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LINKING SUPPORT AND INHERITANCE:

A NEW MODEL FROM CHINA
FRANCES H. FOSTER*
I. Introduction .........................................................
1199
HI. The Influence of Foreign Models on U.S. Inheritance Reform ....

1207
I. Ensuring Posthumous Support for the Decedent's Dependents ...
1217
A. Responses to Disinheritance of Dependents ............................
1217
1. Protections for the Decedent's Closest Family Members.. 1219
2. Protections for Dependents Outside the Nuclear Family.. 1226
B. Intestate Succession Remedies to Benefit Dependents ............
1230
1. Readjustment of Intestate Shares for Needy Heirs ............
1231
2. Remedies for Dependent Nonheirs ..................................
1235
IV. Encouraging Lifetime Support of the Decedent ............................
1239
A. Intestate Succession Remedies .......................................
1241
B . W ills ......................................................
124 5
C. Contractual Arrangem ents ..........................................
1250
V. C onclusion ....................................................
1254
I.INTRODUCTION
In 1996, Congress passed landmark legislation' that promised to "end

welfare as we know it." 2 This legislation offered a new vision of welfare, one
Professor of Law, Washington University School of Law; Research Fellow,
Harvard Law School, East Asian Legal Studies. A.B., Princeton University, 1977; M.A.,
J.D., Yale University, 198 1; J.S.D., Stanford University, 1987. 1 thank Greg Alexander, Bill
Alford, Susan Appleton, David Becker, Clark Cunningham, Jesse Dukeminier, Charles H. W.
Foster, Adam Hirsch, Trisha Kelly, Lynn LoPucki, Dan Mandelker, Bruce Mann, Ronald
Mann, Sandy Meiklejohn, David Partlett, Arthur Rosett, Joel Seligman, Michele Shoresman,
Walter Weyrauch, and participants in the Washington University School of Law Workshop
for their comments on earlier drafts of this Article, and Grieg Alley for his research assistance.
Editor's note: Unless otherwise indicated, all translations of foreign materials in this
Article were completed by the author and are not available to the public in published form.
1.
Personal Responsibility and Work Opportunity Reconciliation Act of 1996,
Pub. L. No. 104-193, 110 Stat. 2105 (1996) [hereinafter Personal Responsibility Act].
2.
See Susan Frelich Appleton, Essay: When Welfare Reforms PromoteAbortion.
"PersonalResponsibility," "FamilyValues," and the Right to Choose, 85 GEO. L.J. 155, 156
*
1200
WISCONSIN LAW REVIEW
grounded in personal responsibility3 rather than public entitlement.4

According to the rhetoric at least,5 this new vision shifts the burden of
American welfare from government to private sector. In particular, it targets
the family as a mechanism for nonstate support of dependents. 6
Across the globe, the People's Republic of China is also in the process
of radical welfare reform. In its economic modernization drive, China is
dismantling the entire State and collective enterprise structure that has
traditionally guaranteed its citizens cradle-to-grave support services. 7 The
n.8 (1996) [hereinafter Appleton, PersonalResponsibility] (discussing origins of the phrase
"end welfare as we know it").
3.
Indeed, the very title of the welfare reform bill-the "Personal Responsibility
and Work Reconciliation Act of 1996"-trumpeted this change in U.S. welfare policy.
4.
See Peter T. Kilbom & Sam H. Verhovek, Clinton's Welfare Shift Ends
Tortuous Journey, N.Y. TIMES, Aug. 2, 1996, at Al (claiming Congress had enacted
legislation "ending the concept of welfare as an automatic, permanent entitlement"); Allison
Moore, "From Opportunityto Entitlement" and Back AgainBor Beyond, 106 YALE L.J. 923,
926-27 (1996) (book review) (arguing that Personal Responsibility Act "disavows the
unconditional right of poor families to government support" and "decidedly represent[s] a
movement away from entitlement liberalism"). For the landmark article setting forth the
concept of welfare as "entitlement," see Charles A. Reich, The New Property,73 YALE L.J.
733 (1964).
5.
For discussions and critiques of the rhetoric of welfare reform, see generally
Susan Frelich Appleton, Standardsfor ConstitutionalReview ofPrivacy-Invading Welfare
Reforms: Distinguishingthe Abortion-FundingCases and Redeeming the Undue-Burden
Test, 49 VAND.L. REV. 1(1996); Appleton, PersonalResponsibility, supra note 2; Kathleen
A. Kost & Frank W. Munger, FoolingAll of the People Some of the Time: 1990's Welfare
Reform and the Exploitation ofAmerican Values, 4 VA. J. SOC. POL'Y & L. 3 (1996); Linda
J.Lacey, As American As Parenthoodand Apple Pie: Neutered Mothers, Breadwinning
Fathers,and Welfare Rhetoric, 82 CORNELL L. REV. 79 (1996) (book review); and Sylvia A.
Law, Ending Welfare as We Know It, 49 STAN. L. REV. 471 (1997).
6.
This is directly reflected in the 1996 welfare reform legislation, which contains
extensive provisions for enforcement of parental child support obligations. See Personal
Responsibility Act, supra note 1,at tit. III. See generally Linda D. Elrod, Essay: Child
Support Reassessed: Federalizationof Enforcement Nears Completion, 1997 U. ILL. L. REV.
695; Pamela Forestall Roper, Note, Hitting Deadbeat ParentsWhere it Hurts: "Punitive"
Mechanisms in Child Support Enforcement, 14 ALASKA L. REV. 41 (1997); Ann Marie
Rotondo, Comment, Helping FamiliesHelp Themselves: Using Child Support Enforcement
to Reform Our Welfare System, 33 CAL. W. L. REV. 281 (1997). In recent reforms, the term
"personal responsibility" has other meanings as well. In particular, it is used to refer to the
responsibility of the able-bodied to work and the sexual responsibility of the poor not to have
children they cannot support. For extended discussion of the meanings of "personal
responsibility," see generally Linda C. McClain, "Irresponsible"Reproduction, 47 HASTINGS
L.J. 339 (1996). This rhetoric of "responsibility" is not unique to current welfare reforms.
See Larry CatA Backer, PoorRelief Welfare Paralysis,and Assimilation, 1996 UTAH L. REV.
1, 46 ("The language of welfare reform will always confirm a social judgment that the
responsibility for poverty ought to lie squarely on the shoulders of the poor themselves
.....
").For extended discussion of the historical context of current attitudes toward welfare
reform, see generally JOEL HANDLER, THE POVERTY OF WELFARE REFORM (1995).
7.
Since 1978, China has implemented dramatic rural and urban economic
reforms, including the contracted responsibility system, enterprise decentralization, contract
labor system, and enterprise bankruptcy law, which have had a profound effect on P.R.C.
1999:1199
Linking Support and Inheritance
1201
Chinese welfare reform rhetoric is strikingly similar to its American

counterpart. China too is exalting individual responsibility8 and obligation 9
welfare services. For comprehensive analyses of Chinese economic reforms, see, for example,
BARRY NAUGHTON,GROWING OUT OF THE PLAN: CHINESE ECONOMIC REFORM, 1978-1993
(1995), and DAVID ZWEIG, FREEING CHINA'S FARMERS: RURAL RESTRUCTURING IN THE
REFORM ERA (1997). For extended discussion of the impact of economic reform on welfare,
see generally LINDA WONG, MARGINALIZATION AND SOCIAL WELFARE IN CHINA (1998), and
Guo Zhenglin & Zhou Darning, Rural Development and Social Security, in FAREWELL TO
PEASANT CHINA: RURAL URBANIZATION AND SOCIAL CHANGE IN THE LATE TWENTIETH
CENTURY 248 (Gregory E. Guldin ed., 1997). Although post-Mao economic reforms have
generally reduced welfare and support guarantees for Chinese citizens, many families have
negotiated these reforms with a strategy that reaps the benefits of both China's traditional
State-owned and new individual sectors of the economy. Under this strategy, the family
divides its labor between the two sectors. Some family members work in State enterprises
and receive low wages but secure essential social services, such as guaranteed housing,
education, and medical care, for the family. The rest of the family, then, is free to undertake
potentially more profitable individual economic activity without risking the family's social
safety net. See Lan Cao, The Cat that Catches Mice: China's Challenge to the Dominant
PrivatizationModel, 21 BROOK. J. INT'L L. 97, 126-27 (1995) (discussing strategy). This
avenue may not be available much longer, however, if China succeeds in its current effort to
privatize virtually all State-owned enterprises.
8.
See, e.g., Inheritance Case No. 9, in ZHONGHUA RENMIN GONGHEGUO XIANXING
FALO PANLi FENXI QUANSHU [THE COMPLETE VOLUME OF ANALYSES OF CURRENT P.R.C.
LEGAL PRECEDENTS] 93, 94 (1995) [hereinafter CURRENT P.R.C. LEGAL PRECEDENTS]
(praising nephew who "out of a spirit of humanitarianism, assumed responsibility [zeren] on
his own initiative for looking after" his elderly, ill uncle). This is not to say that the Chinese
and English terms for "responsibility" have identical meanings. As I have discussed
elsewhere, cultural as well as linguistic translation of foreign texts is essential to limit
distortions of meaning. See Frances H. Foster, The Illusory Promise:Freedom of the Press
in Hong Kong, China, 73 IND. L.J. 765, 795-96 (1998); Frances H. Foster, ParentalLaw,
Harmful Speech, and the Development of Legal Culture: Russian Judicial Chamber
Discourse and Narrative, 54 WASH. & LEE L. REV. 923, 985-92 (1997). This cultural
translation may be particularly important in the welfare context in light of the "connection
between welfare and the moral, social, and cultural attitudes in which it is embedded."
William E. Nelson, Two Models of Welfare: Private Charity Versus Public Duty, 7 S.CAL.
INTERDISC. L.J. 295, 314 (1998).
9.
Chinese officials, commentators, and documents frequently refer to support as
a "duty"/"obligation" [yiwu]. See, e.g., The Case Involving Chen Yixi's Petition to Declare
Property Unowned, ZUIGAO RENMIN FAYUAN GONGBAO [GAZETTE OF THE P.R.C. SUPREME
PEOPLE'S COURT], No. 4, 141 (1995) (describing petitioner as performing "considerable
support duties [yiwu]" toward decedent and, hence, entitled to decedent's estate); XIANFA art.
49 (1982) (assigning support "duties" [yiwu] to parents and children). This emphasis on
support duties rather than rights is consistent with both traditional and socialist practice.
Indeed, some scholars have argued that until contact with the West, China did not even have
a concept or word for "right," "even though words related to duties seem to have existed."
Walter 0. Weyrauch, On Definitions, Tautologies, and Ethnocentrism in Regard to Universal
Human Rights, in HUMAN RIGHTS 198, 199 (Ervin H. Pollack ed., 1971) (discussing
literature). Thus, "[w]hatever Chinese... words we translate as 'duty' cannot mean quite
what our American word 'duty' means, because the American concept contrasts with and is
intimately related to the [con]cept of 'rights."' Id. For extended discussion of Chinese
definitions of rights and duties, see generally R. RANDLE EDWARDS ET AL., HUMAN RIGHTS IN
CONTEMPORARY CHINA (1986); John F. Copper, Defining Human Rights in the People's
1202
rather than any legal or constitutional right to public welfare.' 0 Likewise, it

is urging its citizens to lighten the State's welfare burden" and is specifically
calling upon the cell of Chinese society, the family, to perform its role of
"supporting the elderly, raising the young, and caring for the ill and
disabled."' 2
In its welfare reform effort, however, China has turned to a tool ignored
by American policymakers-inheritance law. Since the enactment of its first
national inheritance legislation in 1985,' s China has launched a bold
Republic of China, in HUMAN RIGHTS IN THE PEOPLE'S REPUBLIC OF CHINA 9 (Yuan-li Wu et
al. eds., 1988); William C. Jones, Constitutional Protection of Rights in PRC, in Donald C.
Clarke et al., Introduction to the Law of the People's Republic of China ch. 4 (1999)
(unpublished manuscript on file with the author); and Randall P. Peerenboom, Rights,
Interests, and the Interest in Rights in China, 31 STAN. J. INT'L L. 359 (1995).
10.
For P.R.C. constitutional welfare provisions, see XIANFA art. 44 (1982) ("The
livelihood of retired personnel is ensured by the state and society."), and id. art. 45:
Citizens of the People's Republic of China have the right to material
assistance from the State and society when they are old, ill, or disabled. The
State develops the social insurance, social relief and medical and health services
required for citizens to enjoy this right.
The State and society ensure the livelihood of disabled members of the armed
forces, provide pensions to the families of martyrs and give preferential treatment
to the families of military personnel.
The State and society help make arrangements for the work, livelihood and
education of blind, deaf, mute, and other handicapped citizens.
11.
See, e.g., Inheritance Case No. 8, in CURRENT P.R.C. LEGAL PRECEDENTS, supra
note 8, at 92:
At the same time, our country's social welfare facilities are not yet very
developed. Our country's economic resources are not yet sufficient to support
orphans, widows, or widowers, and the elderly. The strength of the entire society
must still be relied on for their support. Therefore, including widowed
daughters-in-law and sons-in-law [who supported the decedent] in the first order
of heirs ... encourages them to support the elderly, thus lightening the burden
on the State and society.
12.
MIN SHANG FA SHIWU YANJIU: JICHENG JUAN [A STUDY OF CIVIL AND
COMMERCIAL LAW PRACTICE: INHERITANCE VOLUME] 103, 105 (Yang Zhenshan ed., 1993)
[hereinafter CIVIL AND COMMERCIAL LAW PRACTICE] ("Supporting the elderly, raising the
young, and caring for the ill and disabled is one important function of our country's socialist
family."); see Case No. 430, in MIN SHANG FA XIN LEIXING ANLI JINGXI [ESSENTIAL ANALYSIS
OF NEW TYPES OF CIVIL AND COMMERCIAL LAW CASES] 1216, 1219 (Liu Zhixin et al.eds.,
1996) [hereinafter NEW TYPES OF CIVIL AND COMMERCIAL LAW CASES] ("Because the family
is the cell of society, its principal task is to support the elderly and raise the young."). In its
appeal to the family to perform welfare functions, China explicitly draws on pre-socialist
practice. See, e.g., Inheritance Case No. 8, in CURRENT P.R.C. LEGAL PRECEDENTS, supra
note 8, at 92-93 (emphasizing that in enacting the Inheritance Law's distinctive support
provisions Chinese legislators "proceeded from national conditions and respected our
country's national traditions").
13.
See Zhonghua Renmin Gongheguo Jicheng Fa [Inheritance Law of the People's
Republic of China] (Apr. 10, 1985), in FAGUI HUIBIAN 1 (1985) [hereinafter P.R.C.
Inheritance Law]. See generally Louis B. Schwartz, The InheritanceLaw of the People's
Republic ofChina, 28 HARV. INT'L L.J. 433 (1987) (discussing 1985 Inheritance Law). For
extended discussion of Chinese inheritance law and practice prior to the 1985 Inheritance
1999:1199
1203
experiment to use inheritance law to activate private sources of support. Over

the past decade, it has developed in practice a scheme unprecedented in the
world that explicitly links support and inheritance.
China thus offers a distinctive model to other countries, including our
own, that are now exploring alternatives to public welfare. It also provides
comparative insights into approaches to inheritance generally and possible
new directions. As John Langbein has aptly remarked, "Americans should
be grateful indeed" to foreign legal systems that serve as "laboratories for
testing and perfecting" probate law reforms.1 4 One goal of this Article is to
make the Chinese "laboratory" accessible to American reformers. 5
This Article addresses a theoretical question raised in the U.S. scholarly
literature: "Should support and inheritance be linked?"' 6 As this writer has
argued elsewhere, 17 American lawmakers have answered with a resounding
"no." U.S. inheritance law has rejected the notion of consistently tying
inheritance rights to actual support needs and obligations of the decedent and
the claimant.' 8 The combined effect of American schemes of intestate
Law, see Frances Foster-Simons, The Development of InheritanceLaw in the Soviet Union
and the People's Republic of China, 33 AM. J. COMP. L. 33 (1985).
14.
John H. Langbein, Excusing Harmless Errors in the Execution of Wills: A
Report on Australia'sTranquil Revolution in ProbateLaw, 87 COLUM. L. REv. 1, 54 (1987)
[hereinafter Langbein, Excusing Harmless Errors]. See also Mary Ann Glendon, Family Law
Reform in the 1980's, 44 LA. L. REv. 1553, 1571-72 (1984) ("[The] forced share for spouses
..is yet another area where law reformers in common law jurisdictions may, if they choose,
benefit from comparative studies.").
15.
This is my second report on China's post-1985 inheritance system and its
possible implications for U.S. reform. In an earlier article, I argued that China is
implementing a behavior-based model of inheritance that offers marked contrasts and
potential advantages over the U.S. status-based model. See Frances H. Foster, Towards a
Behavior-BasedModel of Inheritance?: The Chinese Experiment, 32 U.C. DAVIS L. REv. 77
(1998) [hereinafter Foster, Behavior-Based Model]. This Article explores a second
distinctive feature of the evolving Chinese inheritance system-its comprehensive scheme for
adjusting inheritance rights according to the actual support relationship between the decedent
and the claimant.
16.
Paula A. Monopoli, "DeadbeatDads ": Should Support and Inheritance Be
Linked?, 49 U. MIAMI L. REv. 257, 257 (1994).
17.
See Frances H. Foster, Reconsidering the Nuclear Family Paradigm of
American Inheritance Law (1999) (unpublished manuscript) [hereinafter Foster, Nuclear
Family Paradigm].
18.
Although the United States does not recognize a wholesale linkage of support
and inheritance, several recent statutes, especially those modeled on the 1990 Uniform
Probate Code, tie inheritance rights to support in one case. They bar a parent who refused
to perform legal support duties toward a child from inheriting from that child. See, e.g.,
MONT. CODE ANN. 72-2-124(3) (1998) (adopting U.P.C. provision that "Inheritance from
or through a child by either natural parent or the parent's kindred is precluded unless the
natural parent has openly treated the child as the parent's and has not refused to support the
child."); OHIO REv. CODE ANN. 2105.10 (Anderson 1998) (prohibiting inheritance by "a
parent of a minor [who] failed without justifiable cause to communicate with the minor, care
for him, and provide for his maintenance or support as required by law or judicial decree for
a period of at least one year immediately prior to the date of the death of the minor"). A few
1204
succession, testate succession, and contracts to devise is to undermine, not

promote, support.' 9
In Part H,this Article examines U.S. scholars' responses to the support

flaws of the American inheritance system. It argues that for decades
reformers have looked principally to foreign models for answers and
inspiration. Part II shows that this examination of foreign experience has
generated considerable debate in our own country over whether the United
States should retain fixed rules of inheritance or adopt more flexible,
discretionary schemes offered by other countries.
In 1986, Professor Mary Ann Glendon effectively ended this debate with
her influential article Fixed Rules and Discretion in ContemporaryFamily

Law and Succession Law.20 Drawing on her combined expertise in
comparative law, family law, and inheritance law, Professor Glendon
presented a devastating critique of "well-intentioned" proposals to introduce
foreign discretionary distribution approaches into U.S. inheritance law.2' She
argued that "under American conditions, 22 fixed rules of inheritance are
essential to limit litigation, depletion of estates, uncertainty, and judicial
intrusions on testamentary intent.23 The leading scholars in the field have
joined in her assessment to the point that today the overwhelming "weight of
opinion in this country opposes ' 24 adoption of a more flexible foreign
model.25
In Parts II and IV, this Article seeks to reopen debate by offering a
different perspective on fixed rules. In the past, scholars have debated the
statutes also prohibit inheritance by spouses who refused to perform support duties. See, e.g.,
20 PA. CONS. STAT. ANN. 2106(a) (West 1999) (denying "spouse who, for one year or
upwards previous to the death of the other spouse, has willfully neglected or refused to
perform the duty to support the other spouse" any "right or interest" in other spouse's estate).
19.
See Foster, Nuclear Family Paradigm,supra note 17, at pt. I.
20.
See Mary Ann Glendon, Fixed Rules and Discretion in ContemporaryFamily
Law and Succession Law, 60 TUL. L. REv. 1165 (1986) [hereinafter Glendon, Fixed Rules
and Discretion].
21.
See id. at 1186.
22.
Id.
23.
See id. at 1186-91.
24.
JESSE DumEmINm & STANLEY M. JOHANSON, WILLS, TRUSTS, AND ESTATES
481
(5th ed. 1995).

