Michael Yu

In Tax Sheltering Death Care, Professor Victoria J. Haneman proposes the creation of tax-advantaged 529 End-of-Life (EOL) Plans to incentivize individuals to plan for death care expenses (for funeral, burial, or cremation) in a thoughtful way. Her proposed 529 EOL Plan (which operates like the existing 529 Plan for educational expenses) is “politically strategic in its subtlety” according to Professor Haneman because it “provides both a structure through which savings is incentivized for all and a targeted deathcare benefit is also delivered to our most vulnerable.” (P. 630.)

Before discussing Professor Haneman’s proposed 529 EOL Plan, a brief explanation of existing 529 plans for educational expenses is in order. Professor Haneman notes that her proposal is similar to one type of existing 529 plans (a state-administered tax-deferred investment account for educational expenses) but not to a different type of plan (a prepaid tuition program for in-state post-secondary schools. (Pp. 647-48.) Existing 529 plans allow for an account: (1) to receive contributions, (2) to treat account income as income tax-exempt, and (3) to have account withdrawals be treated as income-tax exempt if the withdrawals are made for a “qualified” educational expense. (P. 648.) Although contributions to existing 529 plans are not deductible for federal income tax purposes, around thirty states allow some type of deduction against state taxes. (P. 648.)

Haneman’s essay raises several important questions. First, do death care expenses truly raise problems that merit legislative attention? Professor Haneman notes the following facts and makes the following points. The third largest category of expense over the lifetime of the average American includes funeral, burial, or cremation costs. (P. 624.) Many people are required to beg or borrow to pay for death care expenses or even to abandon human remains. (P. 624.) Twenty percent of millennials, in particular, have used crowdfunding for death care expenses. (P. 624.) GoFundMe, for example, has indicated that its users had posted more than 125,000 memorial fundraisers, raising at least $330 million each year. (P. 624.) For 2023, the median cost of a funeral in the United States exceeded $9,000 when 40% of Americans had difficulty covering an unexpected $400 expense. (P. 626.) Professor Haneman writes that, as to death care expenses, “lower income families [have been] spending than higher income families in every year studied for almost three decades” (P. 626), noting that “extraordinary levels of consumption relative to overall wealth occur for the at-need consumer, perhaps driven by guilt of loss—but sometimes because of a desire to satisfy community expectations or avoid judgment.” (P. 626, n. 17.)

Next, what issues must be addressed to solve the problem of death care affordability? Professor Haneman identifies the following underlying, overlapping issues. First, consumer behavior relating to death care services is aberrational because of a desire to render death invisible. (P. 625.) Second, the funeral industry has an outsized voice in its own regulation. (P. 625.) Third, there are no reliable and broadly available death care prepayment instruments. (P. 625.) Finally, there is, in general, resistance to “expanding the (arguably inadequate) social safety net in the U.S.” (P. 625.)

As to aberrational consumer behavior, Professor Haneman notes that death care services can be “planned or purchased ‘pre-need’ before death or ‘at-death’ after death.” (P. 635.) Although preplanning is more efficient and inexpensive, death care services in the United States tend to be purchased at death “because we live in a culture that strives to make death and dying invisible.” (P. 635.) Emotions after the death of a loved one may include grief, sadness, confusion, and guilt, which may lead to impulsive and unwise decisions. (P. 636.) Professor Haneman makes the interesting point that the bereaved may seek “confirmation for simple or basic decisions (‘what would you do here?’),” which can be problematic when confirmation is sought from funeral industry professionals who may benefit financially from their own recommendations. (P. 636.)

As to the funeral industry’s outsized role in its own regulation and the industry’s resistance to change, Professor Haneman identifies four market features that the funeral industry uses to drive profits: (1) a lack of transparency, (2) the open casket funeral, (3) regulatory gatekeeping, and (4) the vulnerable grieving consumer. (P. 652.) The foregoing features appear to overlap a bit: practices within the funeral industry inflate the price of death care services marketed to vulnerable, grieving consumers by saddling them with hidden costs. (P. 652.) This may include upselling an open casket funeral, with the casket usually being the single biggest expense in the funeral budget. (P. 652-53.) Open casket costs pay for “preparation of the remains for viewing (embalming, hair, makeup, styling), a viewing and ceremony (facility fees, printed materials, flowers), and cemetery expenses (plot, vault or liner, headstone or marker, flowers, graveside ceremony fees).” (P. 653.) Professor Haneman discusses how excessive regulation of the funeral industry “entrenches status quo and drives up cost for consumers.” (P. 653.) Regulation also can create barriers to new technologies such as alkaline hydrolysis (liquid cremation), natural organic reduction, and promession (freeze drying remains and then burial of the resulting powder). (Pp. 653-55.)

As to the lack of reliable and broadly available death care prepayment instruments, I learned a lot from Professor Haneman’s discussion of the following issues surrounding the use of insurance policies to fund pre-need funeral contracts with specific funeral homes. First, two states (New York and Alaska) prohibit the use of insurance policies to fund pre-need funeral contracts. (P. 642.) Second, many insurance plans are available to consumers only over a certain age. (P. 642.) Third, there may be a waiting period (of a year or more) before insurance benefits are available. (P. 642.) Fourth, the insurance benefits are not necessarily portable to different states and may not transfer to a different funeral home (P. 642.)

Amid all of the foregoing societal and individualized concerns about death care services, a proposal for 529 EOL Plans is, per Professor Haneman, “practical and feasible.” (P. 664.) It would “require only a simple amendment to the Internal Revenue Code to expand the federally tax-advantaged framework” to apply to qualified death care expenses. (P. 664.) It “may be made ‘spend-down eligible’ for Medicaid if irrevocable, with a named funeral agent designated on the account to arrange for use of funds on death.” (Pp. 664-65.) Any balance from the original individual’s 529 EOL Plan “may be transferred to the 529 EOL Plan of a qualified individual (defined to include family members).” (P. 665.)

The income tax treatment of 529 EOL Plans would mirror that of existing 529 Plans. While contributions to a 529 EOL Plan would come from after-tax money, all income earned in a 529 EOL Plan account would be exempt from income tax, and withdrawals from the account (also exempt from income tax) could only be used to pay for qualified death care expenses. (Pp. 648, 665.) Professor Haneman notes that “making these accounts spend-down eligible for Medicaid purposes will require that no unqualified distributions are permitted at all.” (P. 665.) Professor Haneman also tailors her proposal for 529 EOL Plans to lower-income individuals by limiting contributions to an account to a lifetime maximum of $2,500 to $5,000. (P. 667.) Tax refunds, refundable tax credits, and low contribution amounts (possibly from the account owner’s paycheck withdrawal) all could be deposited into a 529 EOL Plan. (P. 667.) Finally, “any remaining account balance can be rolled into the 529 EOL Plan of another owner, up to $3,000.” (P. 667.)

