Trusts and Estates Opinions Rewritten

Like the other books in the Feminist Judgments series, the purpose of this book is to broaden to trusts and estates law the inquiry begun with the original volume (Feminist Judgments: Rewritten Opinions of the United States Supreme Court) and continued with other books in the series (e.g., Feminist Judgments: Rewritten Tax Opinions and others). Most people understand that feminist reasoning has tremendous potential to affect, for example, the law of employment discrimination, sexual harassment, and reproductive rights. The original volume showed that feminist reasoning could have changed the course of the law in important Supreme Court cases in these and other areas. As with the tax volume, people may be less aware, however, that feminist analysis can transform law in the very personal area of trusts and estates by highlighting the influence of perspective, background, and preconceptions on the reading and interpretation of both statutes and common law. Taking inspiration from the tax volume, this proposed volume seeks to expand the inquiry to the many topics covered in a trusts and estates course, including testamentary capacity, undue influence, end-of-life decision making, domestic violence’s impact on the validity of death-time transfers, protection for a decedent’s surviving spouse and other beneficiaries through employee benefit plans, the spousal elective share, pretermitted spouses, the impact of antenuptial agreements on inheritance rights, restrictive spendthrift provisions in trusts, the availability of trust assets to meet child support obligations, and reproductive technology’s impact on inheritance rights.

As with the original Feminist Judgments volume, the rewritten decisions are framed within the same precedent that bound the original court at the time of the opinion. But the writers will bring to the decision making and opinion writing a feminist perspective on the facts and the law. One of the underlying claims of this volume is that even seemingly neutral questions like how to define a “child” for inheritance purposes or what it means to overcome a person’s testamentary intent are affected by judicial experiences, perspectives, and reasoning processes. The volume will demonstrate that incorporating feminist theories and methods into trusts and estates cases not only is consistent with judicial duties and accepted methods of interpretation, but also has the effect of enriching and deepening the process by which judicial decisions are made.

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