25.
See infra notes 79-90 and accompanying text (discussing leading American
scholars' arguments in favor of a fixed rules rather than discretionary approach). Interestingly,
many of the very scholars who insist on fixed rules in the support context favor discretionary
schemes in the case of will execution defects. See, e.g., Glendon, Fixed Rules and Discretion,
supra note 20, at 1185-94 (opposing discretionary schemes in family protection context but
favoring expanded judicial discretion inwill execution cases). Compare Langbein, Excusing
Harmless Errors,supra note 14, at I (advocating discretionary "dispensing power" to permit
probate courts to excuse harmless errors in will execution), with John H. Langbein &
Lawrence W. Waggoner, Redesigning the Spouse's ForcedShare, 22 REAL PROP., PROB. &
TR. J. 303, 314 (1987) (opposing judicial discretion as a "terrible price" to pay for family
protection).
1999:1199
1205
merits of the current system and potential reforms largely on an abstract level.
They have stressed the impact of fixed rules on, for example, the U.S. judicial
system, estate planning, transmissibility of property titles, donative freedom,
family stability and responsibility, and general notions of fairness.2 6 This
Article hopes to redirect.future debate to a more concrete level-to consider
the impact of fixed rules on people."
Proponents of the existing U.S. inheritance scheme have used foreign
models to make the case for fixed rules.28 In Parts Ill and IV, this Article
uses a foreign model to show the other side of fixed rules. Through the lens
of the Chinese inheritance experience, it seeks to bring into focus the human
costs of the American approach.
Accordingly, this Article emphasizes the context of Chinese inheritance
law-the impact in China of abstract rules on people--and its contrasts with
U.S. practice. The Article bases its examination of China's model on analysis
of over one hundred recent P.R.C. inheritance cases published in Chineselanguage case collections. These cases are not "official" as an American
would understand the term. China does not publish U.S.-style case reporters
or even formally recognize judicial precedent. 29 The cases appear in edited
26.
See infra notes 58-90 and accompanying text (discussing scholarly debate over
adoption of foreign inheritance approaches).
27.
This Article is by no means the first to call attention to the human impact of
abstract legal rules. See, e.g., D. KELLY WEISBERG & SUSAN FRELICH APPLETON, MODERN
FAMILY LAW: CASES AND MATERIALS at xxxvi (1998) (emphasizing that "[t]he law affects
individuals' lives in profound ways that legal abstractions cannot capture"); Toni M. Massaro,
Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds?, 87 MICH. L.
REv. 2099, 2105 (1989) ("Academics, judges, and lawyers often juggle concepts and spar
with abstractions, without consulting the human concerns actually at issue in their
deliberations."). In the U.S. legal literature, many authors, including prominent feminist, gay
and lesbian, and critical race scholars, have sought to convey the effect of law on people
through the use of narratives. For a sampling of the literature, see, for example, LAW STORIES
(Gary Bellow & Martha Minow eds., 1996); Kathryn Abrams, Hearing the Call ofStories,
79 CAL. L. REv. 971 (1991); Jane B. Baron, Essay: Intention, Interpretation,and Stories, 42
DUKE L.J. 630 (1992); Marc A. Fajer, Can Two Real Men Eat Quiche Together? Storytelling,
Gender-Role Stereotypes, and Legal Protectionfor Lesbians and Gay Men, 46 U. MIAMI L.
REv. 511 (1992); and Symposium, Legal Storytelling, 87 MICH. L. REV. 2073 (1989).
28.
For example, Professor Glendon made English family maintenance legislation
and practice the centerpiece of her critique of proposals to replace fixed rules with a more
discretionary inheritance scheme. See Glendon, Fixed Rules and Discretion,supra note 20,
at 1186-89. Describing the "English experience with discretionary distribution" as
"instructive," id. at 1186, she wrote:
The whole camel [discretion] was now inside the tent with a gleeful crowd of
lawyers tending to its needs. Thus, with the passage of time, English family
provision legislation has ceased to be merely a way to provide maintenance for
needy spouses and dependent children. It now serves as a charter that allows
judges to devise a substantially new estate plan for the deceased in a courtroom
setting with a potentially large and colorful cast of characters as petitioners.
Id. at 1188.
29.
See generally RONALD C. BROWN, UNDERSTANDING CHINESE COURTS AND
1206
and occasionally rewritten format with accompanying analytical discussion

by Chinese judges and scholars. 30 Nonetheless, as P.R.C. officials and31
commentators themselves stress, these cases "perform important functions.'
They provide domestic and foreign audiences alike with insights into China's
evolving inheritance system and guidance on application of "abstract,
theoretical statutory provisions" to concrete human situations.32
For the American reader, these cases at first glance seem distinctively
Chinese and irrelevant to our own country. Wi'th their incantations of
Confucian and socialist norms, 33 their battles over property often of minimal
value 34-the family television set, 35 one room of a house, 36 a cabinet 3 7LEGAL PROCESS: LAW WITH CHINESE CHARACTERISTICS 70-83 (1997) (discussing status and
publication of P.R.C. judicial decisions); Nanping Liu, "Legal Precedents" with Chinese
Characteristics:Published Cases in the Gazette of the Supreme People's Court, 5 J. CHINESE
L. 107 (1991) (discussing Chinese approaches to judicial precedent). Some scholars have
argued that China may be moving toward greater recognition of precedent, however. See
Susan Finder, The Supreme People's Court of the People's Republic of China, 7 J. CHINESE
L. 145, 216 (1993) ("[T]he Chinese judicial system is in a transition period from complete
reliance on statute law to a mixed system of statute and case law."); Foster, Behavior-Based
Model, supra note 15, at 83 n.26 ("This new emphasis on publication and distribution of
cases may ultimately signal a decisive change in overall Chinese treatment of precedent.").
30.
See Finder, supra note 29, at 215-16 (discussing editing and rewriting of cases);
Foster, Behavior-Based Model, supra note 15, at 83 nn.22-23 and accompanying text
(discussing P.R.C. case format and analytical commentary); Liu, supra note 29, at 118-19
(discussing editing and rewriting of cases).
31.
See Introduction to '95 SHANGHAI FAYUAN ZUI XIN ANLI JINGXUAN ['95
SELECTION OF THE SHANGHAI COURTS' LATEST CASES] 1 (Li Guoguang et al. eds., 1995)
("[Clases perform important functions in real life.").
32.
Id. at 1-2 (discussing how compilation and publication of cases provide
guidance to Chinese "cadres," "judicial personnel," common people, and scholars and
"transform abstract, theoretical statutory provisions into concrete behavioral norms"); see
Foster, Behavior-BasedModel, supra note 15, at 83-84 (discussing value of cases to foreign
and domestic audiences). The "letter of Chinese law," William P. Alford, "Seek Truth From
Facts"-EspeciallyWhen They Are Unpleasant:America's Understandingof China'sEfforts
at Law Reform, 8 UCLA PAC. BASIN L.J. 177, 186 (1990) (criticizing Western commentators
for being "far too concerned with the letter of Chinese law"), often fails to "depict reality."
See Stanley B. Lubman, Introduction to DOMESTIC LAW REFORMS INPOST-MAO CHINA 3, 14
(Pitman B. Potter ed., 1994) (criticizing "some American lawyers and law professors who
have been so enthusiastic about the program for reform that they have taken it to depict
reality"). Thus, it is important for the foreign observer to "look[ ] beyond the text of China's
Inheritance Law to consider how courts have applied this statute in practice." Foster,
Behavior-Based Model, supra note 15, at 82 n. 19.
33.
See, e.g., CIVIL AND COMMERCIAL LAW PRACTICE, supra note 12, at 105:
Supporting and respecting the elderly, cherishing and raising the young, and
caring for and assisting the ill and disabled is a traditional virtue that the Chinese
people developed over a long period of time. This is completely suited to the
basic demands of our country's socialist legal system and socialist moral norms.
34.
This situation is changing, however. Due to recent economic reforms, Chinese
citizens increasingly are accumulating substantial estates that include both tangible and
intangible property assets. For discussion and examples, see Foster, Behavior-BasedModel,
supra note 15, at 118, 121-22.
1999:1199
Linking Support andInheritance
1207
Chinese inheritance disputes appear far removed from the American context.
Yet, as Part V of the Article concludes, their stories of human need and desert
ultimately transcend national, cultural, and economic differences. The
Chinese cases bring immediacy to the inheritance debate in our own country
by highlighting the inequities of the American system on an individual level
and the need for a more flexible, responsive approach to inheritance.
UI. THE INFLUENCE OF FOREIGN MODELS ON U.S. INHERITANCE REFORM
In theory, the U.S. inheritance system already performs a vital social

welfare function. It supposedly "encourag[es] those who can to make
provision ... for those who are or may be dependents."38 Yet, in practice,
U.S. inheritance law fails to provide adequate protection for even the
decedent's closest family members. 39 American schemes of intestate
succession, testate succession, and contracts to devise effectively undermine
rather than promote support.4
35.
See infra text accompanying notes 204-09 (discussing dispute over ownership
of decedent's television set).
36.
See infra note 110 (discussing case involving sister's right to live in one room
of a house).
37.
See infra note 362 (discussing case involving theft of decedent's cabinet).
38.
Edward C. Halbach, Jr., An Introduction to Chapters1-4, in DEATH, TAXES AND
FAMILY PROPERTY 3, 5 (Edward C. Halbach, Jr. ed., 1977); see also MARVIN B. SUssMAN ET
AL., THE FAMILY AND INHERITANCE 312 (1970) (arguing that one purpose of inheritance is
"meeting the maintenance needs of family members"); Mary Louise Fellows et al., Public
Attitudes About PropertyDistributionat Death and Intestate Succession Laws in the United
States, 1978 AM. B. FOUND. RES. J. 319, 324 (1978) [hereinafter Fellows et al., Public
Attitudes] (stating intestate succession rules help "protect the financially dependent family").
39.
See Foster, Nuclear Family Paradigm,supra note 17, at pt. I. One early critic
of the American inheritance system expressed this point dramatically in the title of an article:
"The Right of a Testator to Pauperize His Helpless Dependents." Herbert D. Laube, The
Right of a Testator to Pauperize His Helpless Dependents, 13 CORNELL L.Q. 559 (1928). The
failure of the American inheritance system to protect decedents' minor children has attracted
particular scholarly attention. For a sampling of the literature, see Deborah A. Batts, IDidn 't
Ask to Be Born: The American Law of Disinheritanceand a Proposalfor Change to a System
of ProtectedInheritance,41 HASTINGS L.J. 1197 (1990); Ralph C. Brashier, Disinheritance
and the Modern Family, 45 CASE W. RES. L. REv. 83 (1994) [hereinafter Brashier,
Disinheritanceand the Modern Family]; Ronald Chester, Disinheritanceand the American
Child: An Alternativefrom British Columbia, 1998 UTAH L. REv. 1; Edmond N. Cahn,
Restraints on Disinheritance,85 U. PA. L. Rnv. 139 (1936); and Paul G. Haskell, The Power
of Disinheritance:Proposalfor Reform, 52 GEO. L.J. 499 (1964).
40.
For broad systemic analyses of how American inheritance law disserves
support, see Foster, Nuclear Family Paradigm,supra note 17, at pt. I, and John T. Gaubatz,
Notes Toward a Truly Modern Wills Act, 31 U. MIAMI L. REv. 497 (1977). Thus far, most
critiques of the support flaws of the U.S. inheritance system have addressed only one possible
support relationship between the decedent and the claimant: where the decedent supported
(or should have supported) the claimant.
A vast literature has focused on how U.S.
inheritance law fails to ensure continued protection of the decedent's dependents. The
authors' principal debate is over the optimal design and scope of such protection. Some
1208
In response to these flaws of the U.S. inheritance system, leading

American scholars and reformers have looked abroad for answers. 4' For
proposals focus exclusively on improving support of nuclear family members, while others
call for more extensive reforms to cover blended, extended, and nonmarital "family" members
as well. For example, in response to perceived flaws in U.S. treatment of testamentary
capacity, some scholars have proposed reforms to protect nuclear family members only. See,
e.g., Mary Louise Fellows, The Case Against Living Probate,78 MICH. L. REv. 1066, 1110-
11 & n. 174 (1980) (advocating statutory share for surviving spouse and minor children only
and explicitly rejecting scheme that "permits persons who show financial dependency upon
the testator to claim a share of the estate"). Other authors, however, have focused instead on
the need to protect the rights of nonrelatives, arguing that current mental capacity doctrines
amount to a "forced heirship" scheme that effectively allows courts to overturn wills that
disfavor the testator's closest family members. See Ray D. Madoff, Unmasking Undue
Influence, 81 MINN. L. REV. 571, 611 (1997) (claiming the "impact of the undue influence
doctrine is to act as a form of forced heirship"); see also Melanie B. Leslie, The Myth of
Testamentary Freedom, 38 ARIz. L. REv. 235 (1996); E. Gary Spitko, Gone But Not
Conforming: Protectingthe Abhorrent Testatorfrom MajoritarianCulturalNorms Through
Minority-CultureArbitration,49 CASEW. RES. L. REV. 275 (1999).
Generally overlooked in the literature is the U.S. inheritance system's failure to

promote an equally important support relationship: where the claimant supported (or should
have supported) the decedent during life. The authors who have identified this problem have
concentrated primarily on the unworthy heir situation. In particular, they have criticized
existing rules that allow a parent who abandoned, abused, or failed to support a child to
inherit from that child. See, e.g., Monopoli, supra note 16; Robin L. Preble, Family Violence
and Family Property: A Proposalfor Reform, 13 LAW & INEQ. J. 401 (1995); Alison M.
Stemler, Note, Parents Who Abandon orFail to Support Their Children and Apportionment
of Wrongful DeathDamages, 27 J. FAM. L. 871 (1989). Only a few scholars have called for
inheritance reforms to recognize the "worthy" claimant who supported the decedent during
life. See, e.g., Foster, Behavior-BasedModel, supra note 15; Gaubatz, supra, at 511-12, 562-
63 (discussing need to "provid[e] for the meritorious" and including in reform proposal
recognition of "aid furnished by the claimant during the decedent's life"); Anne-Marie E.
Rhodes, Abandoning ParentsUnder Intestacy: Where We Are, Where We Need to Go, 27
L. REV. 517 (1994) (discussing approaches for rewarding "caring parent" of the decedent
as well as penalizing "abandoning parent" of the decedent); Trent J. Thornley, Note, The
IND.
CaringInfluence: Beyond Autonomy as the Foundationof Undue Influence, 71 IND. L.J. 513
(1996) (proposing a new "care-sensitive" standard of undue influence to promote inheritance

by claimant who was in a "caring relationship" with the decedent).
41.
This turn to foreign models is not surprising. Many of the leading U.S. authors
in the inheritance field have been prominent comparative law scholars as well. Two scholars
with such combined expertise, Mary Ann Glendon and John Langbein, have been particularly
influential in introducing foreign models into the U.S. inheritance debate. See, e.g., MARY
ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE
238-50 (1989) [hereinafter GLENDON,

treatment of surviving spouse in inheritance
laws of England, the United States, France, and West Germany); Glendon, Fixed Rules and
Discretion, supra note 20 (criticizing British Commonwealth discretionary family
maintenance reforms as fundamentally incompatible with the U.S. system's emphasis on fixed
rules); Langbein, ExcusingHarmless Errors,supra note 14 (proposing "harmless error rule"
to excuse will execution defects, based on probate reforms in South Australia); John H.
Langbein, Living Probate: The ConservatorshipModel, 77 MICH. L. REv. 63, 64-66 (1978)
(explaining why testamentary incapacity litigation occurs more frequently in the United States
than in Europe or in England); Langbein & Waggoner, supra note 25, at 304-05, 314-15
UNITED STATES AND WESTERN EUROPE
TRANSFORMATION OF FAMILY LAW] (comparing
1999:1199
1209
decades, they have explored the merits of a wide variety of foreign models,
including those offered by British Commonwealth, 42 civil law, 43 and
Scandinavian countries. 44 Foreign models have consistently framed the terms
of the U.S. debate and provided the principal inspiration for reform proposals
both yesterday45 and today."
(discussing foreign forced share and testator's family maintenance schemes).
The influence of foreign models on U.S. inheritance reform is by no means limited to
the support context. For example, drafters of the Uniform Probate Code acknowledge that
foreign experience was the direct inspiration for provisions on uniform succession and will
execution. See PrefatoryNote to UNIF. PROBATE CODE 3-312 (1998) (stating "[t]he concept
of succession without administration is drawn from the civil law and is a variation of the
method which is followed largely on the Continent in Europe, in Louisiana and in Quebec");
Comment to UNiF. PROBATE CODE 2-503 (1998) (reporting that new "dispensing power"
provision "accords with legislation in force in the Canadian province of Manitoba and in
several Australian jurisdictions" and citing practical experience with "dispensing power" in
South Australia and Israel).
42.
For extended discussions of British Commonwealth reforms, see, for example,
R. J. DAVERN
WRIGHT, TESTATOR'S FAMILY MAINTENANCE IN AUSTRALIA AND NEW ZEALAND
(3d ed. 1974); Joseph Dainow, Restricted Testation in New Zealand,Australia and Canada,
36 MICH. L. REv. 1107 (1938) [hereinafter Dainow, Restricted Testation]; Joseph Laufer,
Flexible Restraints on TestamentaryFreedom-A Report on Decedents' Family Maintenance
Legislation,69 HARv. L. REV. 277 (1955); Suman Naresh, Dependants'ApplicationsUnder
the Inheritance (Provisionfor Family and Dependents) Act 1975, 96 LAW Q. REV. 534
(1980); and Richard Schaul-Yoder, Note, British Inheritance Legislation: Discretionary
Distributionat Death, 8 B.C. INT'L & COMP. L. REV. 205 (1985). See also sources cited infra
notes 48, 52-56, 69-90, 93.
43.
For extended discussions of civil law schemes, see, for example, GLENDON,
TRANSFORMATION OF FAMILY LAW, supra note 41, at 246-49; Michael McAuley, Forced
HeirshipRedux: A Review of Common Approaches and Values in Civil Law Jurisdictions,
43 Loy. L. REV. 53 (1997); and George A. Pelletier, Jr. & Michael Roy Sonnenreich, A
Comparative Analysis of Civil Law Succession, II VILL. L. REV. 323 (1966). See also
sources cited infra notes 47, 50-51, 58-68.
44.
See, e.g., Batts, supra note 39, at 1211-12 (discussing schemes in Finland and
Sweden). For a recent summary of European inheritance laws, see EUROPEAN SUCCESSION
LAWS (David Hayton ed., 1998). Some U.S. commentators have considered socialist
inheritance schemes as well. See, e.g., Mark L. Ascher, CurtailingInherited Wealth, 89
MICH. L. REV. 69, 114-15 (1990) (discussing failed Soviet experiment to abolish inheritance
and concluding it is irrelevant to reform efforts in the United States); Foster, Behavior-Based
Model, supra note 15 (discussing Chinese approach); Gaubatz, supra note 40, at 559 n.251
(citing post-Revolution Russian scheme).
45.
See, e.g., W.D. MACDONALD, FRAUD ON THE WIDOW'S SHARE 301-27 (1960)
(proposing Model Decedent's Family Maintenance Act based on English model); FOURTH
REPORT OF THE TEMPORARY STATE COMMISSION ON THE MODERNIZATION, REVISION AND
N.Y. LEGIS. DOC. No. 19 (1965) (considering

legislation to protect dependent children based on English model); Haskell, supra note 39
(proposing modified version of civil law forced share approach).
46.
See, e.g., Batts, supra note 39 (proposing "protected inheritance" for children,
a modified version of forced heirship scheme); Chester, supra note 39 (proposing reform
based on British Columbia scheme); Jan Ellen Rein, A More Rational System for the
Protection of Family Members Against Disinheritance: A Critique of Washington's
PretermittedChild Statute and Other Matters, 15 GONZ. L. REV. 11 (1979) [hereinafter Rein,
SIMPLIFICATION OF THE LAW OF ESTATES,
1210
Two approaches have attracted particular scholarly attention: forced

heirship provisions for the decedent's children 47 and family maintenance
schemes for equitable redistribution of estates to the decedent's dependents.48
These foreign models 49 offer radically different responses to the support
defects of American inheritance law. The forced heirship scheme sets aside
fixed, statutorily prescribed portions of the decedent's estate for specified
family members, most commonly the decedent's children and descendants of

