You Can’t Take It With You

an illustration of members of a family tree

The consequences of dying without a will can vary widely from state to state. According to a 2021 Gallup poll, 54% of Americans reported not having a will in place.

But state laws may be out of step with the wishes of many Americans, according to the first large-scale nationally representative survey. The survey, done by Yale Law School faculty John D. Morley ’06 and Yair Listokin ’05, asked 9,000 American adults to contemplate how they would divide their property among relatives, friends, and others if they were to pass away immediately.

In two sets of results — one covering gifts to spouses and partners and one covering gifts to children and other beneficiaries — Morley and Listokin discovered that the “changing character of the modern family is being written into the wills — and hearts — of Americans.”

Morley and Listokin’s research is garnering attention. In a recent story, The Wall Street Journal reported on one of the many surprising results of the survey: nearly 30% of married people with children responded in the survey that they would prefer to leave their spouse nothing.

Morley, Professor of Law at Yale Law School, discussed the origins of the survey, its often surprising results, and how the law might respond.

Q: How did the idea for this survey come about? 

JM: I saw the need for a survey like this the first time I taught Wills, Trusts, and Estates. The choices people make about with their property when they die can tell us a lot about what people value during their lifetimes. Also, when people die without wills, the law needs to know what to do with their property. No one had ever asked a large, representative sample for their preferences before. So we decided to do it.

Why is the design of this survey significant? 

Almost everything we know about what people do with their property at death comes from the wills of deceased people that have gone through probate. But that’s a very biased sample — people with wills are very different from people without wills. Also, wills don’t tell us anything about any of the most complex and interesting family situations because they don’t contain enough information. Wills can’t tell us anything about how often people make gifts to their stepchildren or nonmarital partners, for example, because the wills don’t tell us whether people even have stepchildren or nonmarital partners who could even receive gifts.

What are some of the survey’s most surprising findings?

A lot of people say they want to give nothing to their spouses. And gifts to spouses are strongly correlated with race, class, and gender. African Americans, poorer and less educated people, and women give less to their spouses and more to their children than others do. People are also surprisingly generous to their nonmarital domestic partners and stepchildren. People prefer their stepchildren over anyone other than their spouses and their own children — they give more to stepchildren than to their parents and siblings. And people are surprisingly generous to siblings. Although intestacy law powerfully favors parents, our respondents treat parents and siblings almost exactly the same. 

What do you think explains the gap between how Americans would like to have their property distributed after their deaths and how the law handles estate distribution?

Part of the explanation is that we’ve never had good data on people and families that aren’t well represented in probate records. Probate records don’t say anything about stepchildren or nonmarital partners, so we’ve just had to guess.

Another part of it is that people are telling us what they want without having the benefit of deliberation or sophisticated advice. When people have good advice, they may do things differently. 

How can the law better reflect the public’s preferences and how should policymakers respond to the survey’s results?

There are some areas in which the law should probably change. It should make more space for stepchildren, nonmarital partners, and siblings, for example. But there are other areas in which maybe it’s our understanding of the law that needs to change. We tend to say the law should match people’s preferences. But when people don’t have the benefit of good advice, their preferences are sometimes strange and unwise — such as when they say they want to totally disinherit their spouses. So maybe the purpose of the law is not to match preferences, but to push people toward wise decisions — or at least the preferences people would express if they had the benefit of good advice and careful deliberation.