Brooklyn Law Review


The notion of the traditional American family has changed due to complex family structures formed through remarriages, cohabitation, and same-sex couples. Freedom of disposition is a guiding principle of inheritance law, whereby society recognizes the value in protecting one’s ability to acquire and transfer personal property at death. However, intestacy statutes are antiquated and have failed to keep pace with the rise of the modern American family, thus leaving the right to freedom of disposition uncertain and vulnerable for a large population. A will is a way of opting out of intestacy, but given that a will is frequently the subject of litigation, there is no guarantee that a court will uphold an executed will. This presents a conflict in probate law because courts are unable to honor an individual’s intent. Antemortem probate is one solution to close the gap in inheritance law, preserve the commitment to testamentary freedom of disposition embedded in inheritance law, and protect a growing population of Americans in nontraditional families who turn to wills as a means of opting out of the intestacy rules. This note examines the changing dynamics of the American family and how inheritance law could benefit from an antemortem probate procedure, and it encourages the drafters of the Uniform Probate Code to adopt an antemortem probate statute.