Protectionof Family Members] (proposing reforms based on New Zealand's model).
As one U.S. commentator has noted, "[m]ost of the civilized countries in the
47.
world provide direct protection from disinheritance to children of a testator." Brashier,
Disinheritanceand the Modern Family, supra note 39, at 117 n. I 1. Statutory "forced
heirship" provisions have existed at least since the Roman Empire and even once were a
feature of English inheritance law. See R.H. Helmholz, Legitim in English Legal History,
1984 U. ILL. L. Rev. 659. They currently appear in the legislation of most Scandinavian and
civil law countries. For a list of countries with forced share protection for children, see Ralph
C. Brashier, Protectingthe Child From Disinheritance: Must Louisiana Stand Alone?, 57
LA. L. REv. 1,1n.3 (1996) [hereinafter Brashier, Protectingthe Child From Disinheritance].
Historically, several U.S. states, most notably Louisiana, Texas, and New Mexico, adopted
forced heirship provisions modeled after the French and Spanish schemes. See generally
Joseph Dainow, The Early Sources of ForcedHeirship; Its History in Texas and Louisiana,
4 LA. L. REv. 42 (1941); Joseph W. McKnight, Spanish Legitim in the United States-Its
Survival and Decline, 44 Am.J. COMP. L. 75 (1996). At present, only Louisiana retains
forced share provisions for children. Louisiana recently curtailed these legitime protections
for children, however, and expanded parental rights to disinherit children. For extended
discussion of these changes, see generally Cynthia Samuel, Letter from Louisiana: An
Obituaryfor ForcedHeirship and a Birth Announcement for Covenant Marriage,12 TUL.
EUR. & Civ. L.F. 183 (1997); Katherine Shaw Spaht, Forced Heirship Changes: The
Regrettable "Revolution" Completed, 57 LA. L. REv. 55 (1996); and Kerry J. Miller,
Comment, The New Forced Heirship Law, Its Implementing Legislation, and Major
Substantive Policy Changes of the Louisiana State Law Institute's ProposedComprehensive
Revision of the Successions and DonationsLaws, 71 TUL. L. REv. 223 (1996).
48.
The family maintenance approach originated in New Zealand in 1900. The
Family Protection Act, 1900, N.Z. STAT. 64, VICT. No. 20, as amended by N.Z. STAT. 11
GEO. 6, No. 60 15, as amended by the Family Protection Act, 1955, No. 88 (N.Z.). Since
that time, all Australian jurisdictions, England, and most Canadian provinces have adopted
variants of the New Zealand scheme. See, e.g., South Australia's Inheritance (Family
Provision) Act, 1972-75 (No. 32 of 1972, as amended by Inheritance (Family Provision) Act
Amendment Act, 1975, No. 91 of 1975 (repealingTestator's Family Maintenance Act, 1918,
and Testator's Family Maintenance Act, 1943)); Inheritance (Provisions for Family and
Dependents) Act, 1975, ch. 63 (Eng.); Wills Variation Act, R.S.B.C., ch. 435 (1979) (Can.).
49.
Significant variations exist within both models. For example, some forced
heirship schemes apply only to the decedent's children and descendants of predeceased
children while others extend protection to the decedent's spouse as well. Compare EUROPEAN
SUCCESSION LAWS, supra note 44, at 258 (discussing the Netherlands' scheme), with id. at
138-39 (summarizing Denmark's scheme). A detailed analysis of individual forced heirship
and family maintenance schemes is well beyond the scope of this Article. For comparative
discussions of such schemes, see, for example, Batts, supra note 39 (describing different
versions of forced heirship and family maintenance models); Brashier, Disinheritanceand the
Modern Family, supra note 39 (comparing various civil law and family maintenance
schemes); and Dainow, Restricted Testation, supra note 42 (discussing family maintenance
reforms in New Zealand, Australia, and Canada).
1999:1199
1211
deceased children. 50 Forced heirship awards these shares exclusively on the

basis of family status without adjustment for differences in claimants' ages,
health, or financial or other circumstances.5' The family maintenance model,
in contrast, provides a flexible judicial mechanism to address individual
support needs of the decedent's dependents. It authorizes the court, upon52
petition by a qualifying applicant (usually the decedent's spouse or child),
to depart from the decedent's will 53 and distribute the estate in a manner the
court deems
appropriate for adequate maintenance and support of the
54
applicant.
The forced heirship and family maintenance models have been the
subject of extensive empirical research, 55 close comparative analysis, 5 6 and
50.
See, e.g., EUROPEAN SUCCESSION LAWS, supranote 44, at 258 (summarizing the
Netherlands' "statutory portion" approach). Some forced heirship statutes also reserve shares
for the decedent's spouse and/or parents. See, e.g., McAuley, supra note 43, at 64 (discussing
forced share protections for spouses in Germany and Liechtenstein); EUROPEAN SUCCESSION
LAWS, supra note 44, at 222-23 (summarizing Greece's forced heirship protections for the
decedent's surviving spouse, children, issue of deceased children, and parents). Many U.S.
commentators have opposed forced shares for ascendants as "archaic and outmoded" given
the current protections of social security, Medicare, and other welfare protections. Max
Nathan, Jr., An Assault on the Citadel: A Rejection of Forced Heirship, 52 TUL. L. REv. 5,
16 (1977); Thomas B. Lemann, In Defense of Forced Heirship, 52 TUL. L. REv. 20, 26
(1977).
51.
Indeed, one of the most controversial aspects of the new Louisiana forced
heirship legislation is that it "abandon[ed] the definition of heir as a category of family
members and ...substitute[d] that of needy or dependant family members ....
" Katherine
Connell-Thouez, The New Forced Heirship in Louisiana: Historical Perspectives,
ComparativeLaw Analyses and Reflections upon the Integration of New Structures into a
ClassicalCivil Law System, 43 Loy. L. REv. 1, 13 (1997).
52.
A few statutes extend protection to the decedent's parents in limited cases. See
Rein, Protection of FamilyMembers, supra note 46, at 48 (discussing New Zealand Family
Protection Act 3(e)). England's 1975 amended legislation goes still further to allow claims
by the decedent's former spouse (if not remarried), any person treated "as a child of the
family" by the decedent, and any person maintained by the decedent immediately prior to the
decedent's death. Inheritance (Provisions for Family and Dependents) Act, 1975, ch. l(1)(b),
(d), (e) (Eng.).
53.
Some statutes allow courts to depart from intestate succession rules as well as
will dispositions. See, e.g., Carole 0. Davis, A Recommendationfor Family Maintenance in
the United States: A Comparative Study of Canadian and American Provisionsfor Support
of Dependents, 2 CAN.-AM. L.J. 151, 170 (1984) (discussing Canadian approaches); Rein,
Protection of Family Members, supra note 46, at 48 (summarizing New Zealand scheme).
54.
See, e.g., Chester, supra note 39, at 8 (stating that British Columbia's Will
Variation Act "allows British Columbia's trial court of general jurisdiction, upon application
by a child or spouse of the deceased, to vary the will to provide the applicant with 'provision
that it thinks adequate, just and equitable' for the 'proper maintenance and support' of the
testator's spouse or children") (citing Wills Variation Act 2 (1)).
55.
See, e.g., Olin L. Browder, Jr., Recent Patterns of Testate Succession in the
United States and England,67 MICH. L. REv. 1303 (1969); Chester, supra note 39 (British
Columbia); Helene S. Shapo, "A Tale of Two Systems": Anglo-American Problems in the
Modernization of Inheritance Legislation, 60 TENN. L. REv. 707 (1993). For general
discussion of empirical research methods in the inheritance law context, see Monica K.
1212
often "acrimonious debate ' 57 among U.S. scholars and reformers. For its
staunchest supporters, forced heirship is nothing less than the "cure"58 for a
disintegrating American family unit and family values. It "helps preserve and
strengthen the family by reminding parents of their societal responsibilities
and by binding family members together throughout life and beyond."5 9 For
other commentators, forced heirship offers a promising response to the plight
of the disinherited child, which has commanded intense concern and scrutiny
in the U.S. literature. 0 These commentators argue that forced heirship
ensures that all children-irrespective of status-are protected from parental
disinheritance 61 at minimal procedural or administrative cost.62 In so doing,
Johnson & Jennifer K. Robbennolt, Using Social Science to Inform the Law ofIntestacy.: The
Case of Unmarried Committed Partners,22 LAW & HUM. BEHAV. 479 (1998). For an
example of a recent empirical study of U.S. inheritance law, see Mary Louise Fellows et al.,
Committed Partners and Inheritance: An Empirical Study, 16 LAW & INEQ. J. 1 (1998)
[hereinafter Fellows et al., Committed Partners].
56.
See, e.g., Batts, supra note 39 (comparing U.S., civil law, Scandinavian, and
commonwealth approaches); Brashier, Disinheritanceand the Modern Family, supra note
39 (comparing U.S., civil law, and commonwealth approaches); Chester, supra note 39
(comparing U.S. and British Columbia approaches); Davis, supra note 53 (comparing
Canadian and American support approaches); Leslie, supra note 40 (comparing South
Australian and U.S. schemes); Shapo, supra note 55 (comparing U.S. and English inheritance
reforms).
57.
See Brashier, Disinheritanceand the Modern Family, supra note 39, at 171
(referring to forced heirship debate in Louisiana).
58.
See Chester, supra note 39, at 26 (citing Michael McAuley, Common
Approaches and Values in Civil Law Jurisdictions:Forced HeirshipPolicies Viewed and
Reviewed 3, 5 (Jan. 31, 1997) (unpublished manuscript)).
59.
Spaht, supra note 47, at 58; see also Connell-Thouez, supra note 51, at 41
(arguing that Louisiana's reduction of legitime protections was "a discordant development
in a society which pretends to support the family and to promote family values"); Cynthia A.
Samuel et al., What Has Become of ForcedHeirship?,45 LA. L. REv. 575, 592-93 (1984)
[hereinafter Samuel et al., Forced Heirship] (arguing forced heirship promotes "family
bonding").
60.
For a sampling of such sources, see supra note 39. Many of the commentators
who view forced heirship as a promising remedy for parental disinheritance of children have
ultimately concluded, however, that the model requires substantial modification to fit U.S.
conditions. See, e.g., Batts, supra note 39, at 1254 (claiming forced heirship model as
currently constituted is "inappropriate" to the U.S. environment and proposing modified
"protected inheritance" scheme). These scholars have focused in particular on the failure of
forced heirship to address actual needs of surviving dependents. See infra notes 65-67 and
accompanying text.
61.
See Brashier, Protectingthe Childfrom Disinheritance,supra note 47, at 21
(stating that "such measures.., would provide protection to all minor children, regardless
of status"). Some scholars also applaud forced heirship schemes that protect parents as well
as children from disinheritance. See, e.g., Haskell, supra note 39, at 518 ("The system of
forced heirship goes a long way in the protection of the children and parents of the
decedent.").
62.
Scholars stress the administrative convenience of forced heirship. They claim
that a scheme that automatically reserves a fixed fraction of the estate for specified family
members is "easy to administer" and entails minimal judicial discretion or procedural costs.
1999:1199
1213
they contend, forced heirship can provide much-needed relief to an

"overburdened welfare system" by placing principal responsibility for support
of children on parents rather than the taxpayers.63

Opponents, in contrast, view forced heirship as theoretically and
practically unsound. They argue that this model conflicts with a fundamental
tenet of American inheritance law: freedom of testation.64 To compound the
problem, they contend, forced heirship is so inflexible that it fails to achieve
its support objectives. 65 Forced heirship's scheme of arbitrary, "fickle
fractions"' 66 does not recognize let alone address differing individual needs
among the decedent's surviving dependents.67 Some critics even claim that
the forced heirship model may actually undermine the family unit it is
supposed to promote.
They argue that by preventing "altruistic"
disinheritance of children by parents, this approach may ultimately "rui[n]
discipline and discourag[e] initiative and ambition. 6 8
The family maintenance model has generated an even more heated
debate among U.S. scholars. Proponents laud the model's flexibility, which
See, e.g., Brashier, Disinheritance and the Modern Family, supra note 39, at 171 (arguing
legitime approach is "easy to administer," involves "minimal" "procedural cost . . . to the
estate," and "little or no judicial discretion in application").
63.
See Brashier, Protecting the Child from Disinheritance, supra note 47, at 21-22
(arguing forced heirship relieves an "overburdened welfare system ... [by] reduc[ing] the
amounts citizens have to pay for children created by others-children whose support should
rightfully be provided first and to the extent possible by their parents"); Samuel et al., Forced
Heirship, supra note 59, at 593 (arguing forced heirship "makes it more likely that the
financial needs of the child, regardless of his age or condition, will be satisfied to some extent
by the individual with primary responsibility for him" rather than the State and "ultimately
... the taxpayers").
64.
See, e.g., Nathan, supra note 50, at 6 (favoring freedom of testation rather than
forced heirship); Brashier, Protectingthe Childfrom Disinheritance,supranote 47, at 17-21
(discussing and criticizing freedom of testation argument).
65.
See MACDONALD, supra note 45, at 279, 287 (rejecting civil law forced heirship
approach as "too mechanical" and "too inflexible"); Edwin M. Epstein, Testamentary
Capacity,Reasonablenessand Family Maintenance:A ProposalforMeaningful Reform, 35
TEMPLE L.Q. 231, 250 (1962) (stating that forced heirship's "built-in inflexibility leaves much
to be desired").
66.
See Gerald Le Van, Alternatives to ForcedHeirship, 52 TUL. L. REv. 29, 45
(1977).
67.
See, e.g., Batts, supra note 39, at 1253 (rejecting forced heirship model for a
modified "protected inheritance" scheme that "recognizes and addresses the fact that there
may be differences in need among lineal descendants of a testator"); Haskell, supra note 39,
at 518 (arguing forced heirship does not "relat[e] to the need of the surviving dependent");
Brashier, Disinheritanceand the Modern Family, supra note 39, at 171-72 (claiming legitime
approach is "plagued by [an] ill-suited response to need .... It is an arbitrary award which
cannot take into account the actual need of the disinherited child.").
68.
Nathan, supra note 50, at 15; see also Brashier, Protecting the Child From
Disinheritance,supra note 47, at 7-8 (discussing altruistic disinheritance arguments). For a
review of possible arguments against forced heirship, see generally id. at 7-25; Haskell, supra
note 39, at 518; and Lemann, supra note 50, at 24-27.
1214
they claim allows estate distribution to be "tailored to individual need ' 69 and
"evolving lifestyles."7 They also cite the "strong ethical appeal ' 7' of the
family maintenance model. They praise this approach for exalting the moral
principle that familial responsibility does not terminate at death.7 They stress
that the model addresses ethical issues on an individual level as well. The
family maintenance model authorizes courts to evaluate on a case-by-case
basis the morality of both the decedent's dispositive scheme and the claims
of survivors.73 Proponents argue that by promoting private support of
dependents the model not only provides moral guidance but also performs a
vital social welfare function.74 They conclude that the family maintenance
model offers the optimal mechanism to secure meaningful protection of
family members with the least intrusion on freedom of testation.75 Unlike the
alternative foreign and U.S. entitlement-based systems,76 they argue, the
family maintenance scheme "does not apply automatically 7 7 but rather comes
into play only upon petition by qualifying "aggrieved claimants. 7 8
For critics of the family maintenance model, judicial discretion is a
"terrible price" 79 to pay for improved support of dependents. They view the
69.
See MACDONALD, supra note 45, at 291.

