31 August 2013


'Indescendibility' by David Horton in (2014) 102 California Law Review comments that
 Supposedly, one of the most important sticks in the bundle of property rights is the power to transfer an asset after death. This Article explores objects and entitlements that defy this norm. Indescendibility — property that cannot be passed by will, trust, or intestacy — lurks throughout the legal system, from constitutional provisions barring hereditary privileges, to statutes that prohibit decedents from bequeathing their valuable body parts, to the ancient but misty doctrine that certain claims do not survive the plaintiff, to more prosaic matters such as season tickets, taxi cab medallions, frequent flier miles, and social media accounts. The Article first identifies the common policy underpinnings of these diverse rules. It compares the related issue of market inalienability — property that can be given away but not sold — and concludes that indescendibility often serves unique objectives. In particular, forbidding posthumous transfer can avoid administrative costs. The Article then uses these insights to propose reforms to the descendibility of body parts, causes of action, and items made non-inheritable by contract. ... 
Indescendibility pops up throughout the legal universe. For instance, the U.S. Constitution and several of its state counterparts abolish the British custom of allowing noble titles and governmental positions to be inherited. Likewise, the Uniform Anatomical Gift Act (UAGA) prohibits decedents from transferring their organs and other human tissue: assets which can be worth hundreds of thousands of dollars. Similarly, under the ancient but troublesome doctrine of abatement, an array of legal claims do not survive the plaintiff, including allegations of defamation, personal injury, and constitutional violations under 42 U.S.C. § 1983 and Bivens. Finally, an expanding web of fine print prohibits the posthumous transfer of season tickets, frequent flier miles, and digital assets like email and social media accounts.
This Article explores this neglected room in the cathedral of private ordering. It begins by gathering and then critiquing the leading justifications for why we sometimes deny owners the ability to transfer assets after death. For starters, some courts, lawmakers, and commentators have assumed that indescendibility is simply a posthumous version of market inalienability: property that can be given away but not sold. Conversely, I argue that the policy foundations of market inalienability often do not apply to indescendibility. Consider human tissue, which is both market inalienable and indescendible. Policymakers exempt organs and similar biological resources from bargained-for exchanges to spare low-income individuals from pressure to enter into transactions they may later regret. Yet not only is such paternalism out of place in wills and trusts law—the dead do not experience regret — but the indescendibility of body parts disproportionately impacts poor families. Likewise, non-commodification rhetoric also drives the market inalienability of the human anatomy: perhaps allowing people to treat their bodies like the junk in their attic would coarsen our sense of what it means to be human. But again, this argument is much weaker when applied to the newly deceased, who are on the verge of being buried or cremated. Thus, indescendibility can be more difficult to justify than market inalienability.
Another common rationale for indescendibility is that a decedent cannot transfer certain things because they are “not property.” Again, body parts are the prime example, although the same logic explains why certain legal claims do not survive the plaintiff, and why a growing number of companies inform consumers that everything from points in loyalty programs to personal seat licenses to virtual currency is “not your property.” But because “property” is merely a label for a bundle of rights—including the power to transmit an item after death—the not property rationale is a spectacular circle. To say that something cannot be passed after death because it is not property does not address why the thing should not be descendible; instead, it cycles straight from the fact that the thing “is not property” to the conclusion that “[o]nly property . . . is descendible.”
Indescendibility also stems from the intuition that particular rights are too “personal” to pass to a decedent’s heirs and beneficiaries. For centuries, the abatement doctrine required judges to dismiss tort claims when the plaintiff died. The idea was that lawsuits for physical injuries were intimately tied to the plaintiff and thus should not enrich her loved ones. Today, every state has modified the abatement rule by passing a survival statute. But rather than clarifying matters, these wildly-divergent laws have only codified the confusion that existed at common law. In fact, some survival statutes been struck down for lacking a rational basis under the Equal Protection Clause—a testament to the bankruptcy of the “personal” logic. Indeed, the fixation on the plaintiff’s stake in the lawsuit was never a deliberate policy choice; instead, it reflected seventeenth-century judges’ conflation of tort and criminal proceedings.
After challenging these oft-cited justifications for indescendibility, I offer a qualified defense of the phenomenon. I contend that barring posthumous transfer can prevent what I call “administrability” problems. Allowing certain objects or entitlements to be inherited would create substantial management costs. For instance, because a decedent’s body parts must be harvested mere hours after her death, including them in her estate would require expensive medical procedures followed by a mad scramble to find transplant recipients. Likewise, descendible future causes of action, such as the right to sue for defamation of the dead, would saddle personal representatives with a duty of eternal vigilance: failing to pursue valid claims would expose them to liability for breach of fiduciary obligation, and distributing damage awards would grow harder as time passes and lines of consanguinity splinter. Some of these costs, such as the burden on the legal system of perpetual rights, are garden-variety negative externalities, and tip the scales toward stripping decedents of the power to transfer. At the same time, though, the majority of these expenses, such as organ harvesting and higher fiduciary fees, would be paid out of the estate. Arguably, then, decedents should be free to incur them in return for the benefits of inheritability. But here a unique aspect of wills and trusts law enters the equation. Succession is mandatory: once something is descendible, it must be passed on. Even decedents who would prefer not to transfer a descendible item—for example, people who object to organ harvesting on spiritual grounds, or whose bodies are worth less than the harvesting fees—would not be able to escape inheritance’s gravitational pull. Partial indescendibility can therefore be appropriate for assets that some decedents would strongly object to conveying.
Finally, I bring these insights to bear on three examples of contemporary indescendibility. First, I argue that although body parts should not be indescendible for the same reasons they are market inalienable, administrability costs counsel against making human tissue fully descendible. Thus, I propose that states be allowed to experiment with clear statement regimes that allow decedents to signal their wish to have their organic matter sold for the benefit of their loved ones. Second, I urge lawmakers to abolish the abatement doctrine—a relic that serves no purpose—and deem all existing causes of action to be assets of a decedent’s estate. Third, I explain how defining the contours of “pure” indescendibility can be helpful for the nascent problem of indescendibility by private agreement. Although virtually every issue in this area is unsettled, the unconscionability doctrine and the implied covenant of good faith and fair dealing are likely to emerge as the primary checks on non-inheritability clauses. These black-letter contract principles are heavily influenced by the reasonableness of consumers’ expectations and drafters’ motivations for deleting rights. By exploring these issues in the context of “pure” indescendibility, I hope to begin the conversation about limits on indescendibility by contract.
The Article contains three Parts. Part I introduces the overlooked phenomenon of indescendibility, focusing on constitutional provisions that prohibit hereditary privileges, statutes that bar decedents from conveying their body parts, legal claims that expire when the plaintiff dies, and the emerging area of contractually-mandated non-inheritability. Part II collects and criticizes the justifications that policymakers, courts, and scholars have offered for eliminating a decedent’s power to transmit property. Part III contends that indescendibility can be best understood as an attempt to limit administrability costs. It then uses this analysis to suggest reforms to the inheritability of body parts, causes of action, and rights made indescendible by fine print.