The Influence of the Uniform Probate Code in Nonadopting States

• Publication year: 1985
• Citation: Vol. 8 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 3SPRING 1985

The Influence of the Uniform Probate Code in Nonadopting States

Roger W. Andersen(fn*)

I. Introduction

Since its emergence in 1969, the Uniform Probate Code(fn1) (UPC) has attracted considerable attention. Scholars have offered extensive commentary,(fn2) and legislatures in fourteen states have adopted it.(fn3) For a variety of reasons, however, thirty-seven other jurisdictions (including the District of Columbia) have not adopted the statute. This Article examines how the UPC has influenced the law and its practice in those places. A survey(fn4) of statutes and cases suggests that the UPC is a viable but underutilized source of law reform and legal argument.

In twenty-three states, legislative unwillingness to embrace the UPC as a whole has not precluded adoption of some of its provisions.(fn5) As the first part of this Article indicates, the most common pattern is for a state to use the Code as a model to solve an isolated, but common, problem. Article II of the UPC, which covers intestacy and wills, is by far the most often copied article; the most often followed sections are those dealing with traditional troublespots, such as the effects of survival, adoption, and divorce.(fn6) In contrast, among those UPC sections garnering the least attention are those proposing controversial reforms, such as the installation of a system for informal probate.(fn7) Many jurisdictions that have rejected the Code nonetheless have benefited from its use as a model for solving particular problems.

The UPC has also been useful to courts seeking solutions to common-law and statutory construction problems. Part III of this Article suggests that judicial willingness to follow the UPC position on a particular point parallels the legislative pattern of applying the UPC to common troublespots. In addition, this part of the Article discusses the ways advocates have used the UPC both as respected secondary authority and as an aid to the interpretation of particular state statutes. The Code's potential as a source of authority is now established but largely untapped. Because many readers of this journal have a particular interest in Washington law, part IV of this Article briefly applies to Washington the lessons of this Article's first parts. Some areas ripe for legislative reform are identified, and examples are given illustrating how Washington advocates might tap the UPC as a source of argument.

II. Piecemeal Statutory Reform

The primary purpose of the UPC is to serve as a device for achieving statutory reform. One measure of the strength of the Code is the extent to which "swing" states, those that have adopted some UPC sections, have used it as a model for their own statutes. This part of the Article examines the extent to which the swing states have followed the Code. With the exception of the Rocky Mountain states, where six of seven have adopted the UPC,(fn8) there is no particular geographic pattern to those states that have adopted some UPC provisions or to those that have not adopted any. Vermont, Georgia, Texas, and Iowa have each followed the UPC on some occasions.(fn9) On the other hand, no direct evidence was found in Rhode Island, South Carolina, Oklahoma, or Wisconsin that the UPC has been used as a source of statutes. Local, rather than regional, considerations appear to have affected the extent to which the UPC has been a model.

Support for the UPC, as measured by the presence of statutes that track it, varies among the swing states. However, all except New Jersey(fn10) have used it as a model to solve particular problems, rather than as a means to accomplish more wide-ranging reform. These jurisdictions are in effect saying, "We'll follow the UPC's view on advancements of an intestate share," instead of, "We like the UPC's approach to intestacy." Those sections of the Code with the greatest following address topics that have traditionally posed serious problems for courts. In addition, the UPC's more controversial proposals have largely fallen flat in swing states.

A look at UPC article II, excluding section 2-511,(fn11) reveals some interesting patterns. Article II has broad but thin appeal; virtually every section has been followed in a few states, but no section has attracted the support of more than six states. Table I identifies those article II provisions that have been followed most often in the swing states. Article II has been used most consistently as a source of solutions to common troublespots. A list of the most popular topics reads like a litany of traditional problems in intestate succession and wills: survival, adoption, nonmarital children, advancements, and the effect of divorce. The UPC's approach to these subjects has been followed by at least four states.(fn12)

Somewhat surprisingly, states that follow the UPC in one area do not necessarily follow it in a related one.(fn13) For example, six swing states have provisions patterned on the section 2-104 rule that an intestate heir must survive the decedent by 120 hours in order to take.(fn14) Only three of those states, however, adopted the parallel provision for wills.(fn15) Similarly, six states follow the section 2-110 approach and require a writing in order to establish that a gift is to be treated as an advancement of the donee's intestate share.(fn16) Only three of these states follow parallel section 2-612, which requires a writing to establish that an inter vivos gift was meant to be in satisfaction of a gift by will.(fn17) Although a variety of possible explanations for the failure to pair related sections can be advanced, these results suggest that legislators examining the UPC as a model to solve particular problems might benefit from a general perusal of the statute, looking for related topics.

Table II demonstrates that support for sections outside of article II has been considerably more spotty; only rarely have more than two jurisdictions adopted any particular provision. Two short articles have received some attention: article IV on ancillary administration and article VI on multiple-party and payable-on-death accounts have each been substantially followed in four states. Again, what limited use has been made of the UPC as a model statute has been to solve traditional problems.

A statutory review also reveals some interesting gaps. In areas in which the UPC has proposed substantial reforms, it has not gained adherents in the swing states. Article Ill's streamlined approach to probate administration was expected to raise substantial opposition.(fn18) Only about one-third of article Ill's 150 sections have been adopted in any of the states; no section has been adopted in more than three states.(fn19) Furthermore, only twelve of the twenty-three swing states have adopted any of article III.(fn20) The UPC's article III, part 3, proposals for informal probate and succession without administration have gone without a single swing state supporter. Only three states have looked to the article for solutions to a set of administrative problems, rather than for an isolated section.(fn21)

TABLE I
Article II Provisions Popular in Swing States
	2-104 Survival (Intestacy)	2-109 Nonmarital and Adopted Children	2-110 Advancements	2-508 Revocation by Divorce	2-701 Contracts	2-601 Survival (Will)	2-612 Ademption by Satisfaction
Ala.	Ala. Code § 43-8-43 (1982)	Ala. Code § 43-8-48 (1982)	Ala. Code § 43-8-49 (1982)	Ala. Code § 43-8-137 (1982)	Ala. Code § 43-8-250 (1982)	Ala. Code § 43-8-220 (1982)	Ala. Code § 43-8-231 (1982)
Ark.			Ark. Stat. Ann. § 61-153 (1971)		Ark. Stat. Ann. § 60-412 (Supp. 1983)
Cal.
Del.	Del. Code Ann. tit. 12, § 504 (1979)	Del. Code Ann. tit. 12, § 508 (1979)	Del. Code Ann. tit. 12, § 509 (1979)
Ga.
Ind.
Iowa
Ky.

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