70.
See Note, Family Maintenance:An InheritanceSchemefor the Living, 8 RUT.CAM. L.J. 673, 686 (1977); see also Laufer, supra note 42, at 313 (arguing family
maintenance legislation "enables the court... openly to explore and adjust a total family
situation ... [and] to deal realistically with the strain and stress of modem family life, its
greater mobility and instability, and the changing status of women").
71.
See Laufer, supra note 42, at 313.
72.
See Joseph Dainow, Limitations on Testamentary Freedom in England, 25
CORNELL L.Q. 337, 357 (1940) (expressing "hope that the American states will not be slow
to follow the English recognition of the principle to continue after a testator's death his
financial responsibilities of marriage and parenthood"); Le Van, supra note 66, at 37 (stating
British Parliament adopted family maintenance model when "majority was finally persuaded
that the financial responsibilities of marriage and parenthood should not terminate at death").
73.
See Rein, Protection of Family Members, supra note 46, at 49 (stating family
maintenance model allows a court to judge "not only the morality of the decedent's
disposition of his estate but also the morality of those who claim the benefit of his largesse");
see also Chester, supra note 39, at 8-14 (discussing British Columbia courts' consideration
of moral as well as legal claims); Epstein, supra note 65, at 252-53 (discussing moral aspects
of judicial decisions under commonwealth model); Laufer, supra note 42, at 304-13
(discussing judicial evaluations of "moral claims" of survivors).
74.
See Cristy G. Lomenzo, A Goal-Based Approach to Drafting Intestacy
Provisionsfor Heirs Other than Surviving Spouses, 46 HASTINGS L.J. 941, 947 (1995)
(asserting model "benefits... the public at large, upon whom the burden of supporting the
dependents would otherwise fall").
75.
See Chester, supra note 39, at 32 (arguing model "may comport better with
America's love of free testation than would entitlement-based systems").
76.
See id.
77.
See Rein, Protection of Family Members, supra note 46, at 50.
78.
See Chester, supra note 39, at 32. For an extended discussion of the merits of
the family maintenance model, see, for example, Epstein, supra note 65, at 256-58; Laufer,
supra note 42, at 312-14; and Rein, Protection of Family Members, supra note 46, at 50-53.
79.
See Langbein & Waggoner, supra note 25, at 314.
1999:1199
1215
model as fundamentally unsuited to the U.S. environment. They claim

adoption of its discretionary scheme would be ill-advised, even
"frightening" 8 given the peculiarities of the U.S. probate system-a system,
they argue, that is comprised of multiple, local probate courts,"' staffed often
by lay judges8 2 chosen on the basis of politics rather than merit.8 3 For
opponents, the costs of a discretionary redistribution scheme are also
unacceptable. They contend it would "promote litigation, 8 4 increase
"information and administrative costs," 85 and "deplete estates. '86 Critics also
argue that the family maintenance model would introduce such complexity
and unpredictability into the U.S. probate process that it would undermine
estate planning and obstruct simple, orderly transfer of property rights.8 7 For
some opponents, the model could even pose a threat to family harmony and
privacy. It would encourage claimants to air "an enormous amount of a
family's dirty laundry"'8 to persuade a judge that the decedent's will
disposition is unjust. Critics reject the model on theoretical as well as
practical grounds. Despite proponents' claims to the contrary, 9 critics
conclude that the model's equitable redistribution scheme runs contrary to
cherished American notions of testamentary freedom. Freedom of testation,
they warn, "withers under the system of testator's family maintenance." 90
Despite decades of intense scrutiny by U.S. scholars, practitioners, and
legislators alike, foreign forced heirship and family maintenance schemes
continue to dominate discussion of how best to address the support defects
of American inheritance law. Louisiana's recent moves to curtail its long-
80.
See id.
81.
See Browder, supra note 55, at 1307 (stressing possible problems in U.S. with
discretionary scheme because of multiple local probate courts).
82.
See DUKEMINIER & JOHANSON, supra note 24, at 482 (stating that "[a]nother
reason for opposition to a family maintenance system is that probate judges in some states do
not have to be trained as lawyers").
83.
See Langbein & Waggoner, supra note 25, at 314.
84.
See Vemer F. Chaffin, A Reappraisalof the Wealth Transmission Process: The
Surviving Spouse, Year's Support and Intestate Succession, 10 GA. L. REv. 447, 462-63
(1976).
85.
See Adam J. Hirsch & William K.S. Wang, A Qualitative Theory of the Dead
Hand, 68 IND. L.J. 1, 12 n.42 (1992).
86.
See Glendon, Fixed Rules and Discretion, supra note 20, at 1191.
87.
See, e.g., DUKEMINIER & JOHANSON, supra note 24, at 481 (stating "uncertainty
would make estate planning much more difficult"); Bats, supra note 39, at 1216 (discussing
uncertainty and resultant adverse impact on "effective estate planning"); Langbein, Excusing
Harmless Errors,supra note 14, at 12 n.42 (arguing testator's family maintenance model
"impedes predictability and reliance, two of the dominant values of property law").
88.
Brashier, Disinheritanceand the Modern Family, supra note 39, at 131; see
Glendon, Fixed Rules and Discretion,supra note 20, at 1191 (arguing family maintenance
scheme "promotes intrafamily litigation").
89.
See supra notes 75-78 and accompanying text.
90.
Brashier, Disinheritanceand the Modern Family, supra note 39, at 131-32.
1216
standing forced heirship protections 9' have only added renewed vigor to the
debate over the forced heirship model.92 The battle over the family
maintenance model also continues. Although this country's most prominent
scholars have pronounced the model dead for U.S. purposes," it remains
alive in the literature.94 Indeed, one recent proponent of the family
maintenance model even issued a direct challenge to the opposition, stating:
"If legislators are unwilling to defy the view of leading academics on these
points, they may be allowing an elitist, unnecessary stance to prevail."9' Thus,
foreign models retain significant influence on U.S. inheritance reform
proposals and will likely continue to have major impact in the future.
Despite their differences in origin and technique, the foreign models
examined thus far in the U.S. literature share a common limitation. They
focus on only one possible support relationship between the decedent and the
potential estate claimant: where the claimant was a dependent of the
decedent.96 Moreover, almost without exception,97 these foreign models
91.
For sources discussing the Louisiana reforms, see supra note 47.
92. For examples of law review symposia devoted to the forced heirship model, see,
for example, Symposium, Forced Heirship in Louisiana, 52 TUL. L. REv. 5 (1977), and
Forced Heirship Symposium, 43 Loy. L. REV. 1 (1997).
93.
See, e.g., GLENDON, TRANSFORMATION OF FAMILY LAW, supra note 41, at 246
(stating that English system "has found no acceptance" inthe United States); Leslie Fields,
Alabama'sElective Share: It's Time to Adopt the PartnershipTheory of Marriage,46 ALA.
L. REV. 797, 809 (1995) ("The authors of the revised elective share realized that the
architecture of TFM [testator's family maintenance] would never be accepted in American
jurisprudence.").
94. See, e.g., Shapo, supra note 55, at 781 (concluding from study of U.S. and
English law and practice that American inheritance law "may require some degree of
flexibility" and "some discretion" to ensure "justice within the family").
95. Chester, supranote 39, at 33.
96. It should be noted, however, that in some cases judicial interpretations of these
models have expanded their coverage to encompass all close family members irrespective of
their dependence on the decedent's support. See Chester, supra note 39, at 8:
Originally, the [British Columbia] statute was designed as a support
mechanism for family members in need. However, by means of various court
decisions, most notably Tataryn v. Tataryn's Estate, the act now essentially
provides an entitlement (though of no fixed amount), which may include lumpsum distributions to any spouse or child, inorder to fulfill the testator's legal and
moral obligations to his or her family.
97.
England's statute provides a notable exception. See supra note 48 (discussing
1975 English Inheritance (Provisions for Family and Dependents) Act, which permits claims
from nonrelated dependents of decedent). Other foreign inheritance schemes, which U.S.
reformers generally have ignored, provide limited coverage of nonfamily dependents. For
example, many former socialist countries give nonrelated individuals who were dependent
on the decedent for at least one year prior to the decedent's death intestate succession rights.
See, e.g., Czech Republic Civil Code 474(1), 475 (amended 1998) (providing intestate
succession rights to "people who lived with the decedent for at least one year prior to the
decedent's death in a common household and... were dependent on the decedent for their
maintenance"); Uzbekistan Civil Code art. 1141 (1996), translatedin CIVIL CODE OF THE
REPUBLIC UZBEKISTAN 464 (W.E. Butler trans., 1997) (providing intestate succession rights
1999:1199
1217
restrict protection solely to the decedent's closest family members. 98 In so

doing, these models and the U.S. reform proposals based on them fail to
exploit the full potential of inheritance as a mechanism to promote support.
Ill. ENSURING POSTHUMOUS SUPPORT FOR THE DECEDENT'S
DEPENDENTS
In stark contrast with American law and practice, China recognizes

"dependence as the gravamen of inheritance." 99 Support, not entitlement, is
the principal basis of Chinese inheritance law. The Chinese model combines
both forced heirship and equitable redistribution techniques to ensure
maximum protection of the decedent's dependents. Unlike most countries
worldwide, China explicitly extends its support protections to individuals

outside the decedent's immediate family circle. China's flexible scheme
readjusts testate and intestate distribution of estates to provide support
tailored to the specific needs and circumstances of the decedent's heirs,
blended and extended family members, and even nonrelated dependents.
A. Responses to Disinheritanceof Dependents
In the United States, a testator can "pauperize his helpless
dependents"' by will. Under the banner of freedom of testation, American
inheritance law permits disinheritance of even the decedent's closest family
dependents.' 0 ' Indeed, in most states today parents can disinherit minor,
to "persons lacking labour capacity who for not less than one year before the death of the
decedent were dependent on him and resided jointly with him").
98.
See, e.g., EUROPEAN SUCCESSION LAWS, supra note 44, at 138-39 (discussing
Denmark's scheme of "minimum inheritance parts" reserved for the decedent's spouse and/or
issue); id. at 222-23 (summarizing Greece's forced heirship scheme to protect the decedent's
"immediate family"-surviving spouse, children, issue of deceased children, and parents); id.
at 258 (summarizing the Netherlands' "statutory portion" scheme for protection of decedent's
children and descendants of predeceased children only); Chester, supra note 39 (discussing
British Columbia's family maintenance scheme to protect decedent's spouse and/or children).
99. Cahn, supra note 39, at 145 (stating "we [in the West] have never been willing
to accept dependence as the gravamen of inheritance"). Historically, American inheritance
law has shown concern for support rather than entitlement alone. See GREGORY S.
ALEXANDER, COMMODITY AND PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN
LEGAL THOUGHT 1776-1970, 122-24 (1997) (discussing nineteenth-century New York
statutory revisions attempting to abolish all trusts except those for genuine support purposes);
Gregory S. Alexander, The Dead Hand and the Law of Trusts in the Nineteenth Century, 37
L. REV. 1189, 1240-53 (1985) (arguing that reversal of American position toward
spendthrift trusts in nineteenth century reflected a "protectionist" perspective to promote
support for family members).
100. Laube, supra note 39, at 559 (entitling his critique of U.S. inheritance law "The
Right of a Testator to Pauperize His Helpless Dependents").
101. For example, U.S. testators can freely disinherit dependent elderly parents,
grandparents, or siblings. For a sobering account of the impact of family neglect on the
STAN.
1218
disabled, and unborn children without cause or remedy. 0 2 U.S. inheritance

law purports to protect one potential dependent-the decedent's surviving
spouse-from disinheritance,'0 3 through omitted spouse, elective share,
community property, probate exemptions, and family allowance provisions.'4
Even these safeguards can fail to offer a meaningful remedy, however.
Omitted spouse'05 and marital property rights provisions award property on
elderly, see Jan Ellen Rein, PreservingDignity and Self-Determination of the Elderly in the
Faceof Competing Interests and Grim Alternatives: A Proposalfor Statutory Refocus and
Reform, 60 GEO. WASH. L. REV. 1818 (1992); see also Ascher, supranote 44, at 96 ("As the
extended family vanishes, it leaves behind many victims. Elderly parents and grandparents,
as well as the disabled, are often, in effect, homeless."); John H. Langbein, The TwentiethCentury Revolution in Family Wealth Transmission, 86 MICH. L. REv. 722, 743 (1988)
(pointing out that "today's elderly no longer expect much financial support from their
children").
102. Louisiana is the only state that protects children from both unintentional and
intentional disinheritance. For sources on recent reforms of this scheme, see supra note 47.
Most states have pretermitted child statutes that provide some relief for unintentional
disinheritance of children (and occasionally issue of deceased children) born or adopted after
execution of the decedent's will. See, e.g., MD. CODE ANN., EST. & TRUSTS 3-301, 302
(1991 & Supp. 1998) giving child (or issue of deceased child) who was born, adopted, or
legitimated after testator's will the lesser of that child's intestate share or the value of all
legacies to testator's children and issue of deceased children divided by total number of
surviving children and issue of deceased children if "will does not expressly state that the
child, or issue, should be omitted"). A few pretermitted child statutes cover omitted children
born or adopted prior to the will as well. See, e.g., ARK. CODE ANN. 28-39-407(b) (Michie
1997) (awarding intestate share to child or issue of a deceased child alive at time of will
execution "whom the testator shall omit to mention or provide for, either specifically or as
a member of a class"). Minor children and occasionally dependent adult children may be
eligible for short-term family allowance. See, e.g., ARIz. REV. STAT. ANN. 14-2404 (West
1998) (awarding reasonable family allowance for no more than one year to "surviving spouse
and minor children whom the decedent was obligated to support and children who were in
fact being supported by the decedent"). Some statutes extend similar protections to
dependent parents, see CAL. PROB. CODE ANN. 6540(b) (2) (West 1998), and dependent
"lineal heirs," see FLA. STAT. ANN. 732.403 (West 1998). Where there is no surviving
spouse, minor children generally receive the statutory probate exemptions and family
allowance. See, e.g., MINN. STAT. ANN. 524.2-404(c) (West 1998) (awarding family
allowance to orphaned minor children of decedent).
103. See LAWRENCE W. WAGGONER ET AL., FAMILY PROPERTY LAW: CASES AND
MATERIALS ON WILLS, TRUSTS, AND FUTURE INTERESTS
WAGGONER ET AL., FAMILY PROPERTY LAW] ("In American
516 (2d ed. 1997) [hereinafter

law, the decedent's spouse is the
only relative favored by a protection against intentional disinheritance."). Children may be

protected against unintentional disinheritance if they meet the requirements of pretermitted
child statutes. See supra note 102.
104. For a review ofthese provisions, see generally DUKEMINIER & JOHANSON, supra
note 24, at 473-550.
105. Omitted spouse protections are available only where the testator unintentionally
omitted a spouse married after execution of the will. These statutes award a predetermined
amount of the estate, usually the spouse's intestate share, with no adjustment for the support
needs of the surviving spouse. See, e.g., ALA. CODE 43-8-90 (a) (1998) (awarding intestate
share to omitted post-will surviving spouse "unless it appears from the will that the omission
was intentional or the testator provided for the spouse by transfer outside the will and the
1999:1199
1219
the basis of fixed rules and "disregard the survivor's, actual needs"' 0 6 and
circumstances. Probate exemptions and family allowance protections are
equally flawed from a support standpoint. They often provide only shortprove inadequate to meet the needs
term, minimal levels of support that can
0 7 Thus, even the one "favored"' 0 8
of the disinherited dependent spouse.'
dependent in U.S. inheritance law may ultimately find statutory protections
against disinheritance illusory.
The plight of disinherited dependents has inspired numerous calls for
reform in the United States.' 9 As Part Ill.A will demonstrate, China's model
directly addresses this scenario. Unlike the United States and other countries
worldwide, China has implemented a comprehensive and innovative scheme
that prevents disinheritance of both family and nonrelated dependents.
1. PROTECTIONS FOR THE DECEDENT'S CLOSEST FAMILY MEMBERS
As recently published Chinese case collections and commentaries reveal,

disinheritance of dependents is by no means an exclusively American
phenomenon. Like their U.S. counterparts, Chinese testators sometimes
inadvertently or deliberately omit even their closest and neediest family
members from their wills. The cases are often heart-wrenching. Minors and
intent that the transfer be in lieu of a testamentary provision be reasonably proven"); FLA.
STAT. ANN. 732.301 (West 1998) (giving post-will surviving spouse intestate share "unless
(1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial
agreement; (2) The spouse is provided for in the will; or (3) The will discloses an intention
not to make provision for the spouse").
106. WAGGONER ET AL., FAMILY PROPERTY LAW, supra note 103, at 532 (referring
to "[c]onventional elective-share law"). This statement applies as well to community property
schemes. For example, the elderly disinherited survivor of a short-term, late-in-life marriage
receives only one-half of assets accumulated during marriage even if that spouse was entirely
dependent on the decedent's support during the decedent's lifetime. Even the most recent
Uniform Probate Code version of the elective share provides only minimal concession to
support by granting a needy surviving spouse a "supplemental elective-share amount" of up
to $50,000. See UNIF. PROBATE CODE 2-202(b) (1998). For a critique of the inadequacy
of this amount, see Margaret V. Turano, UPCSection 2-201: Equal Treatment of Spouses?,
55 ALB. L. REv. 983 (1992). For a detailed comparison of the merits and drawbacks of the
various marital property schemes, see WAGGONER ET AL., FAMILY PROPERTY LAW, supra note
103, at 516-34.
107. See, e.g., D.C. CODE ANN. 19-101(a) (1999) (awarding surviving spouse
"allowance out of the personal estate of the decedent of the sum of $10,000 for the personal
use of himself and of minor children"); IND. CODE ANN. 29-1-4-1 (Michie 1998) (granting
surviving spouse an allowance of $15,000 claimable against "the personal property of the
estate or a residence of the surviving spouse, or a combination of both"). For an extended
discussion and critique of family allowance provisions, see Carolyn S. Bratt, Family
Protection UnderKentucky's InheritanceLaws: Is the Family Really Protected?,76 KY. L.J.
387 (1987-88).
108. See WAGGONER ET AL., FAMILY PROPERTY LAW, supra note 103, at 516
(referring to spouse as the "only relative favored by a protection against ...disinheritance").
109. For examples of such sources, see supra note 39.
1220
severely disabled children and siblings are left to fend for themselves or to
rely on the grudging support of callous beneficiaries." 0 Elderly and infirm
spouses and parents may find themselves destitute, even forced to sell the few
belongings the testator did leave behind."' The reasons for disinheritance are
as varied in China as in the United States-prejudice, 1 2 disappointment," 3
misplaced confidence in another family member,"14 untimely demise.'15 In
one case reminiscent of many in the United States," 16 for example, a
110. See, e.g., Inheritance Case No. 19, in ANLI XUANBIAN [COLLECTION OF CASES]
145 (1986) [hereinafter COLLECTION OF CASES]. The two beneficiaries of their father's will
battled over support of their minor disinherited sister. See id. One brother was willing to
allow her to live in a room of the family home. See id. The other brother refused on grounds
that it was "too expensive for him to give up a room to his sister." Id. The court ultimately
divided the estate equally among the three siblings. See id. at 146.
111. See Inheritance Case No. 20, in COLLECTION OF CASES, supra note 110, at 146.
In one case, for example, the testator disinherited his second wife (Yao) and left his entire
estate to his son (Lu) by his first wife. See id. The will directed Lu to pay his stepmother a
monthly living allowance of 15 yuan. See id. The allowance proved to be so inadequate to
support Yao that she was forced to sell the testator's old fur-lined jacket. See id. When Lu
found out, he was furious, "hurled abuse" at his stepmother, and stopped paying her living
allowance. See id. Yao sued and ended up with the bulk of her husband's estate plus a
monthly living allowance from her stepson. See id. at 147. For a case involving a
disinherited elderly parent, see Case No. 1, in '95 SELECTION OF THE SHANGHAI COURTS'
LATEST CASES, supra note 31, at 1.
112. See, e.g., Inheritance Case No. 19, in COLLECTION OF CASES, supra note 110,
at 145 (case involving father who mistreated and disinherited his minor daughter because he
was "imbued with the [feudal ideology] that men are superior to women"). Article 9 of the
P.R.C. Inheritance Law guarantees that "[m]en and women have equal inheritance rights."
P.R.C. Inheritance Law, supra note 13, art. 9. For discussion and examples of how Chinese
inheritance law promotes gender equality, see CIVIL AND COMMERCIAL LAW PRACTICE, supra
note 12, at 41-46, and ZHONGHUA RENMIN GONGHEGUO JICHENG FA QUANSH] [ANNOTATED
P.R.C. INHERITANCE LAW] 75-78 (Zhou Xianqi ed., 1995) [hereinafter ANNOTATED
INHERITANCE LAW].
113. See, e.g., CIVIL AND COMMERCIAL LAW PRACTICE, supra note 12, at 103 (case
involving a "broken-hearted" mother who disinherited her adopted teenaged son, ajuvenile
delinquent and truant since age seven) [hereinafter Yu Lai v. Yu Jing & Chen Xia].
114. See, e.g., CIVIL AND COMMERCIAL LAW PRACTICE, supra note 12, at 140
[hereinafter Wang Jianshu v. Liu Zhen]. In a singular case of bad judgment, Wang Qizhong
left his entire estate to his second wife, Liu Zhen, his retarded daughter's nurse. See id. After
Wang's death, Liu pocketed the inheritance and refused to continue to care for her
stepdaughter, arguing that Wang's will contained no express requirement to that effect. See
id.
115. For example, a young parent may die unexpectedly before providing for a child
born after his death. See, e.g., JICHENG FA ANLI XIANGJIE [DETAILED EXPLANATION OF
INHERITANCE CASES] 220 (Cui Qinglan & Tang Jing eds., 1990) (inheritance case involving
a young man who died in traffic accident six months after his marriage when his wife was five
months pregnant).
116. For discussion of U.S. cases and techniques used to conserve estate assets and
ensure family members are eligible for State support, see DUKEMINIER & JOHANSON, supra
note 24, at 643-46; Joel C. Dobris, MedicaidAsset Planningby the Elderly. A Policy View
ofExpectations,Entitlement and Inheritance,24 REAL PROP., PROB. & TR. J. I (1989); Roger
A. McEowen & Neil E. Hari, EstatePlanningfor the Elderly and Disabled: Organizingan
1999:1199
1221
"calculating" Chinese testator deliberately impoverished his mentally and

