Gordon on Property Theorists, Inheritance Texts, Narratives, and Estate Planning

Deborah S. Gordon, Drexel University School of Law, is publishing Mor[t]ality and Identity: Wills, Narratives, and Cherished Possessions in the Yale Journal of Law and the Humanities. Here is the abstract.

Franz Kafka is credited with observing that “the meaning of life is that it stops.” This recognition — that life’s one certainty is certain death — has been the source of great artistic, scientific, political, and personal inspiration. How we have lived over the course of our days — our individual and collective histories — and how we will be remembered by those who survive us — our legacies — are bridged not only by our achievements and relationships but also by cherished items of property that we have accumulated and decided to pass on. This type of possession often has a narrative that endows it with meaning. By incorporating a personal property narrative into testamentary documents, a decedent can transcend her mortality by infusing it with her morality. This Article starts by discussing connections between property law and language, explaining how property theorists have used metaphorical and narrative language about “things” to explore the political and economic communities the property creates among the people who have interests in those things. The Article then explores various inheritance texts, both fictional and legal, to demonstrate the multiple ways narratives and inheritance intersect and together “transmit traditions, cultural values, and ideologies.” The balance of the Article explores the potential for stories about cherished possessions to democratize inheritance law and enhance its purposes. It does so, first, by proposing model language to assist individuals and individuals and their lawyers in drafting conveyances that acknowledge the narrative power of cherished possessions. Having surmounted this procedural hurdle, the remaining sections argue that the current practice of trivializing personal property dispositions, either by relegating them to separate non-binding memoranda or not dealing with personal property at all other than in a general or residuary clause, are missed opportunities. Building from empirical studies that show how individuals identify with personal possessions, often because of the memories associated with those items, this Article argues that including these family histories in testamentary documents can help make estate planning more accessible and meaningful to a broad range of property owners. Encouraging personal property dispositions that include narratives also benefits survivors; psychological research shows a relationship between family stories and resilience, and sociological studies support the idea that sharing stories aids in bereavement. Finally, using this narrative approach as a strategy for encouraging broader participation in estate planning will benefit the inheritance system more holistically.

Download the article from SSRN at the link.