Professor Haneman concludes her article with persuasive arguments in support of “[f]ederal subsidization of deathcare saving” (in the form of 529 EOL Plans) because it expands the social safety net and helps provide for “the basic human need of dignified death care.” (P. 670.) First, she argues that ignoring systemic gaps in society that force grieving survivors to resort to social media and crowdfunding to pay for death care services is a “moral failure” because it “perpetuates systemic inequality by forcing people to beg for assistance”. (P. 670.) Second, “the Internal Revenue Code has served an important role in expanding the social safety net and engaging with poverty mitigation.” (P. 671.) Finally, “expanding the deathcare safety net through the 529 EOL Plan structure is appropriate and necessary because of state-level regulatory capture.” (P. 672.) Professor Haneman contends that, because state regulators of the funeral industry are arguably “captured by industry gatekeeping behaviors that discourage healthy competition,” federal subsidies such as the 529 EOL Plan “will circumvent state-level regulatory capture to shape policies intended to advance healthy competition within the deathcare market and may be directly tailored to do so.” (P. 672.)

Tax Sheltering Death Care persuasively argues that 529 EOL Plans would be both beneficial and politically feasible. Professor Haneman summarizes her proposal succinctly: “It is a program that will help to deliver resilience to our most vulnerable consumers and to provide a means by which dignified deathcare options will be available to all.” (P. 674.)

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Katheleen Guzman

Q: What happens if a joint tenant sues for partition and then dies?

A: Action ends, survivorship trumps…right?

Easy property questions, simply put and comfortable to ask, suggest easy answers. But particularly in law, and especially when tested against particular facts at a particular time and place, easy questions are also rare. Real property rules feel timeless and immutable—two qualities that are believed to encourage robust markets, avoid litigation, and offer clarity, efficiency, and speed. But context can change everything, and sometimes even the easiest questions become difficult to answer.

What effect does partition have on survivorship? And what effect does survivorship have on litigation? Liam Cronan collects and presents historical evidence to reveal that courts have been too quick to replace research and reason with “survivor takes all.” Through a recent case, Cronan shows that much more may and should turn on the specifics of extant statutes, including even colonial-era ones based upon some long-repealed 17^th-century English law of the land.

Dismissed at Death ably recounts the origins of the concurrent estate known as the joint tenancy, a story long and often told. Where A and B hold such an interest, the death of the first effects immediate and full ownership by the second via the “survivorship right,” a baked-in result unchanged by any succession plans of the first to die. At common law, it was presumed by default in deeds granting ownership to more than one person where the four unities of time, title, interest and possession existed. Modern law demands express language to override the current statutory presumption in favor of the tenancy in common. But it has always been easy to know a joint tenancy when you saw one: it was either presumed or so unambiguously created as to be unmistakable.

The relative clarity of creation is one thing. Destruction is another. Again, Cronan shares the familiar methods, most basically via conveyance from one joint tenant to another within or beyond the joint tenancy unit. Such severance would destroy the survivorship right by breaking the unities of time and title for the grantee of the interest conveyed.

Partition, whereby co-owners convert their proportionate ownership of an undivided whole into either separate physical portions or divvied proceeds of sale, presents an arresting intersection. As Cronan recaps:

[If] a joint tenant files for partition but dies before it is complete, the right of survivorship and the right to partition inherently conflict. [The filer’s death] implies that their share of the property should pass to the other tenants [who survived], but the [filer’s filing for] partition implies that they wanted to terminate the right of survivorship…[such that] their share of the property should not pass to the other joint tenants.” (P. 236.)

How should a court respond? Here is where Cronan contributes most originally to the discussion. After noting the common “central premise,” i.e. that a joint tenant’s death will simultaneously cause the abatement of the partition action and therefore preserve the right of survivorship, Cronan traces the developmental interplay between statute and common law to reveal the undertheorized and often ahistorical view upon which it rests.

To summarize his research:

1. All common law actions ended if a party died before the action was complete.
2. Absent particularized legislation, a pending action for partition would be no different.
3. Thus, a joint tenancy will survive the mere filing of a partition action with the filing tenant’s interest remaining unsevered from the survivors’ whole.
4. England enacted contrary legislation in the Partition Act of 1696: no partition action shall be abated/dismissed by reason of the death of any joint tenant.
5. “Deeply influenced” by the Act, some colonies and states followed suit.
6. While England later abolished the Partition Act and states are free to do so as well, statutes remain on the books (albeit usually overlooked or misconstrued).
7. As such, many partition actions should survive the death of the filing party where the statute speaks clearly enough and is properly, contextually read.
8. This would effectively continue partition through the filer’s estate and correlatively suspend the right of survivorship during pendency of the action.
9. Possibly resulting in ultimate severance and protecting tenants’ heirs’ longstanding statutory rights to continue a partition suit.

Cronan’s dive into Bracton- and Coke-era scholarship is valuable in itself, as are his reminders about statutory and common law (particularly given resurgent interest in partition under heirs’ property). He urges research care and rights-balancing, while rejecting the position that permitting survival of the partition action necessitates destruction of all survivorship rights. His view instead recognizes that where rights compete—such as the rights of testators to demand “no contest” versus those of contestants to access the courts; the rights of guardians to sell property of incapacitated owners versus those of will beneficiaries to avoid ademption; the rights of executors to liquidate and distribute versus those of beneficiaries to acquire estate assets—resolution will usually demand more nuance than a generalization can provide. There are exceptions to almost every rule, including statutory ones found in the very old books.

Dismissed at Death does more. Notwithstanding its seemingly narrow scope, the hard (or at least, harder) answers that Cronan encourages courts and commentators to seek from the past invite hard and harder questions for tomorrow, including messy ones about when certain property relationships “should” arise (or end) by contrast to when they traditionally “do.” These inquiries explore the gap between intent and sufficient acts, including whether it should be easier to exit an established relationship than get into it to begin with. Recent comparisons of the ease of will revocation (e.g., tearing) against the functions and formalities of their written execution illustrate the problem.

Cronan dances near the edge of a tougher question. Perhaps the mere filing of a partition action, irrespective of the timing of its filer’s death, should itself sever the joint tenancy. Modern courts routinely sidestep old requirements that the four unities be broken, including by finding severance buried within the commission of any act “inconsistent with” its continuation. Add up a few suppositions: joint tenancies are already disfavored and rare; restraints on alienation (even “soft” ones) are too; transactional, litigational, and donative freedoms are valued; “rights representation” is too. Perhaps most importantly, partition is deemed a critical property right, with any joint tenant able unilaterally (and even secretly) to sever survivorship anyway, perhaps through little more than a recorded “note to self.” If so, why shouldn’t the institution of litigation overtly designed to shatter concurrency also manifest intent, sufficiently, for severance to occur? If the fall of formalism in other contexts counts for anything, the question should at least be asked.

