Will-Substitutes in the U.S. and in Spain

Author:Jaume Tarabal Bosch
Position:University of Barcelona
Pages:2293-2315
SUMMARY

Globally, the use of will-substitutes to transmit property upon death has been on the rise. Will-substitutes, voluntary and freely revocable instruments that effectuate the post-mortem, gratuitous transfer of assets, operate outside the confines of traditional succession law. In the United States, the motives driving the proliferation of such mechanisms and the legal implications of their use... (see full summary)

 
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2293
Will-Substitutes in the U.S. and in Spain
Jaume Tarabal Bosch*
ABSTRACT: Globally, the use of will-substitutes to transmit property upon death has
been on the rise. Will-substitutes, voluntary and freely revocable instruments that
effectuate the post-mortem, gratuitous transfer of assets, operate outside the confines of
traditional succession law. In th e United States, the motives driving the proliferation of
such mechanisms and the legal implicatio ns of their use have been extensively addressed
by both the legislature and legal doctrine. In Spain, by contrast, the gradual adoption
and growing use of will-substitutes has failed to garner similar scholarly interest and
legal elaboration. In this article, writte n from the perspective of a continental lawyer, we
will explore the characteristics of the America n and Spanish succession law systems that
have led to the unequal development of will-substitutes.
I. INTRODUCTION ......................................................................... 2294
II. WILL-SUBSTITUTES IN THE U.S. ................................................. 2295
A. MOTIVATING FACTORS FOR THE PROLIFERATION OF
WILL-SUBSTITUTES .............................................................. 2295
1. Problems Concerning the Administration of
Estates ......................................................................... 2295
2. Financial Intermediaries and Socio-Economic
Changes ...................................................................... 2297
3. Complacency of the Courtsthe Present-
Interest Test ............................................................... 2297
B. WILLS VS. WILL-SUBSTITUTES ............................................... 2299
C. CHIEF MODALITIES OF WILL-SUBSTITUTES ............................. 2301
III. WILL-SUBSTITUTES IN SPAIN...................................................... 2303
A. THE SEVEN SPANISH SUCCESSION LAW SYSTEMS:
CONTRASTS AND COMMON GROUND ..................................... 2303
1. Contrasts .................................................................... 2304
2. Common Ground ...................................................... 2306
B. IS THERE ROOM FOR WILL-SUBSTITUTES IN SPAIN? ................ 2309
* University of Barcelona, jtarabal@ub.edu. This study falls within the scope of research
project DER 2014-54267 (Ministerio de Economía, Industria y Competitividad) [Spanish
Ministry for the Economy, Industry and Competitiveness].
2294 IOWA LAW REVIEW [Vol. 103:2293
C. GENUINE WILL-SUBSTITUTES IN SPAIN: REMARKS ON
LIFE INSURANCE AND PENSION PLAN BENEFICIARY
DESIGNATIONS .................................................................... 2310
IV. CONCLUSION ............................................................................ 2315
I. INTRODUCTION
Currently, any work on succession law that aims to be thorough must look
beyond classical models of succession (wills, intestacy, and inheritance
contracts), and take will-substitutes into considerationnamely, those
mechanisms that transfer property upon death outside the traditional
schemes of succession law.
In recent decades, there has been a striking increase in the use of will-
substitutes (life insurance policies, beneficiary designations in private pension
plans, etc.). This phenomenon is taking place on a global scale, although
individual jurisdictions may have different reasons for their use, depending
on the legal context in which they arise.1 In the United States, will-substitutes
have become a part of the country’s uniform law and are supported by the
theoretical backing of a consolidated legal doctrine. Most notably, John H.
Langbein’s article, The Nonprobate Revolution and the Future of the Law of
Succession,2 began a legal debate that has continued for over thirty years.3 By
contrast, Spain’s gradual adoption and growing use of the will-substitute has
not been accompanied by similar scholarly interest and legal development.
This Article succinctly examines the characteristics of the American and
Spanish succession law contexts that have led to the unsteady development of
will-substitutes. To begin, Part II of the Article surveys will-substitutes in the
United States from the perspective of a continental lawyer. It will focus on the
main reasons for why these instruments have experienced a boom and
identify those elements that define them conceptually. Part III of this Article
highlights the traits of the Spanish succession law systems that may explain
the uneven degree of development found there, and the main features of will-
substitutes (applying the U.S. concept) that are increasingly utilized in
practice.
1. The glob al phenomenon of will-substitutes and the current inte rest in its study are
exemplified by works such as PASSING WEALTH ON DEATH: WILL-SUBSTITUTES IN COMPARATIVE
PERSPECTIVE (Alexandra Braun & Anne Röthel eds., 2016), which has become a leading
reference text on the subject i n the field of comparative succession law.
2. John H . Langbein, The Nonprobate Revolution and the Future of the Law of Succession,
97 HARV. L. REV. 1108 (1984). The article is considered one of the most influential articles ever
written about trusts and esta tes in the United States. See Melanie B. Les lie & Stewart E. Sterk,
Revisiting the Revolution: Reintegrating the Wealth Transmission System, 56 B.C. L. REV. 61, 6162 (2015).
3. Thomas P. G allanis, Will-substitutes: A U.S. Perspective, in PASSING WEALTH ON DEATH: WILL-
SUBSTITUTES IN COMPARATIVE PERSPECTIVE, supra note 1, at 9–29.

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