physically disabled daughter so that she would be supported at State
expense. 117
Despite these parallels, there is a critical difference. China, unlike the
United States, has responded with an inheritance scheme that explicitly
addresses the support needs of disinherited family dependents.
To prevent disinheritance of the decedent's closest family dependents,
China has followed the lead of civil law and Scandinavian countries 1 8 and
adopted a forced share approach. Pursuant to Articles 19 and 28 of the
P.R.C. Inheritance Law, China guarantees shares of the estate to two
categories of family members: a so-called "mandatory share" for "heirs who
are unable to work and have no source of income"" 9 and a reserved share for
children born after the decedent's death.' 20 Like most civil law and
Scandinavian countries,' 2 ' China declares a will that fails to reserve such
shares partially void.' 22 It permits only estate property remaining after
Estate to Qualify for Federal Medical Extended Care Assistance, 24 IND. L. REV. 1379
(1991); and Judith G. McMullen, Family Support of the Disabled.A Legislative Proposalto
Create Incentives to Support Disabled Family Members, 23 U. MICH. J.L. REFORM 439
(1990).
117.
See Case No. 41, in Yi AN SHuO FA: JICHENG FA [USING CASES TO EXPLAIN
LAW: INHERITANCE LAW] 75 (Li Qizhi et al. eds., 1986). The case commentary castigated the
testator, Gao Da, for his offenses against both his daughter and society as a whole:
Gao Da did not leave the mandatory share of his estate to his daughter. He
attempted to shift the burden of his daughter's livelihood to society. This type
of "calculation" infringes statutory provisions and is incorrect. Based on law and
proceeding from reality, the court decided that Gao Da's will was invalid and
redistributed the estate to promote the common interests of society and also to
protect the legal rights and interests of Gao Da's daughter.
Id. at76.
118.
See supra notes 43-44, 47, 50-51 and accompanying text (discussing civil law
and Scandinavian forced heirship schemes). China's adoption of a civil law-based approach
is not surprising. Since the early twentieth century, China has drawn heavily on civil law
models (especially the German model) in its codification and legal reform efforts. See
generally William C. Jones, Some Questions Regarding the Significance of the General
Provisions of Civil Law of the People'sRepublic of China, 28 HARv. INT'L L.J. 309 (1987);
William Jones, Sources of Chinese Obligation Law, 52 LAW & CoNTEMP. PROBS. 69 (1989).
119.
120.
121.
claims under
P.R.C. Inheritance Law, supra note 13, art. 19.

See id. art. 28.
This is consistent with U.S. practice as well. If a surviving spouse or child
elective share, omitted spouse, or pretermitted child statutes, the will is partially
revoked to the extent of the spouse's or child's share. See DUKEMINIER & JOHANSON, supra
note 24, at 285.

122.
See Wang Jianshu v. Liu Zhen, in CIVIL AND COMMERCIAL LAW PRACTICE,
supra note 12, at 141 (holding will partially void because it did not reserve mandatory share
for disabled daughter). For extended discussion of situations in which China declares wills
partially void, including Article 19 cases, see CURRENT P.R.C. LEGAL PRECEDENTS, supra
note 8, at 106-08.
1222
satisfaction of the reserved shares to be disposed of in accordance with the

will distribution scheme.' 23
P.R.C. law and practice suggest that China's approach represents a

qualitative improvement over the conventional forced heirship scheme
24
previously discussed and rejected by most U.S. scholars and reformers.'
First, China's model has a broader reach than its foreign counterparts. It
covers all qualifying intestate heirs of the decedent, not merely the decedent's
children and issue. 121 China's reserved share scheme encompasses needy
parents, spouses, children, descendants of deceased children, and potentially
grandparents, siblings, steprelatives, and widowed sons- and daughters-inlaw. 126 Consequently, China is able to afford relief to relatives who would be
left penniless in the United States and elsewhere.
For example, in a recently reported case from Shanghai, the testator
remembered his sons, sisters, and niece in his will but omitted his 91-year-old
mother.
27
In most countries, including the United States, 2 ' the mother
would have no remedy. In China, old lady Ma received

a "mandatory share"
129
of the estate, in this case 3600 yuan in bank savings.
123.
See Zui Gao Renmin Fayuan Guanyu Guanche Zhixing "Zhonghua Renmin
Gongheguo Jicheng Fa" Ruogan Wenti de Yijian [Opinion of the Supreme People's Court
on Certain Matters Concerning the Implementation of the "P.R.C. Inheritance Law"] art. 37
(Sept. 11, 1985), in ZUIGAo RENMIN FAYUAN GONGBAO, nos. 4, 9 (1985) [hereinafter
Inheritance Law Opinion] (stating that after reserving mandatory share, "[o]nly then can the
remaining portion be handled in accordance with the distribution principles set out in the
will").
124. See supra note 60 and notes 64-68 and accompanying text.
125. See supranote 50 and accompanying text (describing conventional pattern and
variations).
126. Article 19 protection definitely extends to first-order intestate heirs who are
"unable to work and have no source of income." P.R.C. Inheritance Law, supra note 13, art.
19. If there exist no first-order heirs then qualifying second-order intestate heirs can take a
mandatory share under Article 19. Under Chinese intestate succession rules, the decedent's
spouse, parents, and children are first-order heirs. See id. art. 10 $ 1. Children of deceased
children generally can take their parents' share by representation and thus become first-order
heirs. See id. art. 11; Inheritance Case No. 12, in COLLECTION OF CASES, supra note 110, at
138 (case holding grandson could inherit by representation his deceased mother's share, thus
"becoming a first-order intestate heir"). Stepchildren and stepparents "who had a support
relationship with the decedent" are also deemed first-order heirs. P.R.C. Inheritance Law,
supra note 13, art. 10 1 2, 3. Widowed daughters-in-law and sons-in-law are elevated to
first-order heir status if they "fulfilled the main duty of support" toward the decedent. See id.
art. 12. Second-order heirs are the decedent's brothers and sisters, paternal grandparents,
maternal grandparents, and stepbrothers and stepsisters "who had a support relationship with
the decedent." Id. art. 10 11 1, 5. Second-order heirs inherit only if no first-order heirs
survive the decedent. See id. art. 10 $ 2.
127. See Case No. 1, in '95 SELECTION OF THE SHANGHAI COURTS' LATEST CASES,
supra note 3 l, at 1-2.
128. See supra note 101. But see supra notes 50, 52 (discussing foreign schemes
that protect parents).
supra note 31, at 3.
1999:1199
1223
Similarly, because of the broader scope of its reserved share scheme,

China's model can address another major flaw of American inheritance law:
its inadequate response to the individual support needs of surviving
spouses. 130 Like the United States, 3 ' China has codified a marital property
rights scheme. Article 26 of the P.R.C. Inheritance Law awards the surviving
spouse "half of the joint property acquired by spouses during their
marriage."'132 In China, however, courts have the flexibility to provide needy
surviving spouses extra protection by awarding a mandatory share in addition
to marital property rights. In so doing, China gives full recognition to both
33
support and partnership notions of marriage. 1
34
A recent case illustrates China's approach to needy surviving spouses.
Wang Juan by holographic will disinherited 80-year-old Qian Mao, her
husband of more than twenty-five years. 135 She left her entire estate to her
former spouse's nephew, Li Zhi.'3 6 After Wang's death, Li attempted to evict
Qian from the house he had lived in for over two decades. 37 Qian refused
to leave and Li sued to enforce his rights as sole beneficiary under Wang's
will. 3 The court ruled that Qian should receive both his one-half share of
joint marital property and additional property as his mandatory share under
Article 19.'"9
Qian ended up with the house and substantial personal
0
property.14
Second, China's reserved share scheme has significant advantages over
the conventional forced heirship model because it is need-based rather than
an automatic entitlement.14' As Article 19 statutory text stipulates, heirs must
130. For a discussion of flaws in U.S. treatment of surviving spouses, see supra notes
105-07 and accompanying text.
131.
For an extended discussion and comparison of U.S. marital property rights
schemes, see
WAGGONER ET AL., FAMILY PROPERTY LAW,
supra note 103, at 516-34.
132. P.R.C. Inheritance Law, supra note 13, art. 26.

133. For discussion of the impact of support and partnership theories of marriage on
U.S. inheritance law, see GeneralComment to UNF. PROBATE CODE art. 2, pt. 2 (1998), and
Lawrence W. Waggoner, The Multiple-MarriageSociety and Spousal Rights Under the
Revised Uniform Probate Code, 76 IOWA L. REv. 223 (1991).
134. The case appears in DETAILED EXPLANATION OF INHERITANCE CASES, supra note
115, at 148 [hereinafter Li Zhi v. Qian Mao].
135. See id. at 149.
136. See id.
137. See id.
138. See id.
139. See id. at 149-50. In marked contrast with the result under U.S. community
property schemes, the Chinese court ruled that the house constituted "joint marital property"
even though Wang acquired the house prior to her marriage to Qian. See id. at 149. The
court cited as authority the Supreme People's Court's "Opinion on Certain Matters
Concerning Implementation of the Principles of the Civil Law," directing that "whenever
there has been a lengthy marriage, property that has been used, managed, and administered
by both parties together for a long time can be regarded as joint marital property." Id.
140. See id. at 150.
141. For critiques of the conventional forced heirship model's failure to consider
1224
be "unable to work" and "have no source of income."' 42 Unborn children by

definition qualify for a reserved share. 43 Other heirs, however, must
demonstrate that they meet both conditions simultaneously. 144 Thus, as

annotated commentary to Article 19 explains, if an elderly man is unable to
work but has sufficient property to satisfy his subsistence needs without
support from others, he is not entitled to a mandatory share under Article
19.145
Subsequent judicial interpretation of Article 19 has only reinforced this

emphasis on need rather than entitlement. China's highest court, the
Supreme People's Court, has directed lower courts to consider possible
changes in an heir's circumstances since will execution. According to the
Supreme People's Court, courts should determine the heir's eligibility for
Article 19 relief "at the time the will becomes effective,"' 146 not the date of
execution. Thus, an heir who meets the Article 19 criteria at the time of will
execution is not automatically entitled to a mandatory share. The heir must
demonstrate
continued qualification for such share when the will enters into
4
effect. " 1
Third, China rejects a much-criticized 48 aspect of the forced heirship
model: its allocation of a statutorily-prescribed, fixed fraction of the estate. 4 9
Instead, China gives courts broad discretion to determine the optimal share
on a case-by-case basis to fit the individual circumstances of each estate and
claimant.
Chinese courts often award intestate shares to disinherited heirs, 50
especially in cases involving omitted posthumous children.' 5' Under China's
need of claimants, see supra notes 66-67 and accompanying text.
142. P.R.C. Inheritance Law, supra note 13, art. 19.
143. Article 28 does not specify any conditions other than live birth for an unborn
child to be eligible for a reserved share. See id. art. 28 ("When the estate is divided, an
inheritance share should be reserved for an unborn baby. If the baby is born dead, the
reserved share is handled in accordance with intestate succession." ). Annotated commentary
to Article 28 explains that the unborn child meets the usual criteria for reserved shares.
"Because after birth the unborn baby is also the decedent's child, he or she is a first-order heir
... who is unable to work and with no source of income." ANNOTATED INHERITANCE LAW,
144. See ANNOTATED INHERITANCE LAW, supra note 112, at 133 (stating heirs "must
meet both conditions at the same time").
145.
See id.
146. Inheritance Law Opinion, supra note 123, art. 37.

147. See ANNOTATED INHERITANCE LAW, supra note 112, at 134 (explaining that
heirs who were unable to work and had no source of income at will execution but no longer
meet these conditions at time will became effective are not entitled to mandatory share).
148. See supra notes 65-67 and accompanying text.
150. See, e.g., Inheritance Case No. 19, in COLLECTION OF CASES, supra note 110,
at 145. In this case, the testator devised his entire estate-six rooms of a house-to his two
sons and disinherited his minor daughter. See id. The court ultimately followed intestate
succession rules and divided the estate equally among the three siblings (two rooms each).
1999:1199
1225
model, however, courts retain full flexibility to depart from statutory intestate
succession rules to fashion a more appropriate mandatory share for the given
case. In situations involving a small estate 52 or a particularly needy claimant,
the court may well require a larger than intestate share. For example, in one
case, the testator devised the bulk of his estate--ten rooms of a house and
7000 yuan-in equal shares to his two able-bodied, adult sons, leaving only
one room and 500 yuan to his mentally and physically disabled daughter.' 53
Under intestate succession rules, the sons and daughter would split the estate
equally as first-order heirs. 54 The court, however, chose to recognize the
daughter's especially difficult circumstances by awarding her a mandatory
share of three rooms and 5000 yuan.' The case commentary explained that
"based on the circumstances of the estate and the actual needs
of the heirs,"
' 56
the mandatory share can be "larger than an equal share."'
In contrast, in situations involving a large estate or a less needy claimant,

courts may award the heir a smaller than intestate share. 57 In a case reported
in 1990,158 a troubled 159 Chinese teenager, Du Zhiwei, discovered this
See id.
151.
This share should generally be the equivalent of what the child would receive
under intestate succession. See Yu Lai v. Yu Jing & Chen Xia, in CIVIL AND COMMERCIAL
LAW PRACTICE, supra note 12, at 106 (case commentary stating that if a testator fails to
provide for an unborn child in a will, when that child is born after the testator's death "a
reserved share is distributed to him or her in accordance with intestate succession rules").
Although the reserved share under Article 28 is often described as a "fixed" share, see
ANNOTATED INHERITANCE LAW, supranote 112, at 172 (stating that "a fixed inheritance share
should be reserved for an unborn baby"), courts have the discretion to award the unborn child
a share larger than that received by other intestate heirs of the same order. See id. at 172
(stating that share reserved under Article 28 for an unborn child "should be the same amount
or more than the share inherited by the decedent's children who have already been born or
the share inherited by other first-order heirs").
152. See ANNOTATED INHERITANCE LAW, supra note 112, at 133 (stating that in cases
involving small estates "in order to ensure the livelihood of an intestate heir who is unable
to work and has no source of income, it is also reasonable for the mandatory share of the
estate to be greater than the equal share awarded by intestate succession").
153. See Case No. 41, inUSING CASES TO EXPLAIN LAW: INHERITANCE LAW, supra
note 117, at 75.
154. See supra note 126.
155. See Case No. 41, in USING CASES TO EXPLAIN LAW: INHERITANCE LAW, supra
note 117, at 75.
156. Id.at 76.
157. See ANNOTATED INHERITANCE LAW, supra note 112, at 133:
If the estate is quite large, then the mandatory share can be less than an equal
share. This share can still ensure that a person who is unable to work and has no
source of income receives a sufficient amount for material subsistence. This
share then conforms with the "mandatory" requirement of the statute.
115, at 154 [hereinafter Sun Zili & Wang Shuyuan v. Du Zhiwei].
159. According to the case report, Du Zhiwei had a "difficult family life." Id. He
was orphaned at a young age, uneducated, and allowed to run wild in the countryside. See
id. Adopted by Du Runsheng and Yao Qinfeng at age eight, Du was unable to adjust to his
1226
firsthand. Du's adoptive mother, Yao Qinfeng, wrote a will a few months
before her death, leaving one-half of her estate in equal shares to her niece
and her neighbor "[a]s an expression of her heart-felt gratitude" for their
extensive assistance and care during her illness.' 6 She willed the remainder
of the estate to her adopted son, Du.161 Yao left substantial property,
including cash, bank savings, jewelry, a television set, refrigerator, clothing,
and household furnishings and utensils. 162 Du refused to turn over his
mother's property to the other will legatees, claiming that as a minor he was
entitled to his intestate share of the estate. 163 Du argued that because he was
his adoptive parent's sole surviving first-order heir, he should inherit the
entire estate. 164 The court rejected Du's claims and upheld Yao's will as both
"legal and appropriate."' 65 It ruled that by reserving one-half of her estate for
her minor child, Yao "safeguard[ed] Du Zhiwei's
livelihood" and hence
66
satisfied statutory mandatory share requirements. 1
2. PROTECTIONS FOR DEPENDENTS OUTSIDE THE NUCLEAR FAMILY
Most countries of the world, including the United States, provide no

relief for disinherited dependents outside the decedent's immediate family
circle. 167 China, in contrast, protects all of the decedent's dependents
adoptive parents' and school discipline. See id. The situation became even worse when Du's
adoptive father died only four years later. See id. His mother, grief-stricken and busy at
work, "did not pay sufficient attention" to her adoptive son. Id. Du repeatedly skipped
school, got into trouble with authorities, and was incarcerated. See id. After his release at
age fifteen, Du remained unrepentant and continued his evil ways. He stole from his mother,
hurled insults at her, threatened to kill her, and neglected her during her illness. See id.
160.
161.
162.
163.
164.
165.
Id. at 155.
See id.
See id.
See id.
See id.
See id.
166. See id. It is unclear whether Du's bad behavior toward his mother, see supra
note 159, may have influenced the court's ruling. As I have discussed elsewhere, under
China's "behavior-based model of inheritance" in distributing estates, courts put significant
emphasis on claimants' behavior toward the decedent. See Foster, Behavior-Based Model,
supra note 15, at 81. Chinese courts have held, however, that claimants' support needs
supersede behavioral considerations. For example, in another case involving a teenaged
juvenile delinquent, the testator disinherited her son altogether. See Yu Lai v. Yu Jing &
Chen Xia, in CIVIL AND COMMERCIAL LAW PRACTICE, supra note 12, at 103. The court
awarded the son, Yu Lai, a substantial mandatory share of the estate. See id. The case
commentary explained that even though the testator disinherited her son because "he had
departed from correct behavior," since "Yu Lai was not yet an adult and had no income from
work, it was improper to deprive him of his inheritance rights." Id. at 105.
167. Notable exceptions include England (see supra note 52) and several former
socialist countries. See, e.g., Ukraine Civil Code, art. 535, summarized in MARTINDALEHUBBELL INT'L LAW DIGEST, Ukraine Law Digest, available in LEXIS, Intlaw Library, Intdig
File (providing "legitimate portion of inheritance" to disabled dependents, regardless of
1999:1199
1227
irrespective of their family status. As discussed above, China extends Article