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Victoria J. Haneman

Professor Naomi Cahn’s recent article, Trusting Remedies for the Child Influencer Space: Blocked Trust Accounts and Child Beneficiaries, exists at the intersection of centuries-old legal doctrine and the technology-based influencer economy. The family influencer, parent-facilitated influencer, and kidfluencer spaces are thriving (from TikTok sponsorships to YouTube ads), and these are spaces in which federal protections for children are arguably inadequate. Instead, we must rely on limited oversight provided by a patchwork of state privacy and labor laws. A parental conflict of interest is inherent when a child is unable to give informed consent, and parents are overseeing a child who is also a profit center. As with child actors, the question becomes: who is overseeing or regulating the parents? The exploitation of successful children, including actors and athletes, is not a new concern, but current legal infrastructure does not apply neatly to protect child content creators. In her essay, Professor Cahn considers the way the blocked trust account may be reimagined to better protect kidfluencers.

For over a century, the legal system has vacillated between empowering parents as guardians and constraining them as potential exploiters, from child factory labor to Hollywood stardom. The kidfluencer economy heightens this tension: the “workplace” is not a set or a studio but the family living room, and the “manager” is often a parent with a smartphone. The intimacy of this arrangement makes oversight uniquely difficult and the risk of abuse correspondingly high. Cahn draws a straight line from the Coogan laws of the early twentieth century (designed to safeguard child actors’ wages) to the relatively unregulated frontier of contemporary influencer culture.

The mandatory blocked trust is a central feature of modern-day Coogan laws, but most child-influencer work is not currently covered by these laws unless a state has explicitly extended Coogan laws to child-influencer labor. The mandatory blocked trust is a statutorily required financial account into which a parent (or employer) must deposit a fixed percentage of a minor’s earnings, with those earnings “blocked” and inaccessible to parents or guardians but later released to the minor upon their reaching adulthood. It is an approach that offers many advantages to protect the earnings of child influencers with the language of trusteeship and the imposition of fiduciary duties. One must also be mindful of disadvantages. First, the parent establishes the trust and ensures the appropriate flow of money into the trust in the role of settlor (or creator) of the trust. If money is not routed appropriately into the trust, there is no breach of fiduciary duty remedy available against the settlor of the trust. Second, a beneficiary may sue the trustee for breach of fiduciary duty, but this requires both knowledge and access to information that is often not realistic for a minor.

Cahn is concerned that influencer kids are generating substantial revenue while performing labor, and the line between parenting and financial exploitation becomes blurred. Protecting child influencers with a Coogan-style mandatory blocked trust is doctrinally grounded and administratively feasible, but Cahn nicely summarizes the tweaks needed to ensure that it operates as intended to protect child content creators. This essay stands out because of the timeliness of the subject matter (the meteoric rise of “kidfluencers” is a multibillion-dollar phenomenon), and also because of the clarity with which Cahn situates her proposal within existing trust and estate frameworks. This is not speculative law reform in search of a hook: it is a deeply practical intervention rooted in trust law’s core function—preserving assets for beneficiaries.

Trusting Remedies for the Child Influencer Space pushes us to confront the uncomfortable reality that the law often lags behind the development of new technologies. The essay also serves as an important reminder that the trust as a legal arrangement is so durable and flexible that dusty doctrine protecting landed wealth for roughly four centuries continues to endure and is able to once again respond to the cultural moment. Professor Cahn demonstrates that while trust law was never designed with TikTok stars in mind, its enduring principles of fiduciary duty and asset preservation offer a surprisingly powerful scaffold for reform. This essay bridges family law, labor law, privacy law, and fiduciary duties, showing us that trusts and estates scholars have a unique perspective to offer in debates over digital labor and content creation.

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David Horton

When I read the premise of Mark Glover’s terrific new article Nominal Bequests—that some small-dollar gifts are problematic—I couldn’t help wonder whether it was a kind of stunt, like writing a novel without using the letter “e.” What could be wrong with testamentary gifts of trivial sums? Even if these bequests were somehow harmful, wouldn’t the payoff from regulating them pale in comparison to the costs? But Glover (who has been publishing up a storm) is waiting in the weeds with creative and thoughtful answers.

For starters, Glover argues that “[s]ome nominal bequests . . . are wasteful” and “undermine the fundamental policies of the law of succession.” He astutely observes that testators invariably make nominal bequests for one of two reasons. First, some are motivated by spite. Glover offers the real-life example of a mother who left each of her four daughters $1 and quips that she “wanted to give [them] something worse than nothing.” Second, Glover notes, other testators are laboring under a mistake of law. They want to disinherit the beneficiary entirely, but they incorrectly believe that they must acknowledge the individual to prevent a court from deeming the individual to be accidentally omitted. Either way, Glover contends, there’s no social value in implementing these testators’ wishes. Freedom of disposition supposedly encourages industry and thrift, but “[t]he donor has no reason to increase her wealth during life to functionally disinherit the beneficiary at death.”

In addition, Glover provides several crackerjack examples of how nominal bequests can cause headaches. For starters, he shows that they generate perverse results under standing doctrine. Most states bestow the right to challenge a will or a trust upon “interested person[s]”: very roughly, people who would reap a pecuniary benefit from the invalidity of the instrument. Suppose T leaves Son nothing in Will 1 and nothing in Will 2. Son isn’t an “interested person” with standing to contest Will 2 because even if Son won on the merits, Son wouldn’t take anything from Will 1. But now let’s say that T left Son $5 in Will 1. That changes the calculus: Son would take a five spot if he prevailed, which opens the courthouse door and allows him to “disrupt[ T’s] clearly established estate plan.” Similarly, Glover reveals that tiny gifts create administrative costs when a beneficiary who is closely related to the testator dies first. Under antilapse statutes, the predeceasing beneficiary’s descendants take whatever their ancestor was supposed to get. But when that share is a mere token, and there are many such descendants, the executor may spend resources to achieve a goal that has no discernible upside. Finally, Glover explains that the government must take custody of unclaimed property even when the amount is negligible. In turn, this means that the state “incurs costs associated with safekeeping unclaimed bequests, maintaining records, and processing claims.”

Finally, in an imaginative proposal, Glover urges the legal system to treat executors as having a special power of appointment over the de minimis bequest with the “beneficiary being the permissible appointee.” He explains that this would solve the problems he previously flagged by denying standing to the beneficiary and giving a trusted third party the discretion not to distribute the money if doing so would be expensive or burdensome.

