Hi Mr. Kinsella,
I have a question about property rights concerning dead people. How would a Rothbardian theory of property justify the will of a dead person? Is the will a genuine contract or is it void?
More specifically, I’m engaging in a conversation and someone said that a will is not per se a genuine contract because dead people don’t own things. And if dead people don’t own things, then how can it be said that there’s a transfer of property titles from the deceased person? Should the deceased person have to put in the will that they transfer the property titles to the heirs some moments before their official death?
I’m stumped on this one.
I have not written much publicly about this but have thought about it and discussed with people, e.g. David Gordon. My view is that you can use property ownership rights and contract to do what wills purport to do. If I was a minute from death I could give you all of my property by contract. I can also give you my property in the future, with various condtions. For example I could say “I hereby give you all that i own in 17 years.” Likewise, I could say “I hereby give you all the property that I own one second before my death, at that moment in time.” Or I could say “at the moment of my death t.” Now some nitpick over this (I think David Gordon had this concern) since at time t there is no longer an owner alive to transfer the property. So you could simply instead say “at moment t-” where t– is the infinitesimal time right before one’s death (as in the nomenclature 0+ and 0- used in the limit in calculus), if someone (like David Gordon) is concerned about the time t since at time t I am no longer alive and thus own nothing and can’t give it away.
If some nitpicky courts were to find a problem with this quite common sense scheme, then you could have private corporations emerge to help you do this. for example suppose I want you to be my heir. Instead of doing a contract/will, I could do it in other ways, such as:
- A contractual transfer: “I hereby grant you all that I own now, and anything I acquire in the future, and you in exchange grant back to me a life estate or usufruct to use this stuff until I die.” For example I have a house. I have 20 or so years to live. I grant ownership of the house to my son, and he grants to me a life estate, that is, the right to use the house until I die. So until I die he owns the so-called naked ownership of the house but it’s burdened by my life estate. When I die, that disappears, so he now owns it outright.
- Some corporation emerges to this for me. I grant my property NOW, to corporation X, in exchange for (a) X agreeing to give me a life estate (this would include a usufruct on the money etc. which gives me the right to spend it if I want) and (b) X makes a contract to my heirs H agreeing to transfer ownership of the resource to them upon my death.
So it’s easy to set up what wills do now. I just think we can just use wills, regard them as a contract to have a title transfer triggered at time t-, instead of having to use more complicated means to achieve the same thing.
So in response to: “And if dead people don’t own things, then how can it be said that there’s a transfer of property titles from the deceased person?” As noted above: the transfer happens the instant before death, not after death.
And re: “Should the deceased person have to put in the will that they transfer the property titles to the heirs some moments before their official death?” Well, possibly. They can do this if they want to be explicit. But I don’t think they have to put this in there; that’s just the more reasonable way to construe the will.
Incidentally, people could use similar legal techniques in a free society to create the equivalent of “corporations” of perpetual duration, homeowners associations (HOAs), trusts, and so on.