Article by Christopher A. Whytock
The predominant choice-of-law rule for succession issues involving personal property is that those issues are governed by the law of the decedent’s domicile at the time of death. In contrast, the traditional choice-of-law rule for succession issues involving real property is that they are governed by the law of the state where the real property is located—that is, by the law of the situs. This Article argues in favor of extending the domicile rule to succession issues involving real property. Part II takes a historical look at the situs rule and suggests that it was more a product of historical peculiarities of the English legal system than a result of efforts to design a rational choice-of-law methodology for succession issues. Part III develops the case for extending the domicile rule to real property succession issues by evaluating the situs and domicile rules from the perspectives of succession policy, state interests, estate planning and probate, succession law’s structure, and comparative law. Part IV considers several objections to extending the domicile rule. The Article concludes that, on balance, the domicile rule is preferable to the situs rule for succession issues involving real property. It argues for a unified approach, according to which the law of the decedent’s domicile generally governs succession issues regardless of whether they involve personal property or real property.
About the Author
Christopher A. Whytock. Professor of Law and Vice Dean, University of California, Irvine School of Law; Associate Reporter, Restatement of the Law Third, Conflict of Laws; Adviser, Uniform Law Commission Conflict of Laws in Trusts and Estates Drafting Committee. For valuable comments, I thank David English, Thomas Gallanis, Ronald Scalise, Robert Sitkoff, Stewart Sterk, and participants at the Tulane/ACTEC Symposium on Conflict of Laws in Trusts and Estates. The views expressed in this Article are my own and not necessarily shared by the American Law Institute or the other reporters for the Third Restatement.
Citation
97 Tul. L. Rev. 1181