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Sergio Pareja

Professors Allen and Rothman have written an excellent piece that addresses an issue of growing importance. While questions about privacy have always existed, technological changes that are occurring at a lightning-fast pace are creating demand for a consistent and clear legal framework. These technological changes include artificial intelligence, social media and email accounts, as well as the ubiquitousness of cameras and recording devices. This raises new questions regarding rights to a person’s name, image, voice, life history, beliefs, and identity after death.

Postmortem privacy refers to privacy protections that continue after death. The traditional view, which has been repeated for over a century, is that privacy rights end with death. The reality is much more nuanced, and courts sometimes do in fact protect some privacy rights after death. The growing importance of digital legacies and technologies makes reevaluating postmortem privacy critically important. Professor Allen and Professor Rothman’s article aims to build a theoretical and legal foundation for recognizing and shaping privacy rights after death.

Part I of the article maps the history and legal framework governing postmortem privacy rights. In this part, the authors note that the law already grants privacy protections in many areas, though inconsistently, and these protections vary widely across jurisdictions and legal contexts. Said differently, the current legal landscape is patchy, often incoherent, and in need of systematization.

In Part II, the authors discuss the “jurisprudence of exclusion,” which refers to the legal reasoning used to deny rights to groups or entities that fall outside of established paradigms—such as denying privacy rights to the dead, voting rights to children or non-citizens, or legal personhood to animals or trees. While living adult humans are the standard rights-holders, this doctrine explains why certain others—like corporations or deceased individuals—are excluded from some rights. Under this doctrine, a deceased person is excluded from having privacy rights. Despite this, legal and social pressures are increasingly pulling toward granting postmortem privacy rights, reflecting a broader shift in thinking on this topic.

In Part III, the authors explore the justifications for postmortem privacy protection and note that, while the dead may not have direct interests in privacy, certain living people do. Specifically, (1) “future decedents” care about how their identity and legacy will be treated after death, (2) survivors, such as family and friends, have emotional and reputational interests in protecting deceased loved ones, and (3) more generally, society at large benefits from the respectful treatment of the dead. These interests justify extending certain privacy rights beyond death.

In Part IV, the authors argue that postmortem privacy rights must be bounded by and balanced against other competing interests. Concerns that they raise include determining who qualifies for privacy protection, determining who can enforce these postmortem privacy rights (i.e., who has standing), determining how long these rights should last, and determining how the law should define limits to avoid overreach or injustice.

Ultimately, the authors conclude that we need to rethink the current legal approach, which seems to prioritize commercial value, such as the privacy rights of celebrities, over broader privacy concerns. The current approach often benefits corporate interests, rather than interests of the deceased or their loved ones. Simply stated, the authors argue that postmortem privacy should be universal, not just for the famous. Instead, the law should better empower survivors and respect future decedents. To this end, the article proposes a more coherent, equitable, and meaningful framework for postmortem privacy.

The authors propose an approach to postmortem privacy that balances the interests of the dead, the living, and society. While the law of wills traditionally endeavors to respect the wishes of the deceased, postmortem privacy raises unique challenges. The authors argue that economic motives, such as profiting from a dead relative’s image, should not override a decedent’s clearly expressed wishes. In some contexts, however, survivors’ interests, such as grief or personal privacy, may take priority, and those wishes should supersede the decedent’s wishes. Generally, however, the decedent’s preferences, especially with respect to data and commercialization, should be respected.

Determining who has the right to enforce postmortem privacy is crucial. While the deceased cannot advocate for themselves, representatives, such as family members, executors, or designated agents, can step in. However, current law lacks consistency in defining who has standing to represent the decedent when it comes to privacy rights. The article suggests that the law should allow those closely tied to the decedent’s interests, such as people named in wills or designated while alive, to bring claims, but it should prohibit claims by those seeking profit or who have no meaningful connection to the deceased.

The authors also believe that postmortem privacy rights should not last indefinitely. They generally support the idea of “durational pragmatism,” which customizes duration based on the specific interests being protected, such as grief, dignity, or public discourse, and they recommend setting reasonable time limits to balance respect for the dead with societal needs like free speech, historical research, and cultural memory. Unlike property rights, privacy rights often relate to personal dignity, not wealth, so perpetual control is inappropriate. There must also be exceptions—such as for public grieving, commemoration, or when disclosure serves a compelling public interest. An exception may exist, for example, when the release of a decedent’s information, such as genetic data, affects the privacy of the living. To avoid abuse, however, economic motives for asserting rights should be constrained, possibly by limiting claims to non-monetary interests, or restricting who can benefit.

Ultimately, the authors conclude that postmortem privacy should not be absolute. While the dead can have lingering privacy interests, these must be limited in duration, scope, and transferability, and always considered alongside societal interests in access, truth, and free expression. The law needs reform to better reflect the balance between respect for the dead, the emotional needs of survivors, and the public’s right to know.

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Phyllis C. Taite

Professor James Toomey analyzes fiduciary principles by comparing two standards, “best interests” and “substituted judgment.” As defined by Toomey, a fiduciary makes a decision in the principal’s best interest when the fiduciary objectively assesses the circumstances. On the other hand, substituted judgment considers the principal’s subjective intent, and thus asks the fiduciary to make the decision the principal would have wanted under the circumstances. Toomey evaluates both models by considering various applications of fiduciary law and assessing whether either standard adequately articulates the legal obligations imposed on fiduciaries.

To demonstrate the difference between the fiduciary standards, Professor Toomey describes how fiduciary decisions based on substituted judgment focus on probable intent and personal identity of the principal. Alternatively, fiduciary decisions based on best interests do not focus on personal identity, but instead reflect the ideal, efficient choices based on the circumstances. Further, he discusses situations where fiduciaries have blended these two standards.

Professor Toomey begins with a historical overview of fiduciary law, which governs the rights and duties of those reposed with legal authority to make decisions on behalf of another person. The foundational principles of fiduciary law emerged from trust law, which separates the burdens and benefits of property ownership by appointing a trustee to manage assets for the beneficial enjoyment of the beneficiary. He explains how a fiduciary relationship works, including restrictions on trustee discretion, a prohibition on self-dealing, and other rules that regulate conflicts of interest. Because these core duties are mandatory fiduciary obligations, they are fundamental to the fiduciary relationship. In contrast, he explains that other fiduciary duties, such as the duties to inform and account to the beneficiary, are waivable, and thus subject to modification by a settlor.

