and the University of Toronto.  It explores the darker side of gender-discrimination in contemporary devises to children.  Beyond their exploration of the problem, I'm most interested in their proposed solution: to refuse to give effect to gender-biased devises.  I know we're now officially in pretty radical land, but sometimes I wonder if there should be forced shares for children as well as spouses.  Whatever one thinks about this, I think you'll enjoy the paper if you're a T&E teacher.  It illustrates some of the exciting work that's being done in T&E these days.

The image is a picture I took last summer of the James River outside of Lexington, Virginia.

Comments

[Kent Schenkel]

Al,

You say, "the pre-War trusts that restricted the beneficiaries' (most frequently daughters') rights to alienate their interests led the way to spendthrift trusts." This sounds like very interesting research and I look forward to reading it. You also say, "The cartoon version of the story of the spendthrift trust is that it emerged in the northeast as a way of protecting spendthrift children from losing their inheritance." Are you suggesting that the spendthrift trust was not used for those purposes or just that it wasn't developed for that market?

[Alfred Brophy]

Hi Kent,

Thanks for those questions. I was thinking two things: that the common story of the origin of the spendthrift trust is that it was designed for post-war Yankee industrialists. Maybe the origins lie further south (and in the UK) and before the war. The second is that it was designed to protect spendthrift children. Perhaps its origins lie more in the desire to protect daughters from their husbands. The beneficiary in the classic case on the spendthrift trust, Broadway National Bank v. Adams, is a man. I'm wondering if that gives us a distorted sense of the intellectual origins of the trust. There are a lot of moving parts to work through, especially, especially causation.

[Shelly Kreiczer-Levy]

Hi Al,

Very interesting post, and thanks for mentioning our new article; we're glad you enjoyed it. The research on spendthrift trusts is really fascinating. I wonder whether this gendered dimension could contribute to a comparative project. Spendthrift trusts developed quite differently in England; perhaps your project can shed a new light on these differences? Is there a difference in Women's property rights? I am in the middle of a research that positions Israeli trust law between American and English law, and the relevant social and economic background is truly illuminating.