Q:
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.
Kinsella:
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.
Could not a will be construed as a revocable trust, with the grantor retaining a life estate in all the present and future assets of the trust? The executor would be the successor trustee.
I think the issue of starting from scratch and using basic libertarian property and contract principles, to justify wills, would be the same with other traditional legal solutions like trusts, corporations, restrictive covenants, and so on. I think all these can be done but it takes creative work and knowledge of the actual way these institutions have worked in the private law, and how they could be justified in a private law system based on libertarian property principles. I have touched on some of these but have not taken a great deal of time to do this yet, partly because it’s not needed yet and is a bit premature. Just like it would be a waste of time for me to sit down and take a modern civil code, or the Restatements of the (common) law, and just “rewrite” them where needed to conform to more abstract libertarian principles. It’s premature and is not how law forms anyway.
What principle or practical consideration prevents dead people from owning things indefinitely? If everyone acted as if a dead person owned something, that wouldn’t be too different from the case of an invalid or minor child.
I can see practical reasons why in effect dead persons can not really own anything. They would never be able to dispute a use of their property without their consent. The guardian of a child or invalid could be sued by a third party on behalf of the ward if there was evidence of embezzlement. Could any third party ever dispute that the proxy had defied the dead person’s wishes? A will would provide a kind of evidence, though not conclusive. Executors can be sued, and the validity of wills disputed. So I think the question is not could we do this, but is it a good idea. In spirit, the Carnegie Foundation is owned by a dead man, though in practice, it is owned by whoever can fire the persons making the decisions about how those resources get used. Is there a person who can arbitrarily decide how those resources are used, without oversight from anyone else?
Because dead people don’t exist…
Why should that bother anyone? God doesn’t exist, but people act as if that’s not true. Social systems work on what people are willing to do, constrained by reality only when it just won’t work. In this case, what would break? It might be stupid, but it wouldn’t be the first time that happened.
What about liability? If the dead person’s property is instantly transferred at death, can their estate be sued for something they did while alive?
Say I commit some tort that damages your property, and also has the effect of killing me. The tort happens, I die, I no longer own anything. Do you sue my heir, or my estate, or are you just out of luck? I guess we would say that the tort transferred ownership of some of the dead person’s property to the plaintiff in the tort case, at the time of the tort, before the person died. And so the plaintiff can sue whoever has their property.
Yes, your latter instinct is correct, I think.
I think that “suing the estate” might be the fiction that is used, but there is really no such thing as “the estate”, there are only resources whose ownership is disputed. So the way I would look at it is that if the decedent commits an action during life, that causes cognizable harm, then from that moment, the victim has a sort of unperfected claim on their resources. That charge is already there. Think of it as an unperfected lien, or a partial property interest. Then the heirs inherit the property subject to those liens or claims. So yes, the victim could sue for their portion of the resources that the heirs have been given, on the theory that they already owned part of it and the decedent has no right to transfer resources he doesn’t own, to someone else.
As an example, A is worth $3M and harms C in a car wreck, to the tune of $300k worth of damage. On that day C has a (potential, unperfected, unproved) claim on $300k of A’s resources. If A dies the next day and leaves his $3M to B, then B takes the $3M subject to this claim. Or to put it another way, on the day of his death, A only owns $2.7M of his estate and C has a claim to the other $300k, so A can only leave the $2.7M he has free and clear title to, to B.