The Creeping Federalization of Wealth-Transfer Law

This paper, titled “The Creeping Federalization of Wealth-Transfer Law,” is prepared for a symposium on the role of federal law in private wealth transfer. The symposium is to be held at Vanderbilt University Law School on February 21, 2014, and is sponsored by the American College of Trust and Estate Counsel Foundation. Symposium papers will be published in volume 66 of the Vanderbilt Law Review (Nov. 2014 issue).This paper surveys areas of federalization of wealth-transfer law. Federal authorities have little experience in making law that governs wealth transfers, because that function is traditionally within the province of state law. Although state wealth-transfer law has undergone significant modernization over the last few decades, all three branches of the federal government — legislative, judicial, and executive — have increasingly gone their own way. Lack of experience, and in many cases lack of knowledge, have not been a deterrent, and the results have been mostly disturbing.The paper covers these topics: federal preemption of several areas of state law, the development of federal common law as a sometime substitute for state law, the federal tax exemption for perpetual trusts, and the right of posthumously conceived children of assisted reproduction to Social Security survivor benefits.