Next, Toomey compares the fiduciary obligations under trust law to fiduciaries in other contexts, such as corporate directors, partnerships, executors, and attorneys.  He explains the significance of the different types of fiduciary relationships and how distinctions between them reflect the functions of the fiduciary. For example, he explains one example of the duty of loyalty for a trustee means avoiding a conflict of interest with a beneficiary. This means a trustee cannot create a situation that will cause him to be on both sides of a transaction when managing trust property. For example, a trustee is responsible for managing trust property. Even so, the trustee is prohibited from selling assets from his separate business to the trust even if the price is fair, unless he obtains a court order or beneficiary approval before the transaction. That’s a bright line rule. In other circumstances, the duty of loyalty is not specifically defined, which may leave the fiduciary in precarious circumstances. For example, he explains how a person operating as an agent through a power of attorney has all the legal rights as the principal and is not specifically prohibited from buying and selling property from himself on the principal’s behalf. While the agent may owe a duty of care, loyalty, in this scenario, does not have a bright line definition.

In the next part, Professor Toomey evaluates the differences between best interests and substituted judgment as applied to healthcare surrogate fiduciaries for incapacitated patients. Fiduciary decisions based on the best interests standard use factors such as quality of life, likely impact of the treatment or surgery, and alternatives to invasive procedures, to name a few. Under this standard, the patient’s perspective is given little weight because objective reasonableness is the focus. On the other hand, substituted judgment places the patient’s desire at the forefront. The surrogate must base the decision on what the patient would have chosen, even if the surrogate disagrees or it goes against the reasonableness standard. In making the decision, the fiduciary may consider the patient’s life stories and prior treatment preferences as factors in determining what they would have wanted.

Professor Toomey also compares the fiduciary standards between a trustee and an agent. A trustee’s paramount duty is to act in the beneficiary’s best interests. When applying an objective standard, however, a trustee might focus on maximizing the value and longevity of the trust based on terms and goals set by the settlor without regard to the beneficiary’s particular wishes. Toomey then distinguishes an agent’s duty of obedience to the principal under the substituted judgment regime. Finally, he addresses fiduciaries such as attorneys and doctors who have a blended obligation to be objective and to consider the object’s wishes. While they have an objective duty of care, they must also balance it with the client’s or patient’s wishes.

Professor Toomey then evaluates when and under what circumstances the alternative standards may be applicable to a fiduciary. His analysis focuses on the circumstances surrounding the need for a fiduciary and how each standard impacts the situation. Finally, he describes circumstances in which the best interests model is the better option and others in which substituted judgment works better; however, he seems to conclude that a balancing test based on individual circumstances would be the best option.

Professor Toomey explains a legal framework that he views as ideal for regulating fiduciary relationships. First, he establishes that agency and trust fiduciaries are fundamental fiduciary relationships. Based on their respective roles, they can complement each other within a given set of relationships. In other words, we need both. Next, he argues that a fiduciary relationship based on the legal status of the fiduciary may be personalized, based on substituted judgment or depersonalized, based on best interest, or a blend, depending on the purpose and nature of the parties involved. He argues that pure agency relationships are based on substituted judgment by default, which restrains the fiduciary. Because many fiduciary relationships are consensual, the substituted judgment standard aligns with expectations. Some, therefore, argue this may imply a contractual standard in fiduciary law. Toomey, however, indicates that a contractual fiduciary has a different purpose and function.

Contractual fiduciaries apply the substituted judgment standard because the parties to a contract agree upon the terms of engagement and are therefore bound by the terms. This was an excellent comparison because it demonstrates that contractual fiduciaries focus on the terms of engagement, not the individual desires of the parties, even as the situation evolves over time. On the other hand, agent and trustee fiduciaries may be bound by certain terms, but as situations evolve, they have more flexibility to adjust, which shifts to a best interest standard, or, in other words, a blend. Therefore, he argues, contractual fiduciaries may not be fully contractual in the normal sense. He argues that while some scholars believe a contract is an ongoing relationship, he argues contract fiduciaries must comply with the content of the agreement, full stop. In the end, he argues that fiduciary roles span many categories and should be customized based on the different types of fiduciaries to provide better standards to follow.

This article provides a practical approach to identifying and applying standards to the fiduciary decision-making process. It evaluates the application of those standards to different types of fiduciaries and offers a valuable perspective on how to tailor the standards to the circumstances and the type of fiduciary involved. Professor Toomy’s evaluation of the best interests and substituted judgment standards provides great insight for a variety of fiduciaries and a practical framework for the decision-making process, and identifies the need for more clarity.

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Kent D. Schenkel

“Only morons pay the estate tax.” That is a bit of hyperbole, of course, from Gary Cohn, the director of the National Economic Council during the first Trump administration. But those paying attention know that the federal transfer taxes don’t work very well. Instead, highly effective estate tax dodges pervade, and these techniques are particularly effective as applied to the largest estates. Brian Galle, David Gamage, and Bob Lord, in their paper, Taxing Dynasties, citing their own empirical study of data culled from the IRS, conclude that these taxes fail to reach at least $4.5 trillion of huge, family-controlled fortunes. And for this, they’ve proposed a meticulous, politically savvy, and technically brilliant prescription.

They point out that most of this $4.5 billion in transferred wealth is held in “dynasty trusts,” which are devices designed to escape wealth transfer tax for generations, if not permanently. Taxing Dynasties proposes an annual “withholding tax” on these trusts. It takes aim at trusts held by those “with more money than they can reasonably spend in a lifetime, the .01% richest citizens,” and would function as a minimum tax on those trusts. The authors’ proposal is not just an academic pipe dream. They are working with at least one Senator to devise legislation incorporating their ideas, which they expect to be introduced in Congress sometime in 2025.

Of course, progressive tax reform is politically difficult, and the authors acknowledge that well-funded transfer tax opponents often shape impending tax legislation in their favor. Here they plausibly claim some political advantages to their withholding tax. An annual payment of transfer tax in small increments, in most cases as a kind of “pre-payment,” will reduce political opposition, because, as they observe, “prepayments strengthen government budgets and enforcement incentives, especially over the ten-year accounting window that Congress generally employs.” And familiar political tropes about the estate tax as a “death tax” that forces liquidation of estates could be weakened, they suggest, by implementing a tax that is not exacted in one big chunk at death, but instead hits large fortunes in “bite-sized pieces over time, ideally in advance.”

But first they explain what’s wrong with the current scheme. How do dynasty trusts escape the estate tax under current law? To begin with, dynasty trusts are multi-generational tools. And the “generation-skipping transfer tax” (GST), originally implemented to close a loophole left open by the gift and estate taxes on multi-generational trusts, includes a poorly-designed exemption, a $14 million free pass, that each taxpayer can allocate among transferred assets as they choose. This GST exemption, when coupled with the elimination of the Rule Against Perpetuities (RAP) for most trusts (see my JOT dated July 12, 2021), essentially allows the allocated GST exemption of a taxpayer to balloon over time, and creates a planning opportunity that, when implemented, prevents the GST from ever reaching this massive pool of assets. This allows a wealthy couple to fund an irrevocable trust with almost $28 million, tax-free, by allocating the couple’s combined 2025 GST exemption to the trust. The trust, no longer subject to the RAP, is then permanently free from federal transfer taxes, even if the value of the trust corpus swells over time to many multiples of its value at inception.

