Does Intestacy Law Go Too Far To Protect Parents?
Professor Beyer has an interesting post (here) about an article written by an LSU law professor named Ronald J. Scalise, Jr. entitled "Honor Thy Father and Mother?: How Intestacy Law Goes Too Far in Protecting Parents."
Under Illinois' law of descent and distribution (which can be found here), the estate of a person dying with no spouse or descendants and no Will passes in equal shares to the person's siblings and parents. So, for instance, if the decedent had $1 million and was survived by his two siblings and his parents, then each of these four individuals would inherit $250,000. There's another provision that applies if only one parent is living (the surviving parent gets a double share).
Is this fair? To me, the more interesting question relates to the purpose of the intestacy statute. Are we trying to guess what a "typical" person would want to do? If so, why don't we just conduct a poll of Illinois residents, asking them where their property should go under a number of different scenarios?
Or, should we be using the intestacy statute to encourage people to execute Wills? (Remember that the intestacy statute applies only if a person dies without a valid Will.) In that case, the legislature might choose to do all sorts of screwy things to the intestacy statute -- "if you die without a spouse or child, your property goes to your oldest sibling" or "if you die without a spouse or child, all of your property escheats to the state."