19 mandatory share provisions not only to natural and adoptive relatives but
also to blended family members who had a support relationship with the
decedent. 168 Moreover, China's mandatory share scheme encompasses
eligible ascendants and collaterals as well as descendants.' 69
Chinese inheritance law goes even further, however. It also directly
addresses the needs of dependents who are not legal "heirs" of the decedent
and hence fail to meet Article 19 requirements. 70 To protect more distant
family and nonrelated dependents from disinheritance, China supplements its
forced share scheme with a second, equitable redistribution technique. The
Chinese model expressly authorizes courts to depart from will distribution
provisions to award an "appropriate" amount of the decedent's estate to
dependents ineligible for Article 19 relief.171
Article 14 of the P.R.C. Inheritance Law sets out the special safeguards
for disinherited dependent nonheirs.172 It mirrors Article 19 by requiring that
such claimants satisfy two conditions simultaneously. 173 They must be both
"unable to work" and have "no source of income.' ' 74 Unlike Article 19,
however, Article 14 imposes an additional qualifying condition. It requires
that claimants "relied on the decedent's support.' 7675 Article 14 thus affords
relief only to actual dependents of the decedent. 1
Article 14 gives courts wide latitude to determine the optimal award to
meet the specific needs of the disinherited dependent nonheir. In marked
family relationship, who were supported by decedent for not less than a year prior to
decedent's death).
168. See supra note 126 and accompanying text.
169. See id.
170. See supra note 119 and accompanying text (reproducing text of Article 19
stating that mandatory share is available for qualifying "heirs").
171. See P.R.C. Inheritance Law, supra note 13, art. 14.
172. As will be discussed below, Article 14 extends to intestate succession as well
as will disinheritance cases. See infra Part III.B.2. Moreover, it authorizes courts to award
"appropriate" legacies to nonheirs to recognize their contributions to the decedent's support.
See infra Part IV.A.
173. See ANNOTATED INHERITANCE LAW, supra note 112, at 96 (stating that Article
14 claimants "must meet two conditions simultaneously").
174. See P.R.C. Inheritance Law, supranote 13, art. 14. Indeed, Articles 14 and 19
use identical languages-quefa laodong nengli you meiyou shenghuo laiyuan. Id. arts. 14,
19.
175. Id. art. 14.
176. According to annotated commentary to Article 14, mere "temporary care" by
the decedent is not sufficient to meet this standard. See ANNOTATED INHERITANCE LAW, supra
note 112, at 96. Article 14 targets people who find themselves in difficult circumstances at
the decedent's death "because they have suddenly lost their guarantee of support." Id. The
award of an appropriate legacy is designed to provide such people "essential protection for
their livelihood for a period of time. It also conforms with the decedent's wishes during life
to support and care for them." Id.
1228
contrast to its reserved share protections for disinherited heirs, 77 the

Inheritance Law's remedy for disinherited nonheirs is optional not mandatory.
Article 14 simply provides that eligible claimants "can" [keyi]17' receive an
award. Statutory text adds further flexibility through use of the adjective
"appropriate" [shidang].179 Article 14 leaves it to courts to determine what
constitutes an appropriate allocation in a given situation.
Subsequent judicial interpretation has only reinforced the breadth and
flexibility of China's remedy for disinherited dependent nonheirs. Courts
have read statutory language expansively to encompass qualifying secondorder intestate heirs (siblings and grandparents),' 80 more distant relatives
(e.g., nieces and nephews), colleagues, friends, and neighbors.'' The
177. See supra Part III.A.
178. P.R.C. Inheritance Law, supranote 13, art. 14. See ANNOTATED INHERITANCE
LAW, supra note 112, at 96 ("What should be emphasized isthe fact that this article stipulates
that an appropriate legacy 'can' be distributed ....It is not mandatory to distribute this
legacy. These people are not assured a legacy. It is possible that no legacy will be distributed
to them."). The Supreme People's Court, however, has strengthened statutory language
somewhat by indicating that Article 14 "is a right guaranteed by the coercive power of the
state, which no one should infringe." Inheritance Case No. 9, in CURRENT P.R.C. LEGAL
PRECEDENTS, supra note 8, at 94 (referring to Supreme People's Court's "essential
supplements to the legislative scheme"). The court stipulated that people eligible for Article
14 relief are entitled within two years after the estate is divided to "bring suit in people's court
...
if [their] legal right to receive a legacy is infringed." Inheritance Law Opinion, supra note
123, art. 32. If Article 14 claimants were "expressly informed of the time of division of the
estate and did not make a demand," however, "then generally [their] case will be rejected."
Id.
180. Courts can use Article 14 to provide relief to needy second-order heirs who are
ineligible to take under intestate succession because first-order heirs exist. For a case
explaining the interplay between intestate succession rules and Article 14, see DETAILED
EXPLANATION OF INHERITANCE CASES, supra note 115, at 115 [hereinafter Old Lady Li case].
A 75-year-old widow, Li Wangshi, who had been supported by her grandson for many years,
brought suit in a county people's court, claiming a share of her grandson's estate. See id. Her
grandson's widow remarried and planned to take all his property with her. See id. Old Lady
Li begged the court for assistance, stating "I am old and weak. I am unable to work, have no
source of income, and have no other relative to care for me. If you don't allow me to inherit
my grandson's estate, how will I be able to live?!" Id. The court responded by explaining
to Old Lady Li the relevant provisions of China's Inheritance Law-Articles 10 and 14. See
id. at 115-16. It "got her to understand" that because her grandson left a widow (afirst-order
heir), Li (asecond-order heir) had no intestate succession rights to his estate. Id. The court
then cited, explained, and applied Article 14 of Inheritance Law. See id. at 116. It
concluded: "Your grandson during life had a support relationship with you. Now you are
old and weak and have lost your ability to work. Accordingly, you can receive an appropriate
legacy from your grandson's estate." Id. After persuasion by court personnel, her grandson's
widow also "came to understand the spirit" of the Inheritance Law and gave Old Lady Li "one
room to live in" and miscellaneous household property. Id. In addition, she promised to
"visit the old woman often and care for her." Id.
note 117, at 57 (stating that Article 14 applies to second-order intestate heirs, "relatives who
are not intestate heirs of the decedent, such as the decedent's brother's children, the
1999:1199
1229
Supreme People's Court has explicitly directed lower courts to define

"appropriate" on a case-by-case basis. In its official "Opinion on Certain
Matters Concerning Implementation of the 'P.R.C. Inheritance Law,"' the
court emphasized that an Article 14 claimant "can receive more or less than
an intestate share when the estate is distributed, depending on the specific
circumstances."'' 82 In practice, Chinese courts have followed this instruction
and considered a variety of factors in such cases, including the age and health
of the dependent,18 the size of the estate, the needs of other estate claimants,
and "other relevant circumstances."'814 If the facts warrant it, courts have
awarded as much as the decedent's entire estate to an Article 14 claimant. 5
Thus, by supplementing its forced share scheme for heirs with an
equitable award to nonheirs, China's model can protect all of the decedent's
dependents from disinheritance. Although China, like the United States,
exalts freedom of testation, it ultimately places the needs of dependents above
the whims of the testator.18 6 China's model offers flexible mechanisms to
decedent's sister's children, etc.. . [and] the decedent's colleagues, friends, neighbors, etc.").
182. Inheritance Law Opinion, supra note 123, art. 31.
183. Indeed, several sources suggest that the claimant's age and health are
determining factors in Article 14 situations. See ANNOTATED INHERITANCE LAW, supra note
112, at 96 (stating Article 14 "refers principally to elderly, young, ill, disabled, etc. people
who are unable to support themselves"); Yu Lai v. Yu Jing & Chen Xia, in CIVIL AND
COMMERCIAL LAW PRACTICE, supra note 12, at 106 (case commentary stating Article 14
applies to an "elderly person, minor, ill or disabled person").
184. ANNOTATED INHERITANCE LAW, supra note 112, at 96 (stating that "in actual
practice, [courts] usually consider the size of the estate, the circumstances of other heirs, and
other relevant circumstances" in deciding what constitutes an "appropriate" award for Article
14 purposes).
note 117, at 57 ("Depending on the specific circumstances, when the estate is distributed, they
[Article 14 claimants] can receive a share that is larger, equal or smaller than an intestate
share. In situations where there are no intestate heirs, they can receive part, most, or all of the
estate."); see also Case No. 82, in ZHONGGUO MINFA JIAoxuE ANLi XuANBIAN [COLLECTION
OF CHINESE CIVIL LAW CASES FOR TEACHING] 192, 194 (1996) [hereinafter COLLECTION OF
CASES FOR TEACHING] (case analysis stating that "based on the specific facts of the case, it was
appropriate to award [Article 14 claimant] the entire estate").
186. Article 16 of the P.R.C. Inheritance Law grants citizens the right to dispose of
their individually-owned property by will to intestate heirs, the State, collective organizations,
or nonheirs. See P.R.C. Inheritance Law, supra note 13, art. 16. Chinese officials and
commentators laud freedom of testation [yizhu ziyou] for promoting China's "constitutional
principle of protecting citizens' lawful property rights," Case No. 10, in CURRENT P.R.C.
LEGAL PRECEDENTS, supra note 8, at 95, and for encouraging economic productivity. See
Zhou Xianji, Shilun Wo Guo Jicheng Fa de Xingzhi he Tedian [Preliminary Discussion of
the Nature and Characteristics of Our Country's Inheritance Law], 5 FAXUE YANJIU
[STUDIES IN LAW] 32, 34 (1985) (discussing how China's Inheritance Law promotes
productivity, encourages "hard work and thrift," "promote[s] development of a commercial
economy and raise[s] citizens' material and cultural standards of living"). At the same time,
however, they consistently emphasize that in China freedom of testation has "definite limits."
Case No. 41, in USING CASES TO EXPLAIN LAW: INHERITANCE LAW, supra note 117, at 76; see
Zhang Peilin, Tantan Jicheng Fangshi [Discussing Methods of Inheritance], 3 FAXUE
1230
tailor relief to the specific circumstances of each case. As the next Section
will show, Chinese inheritance law adopts an equally individualized approach
in the intestate succession context to promote support of the decedent's
dependents.
B. Intestate Succession Remedies to Benefit Dependents
In the United States, intestate succession is a rigid, 18 7 mechanical'
scheme of inheritance by status. 8 9 The decedent's closest relatives by blood,
adoption, or marriage automatically inherit fixed, predetermined shares of the
estate.' 90 Their actual needs and circumstances are irrelevant. 191 As
Lawrence Friedman has remarked, "It does not matter... whether one [heir]
is rich and another poor; one a minor, one not; one blind and destitute,
another not-they share equally in the estate. No discretion to alter the
scheme is vested in the probate court or in any other legal agency."' 92 For
dependent nonheirs, the situation is even
worse. U.S. intestate succession
93
laws disregard their claims altogether. 1
26, 27 (1986) (stating that "Chinese law, at the same time that
it protects inheritance under legal wills, also prescribes certain limits on wills"); see also Yu
Lai v. Yu Jing &Chen Xia, in Crvini AND COMMERCIAL LAW PRACTICE, supra note 12, at 104:
Because a will has the effect of changing the scope, order, shares, etc. of heirs
and is relevant to whether those parties acquire or lose actual rights of
inheritance, the "Inheritance Law," on the one hand, grants citizens the freedom
and the right to dispose of their own estates. On the other hand, it also requires
that when citizens dispose of their individual property by will they must respect
the rights and interests of individuals and the collective rights and interests of
society.
[JURISPRUDENCE MONTHLY]
187.
See Lawrence M. Friedman, The Law of Succession in Social Perspective, in
DEATH, TAXES AND FAMILY PROPERTY, supra note 38,
at 9, 13 (describing U.S. rules as "rigid
scheme").
188. See WAGGONER ET AL., FAMILY PROPERTY LAW, supra note 103, at 71 (stating
that "[u]nder American law, as under the English canons of descent and the Statute of
Distribution, intestate shares are determined mechanically").
189. Some scholars use the term "inheritance by rule" rather than "inheritance by
status." See John G. Fleming, ChangingFunctions of Succession Laws, 26 AM. J. COMP. L.
233, 233 (1978) (providing comparative analysis of "inheritance by rule"); Friedman, supra
note 187, at 13 (referring to "inheritance by rule").
190. For extended discussion of common patterns and goals of U.S. intestate
succession statutes, see DUKEMINIER & JOHANSON, supra note 24, at ch. 2; WAGGONER ET AL.,
FAMILY PROPERTY LAW, supra note 103, at 29-72; John H. Beckstrom, Sociobiology and
Intestate Wealth Transfers, 76 Nw. U. L. REv. 216 (1981); and Fellows et al., Public
Attitudes, supra note 38.
191.
Heirs' conduct toward the decedent is also generally irrelevant for intestate
succession purposes. See Foster, Behavior-Based Model, supra note 15.

192. Lawrence M. Friedman, The Law ofthe Living, the Law of the Dead: Property,
Succession, and Society, 1966 Wis. L. REv. 340, 354 (referring to situation where decedent
dies intestate survived by siblings as his closest blood relatives).
193. One response has been to create equitable remedies, such as equitable adoption,
for dependents who do not qualify under intestate succession rules. See generally
1999:1199
1231
Like the United States, China has adopted a rule of inheritance by

status. 94 In China, however, intestate succession is a flexible rather than
rigid scheme. As Part 1I1.B will show, Chinese legislation offers courts an
array of mechanisms to recognize the special support needs of the decedent's
family members, relatives by marriage, and nonrelatives alike.
1. READJUSTMENT OF INTESTATE SHARES FOR NEEDY HEIRS
In China, intestate heirs of the same order generally receive equal shares
of the estate. 9 Article 13, paragraph 2 of the P.R.C. Inheritance Law,
however, creates an exception for heirs who are "unable to work" and "whose
lives are especially difficult."'' 96 It directs that in estate distribution, such
heirs "should be given consideration."' 97 If the published case collections are
any guide, Chinese courts frequently use this provision to ensure extra
financial support to the decedent's neediest heirs. Common beneficiaries of
Article 13, paragraph 2 relief are minor or disabled children and elderly,
infirm parents.
For example, in a 1991 case from Zhejiang Province, the decedent,
Wang Weifa, died of liver cancer, survived by four first-order heirs-his
wife, Xu Shuqing, his ten-year-old daughter, Wang Fei, and his parents,
Wang Jiayou and Tao Yinxiang, who were elderly, ill, and without any
source of livelihood.' 9s In the United States, only the surviving spouse would
definitely have intestate succession rights.' 99 Despite their desperate
situation, the decedent's parents would be ineligible to inherit.2 00 Under
recent American intestate succession statutes modeled on the 1990 Uniform
Probate Code, the decedent's minor daughter would also be unable to take. 0 '
DUKEMINIER & JOHANSON, supra note 24, at 105-07 (discussing equitable adoption and
equitable legitimation); WAGGONER ET AL., FAMILY PROPERTY LAW, supra note 103, at 124-27
(discussing equitable adoption).

194. See supra note 126 (summarizing P.R.C. intestate succession rules).
195. See P.R.C. Inheritance Law, supra note 13, art. 13 1 (stating "[h]eirs of the
same order generally should inherit equal shares of the estate").
196. Id. art. 13 2.
197. Id.
198. This case is reported in ANNOTATED INHERITANCE LAW, supra note 112, at 9495, and Succession Case No. 21, translatedin 2 CHINA L. REP. 106-10 (1991) [hereinafter
Xu Shuqing & Wang Fei v. Wang Jiayou & Tao Yixiang].
199. For a summary of common intestacy patterns for the surviving spouse, see
WAGGONER ET AL., FAMILY PROPERTY LAW, supranote 103, at 36-43. This assumes that the
spouse did not renounce her inheritance rights and was not disqualified for misconduct.
200. "Under all intestate succession statutes, parents are not heirs if the decedent
leaves a child." DUKEMiNIER & JOHANSON, supra note 24, at 70.
201. Under the 1990 Uniform Probate Code, the decedent's surviving spouse inherits
the entire intestate estate if "all of the decedent's surviving descendants are also descendants
of the surviving spouse and there is no other descendant of the surviving spouse who survives
the decedent." UNW. PROBATE CODE 2-102(l)(ii), 8 U.L.A. 98 (Supp. 1996). For examples
of statutes that have adopted this approach, see MONT. CODE ANN. 72-2-112 (1995), and
1232
The fact that Wang Fei was a mere schoolchild with "no direct source of
income and . . . unable to work" 20 2 would be irrelevant for intestate
succession purposes. In China, the result was markedly different. Under
Article 13, paragraph 2, the court awarded Wang Fei, Wang Jiayou, and Tao
Yinxiang larger than intestate shares, explaining that Article 13, paragraph
2 "reflects our country's inheritance system's basic principle of supporting
the elderly and raising the young. 20 3
Similarly, Chinese courts, unlike their U.S. counterparts, can depart
from mechanistic intestate succession rules to address special needs of
surviving spouses. A case reported in 1990 is illustrative. 204 Yu Hu brought
what turned out to be a disastrous suit against his mother, Wang Chunlan,
over ownership of his recently deceased father's television set.205 In the

course of investigation and trial, the court discovered that Wang was an ideal
candidate for Article 13, paragraph 2 relief. She was elderly, infirm, unable
to work, and in straitened circumstances.206 It found that Yu, in contrast, was
young, able-bodied, and gainfully employed. 20 7 The court rejected Yu's
claim, castigated him for his behavior toward his mother, and ordered him to
perform his support duties toward her.208 Citing Article 13, paragraph 2, the
court ultimately awarded not
only the television set but the bulk of the
20 9
decedent's estate to Wang.
As in the will disinheritance context,210 Chinese inheritance law gives
courts the flexibility to determine on a case-by-case basis the intestate
distribution scheme that best meets the needs of dependent heirs. Under
Article 13, paragraph 2, courts can award mose" or even all 212 of the
S.D. CODIFIED LAWS 29A-2-102 (Michie 1995).
202. Xu Shunqing & Wang Fei v. Wang Jiaoyou & Tao Yinxiang, in 2 CHINA L.
REP., supra note 198, at 95.
203. Id.
204. See Yu Hu v. Wang Chunlan, in DETAILED EXPLANATION OF INHERITANCE
CASES, supra note 115, at 105 [hereinafter Yu Hu v. Wang Chunlan].
205. See id.
206. See id. at 106-07.
207. See id. at 107.
208. See id.
209. See id. The court also awarded a small legacy under Article 14 to an elderly,
infirm nonrelative to whom the decedent had provided ten yuan per month for over ten years.
See id. For discussion of Article 14's application in the intestate succession context to
dependent nonheirs, see infra Part III.B.2. In another inheritance dispute between mother and
son, the court also criticized the son for fighting with his mother, who was elderly, infirm, and
unable to work. See DETAILED EXPLANATION OF INHERITANCE CASES, supra note 115, at 121,
122 [hereinafter Xue Li v. Li Rong]. This court too emphasized the son's support duties
toward his mother to ensure her security in her final years. See id. The result was different,
however. The son reportedly was so "moved" by the court's explanation that he voluntarily
renounced his inheritance rights, allowed his mother to take the entire estate, and agreed to
take her into his home. See id.
210. See supra notes 150-66, 182-85 and accompanying text.
211. See, e.g., DETAILED EXPLANATION OF INHERITANCE CASES, supra note I I5, at 18,
1999:1199
1233
decedent's estate to a qualifying heir. A recent Guangdong Province case

