Document Type

Article

Publication Date

2020

Abstract

Will construction—the process wherein a trier of fact must determine the testator’s probable intent because the testator’s actual intent is not clear—is too little discussed and too often misunderstood in succession law jurisprudence. Yet, construction issues are becoming increasingly important due to a growing number of will and trust disputes concerning the determination of beneficiaries in a post-Obergefell United States. Currently, courts are being asked to construe terms like “spouse,” “husband,” “wife,” “child,” “son,” “daughter,” and “descendants” in estate planning documents during a time in which understandings of marriage, identity, reproduction, religious liberty, and public policy are rapidly evolving. Interestingly, these various construction cases may have disparate legal outcomes depending upon the states in which the cases are litigated, even in cases with similar underlying facts. In fact, these definitions and consequent outcomes may correlate with the views of the state’s dominant political party—whether a state is red or blue. Data support the notion that red states and blue states generally have different attitudes toward LGBT issues, artificial reproductive technology, and religion. Data also support the inference that judges— particularly elected judges—tend to be influenced by their respective state’s attitude. Where a judge’s decision-making is influenced one way or the other—toward the red side or the blue side—her approach to will construction and her understanding of public policy may reflect that tendency. Therefore, diverging public policies in red states and in blue states may affect judicial construction and govern dispositions. Accordingly, this Article addresses real-world construction issues in the estate planning context where a particular state’s approach to the redefinition of both words and policy may influence the deemed intent ascribed to a donor’s words.

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