Document Type


Publication Date

January 1996


We live in a society with rapidly changing familial norms. Statistics show that one out of every two marriages ends in divorce, and even higher divorce rates are projected. The number of people who remarry following a divorce also is increasing.

Much has been written about the effect of the changing family patterns on estate planning. In the era when having only one spouse and one set of children was the norm, it was fairly simple to develop a rational system for dividing the person's estate among spouse and children. In recent decades, however, the growing number of multiple marriages has helped set the stage for a conflict that often occurs between the children from one marriage and the spouse of another.

Virtually every state recognizes the validity of contracts to make wills. Some mechanism also exists in each state for protecting a surviving spouse from intentional or unintentional total disinheritance. A recurring problem arises when the rights of a promisee or a third-party beneficiary of a will contract come into conflict with the spousal right to receive a share of a decedent's estate. Often, the spouse claiming protection is a second, or later, spouse, and the contract beneficiaries are children from a previous marriage. Courts are divided sharply on who should prevail in such a conflict, and too often, the holdings appear to rest more on a desire to reach the “right” result based on the particular facts of a case than on careful analysis or consistent policy.

The conflict suggests the possibility of applying a number of bodies of law: (1) contract law; (2) property law; (3) probate law, and (4) family law. Courts have used some or all of these in resolving this type of conflict. This Article explores the conflict in the context of the policies underlying recognition of validity of will contracts and protection of surviving spouses. The Article proposes a rationale for resolving this difficult and important issue. Before considering the soundness of the case law, it is useful to examine the history and use of will contracts and the structure and purposes of spousal protection.

Publication Title

Catholic University Law Review

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