2008] MILITARY TESTAMENTARY INSTRUMENTS 91
ARE MILITARY TESTAMENTARY INSTRUMENTS UNCONSTITUTIONAL? WHY COMPLIANCE WITH STATE TESTAMENTARY FORMALITY REQUIREMENTS REMAINS ESSENTIAL
NOWELL D. BAMBERGER†
On 30 October 2000, President Clinton signed Public Law 106-398, the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 (the Act). Among the various appropriations and policies that accompany each year's defense authorization, this Act included a little-recognized provision intended to help military attorneys draft wills for Soldiers and their Families without being overly concerned about the various formality requirements of each of the fifty states. Section 551, entitled "Recognition by States of military testamentary instruments," (§ 551) was codified at 10 U.S.C. § 1044d. It provides that wills executed by members of the Armed Forces that comply with certain federal statutory requirements are "exempt from any requirement of form, formality, or recording before probate that is provided for testamentary instruments under the laws of a State."1 These new documents were called "military testamentary instruments" (MTIs) and immediately became available to servicemembers and their dependents. In so providing, § 551 essentially created an instrument that has been unknown at law since the inception of the United States: a federal will.
In the eight years since its passage, the Act has generated no litigation and no court has considered its validity. Rather than a commentary on its validity, however, this has been a natural consequence of the fact that an MTI's required formality does in fact comply with the formality requirements of most jurisdictions.2 This means that a properly
drafted MTI will inadvertently comply with the current formality requirements of most states. In addition, of those few instruments that might not comply with the requirements of the states where presented for probate, few relate to estates large enough to trigger significant litigation.3 Nonetheless, the creation of MTIs should be of concern to both military estate practitioners and to constitutional scholars. While § 551 purports to simplify the process of drafting military wills-assuring uniform acceptance to probate-it actually creates more uncertainty about whether the instrument will hold up in a true will contest. Moreover, it marks the most significant interference by the federal government with the state-controlled probate process to date. In so doing, it promulgates a procedural requirement for state courts to apply during an in rem proceeding on an exclusively state issue-an unprecedented example of federal commandeering of state institutions that appears to violate the vertical separation of powers that is the touchstone of the federal system.
This article discusses the constitutionality of MTIs, ultimately concluding that their authorizing legislation is an unconstitutional overextension of Congress's power to raise and maintain armies and that the instruments need not be recognized by state courts. Part II discusses the nature of the state probate process and the exclusivity of state jurisdiction therein. Part III explains how MTIs create a direct conflict between federal and state law regarding the admission of military wills to probate. Part IV explains how MTIs violate the constitutional concepts prohibiting the federal government from commandeering state institutions and how current Supreme Court case law does not definitively render the exercise of federal war powers in estate law valid. Part V suggests that, even aside from its co-option of the state probate process, § 551 may be constitutionally invalid because it exceeds Congress's Article I, Section 8 legislative authority. Finally, Part VI discusses possible alternatives to § 551 and why attention to state testamentary formality requirements will remain essential under any foreseeable scenario.
The Probate Process Is Constitutionally Reserved to Exclusive State Control Because It Is an Exercise of Inherent Sovereign Authority
The state probate process has long been recognized by both state and federal courts as the exclusive province of state law.4 This is due in large part to the nature of the probate proceeding. In the vast majority of jurisdictions, probate proceedings are recognized as in rem or quasi in rem proceedings.5 Unlike many of the actions entertained in state courts, they descend not from the common law, but rather from the ecclesiastical courts of England.6 The proceeding and process of devising property is thus universally recognized as created by the state and subject to the inherent sovereign police powers of the state legislature.7 In light of this, the Supreme Court has recognized that every state legislature retains the exclusive jurisdiction to define how property within its realm is devised, by whom, to whom, and under what circumstances.8 Indeed, it is within the purview of the state government both to deny the probate process altogether and to attach whatever conditions to admission that it deems appropriate.9
A. As an In Rem Proceeding, State Adjudication of Will Validity Concerns an Exclusive Question of State Law
The distinguishing characteristic of an in rem proceeding is that it acts upon property rather than upon a person.10 As such, neither the testator nor any potential heir is a party to the proceeding in the traditional sense. In fact, most states recognize probate proceedings as having no parties at all.11 The probate of a will is therefore an action based entirely upon a state statute, and the validity of a will is an exclusive question of state law.12 Because the state creates the right to devise property, it can prescribe whatever formality requirements it thinks proper to assure descent according to the testator's intent. Such formalities are not extrinsic to a will, but rather determine whether or not a given writing constitutes a valid testamentary instrument at all.13 The practice of barring a nonconforming document from probate is not equitable. It is instead recognition that a nonconforming testamentary instrument is not in fact a legal will.14
In recognition of the exclusivity of state jurisdiction over the probate process and will adjudication, the federal courts have historically refused to assume jurisdiction. As the Supreme Court explains, "as the authority to make wills is derived from the state, and the requirement of probate is but a regulation to make a will effective, matters of pure probate, in the strict sense of the words, are not within the jurisdiction of courts of the United States."15 In some sense, federal refusal to obtain jurisdiction has been based on a lack of statutory authority.16 Both the Judiciary Act of 178917 and its English counterpart of the same year, the Judicial Code of the English Court of Chancery, recognized a lack of equity jurisdiction over the probate process.18 At least one court has concluded, however, that the prohibition on federal meddling in the probate process is constitutional.19
In United States v. Security-First National Bank of Los Angeles,20 a
district court dismissed a suit by the United States claiming a contractual interest in the bank account of a decedent. The court ruled that the United States was constitutionally prevented from preempting the state probate process, which had exclusive jurisdiction over the will and estate of a California resident.21 It explained that "[n]owhere in the Constitution or amendments is there the slightest suggestion that the right to administer decedents' estates has been delegated to the United States. . . . The Federal statutes are barren of any like provision for the simple reason that the subject matter of determining heirship is a State and not a Federal procedure."22
The federal government has acceded to this position in a number of cases to which it has been a party. For instance, appearing in 1944 to assert a claim against the estate of a deceased veteran who died while under the care of the Veterans Administration (VA), the United States explained to the presiding California court that "the federal government has no power to pass laws regulating succession to property by citizens
of the states, that being a power reserved by the Tenth Amendment to the states."23 The court ultimately found in favor of the United States' claim on the basis that on admission to a VA hospital, a veteran entered into a contract with the United States providing for disposition of property under the contingency of intestate death.24
B. Federal Interference with the Probate Process Has Been Historically Reserved to Adjudication of Claims
In recognition of the lack of federal interest or authority over the state probate process, the federal government's role with respect to testacy has traditionally been limited to two areas: (1) adjudicating claims against the estate over which the federal courts otherwise have either concurrent or exclusive jurisdiction, and (2) enforcing the federal constitutional mandates of due process and equal protection that apply to all state proceedings.25 With the growth in both the power and reach of federal authority, the national government has made some inroads in using federal law to shape the nature of claims against estates. For instance, the Sundry Appropriations Act of 191026 gave the United States a paramount claim against the estates of certain veterans while the Soldiers' and Sailors' Civil Relief Act of 1940 (the SSCRA)27 placed limits on the types of claims and statutes of limitations applicable to those currently in service-thereby affecting which claims survive to...