One of the most famous sentences in literature is the opening of Leo Tolstoy’s novel Anna Karenina: “All happy families are alike; each unhappy family is unhappy in its own way.” While this may be great art, it’s nonsense in real life.
Families caught up in inheritance disputes are, almost by definition, “unhappy”. And trusts and estates lawyers know all too well these unhappy families are often very much “alike” in fundamental ways — especially as litigants. That’s what makes professional experience so valuable; after a while you know what to expect and what your next steps should be (both in and out of court). But what of the past? Has the world changed so dramatically there’s not much we can learn from past inheritance disputes?
That’s a question Hendrik Hartog, a Princeton history professor, grapples with in Someday All This Will Be Yours, a fascinating study of over 200 New Jersey appellate opinions involving estate disputes (including trial transcripts for approximately 60 of those cases) decided as the agrarian 19th century turned into the industrial 20th (circa 1840 to 1940), and families began to face longer life expectancies without the safety nets of pensions, nursing homes, Social Security, Medicare and Medicaid we have today.
All of these cases rested on the same underlying transaction: a promise by an older property owner to a younger person — usually a child or another younger relative, but sometimes an employee or neighbor. “Someday,” an old man or woman had said, “all this will be yours!” “When I die, I will leave you the land,” or “I will pay you for your time and effort,” or “you will inherit everything,” or “you will be treated as my own child.” “But until then, you must stay with me and work,” or “stay with me; care for me.” Or, “Don’t leave me!” When the older person hadn’t kept his or her promise, disputes arose, and a percentage of those disputes ended up in court.
While the litigants Hartog writes about may have been acting in historically specific ways, the family dynamics animating their disputes remain the same today. In the cases Hartog analyzed older property owners were using their wealth to counter one of the great fears of old age: loneliness. In addition to fears of loneliness, a yearning for care provided with “[l]ove — incorporating feelings of duty, kindness, sympathy, concern, and affection — also played a crucial role in old people’s strategies.” Property rights, fear of loneliness, a desire for lovingly provided care.
Today’s estate planners see these same dynamics at play in their practices every day. In fact, we now have empirical evidence to back up the “folk” wisdom we’ve long taken for granted: loneliness kills. Research shows the effect of loneliness and isolation on mortality is equivalent to smoking 15 cigarettes a day, is equivalent to being an alcoholic, is more harmful than not exercising, and is twice as harmful as obesity (Holt-Lunstad, 2010).
But are we more inclined to sue today than we were a century ago? In other words, can Hartog’s case studies (and the extraordinarily detailed accounts of intimate family relationships offered by the trial transcripts) teach us something we can use today about how to either avoid litigation as estate planners, or successfully resolve these disputes as estate litigators? Short answer: Yes! Based on Hartog’s findings, things haven’t changed all that much. Here’s an excerpt:
One should not be surprised that people chose to litigate when such situations occurred. The moment of parental death was one that was widely understood [circa 1840 to 1940] as a distinctly legal moment in the life course. Inheritance, probate, and the transfer of familial assets were paradigmatic moments when everyone knew they had to deal with the law. Situations involving land and other valuable properties and their final disposition were ones in which, perhaps above all others in everyday life, potential litigants had an enormous incentive to sue. . . . [I]n this individualistic and capitalistic legal culture, such legal conflict was normal, although unpleasant, for family members. It remained a predictable event in a family’s history. Family members would find many disincentives to sue because of the disruption to or destruction of familial relationships. However, by the time litigation was initiated, often the family was already in deep conflict. The possibility of a negotiated settlement may have been long past.
If you read Someday All This Will Be Yours, which I highly recommend, don’t go looking for specific legal strategies. Instead, approach the book for what it is: a richly textured study of how inheritance disputes played themselves out in a specific historical context. While the litigation tactics driving these cases may have evolved over time (for example, today most inheritance-agreement cases in Florida would be governed by F.S. 732.701, not the quantum meruit or specific performance arguments underlying these disputes circa 1840 to 1940), the “human” factor remains the same.
The unhappy family you represented last year (or a decade ago) is not, as Tolstoy claimed, “unhappy in its own way.” Nor were the unhappy families involved in estate disputes a century ago. As Hartog demonstrates, when you know what to look for, families caught up in these cases are much more “alike” than you’d expect. Identifying these patterns of behavior and learning from them is what informs this thing we call “professional judgment.” And that judgment is what sets us apart as lawyers (anyone can google a statute on the internet). That’s a lesson worth learning (or remembering), no matter how long you’ve been toiling away at this weird profession we call lawyering.