provides a prime illustration of how Chinese courts apply Article 13,
paragraph 2 in practice.2 13 Cen Huaan, the proprietor of a hardware and
furniture store died intestate, survived by four first-order heirs--his parents,
Cen Zhuo and Lin Yuedi, his spouse, Mo Meihuan, and his five-year-old son,
Cen Renming.214 Rather than distributing the estate in equal shares, the court
carefully considered the actual circumstances of the four heirs. It concluded
that "Cen Zhuo and Lin Yuedi currently have several fishponds under
contract and they are relatively well-to-do; Mo Meihuan is in the prime of her
life and is able to work... Cen Renming is only five years old and is not yet
able to work. ' 215 Citing Article 13, paragraph 2, the court readjusted
inheritance shares to give maximum protection to the decedent's minor
child.2 16 It awarded 3/4 of the decedent's substantial estate to Cen Renming
21 7
and the remaining 1/4 of the estate in equal shares to the other three heirs.
Recent cases and commentary suggest that Chinese courts impose
limitations on eligibility for Article 13, paragraph 2 relief, however. In
judicial practice, minors routinely qualify,218 but adult heirs must meet a high
threshold. Courts have strictly interpreted the statutory requirement of
"especially difficult" lives to mean that heirs must be in dire straits, not
merely in greater need than other heirs.219 For example, in a 1991 case from
Shandong Province, the county people's court declined to apply Article 13,
paragraph 2 on behalf of the decedent's elderly father, Li Shirong. 220 The
20 [hereinafter Zhao Lanying v. Fan Junxiu] (awarding surviving spouse who was "unable
to work and had no source of income" three-fourths of the decedent's cash savings, two of
six rooms in his house, and all personal property).
212.
See, e.g., Case No. 28, in USING CASES TO EXPLAIN LAW: INHERITANCE LAW,
supra note 117, at 52. The court awarded the entire estate to the youngest of three sons
because he was mentally ill and would continue to require treatment in the future. See id. at
53. The court also ordered that son to use part of his inheritance to pay off his hospital bills.
See id.
213. See Case No. 430, in NEW TYPES OF CIVIL AND COMMERCIAL LAW CASES, supra
note 12, at 1216.
214. See id. at 1216-17.
215. Id. at 1218.
216. See id.
217. See id.
218. See, e.g., Succession Case No. 20, translated in 2 CI-nNA L. REP., supra note
198, at 98. The court applied Article 13, paragraph 2 to increase the intestate share of the
decedent's five-year-old daughter. See id. at 105. The court explained, "[I]n view of the fact
that the second plaintiff Ye Saisai is a minor, and to protect the interest of a minor, due regard
must be had to these when dividing the property." Id. The court's opinion did not cite any
factors other than Ye Saisai's age.
219. See ANNOTATED INHERITANCE LAW, supra note 112, at 91 ("'Especially

difficult' does not refer to an heir's life being a little difficult in comparison with the lives of
most heirs. It refers to a situation in which an heir is unable to support himself/herself.").
220. See Case No. 429, in NEW TYPES OF CIVIL AND COMMERCIAL LAW CASES, supra
note 12, at 1213, 1215. The court did use Article 13, paragraph 2 to increase the shares of
the decedent's minor daughter and his mother, who was "unable to work and ha[d] no source
1234
court acknowledged that Li was "unable to work" but deemed him ineligible
for Article 13, paragraph 2 relief because he "receive[d] a regular monthly
pension. 22 1
China's intestate succession scheme recognizes the needs of posthumous
as well as living heirs. As in the will disinheritance context, 222 courts
liberally apply Article 28 of the Inheritance Law223 to guarantee an "unborn
baby" a reserved share of the decedent's intestate estate. If heirs fail to set
aside at least the equivalent of an intestate share for the posthumous child,
courts will deduct that amount from the heirs' shares of the estate.224
Article 28 heirs by definition fall into the class favored by Chinese
inheritance law--claimants who are "unable to work" and "have no source
of income.
225
As a result, courts have imposed only one condition for
inheritance: Article 28 claimants must be born alive.226 If they meet this

condition, they are automatically entitled to the reserved share even if they die
shortly after birth.227 For example, in a 1990 case, the decedent's
posthumous child died of acute pneumonia less than two months after
birth.228 The court held that despite his short life span, the child qualified for
a reserved share in his deceased father's estate. 229 That share was inherited
by the child's mother, his sole first-order intestate heir.2
Although published cases and commentaries generally refer to Article
28 as a remedy for posthumous children of the decedent, 231 statutory
of income." Id.
221. Id.
222. See supra Part III.A. 1.
223. For the complete text of Article 28, see supra note 143.
224. The Supreme People's Court has explicitly directed, "If the share of the estate
that should be reserved for an unborn baby is not reserved, it should be deducted from the
heirs' inheritances." Inheritance Law Opinion, supra note 123, art. 45.
225.
See supra note 143.
226. For an explanation of this condition, see ANNOTATED INHERITANCE LAW, supra
note 112, at 172:
From the time of birth to the time of death, a citizen possesses civil law rights
and capacity. Before birth, an unborn baby should not have civil law rights.
However, because an unborn baby in the future can become a citizen, a future
subject of civil law, our country's Inheritance Law stipulates that an inheritance
share should be reserved for the unborn baby's livelihood and growth after birth
....If the unborn baby is born alive, then at birth the child actually obtains
rights to inherit the estate.
227. See Inheritance Law Opinion, supra note 123, art. 45 ("With respect to the
share of the estate reserved for an unborn baby, if the baby dies after birth, the share is
inherited by his or her heirs."). In contrast, if the child is dead at birth, the reserved share of
the decedent's estate "is inherited by the decedent's heirs." Id.
228. The case is reported in ANNOTATED INHERITANCE LAW, supra note 112, at 17374.
229. See id. at 174.

230.
See id.
231. For example, annotated commentary to Article 28 refers to the "unborn baby"
as "the decedent's child" and "first-order heir." ANNOTATED INHERITANCE LAW, supra note
1999:1199
1235
language, in fact, does not require such narrow application.2 32 Chinese courts
can use this provision to protect posthumous heirs more generally. At least
one court has already done so. In a tragic case reported in 1990, the
decedent, Song Shicai, died in a traffic accident six months after marrying his
childhood sweetheart, Wang Lanzhen.233 At the time, Wang was five months
pregnant and in pain over her loss, but "determined to give birth and raise the
child as a symbol of her love for her husband. 23 4 One month later,
misfortune struck the Song family again when Song's father, Song Fusheng,
became seriously ill and died.235 Citing Article 28, the court ruled that the
to reserved shares in both his father's and his
unborn baby was entitled
2 36
estates.
grandfather's
2. REMEDIES FOR DEPENDENT NONHEIRS
Most U.S. intestate succession statutes permit only the decedent's
closest blood relatives and surviving spouse to inherit. 237 As a result,
dependent steprelatives, in-laws, extended family members, and nonrelatives
are left unprotected if their caregiver dies intestate. 23 1 In some jurisdictions,
even half-siblings have only limited inheritance rights.239
112, at 172.
232. Article 28 just uses the term "taier" [unborn baby] and does not specify the
relationship to the decedent. See P.R.C. Inheritance Law, supra note 13, art. 28.
115, at 220-23 [hereinafter Wang Lanzhen v. Song Shinong].
234. Id. at 220.
235. See id. As the case report remarked, "[M]isfortunes never come singly." Id.
236. See id. at 221-23. The court ruled that Song Shicai's estate should be inherited
in equal shares by his wife, father, and unborn child. It decided that Song Fusheng's estate
(including the 1/3 inherited from Song Shicai) should be inherited in equal shares by his
second son, Song Shinong, and by his first son's unborn child by right of representation. The
court thus concluded that heirs should set aside two reserved shares for the unborn child-l/3
of Song Shicai's estate and 1/2 of Song Fusheng's estate. See id. at 223.
237. For extended discussion of common patterns of U.S. intestate succession
statutes, see sources cited supra note 190. Some statutes explicitly exclude non-blood
relatives from inheritance. See, e.g., FLA. STAT. ANN. 731.201(3) (West 1995) (excluding
stepchildren, foster children, and grandchildren from intestate definition of "child"); MINN.
STAT. ANN. 524.1-201(5) (West 1998) (barring stepchildren from taking by intestate
succession from stepparent).
238. See Gaubatz, supra note 40, at 534:
None [of the statutes of intestacy] recognize non-blood, non-affinity "family."
Thus, the wholly supported foster child is excluded in favor of distant collaterals.
The dependent in-law is normally excluded, with the statutes favoring even the
state by escheat. There is no way in which the family of orientation (non-blood
individuals with whom there are very close relationships) may be recognized.
Some statutes will permit relatives by marriage to inherit to prevent escheat of the estate. See,
e.g., Mo. ANN. STAT. 474.010(3) (West 1998) (providing that "[i]f there is no surviving
spouse or kindred of the decedent entitled to inherit, the whole shall go to the kindred of the
predeceased spouse who at the time of the spouse's death, was married to the decedent"). The
1236
Commentators have criticized U.S. intestacy rules as rigid, unfair, and

outdated.2 40 They claim that intestate succession law fails to "provid[e]
economic protection for many dependent family members" 241because it has
not responded to the changing American family, 242 particularly the dramatic
increase in reconstituted and nontraditional families.243 Accordingly, these
critics have called for reform of the existing scheme to extend intestate
succession rights to steprelatives, foster relatives, unmarried cohabitants, and
other members of "families by choice or need." 2 "
California Probate Code goes still further. It allows stepchildren, fathers-in-law, mothers-inlaw, brothers-in-law, and sisters-in-law to inherit if the decedent is not survived by a spouse,
issue, parents, issue of parents, grandparents, or issue of grandparents. See CAL. PROB. CODE
6402(e), (g) (Deering 1999). In addition, it gives a stepchild who had a "parent or child
relationship" with a stepparent intestate succession rights equal to those of biological or
adopted children if the "relationship began during the person's minority and continued
throughout the joint lifetimes" of the stepchild and the stepparent and "[i]t is established by
clear and convincing evidence that the.., stepparent would have adopted the person but for
a legal barrier." Id. 6454. "A well-established judicial avenue around the blood
relationship requirement of the intestacy laws is the doctrine of equitable adoption or
adoption by estoppel." Margaret M. Mahoney, Stepfamilies in the Law of Intestate
Succession and Wills, 22 U.C. DAVIS L. REv. 917, 925 (1989). Because of its "requirement
of a clear and complete agreement to adopt," this remedy is unavailable to most dependent
nonheirs. Id. at 927.
239. See, e.g., CONN. GEN. STAT. 45a-439 (1997) (permitting half-blood relative
to inherit only if no whole-blood of the same degree of relationship); VA. CODE ANN. 64.1-2
(Michie 1995) (awarding half-blood relative half the share of a whole-blood).
240. See, e.g., Thomas M. Hanson, Intestate Succession for Stepchildren: California
Leads the Way, But Has It Gone FarEnough?, 47 HASTINGS L.J. 257, 265, 284 (1995)
(claiming "probate courts are handcuffed by modem intestacy statutes" even when confronted
with legitimate claims and that intestacy statutes that exclude stepchildren are "outdated and
unjust"); Mahoney, supra note 238, at 918-19 (arguing that intestacy laws are unfair,
outdated, and "bias[ed] against nontraditional families").
241. Mahoney, supranote 238, at 928.
242. See id. at 919 ("The legal system must be responsive to the changing nature of
families, in a thoughtful and constructive manner."); see also Ralph C. Brashier, Childrenand
Inheritance in the NontraditionalFamily, 1996 UTAH L. REv. 93, 225 ("It is clear that the
efficient probate schemes that have served the traditional family for decades are ill equipped
to address many of the problems that face its nontraditional counterpart.").
243. For statistics and sources on these changes, see Fellows et al., Committed
Partners,supra note 55, at 2-3, and Hanson, supra note 240, at 290.
244. Laura M. Padilla, Flesh of My Flesh But Not My Heir: Unintended
Disinheritance,36 BRANDEIS J. FAM. L. 219, 221 (1997-98) (proposing reform of intestacy
statutes to prevent "penaliz[ing] people in same sex relationships or other 'families by choice
or need') (borrowing term "families by choice or need" from Elvia R. Arriola, Law and the
Family of Choice and Need, 35 U. LOUISVILLE J. FAM. L. 691 (1996-97)). For other examples
of such proposals, see, for example, Fellows et al., Committed Partners,supra note 55
(discussing reforms to extend inheritance rights to committed partners and children of
committed partners); Mahoney, supra note 238, at 936 (proposing intestate succession rights
for steprelatives where "real family ties exist"); and Lawrence W. Waggoner, Marital
PropertyRights in Transition, 59 Mo. L. Rlv. 21 (1994) (providing draft statutory proposal
for extending intestate succession rights to committed partners).
1999:1199
1237
In China, these proposals are already reality. Unlike its American

counterpart, Chinese intestate succession law recognizes de facto as well as
legal status relationships between decedent and claimant. It distributes
property on the basis of three relationships-blood, marriage, or support.24 5
Article 10 of the P.R.C. Inheritance Law grants stepchildren, stepparents, and
stepsiblings who had a "support relationship" with the decedent equal
inheritance status with the decedent's biological or adoptive children, parents,
and siblings. 246 Article 12 elevates widowed daughters- or sons-in-law who
"fulfilled the main duty of support" toward the decedent to first-order
intestate heir status. 247 Article 14 covers any other claimant in a support
relationship with the decedent by authorizing courts to award an
"appropriate" share of the decedent's intestate estate.248 Through this
comprehensive scheme, Chinese courts can address the needs of all of the
decedent's dependents regardless of their blood or marital status. 249
The published case collections and commentaries suggest that Chinese
courts have taken full advantage of these statutory powers to provide relief to
dependents who would be left unprotected under U.S. intestate succession
law. For example, in one case, an unmarried younger sister, Zhang
Zhenrong, from her youth onwards, lived with her widowed brother, Zhang
Zhenhuan, and his two children, helped take care of the household, and
contributed to the family finances. 250 Later in life, Zhang Zhenrong suffered
numerous illnesses, became unable to work, and had to rely completely on
her brother's support.25' When Zhang Zhenhuan died, his children promptly
2 52
announced they were unwilling to continue support of Zhang Zhenrong.
Moreover, they claimed their father's entire intestate estate on grounds that
they were first-order heirs and their aunt was only a second-order heir.253
Under a purely status-based intestacy scheme such as that in the United
States, the children would prevail.254 In China, the court was able to award
the needy aunt a substantial portion of the estate.2 55
245. See CIVIL AND COMMERCIAL LAW PRACTICE, supra note 12, at 29-30 (case
analysis stating that relationship between claimant and decedent "arises from not only a blood
or marriage relationship but also a support relationship"); Inheritance Case No. 8, in CuaNr
P.R.C. LEGAL PRECEDENTS, supra note 8, at 93 (case analysis stating that under Chinese
inheritance law, a support relationship "can supersede a blood relationship or a marital
relationship. This is a pioneering development in world inheritance legislation").
247. Id. art. 12.
248. See id. art. 14.
249. As will be discussed below, this scheme also allows courts to reward nonheirs
who provided support to the decedent. See infra Part IV.A.

250. This case appears in DETAILED EXPLANATION OF INHERITANCE
115, at 116-17 [hereinafter Zhang Zhenrong Case].
251. See id. at ll6.
252. See id.
253. See id. at 116-17.
254.
CASES,
supra note
Under U.S. probate codes, if the decedent is survived by children or other
1238
In practice, Chinese courts have found support relationships in a variety

of contexts to include rearing and education of children, long-term
cohabitation with the decedent, physical and emotional care, and even purely
financial assistance.256 Unlike their U.S. counterparts, Chinese courts are not
"handcuffed", 257 by rigid intestacy rules. They have the flexibility to
determine on a case-by-case basis the distribution that best reflects the
individual needs of the claimant, circumstances of intestate heirs, overall
258
nature and size of estate, and actual services rendered by the decedent.
A case reported in 1990259 illustrates the marked contrast between U.S.
and Chinese treatment of dependents in intestate succession. The decedent,
Yu Ping, died intestate, survived by his elderly, infirm wife and his ablebodied, gainfully employed son.26 For more than a decade prior to his death,
Yu had voluntarily contributed 10 yuan per month to Ouyang Ping, a destitute
old man in the countryside with no family to support him.261 In the United
States, the claimants' respective circumstances would have no impact on
inheritance. The court would mechanically apply the jurisdiction's intestate
succession statute. Under most probate codes, Yu's spouse and son would
262
be intestate heirs and split the estate according to a predetermined formula.
Old man Ouyang would be ineligible to take, and hence left to fend for
himself or to be supported at taxpayer expense.
Under Chinese intestate succession rules, the decedent's wife and son
were also intestate heirs.263 Unlike its American counterpart, however, the
descendants, the decedent's siblings are ineligible to take. See, e.g., MASS. ANN. LAWS ch.
190, 3(5) (Law. Co-op. 1994) (if deceased leaves no spouse, issue, father or mother then
brothers and sisters take); N.C. GEN. STAT. 29-15(4) (1998) (brothers and sisters take if
intestate is not survived by spouse, children, descendants, or parent).
255. See Zhang Zhenrong Case, in DETAILED EXPLANATION OF INHERITANCE CASES,
supranote 115, at 117. After mediation and persuasion by the court, the decedent's children
turned over to their aunt 2000 yuan (out of a total 5600 yuan) in cash and various personal
property items. See id.
256. For analysis of definitions of statutory terms for support, see SHIYONG CAICHAN
JIcHENG 260 WEN [260 PRACTICAL QuEsTIONs REGARDING INHERITANCE OF PROPERTY] 66-67
(Liu Chunmao et al. ed., 1991). As will be discussed below, courts look at these factors as
well in determining whether the claimant supported the decedent. See infra Part IV.A.
257. See Hanson, supra note 240, at 265.
258. See ANNOTATED INHERITANCE LAW, supra note 112, at 95-96.
259. See Yu Hu v. Wang Chunlan, in DETAILED EXPLANATION OF INHERITANCE
CASES, supra note 115, at 105.
260. See id. at 106.
261. See id.
262. See Brashier, supra note 242, at 95 n.4 (stating "[i]n most jurisdictions, the
decedent's children share the decedent's estate with the surviving spouse" and providing a
summary of statutes). Under statutes modeled on the Uniform Probate Code, however, the
surviving spouse would take the entire estate because Yu's surviving descendant (his son)
was also a descendant of the surviving spouse. See supra note 201.
263. Yu's wife and son were both first-order intestate heirs. See P.R.C. Inheritance
Law, supra note 13, art. 10.
1999:1199
1239
court had discretion to depart from this general scheme to recognize the
particular circumstances of the claimants before it--both heirs and nonheirs.