The authors maintain that this GST exemption is “at the root” of what they describe as “critical modern abuses.” They deftly summarize complex estate planning techniques (“avoidance strategies”) that further game the exemption and leverage the amount that can be stuffed into GST-exempt trusts. Despite the complexity of these techniques, the authors’ clear explanations are comprehensible by non-experts, and are sure to be enlightening for the general reader. They contend that lawyers, through the invention of these schemes, which are astonishingly effective at making the transfer tax base disappear, “have broken the wealth-tax-transfer system.” This combination of the flawed GST exemption, the repeal of the RAP, and what the authors call the “near complete evisceration” of the transfer tax scheme through creative planning, permits “the creation of massive trusts holding wealth well into the billions of dollars.”

Taxing Dynasties is comprehensive and thorough, and cannot be easily summarized in a short review such as this one. Scholars and practitioners interested in this important issue should read the full article, which describes the longstanding policy debate about imposing wealth transfer taxes, the ways in which dynasty trusts pose unique problems, and the various considerations for tax reform. The authors then provide an overview of their proposed taxation scheme accompanied by helpful examples. At the risk of oversimplifying the proposal, I’ll briefly summarize just a portion of its approach.

The authors’ goal is not to increase the transfer tax rate (which stands at 40%), but rather to make it less vulnerable to political attack, and to reduce opportunities for gamesmanship by subjecting a broader base of wealth to transfer taxation at existing levels. The withholding tax would mandate annual installment “withholding” payments equal to 2% of the current value of trust assets (appraised annually). Crucially, the accumulation of payments made would be credited back to the trust beneficiaries in proportion to their relative distributions from the trust.

Several examples illustrate how the proposed tax would thwart common avoidance strategies. In one example, the taxpayers (Ma and Pa), who have not yet used their GST exemptions, create a perpetual trust, and fund it with shares of a startup venture valued at $26 million. They assign a portion of their GST exemption to the trust (they have between them a total of $28 million available), ensuring that the trust is wholly GST-exempt. Beneficiaries of the trust include Son and Daughter-in-Law (lifetime beneficiaries), and Grandson and Granddaughter (remainder beneficiaries). The transfer to the trust would be potentially subject to gift tax, but no gift tax is due at the time of the transfer to the trust because the lifetime gift tax credit (unused by Ma and Pa until the funding) equals the same as the GST exemption of $14 million per donor.

Under the proposed tax, the trust will pay an annual amount equal to 2% of the value of the trust in each year. The trust corpus will need to be valued annually but, because the tax is only a withholding tax at this point, the ultimate tax liability will not be determined until later (a touted advantage of this is that disputes over valuation are minimized for trusts with property that might be hard to value).

In the example, the trust property experiences substantial growth in value (the startup proves to be a success). For simplicity’s sake, the trust is assumed to be valued at $5 billion per year over the twenty years that pass between the time of the funding of the trust and the death of the survivor of Son and Daughter-in-Law. Two percent of $5 billion equals $100 million per year, or $2 billion in total withholding tax paid by the trust over the twenty-year period. The authors assume that the trust distributes $1 billion to Son and Daughter-in-Law during their lifetimes but they spend all this (!) and nothing is left at the death of the survivor of them. Distributions to Son and Daughter-in-Law during their lifetimes will not trigger transfer tax as, for gift tax purposes, any gift to them was deemed made at the trust’s inception. At the death of Daughter-in-Law, who survives Son, the trust has a tax “credit” of $2 billion (the total tax withheld). Daughter-in-Law is entitled to 1/5 of the credit, because she and Son received 1/5 of the trust assets ($1 billion of $5 billion total). So her estate receives a gross refund of $400 million (1/5 of the $2 billion paid) but that $400 million is included in her estate for estate tax purposes. So her estate pays a tax at the estate tax rate of 40% on the $400 million ($160 million) leaving it with a net refund of $240 million.

What about the GST tax? Normally, the death of Daughter-in-Law would be an event called a “taxable termination,” triggering GST tax on the entirety of the trust assets. So this trust would owe a tax on the remaining value of the trust, which is $9 billion, at the 40% rate. The trust would also receive a gross refund of the remaining credit amount of $1.6 billion (4/5 of the $2 billion withheld) which would also be subject to a 40% tax. However, this trust is GST-exempt, as Ma and Pa allocated their GST exemptions to their transfers. So the taxable termination does not trigger the GST tax.

But the authors propose that GST-exempt trusts, such as this one, should pay the withholding tax but get no credit against an event that would otherwise trigger the GST. Likewise, an amount subsequently distributed to Grandson and Granddaughter, since it would trigger no transfer tax, qualifies them for no credit. This means that the trust will have paid $1.76 billion in tax ($2 billion withheld, less $240 billion refunded to Daughter-in-Law’s estate). In the current scheme of taxation, in contrast, no tax would have been paid at all.

One major advantage to this proposal over some other proposals out there is that it would begin collecting tax as soon as it goes into effect. The article compares features of the withholding approach with other proposals, and also addresses concerns about constitutionality. The authors are confident that their proposal is constitutionally sound and politically feasible.

When the infamous bank robber Willie Sutton was asked why he robbed banks, he is said to have replied, “because that’s where the money is.” Although this story is likely apocryphal, it inspired “Sutton’s law” of medicine and other areas of diagnostics and treatment, imploring problem solvers to focus inquiries on the most obvious maladies and remedies. The authors here make a good case that the transfer tax is broken due to common avoidance schemes and a faulty GST exemption. As the stratagem most widely employed by tax planners, dynasty trusts are the right place to focus transfer tax reform.

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Gerry W. Beyer

What if death was not the end? The rapid rise and advancement of generative artificial intelligence presents the unique opportunity to allow people to speak to loved ones who have passed. Samuel Hoy Brown VII’s Don’t Fear the Reaper? delves into the rapidly growing industry of posthumous communication, an increasingly lucrative industry. This article analyzes the intersection between artificial intelligence, mourning the loss of a loved one, after-death rights, and the law. As Brown explores the ethical effects of posthumous communication through artificial intelligence, he questions consent and the ownership of an individual’s likeness after death.

This article provides a comprehensive examination of the history of artificial intelligence, starting with early chatbot models like ELIZA to today’s highly specialized generative AI tools like HereAfter AI and You. Brown explains how these new specialized AI tools emerged, and how they are capitalizing on the posthumous communication market, promising families who are in mourning an opportunity to participate in “real” conversations with their loved ones. This AI technology uses voice recordings, texts, email communications, letters, and personal stories of the deceased to manufacture conversations for the families to have while they are grieving, and for family members and friends to enjoy for years to come. Some may see this tool as a comfort in the mourning process and as a method of preserving family history, while others may discern the ethical issues that can stem from this technology.

