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Hastings Law Journal

Abstract

Until recently, parents in every state except Louisiana legally could disinherit their children for any reason, or for no reason. Although disinheritance may have been rare at one time, in today's society, with divorce and remarriage commonplace, the possibility of disinheritance by noncustodial parents has increased considerably. The state often must support a disinherited minor child, while the deceased parent is free to leave the estate to anyone. This Article explores the tension between the testator's right of testamentary freedom and the child's right of inheritance. It suggests that this tension should be resolved in favor of protecting the rights of children. The Article traces the history of the law of inheritance from ancient sources to the present, pointing to various ways cultures have balanced testamentary freedom against the rights of children. Finally, the Article proposes the concept of protected inheritance, which combines the best elements of the existing doctrines of forced heirship and family maintenance, to preserve testamentary freedom while strengthening the rights of children.

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