Restraining Live Hand Control of Inheritance

Mark Glover

Inheritance law generally defers to the donor’s decisions regarding what property should be distributed to which donees. Because these decisions are carried out after the donor’s death, the law’s deference to the donor has become known as “dead hand control.” But just as the inheritance process is guided by the decisions of the dead, it is also influenced by the choices of the living. When the donor names a donee in their estate plan, the donee must decide whether to accept or reject the gift. If the donee accepts the gift, the property becomes theirs, but if the donee rejects the gift, the property is distributed to an alternate donee. Thus, inheritance law grants control not only to the dead hand of the donor but also to the live hand of the donee. This latter deference to the donee has become known as “live hand control.”

Although the law grants the donee broad freedom to accept or reject inheritances, it restrains the donee’s ability to reject a gift under some scenarios, and it restrains their ability to accept a gift under others. Legal scholars have devoted considerable attention to the study of each type of live hand restraint, but they typically have focused on one type or the other without exploring possible connections between the two. To fill this analytical void, this Article will bring together the law’s restraints of acceptance and rejection and seek to develop a unifying theoretical framework that can guide policymakers in deciding when and how to restrain the donee’s discretion to accept or reject a gift.

Specifically, this Article will argue that the law’s live hand restraints, whether of rejection or acceptance, are primarily founded upon the concern that the donee’s decisions to accept or reject a gift will impose costs on others that the donee likely does not take into account when making their decisions. In these situations, deference to the donee might not be socially beneficial, and, consequently, the law restricts their decision-making ability. Ultimately, informed by the insights gleaned from a comparative analysis of the two types of live hand restraints, this Article will explore specific reform proposals that can increase the social welfare generated by the inheritance process.