Brown takes a thorough look at the legal issues surrounding the release of people’s digital data to these companies and intrusions on the privacy of individuals who have passed. Brown highlights the issues with existing laws, and how the current state and federal regulations fail to provide adequate protection for people’s digital name and likeness after death. To address these issues, Brown proposes a two-prong solution: (1) a federally protected postmortem right of publicity, ensuring that individuals retain control over their digital likeness after death, and (2) the classification of posthumous communication technology as a medical technological tool, subjecting it to stricter oversight.

With the increasing popularity of after-death communication technology, driven by artificial intelligence, individuals may need to proactively address the use of their digital name, likeness and personal data in their estate plans. Brown explains that future wills-and-estate attorneys should include language in documents that explicitly either permits or bars such usages. By explicitly stating these preferences in legal documents, individuals can maintain control over their postmortem digital presence and prevent potential exploitation of their information by AI companies or users. This raises broader questions about whether laws should require that individuals give express consent for after-death digital replication or if the absence of restrictions should imply that permission is granted.

Brown showcases real-life examples of the benefits and fears that accompany the use of posthumous communication AI technology. He tells the story of Joshua Barbeau, who used a generative AI chatbot to converse with his late fiancée Barbeau to help overcome his grief. Brown continues by drawing parallels between contemporary posthumous AI and historical efforts to preserve the voices of the dead, from early phonographs to today’s deep fake technology. These accounts highlight the profound implications of AI’s ability to blur boundaries between life and death.

Brown’s article does not delve deeply into the potential emotional and psychological effects on users of interacting with the deceased, but it does acknowledge potential harms, like longer grief periods and dependence on the artificial conversations. Future research might examine the commercialization of the grieving process and how it can lead to ethical dilemmas. Companies that monetize the grief of others could face moral objections. Should lawmakers limit the opportunity of commercial actors to profit from others’ grief? How should society regulate access to and usage of the digital names and likenesses of deceased persons? A comprehensive solution might address the potential exploitation of grieving family members.

Another point worthy of future exploration is the religious implications of posthumous artificial intelligence. Different cultures and religions have varying beliefs about death, the afterlife, and communications with the dead. Some cultures may embrace AI interactions with the deceased as a way of honoring the life and respect of their ancestors, while others may view this new technology as a violation of their beliefs. Policymakers will have to grapple with this issue and how subsections of society differ in their acceptance or rejection of posthumous communication.

Brown’s policy recommendations are creative, though they face obstacles that might preclude their implementation. Establishing a federally enforced postmortem right of publicity would require extensive legislation and could encounter resistance from technology companies. Similarly, classifying posthumous communication technology as a medical tool, as Brown suggests, would require intense oversight that could be difficult to enforce. Brown provides a strong foundation to begin this discussion, but in practice it may be more difficult to enact than anticipated.

Beyond its potential advantage or disadvantage for the grieving process, AI’s increasing role in posthumous communication raises concerns about its economic impact on the American workforce. As AI advances, industries have seen a declining demand for human work. This has already led to job losses and has the potential to depress employment further, even in areas we would have never considered to be at risk. Here, the main focus is on using the name and image of deceased actors and public figures, but there is also the potential for customer service workers, digital content creators, and other media-focused positions to lose their jobs to AI.

As artificial intelligence continues to grow, the ethical and legal debates surrounding posthumous communication will grow in tandem. Brown’s Don’t Fear the Reaper? brings attention to the potential and already growing issues of posthumous communication. As technology blurs the lines between the living and the dead, we must ask ourselves: “What does it mean to truly say goodbye?” Should AI grant us the ability to hold onto our loved ones forever, or does true acceptance require letting them go? This article is a must-read for anyone interested in the future of AI and postmortem rights.

[Special thanks for the outstanding assistance of Allison Monacelli, J.D. Candidate May 2026, Texas Tech University School of Law, in preparing this review.]

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Goldburn Maynard

The issue of whether trust beneficiaries should be treated differently from individuals who own their assets directly has been a central one in the trusts and estates world for centuries, and it shows no signs of disappearing. While it would be preferable to have a standard, across-the-board response to this matter, its intractable nature reveals a balancing of interests. The trust is a centuries-old fiduciary relationship that is not nefarious in and of itself. Much as they do with corporations, governments find themselves torn between respecting such voluntary arrangements according to their terms or setting them aside to prevent abuse. The purpose of look-through rules is to prevent trusts from undermining other policy goals, such as facilitating debt collection or restricting certain government benefits to individuals who demonstrate financial need.

In a forthcoming article, Professors Adam Hofri-Winogradow & Mark Bennett compare trust look-through approaches taken by five nations: the U.S. (and its states), Canada (and its provinces), England and Wales, Australia, and New Zealand. The authors’ focus is primarily on liability and means-testing avoidance by trust beneficiaries, which they argue is improper. To paint a picture of how weighty and emotion-provoking these issues can be in the real world, consider three examples featuring Gary, a hypothetical trust beneficiary of a $10 million trust set up by his mother Gwen before her death from a terminal illness. Gary’s father, as trustee, in entitled to make distributions to Gary in his sole discretion:

1. At 18, Gary applies for food stamps and Temporary Assistance for Needy Families after being kicked out of his home by his father for smoking marijuana. Should the government consider his interest in the trust when determining if he qualifies for public benefits?
2. At 21, Gary goes out drinking with friends. On his drive home he gets into an accident. Jenna, the driver of the other vehicle is left unable to walk and undergoes numerous surgeries, both lowering her quality of life. Jenna is awarded $5 million in damages for her medical costs, pain, and suffering. Should she be able to reach the trust assets to satisfy the judgment?
3. At 25, Gary goes to Vegas and gets married to his high school sweetheart, Mary. Two years later, they divorce, and Mary seeks alimony and a property settlement. Should Gary’s trust assets be considered in determining settlement and alimony amounts?

