Honoring Probable Intent in Intestacy: An Empirical Assessment of the Default Rules and the Modern Family

This article provides preliminary analysis of an empirical study of nearly 500 wills probated in Alachua and Escambia Counties in the State of Florida in 2013. The particular focus of the study is to determine if there are noticeable patterns of property distribution preferences among decedents based on their diverse family relationships. Earlier empirical studies of distribution preferences indicated that a majority of married decedents wanted to give all or most of their estates to their surviving spouses. As a result of these studies, most states amended their probate codes to give surviving spouses a sizable percentage of a decedent spouse\u27s estate under their intestacy provisions. But with the explosive growth of nontraditional families, particularly blended families with stepchildren, the standard estate plan for these nontraditional decedents is actually a revocable trust with a QTIP provision to provide for the surviving second or third spouse, thus protecting a significant portion of the property for the children by a prior marriage. As family patterns have changed and the blended family has become more ubiquitous, there is a growing divergence between the estate plans of those who can afford to make them, and the default rules of intestacy. In this article, we report our initial findings in a comprehensive study of testate estates through the lens of family relationship patterns. Focusing on distributions to second or subsequent spouses, and bequests to stepchildren, we show that intestacy laws still tend to fit most decedents\u27 preferences regarding bequests to surviving spouses, though certainly the fit is less close than with first spouses, but that there is a significant gap in the intestacy law\u27s treatment of step-children. Moreover, these are definite gender-based differences in treatment of surviving second-spouses that suggest our intestacy laws are not providing as close a fit as they could