Hofri-Winogradow & Bennett’s article highlights how the answers to these questions depend on the laws of the jurisdiction which govern the trust document. For example, in the U.S., most states have allowed asset protection through the use of spendthrift and discretionary trusts. The spendthrift trust restrains voluntary alienation of trust assets by the beneficiary and involuntary alienation by his general creditors. The discretionary trust protects assets because, as distributions are subject to the trustee’s discretion, the beneficiary has no vested interest in the trust and a general creditor cannot even sue to compel the proper exercise of discretion. The authors are particularly concerned with the discretionary trust and its descendant, the massively discretionary trust, in which trustees have the discretion to add or remove individuals or entities from the class of beneficiaries and even to bring the trust to an end.¹

Each of the five jurisdictions analyzed by the authors has a set of anti-avoidance rules to prevent trust beneficiaries from escaping liability for public policy reasons. For example, if Gary lived in Australia, he would be subject to look-through rules to ascertain how much control he had over the trust. New Zealand has comparatively weaker look-through rules in this scenario. But notably, if Gary lived in Canada, the UK or U.S., the financial eligibility rules for public assistance would likely disregard the trust assets, thus allowing him to qualify for government benefits such as food stamps or Medicaid. To some extent this makes sense since he is not guaranteed any distributions. However, if the trustee were to make distributions in a given year, those would count as a financial resource of Gary when applying for public benefits.²

Jenna would probably not fare well in her claim against Gary, despite his recklessness. Although favored by some commentators, a public policy exception for tort victims seeking to reach assets contained in a spendthrift or discretionary trust exists only in a few states in the U.S.. Mary, however, would likely fare better than Jenna because most jurisdictions that otherwise recognize strong protections against creditors provide exceptions for family support claimants. Australia, for example, allows the court to disregard certain transfers in the case of divorce. Similarly, most U.S. states allow for spousal claims against spendthrift and discretionary trusts. While she would not be guaranteed success, particularly in states with domestic asset protection trusts,³ Mary would at least have a shot.

Hofri-Winogradow & Bennett argue that look-through rules should be strengthened to close loopholes that subvert public policy goals, like enhancing social equality. Their proposal is a draconian default presumption which would treat the entire discretionary trust as property of the beneficiary, in the absence of a showing that the trustee only intended to distribute a portion of the trust property. In Gary’s case this would mean that the entire value of the trust could be subject to inclusion. However, the authors do not expect that this would be the result. Instead, the default presumption would force trustees to disclose reasonable amounts that they plan to distribute and thus subject those amounts to claims by creditors. The trustee of Gary’s trust might provide evidence that he plans to distribute $200,000 per year to Gary. That part of the trust would then be subject to claims and countable as income for public benefit purposes. Such a rule would represent a massive change to current law and would certainly face strong opposition both from the wealthy and from jurisdictions that actively compete to attract trust business to their states.

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Adam Hirsch

Professor Lawrence M. Friedman has had a remarkable career. Much of his work has focused on legal history, and he has served as president of the American Society for Legal History in recognition of his distinction in that field. He also helped to pioneer empirical legal studies as a subdiscipline of scholarship. And, most fortunately for those of us who work in wills-and-trusts, he has contributed to our area as well, with a stream of articles and one book, beginning in the early 1960s and continuing until today—no fewer than six decades of superb scholarship on inheritance law.

With this extended essay, Friedman returns to the expansive style of some of his early work in the field. His subject is the lengths to which people will go to leave an eternal mark upon the world. As Friedman concludes, it is a fanciful quest. Try as one might, no one can defy the laws of nature—and nothing lasts forever. Nevertheless, in a variety of ways explored in this essay, people keep on trying.

For those of sufficient means—and sufficient credulity—cryonic preservation offers the hope of resurrection in a distant future of medical miracles. Those individuals who choose to immerse their remains in liquid nitrogen often seek to freeze their assets as well, and “[s]ome perfectly respectable law firms have gone after this small but lucrative market” (P. 711) by creating cryonic preservation trusts for their clients. “Both of these actions reflect a vain hope of conquering death,” (P. 763) Friedman observes—it is the stuff of science fiction.¹ And whereas those of lesser means cannot endeavor to preserve themselves, they can at least specify their manner of burial and set aside funds to maintain their gravesites. Because “even ordinary people have immortal longings,” (P. 738) such specifications and funds are common. Most states today allow persons to create trusts for the care of an individual gravesite in perpetuity. But this device, too, is doomed to failure. Trust funds struggle to keep up with costs and eventually “the lettering on tombstones fades into oblivion.” (P. 739.) As regards our corporal beings, we might say, death is the great leveler.

Yet, if literal immortality is impossible, people might still pursue “vicarious immortality,” (P. 763) and it is this possibility that occupies most of Friedman’s attention. People can create trusts that survive their deaths.

Some people establish trusts for future generations of family members. Others establish trusts to provide for charitable causes. And still others (albeit only occasionally) seek to fortify either sort by accumulating, rather than distributing, income, using compound interest to build trusts, their creators imagine, of “monstrous size,” (P. 698) thereby creating “a monument (in a way)” (P. 706) to themselves.

Envisioning vicarious immortality “might provide some sort of psychological lift; some sort of satisfaction in this vale of tears.” (P. 706) But in the end, it is always futile. Directions for accumulation invite lawsuits, some of which succeed and all of which eat away at capital; and trust investments have no immunity from risk. The most famous trust of this sort—the Thellusson trust in Great Britain—ended with a value only slightly greater than when it began, sixty-three years earlier.

Trusts and foundations for charitable causes can continue in perpetuity and in that respect cater to immortal longings. Historical constraints on these entities have vanished. Nonetheless, they cannot endure in their original forms due to the cy pres doctrine, allowing courts to alter the terms of trusts when they become impossible or impractical to effectuate if settlors have a “general charitable intent”—that is, so long as settlors would prefer that the terms mutate, rather than fail with distribution back to heirs. As Friedman discerns, courts are predisposed to find general charitable intent, even when it is improbable—even when, for example, it means that trusts will no longer discriminate, despite their creators’ bigoted or segregationist convictions. And, he might have added, this judicial predisposition is now codified in the Uniform Trust Code, which presumes general charitable intent rebuttably for twenty-one years and conclusively thereafter. The result is that, in the long run, charitable trusts and foundations perpetuate only the names of their (forgotten) founders, not their visions or personalities.

As concerns trusts for descendants, the laws—and consequences—have become similar. Whereas the Rule Against Perpetuities traditionally functioned to restrict (indirectly) the duration of private trusts for individual beneficiaries, most states have now either abolished the Rule or watered it down to allow trusts of such long duration as to be effectively unlimited. Simultaneously, whereas lawmakers in the United States traditionally insisted that restrictions and conditions tacked onto private trusts remained strictly enforceable over time, modern law has relaxed this requirement, again allowing courts to modify trust terms to account for changed circumstances. These legal developments are not unconnected. Perpetual private trusts with anachronistic restrictions would be no more tolerable to the living than charitable trusts with antiquated provisions. Vicarious immortality is unachievable, even in historical time. In geological time, billions of years from now, “the solar system [will] explode[],” (P. 753) and that will be that.

Now in his 90s, Friedman continues to write insightfully, with singular gracefulness and wit. This essay offers a shining example of his work, to which this brief review hardly does justice. If Friedman’s scholarship proves not quite immortal, it will continue to enthrall readers for many years to come.

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