In this case, the court applied Article 10, paragraph 2 to readjust intestate
shares to address the heirs' differing needs.2 " It allocated the bulk of the
estate to the surviving spouse and a substantially smaller portion to her betteroff son.265 The court responded to the plight of the decedent's nonrelated
dependent as well. Under Article 14, it rescued Ouyang Ping from near
disaster by awarding him a cash legacy of 500 yuan.266
Thus, China's inheritance model provides extensive safeguards to those
whom the decedent supported (or should have supported) during life. It
ensures continued protection to both the decedent's family and nonrelated
dependents, regardless of whether the estate is distributed by will or by
intestacy. As Part IV will show, China's model also uses inheritance to
promote the other possible support relationship between claimant and
decedent. Unlike other countries worldwide,2 67 China adjusts inheritance
rights to reward those who supported the decedent during life. In so doing,
China offers telling lessons in how to achieve a more meaningful linkage of
support and inheritance.
IV. ENCOURAGING LIFETIME SUPPORT OF THE DECEDENT
The U.S. inheritance system at best regards virtue as its own reward.
Under inflexible status-based intestacy rules, contributions to the decedent's
welfare are irrelevant for inheritance purposes.268 Will provisions in favor of
264. See Yu Hu v. Wang Chulan, in DETAILED EXPLANATION OF INHERITANCE CASES,
265. See id.
266. See id. at 107.
267. A few former socialist countries provide a limited exception. See, e.g., Czech
Republic Civil Code, 474(1), 475 (amended 1998) (providing intestate succession rights
to "people who lived with the decedent for at least one year prior to the decedent's death in
a common household and took care of the common household").
268. For a superb critique of this flaw of intestate succession law with specific
reference to 1969 U.P.C. provisions, see Gaubatz, supra note 40, at 548-5 1. As Professor
Gaubatz aptly remarks:
[T]here are situations in which most people would probably feel that it is fairer
to show preference for one relative of a class over others of the same class...
[W]here one member of a class provided significant services to the decedent,
most people would think such services should be rewarded. Where a child or a
nephew or a cousin takes care of an elderly relative in his declining years or helps
run the farm during a similar period, a common sense of fairness argues that a
greater share of the estate should be his.
Id. at 550. Similarly, most intestate succession laws generally do not take into consideration
heirs' failure to support the decedent. See generally Monopoli, supra note 16; Rhodes, supra
note 40. Many jurisdictions do exclude spouses who abandoned the decedent, however. See,
e.g.,
Mo. REv. STAT. 474.140 (1992) (excluding spouse who "voluntarily leaves his spouse
and goes away and continues with an adulterer or abandons his spouse without reasonable
1240
caregivers are viewed with suspicion if not downright hostility. Indeed, under
American inheritance law, the very fact that the legatee provided care and
support to the testator raises a presumption of undue influence.269 Contracts
to devise between decedent and caregiver are equally disfavored. 270 The
United States imposes significant "barriers to enforcement! 271 of such
arrangements in the form of high evidentiary standards 272 and a presumption
that services rendered are gratuitous rather than contractual.273

cause and continues to live separate and apart from his spouse for one whole year next
preceding his death, or dwells with another in a state of adultery continuously, or if any wife
after being ravished consents to her ravisher"). A few states also bar parents who abandoned
or refused to support their children. See, e.g., MONT. CODE ANN. 72-2-124(3) (1998)
("Inheritance from or through a child by either natural parent or the parent's kindred is
precluded unless that natural parent has openly treated the child as the parent's and has not
refused to support the child.").
269. See Thomley, supra note 40, at 516 ("[C]ourts frequently translate acts of care
into evidence that the one-caring unduly influenced the cared-for, or, worse yet, courts use
caring acts to support a presumption of undue influence."). For example, the Oklahoma
Supreme Court used the sole will beneficiary's testimony that for eight years she had lived
with the elderly decedent, who was "'alone, in frail health, and ... unable to care for
himself,...... cooked for [him], cleaned the house, bathed him, gave him medicine, transported
him to the doctor, and grocery shopped with her own money,"' In re Estate of Beal, 769 P.2d
150, 152 (Okla. 1989), as "irresistable" [sic] evidence that she enjoyed a confidential
relationship with the decedent that allowed her to exercise undue influence over him. See id.
at 155-56.
270. See Craddock v. Berryman, 645 P.2d 399, 402 (Mont. 1982) (stating
"[c]ontracts to make wills are looked upon with disfavor"); Fahringer v. Estate of Strine, 216
A.2d 82, 85 (Pa. 1966) ("[T]raditionally the courts have been reluctant to give recognition
to such contracts and have viewed claims based on such contracts with misgivings and
suspicion."). See generally Clifton B. Kruse, Jr., Contracts to Devise or Gift Property in
Exchange for Lifetime Home Care-LatentandInsidiousAbuse of OlderPersons, 12 PROB.
L.J. 1(1994).
271.
Gaubatz, supra note 40, at 520 ( "The Statute of Frauds, 'dead man' statutes,
and uncertainty as to terms, all create barriers to enforcement of contracts; the presumption
that care is gratuitous limits the availability of quantum meruit theory.").
272. Many U.S. statutes require that proof of a contract to devise must appear in
writing. See, e.g., TENN. CODE ANN. 32-3-107 (1998) (stating contract to devise "can be
established only by: (1) Provisions of a will stating material provisions of the contract; (2)
An express reference in a will to a contract and extrinsic evidence proving the terms of the
contract; or (3) A writing signed by the decedent evidencing the contract"). Jurisdictions that
allow oral contracts to devise impose strict evidentiary standards. See, e.g., Kahn v. First
Nat'l Bank of Chicago, 576 N.E.2d 321, 324 (Il1. App. Ct. 1991) ("[E]vidence of the
existence of the contract and its terms must be clear and explicit and 'so convincing that it
will leave no doubt in the mind of the court."') (citation omitted); Thompson v. Henderson,
591 P.2d 784, 786 (Wash. Ct. App. 1979) (stating that oral contracts to devise "are regarded
with suspicion" and that "[t]he standard of proof in such cases is not 'a preponderance of the
evidence' but rather, one of 'high probability') (citation omitted). Dead man's statutes have
posed particular problems for contracts to devise. See, e.g., Farah v. Stout, 684 A.2d 471,
474-77 (Md. Ct. Spec. App. 1996) (strictly construing Maryland's dead man's statute to
exclude only evidence of contract to devise between decedent and caregiver).
273. See, e.g., In re Clark's Estate, 221 Wis. 569, 572, 267 N.W. 273, 275 (Wis.
1936). In what the court itself acknowledged to be "concededly a hard case," the Wisconsin
1999:1199
1241
China offers a marked contrast to this treatment of "acts of care"'27 4 in
the United States. China's model explicitly promotes and rewards support of
the decedent, 2 "5 regardless of whether the estate is distributed by intestacy,
will, or contract.
A. Intestate Succession Remedies
Unlike American probate codes, China's Inheritance Law expressly
permits courts to depart from general intestacy rules to recognize claimants'
contributions to the decedent's welfare. As in the dependency context,276
Chinese legislation gives courts flexible mechanisms to reward support of the
decedent by all individuals, irrespective of family status. For the decedent's.
closest relatives, the P.R.C. Inheritance Law permits readjustment of intestate
shares. Article 13, paragraph 3 authorizes courts to award a larger than
intestate share to any heir who performed "the main duty of support" or
"lived with the decedent. 277
Supreme Court rejected the contractual claim of a niece who had lived with the decedent
since she was an infant, "was regarded by the deceased as his daughter," and furnished room,
board, and continual care to the decedent during the final six years of his life. Id. at 275. As
the court put it, "[h]ad she been a daughter she could have done no more for him." Id.
Nonetheless, the court rejected her claim because of the "settled" presumption that services
rendered by "'near relatives by blood or marriage [who] reside together as one common
family... [are] intended as mutual acts of kindness done or furnished gratuitously."' Id.
(quoting In re Estate of Golz, 205 Wis. 590, 594, 238 N.W. 374, 376 (Wis. 1931)). As a
result, the decedent's estate passed by intestate succession to "blood relatives of the deceased
[who] were apparently indifferent to his welfare." Id. For an extended discussion of this
presumption, see In re Estate of Steffes, 95 Wis.2d 490, 290 N.W. 2d 697 (Wis. 1980); see
also In re Estate of Barr, 658 N.Y.S.2d 933, 936 (N.Y. Surr. Ct. 1997) (stating that where
decedent was married to claimants' uncle "[s]uch a relationship gives rise to the presumption
that the services were rendered in consideration of love and affection").
274. I borrow this term from Thomley, supra note 40, at 514 (stating "current law
of undue influence ... does not adequately account for acts of care").
275. As I have discussed elsewhere, China has adopted a behavior-based model of
inheritance. See Foster, Behavior-BasedModel, supra note 15. The model allows Chinese
courts to address a broad range of conduct toward the decedent, both negative and positive.
See id. at pts. I, II (discussing P.R.C. schemes for "penalizing misconduct" and "rewarding
exemplary conduct"). This Article focuses on application of that model in only one contextclaimants' support of the decedent.
276. See supra Part III.B.
277. P.R.C. Inheritance Law, supra note 13, art. 13 3. Chinese inheritance law also
allows courts to address the "full range of possible misconduct" by heirs towards family
members--"severe neglect," "severe abuse," and "less severe misconduct." See Foster,
Behavior-Based Model, supra note 15, at pt. I.B. Article 13, paragraph 4 allows courts to
reduce the intestate share of any heir who had the "capacity and resources" to support the
decedent but failed to do so. See P.R.C. Inheritance Law, supra note 13, art. 13 4. If an
heir's nonsupport reaches the point of "abandoning the decedent," courts can use Article 7(3)
to impose total forfeiture of that heir's inheritance rights. See id. art. 7(3).
1242
China's comprehensive statutory scheme offers remedies for blended

family members, distant relatives, and nonrelatives as well as heirs. Articles
10 and 12 give courts discretion to elevate to intestate heir status steprelatives
who supported the decedent 27 8 and widowed daughters- or sons-in-law who
"fulfilled the main duty of support toward the decedent." 27 9 Article 14 covers
all other individuals who would not normally be eligible to take under
intestate succession. It permits courts to award an "appropriate" legacy to "a
is not an heir but provided considerable support to the
person who
280
,
decedent.
The published case collections reveal that Chinese courts apply these
provisions frequently and liberally in practice. Unlike their American
counterparts, Chinese courts routinely provide caregivers, regardless of blood
or marital relationship to the decedent, preferential treatment in intestate
succession. For example, under a recurring fact pattern in the reported cases,
a single individual "willingly assumed the burden" 28' of sole caregiver, often
for decades, for a helpless, bedridden decedent. In the United States, these
extraordinary efforts on the decedent's behalf would have no impact on
intestate succession.282 In China, courts draw on the Inheritance Law's
arsenal of remedies to reward the caregiver. Thus, one case featured a
younger son who stayed at home to look after his elderly father stricken with
thrombosis and hemiplegia while his brothers pursued careers elsewhere.28 3
The court's solution was to readjust intestate shares so that the model son
ended up with five times the amount received by his siblings.2 84
In a similar situation involving a daughter-in-law, a Shanghai court was
able to use a different remedy.285 It granted intestate heir status to Zhao
Canjun, who had tended to the decedents' every need for nearly forty years,
even moving into the hospital to nurse them through illness.
28 6
Courts have
recognized equally exemplary conduct by nonheirs with Article 14

appropriate legacies. For example, in a case reported in 1990, the decedent's
sister, Li Yu-e, had taken care of her widowed brother's household for twenty
279. Id. art. 12.
280. Id. art. 14.
281. See FAXUE ANLI JINGXUAN [SELECTED LAW CASES] 84, 84 (Li Liangpin et al.
eds., 1994) [hereinafter SELECTED LAW CASES] (stating that decedent's widowed daughter-inlaw and her daughters "took the utmost care" and "willingly bore [the] burden" of looking
after the decedent who was so grief-stricken at his son's death that he became ill and
bedridden for a decade).
282. See supra note 268 and accompanying text.
note 117, at 55.

284. See id. at 56.
285. See Succession Case No. 17, translatedin 2 CHINA L. REP., supra note 198, at
76.
286. See id. at 80.
1999:1199
1243
years. 287 During the decade when his son was away on military service, the
decedent became seriously ill and unable to support himself..2 Li responded
to her brother's plight by "assum[ing] the responsibility for looking after his
livelihood, caring for him during illness, decocting medicinal herbs, serving
him meals, and disposing of his urine. 2 89 As a second-order heir, Li was
ineligible to take under intestate succession. 290 Nonetheless, under Article
14, the court was able to recognize Li's services with estate property. 291
In practice, Chinese courts actually go beyond statutory text to reward
support.292 They read China's Inheritance Law expansively as a charter to
determine on a case-by-case basis the distribution scheme that best reflects
each claimant's support of the decedent2 93 as well as any mitigating factors.294
115, at 117 [hereinafter Li Yu-e v. Li Shaoquan].
288. See id. at ll8.
289. Id.
290. The decedent's son was a first-order heir and, hence, preempted his aunt's right
to inherit. See supra note 126 (summarizing Chinese intestacy rules).
29 1. See Li Yu-e v. Li Shaoquan, in DETAILED EXPLANATION OF INHERITANCE CASES,
292. For example, Article 13, paragraph 3 suggests that only the individual who
performed the "main duty of support" is entitled to a larger than intestate share. P.R.C.
Inheritance Law, supra note 13, art. 13 1 3; see supra note 277. In practice, however, courts
have applied Article 13, paragraph 3 to increase shares of several heirs based on their
differing levels of support. See, e.g., DETAILED EXPLANATION OF INHERITANCE CASES, supra
note 115, at 108-10 (dividing decedents' estate among seven exemplary heirs who furnished
shelter, care, financial assistance, and emotional support at various periods during the
decedents' lifetime). Article 13, paragraph 3 also authorizes special treatment of heirs who
"lived with the decedent." P.R.C. Inheritance Law, supra note 13, art. 13 3; see also supra
note 277. Courts have interpreted this provision expansively as well to include heirs who
reside with the decedent extensively but not continuously. See, e.g., CIVIL AND COMMERCIAL
LAW PRACTICE, supra note 12, at 52 (case applying Article 13, paragraph 3 to son who lived
with decedents at the end of their lives). The Supreme People's Court has emphasized,
however, that mere cohabitation with the decedent does not automatically result in Article 13,
paragraph 3 relief. Indeed, the Court has directed that if an heir who lived with decedent had
the "ability and resources to provide support.., toward a decedent who required support"
and failed to do so, that heir "can receive a smaller share or no share when the estate is
distributed .... Inheritance Law Opinion, supra note 123, art. 34.
293. In fact, some Chinese courts explicitly state this. See, e.g., Succession Case No.
16, translatedin 2 CHINA L. REP., supra note 198, at 71, 74 (people's court of Jiading
County, Shanghai asserting "[the size of each share should be determined in proportion to
their respective contributions in maintaining Zhang Xuezhen [the decedent]").
294. Such mitigating factors include age, poverty, disability, military service, or
"historical reasons" (generally referring to forced separation during the Cultural Revolution).
See, e.g., Inheritance Case No. 12, in COLLECTION OF CASES, supra note 110, at 138-39
(allowing grandson to inherit full intestate share despite fact he had performed few support
duties while he was a minor and had no income); Inheritance Case No. 13, in CuRRTe P.R.C.
LEGAL PRECEDENTS, supra note 8, at 100, 102 (excusing heir's separation from family during
Cultural Revolution); Inheritance Case No. 14, in COLLECTION OF CASES, supra note 110, at
140, 141 (rejecting daughter's claim that disabled brother should not inherit because he "had
never performed his duty to support his parents"); Li Yu-e v. Li Shaoquan, in DETAILED
1244
Courts may allocate all, part, or none of the estate to any given heir or nonheir
depending on the specific circumstances.295
Finally, Chinese courts reward a broad range of services-financial,296
physical, 297 and emotiona129 -- that receive no recognition under U.S. intestate
succession law. A case reported in 1993 illustrates this striking difference
between Chinese and American practice. The decedent, Peng Xinggang, died
intestate survived by his three sons and stepson. 299 The court proceeded to
evaluate and factor into the estate distribution the various services provided
by Peng's survivors. It found that Peng's stepson had lived with his
stepfather for eight years, defrayed all his living expenses, and provided
continual care after Peng became paralyzed due to a cerebral hemorrhage.
Peng's three sons, although gainfully employed, refused to contribute any
financial assistance whatsoever.0 1 Peng's middle son, however, did return
home when his father became critically ill and regularly visited, sent food,
supra note 115, at 118 (excusing son's reduced support
of father during military service).
295. For a case in which the court awarded the entire estate to one heir, see, for
EXPLANATION OF INHERITANCE CASES,
example,
DETAILED EXPLANATION OF INHERITANCE CASES,
supra note
115, at 21. For thirteen
years, the poverty-stricken Gu Luyun managed to provide funds each month to help defray
her elderly, infirm mother's living expenses. See id. at 21. After her mother's death, Gu paid
for the funeral. See id. at 22. Gu's well-off brother, Gu Lusheng, in contrast, refused to
contribute a cent to his mother's upkeep and actually greeted her pleas for assistance with
insults. See id. at 21. The court found that Gu Lusheng "cared [more] about installing
electricity" in his house than his mother's welfare and deprived him of all rights to her estate.
Id. at 22. The exemplary daughter ended up with the entire estate. See id.
296. Many cases feature claimants who paid part or all of the expenses for the
decedent's upkeep, medical treatment, or burial. See, e.g., DETAILED EXPLANATION OF
INHERITANCE CASES, supranote 115, at 111-12 (applying Article 13 where one son was sole
source of financial support for parents during their lifetimes and split their funeral expenses
with his brother); Inheritance Case No. 16, in COLLECTION OF CASES, supra note 110, at 142
(case involving two sons who split father's living, hospital, and burial expenses and a
daughter who provided food and clothing).
297. For examples of cases involving physical care of decedent's person and
property, see supra notes 281-91 and accompanying text.
298. See CIVIL AND COMMERCIAL LAW PRACTICE, supra note 12, at 77 (case
commentary stressing that support of the decedent is not limited to financial assistance but
"also includes spiritual comfort"). Courts appear to put particular emphasis on regular visits
to the decedent. See, e.g., Case No. 77, in COLLECTION OF CASES FOR TEACHING, supra note
185, at 180, 181 (stressing that son who had moved in with his wife's family "often returned
home to visit his parents"); DETAILED EXPLANATION OF INHERITANCE CASES, supra note 115,
at 119-20 (reducing sole intestate heir's share because "she did not visit her older sister for
more than a decade when old lady Yang was elderly and ill many times"); Inheritance Case
No. 12, in COLLECTION OF CASES, supra note 110, at 138 (emphasizing that grandson "every
month.., bought snacks and fruit for the old couple and visited them" and "stood by [his
grandmother's] bedside" after she broke her leg).
299. This case appears in CIv. AND COMMERCIAL LAW PRACTICE, supra note 12, at
47.
300. See id. at 47-48.
301. See id. at 49.
1999:1199
1245
and provided "spiritual comfort."30 2 Based on these findings, the court

awarded the bulk of the estate to Peng's stepson and the remainder to Peng's
middle son.303 As for the two other sons, they received nothing but scathing
criticism from the court for their "intolerable" neglect of their elderly, infirm
father. 30 4 Had this case occurred in the United States, in contrast, the court
would have had no such discretion to consider the claimants' respective
contributions to the decedent's welfare. It would have had to apply statusbased intestacy rules mechanically and, in nearly every jurisdiction, distribute
the estate in equal shares to the three sons.30 5 Thus, under American
inheritance law, the worthy stepson would ultimately receive no earthly
reward for his numerous acts of care.
B. Wills
China's approach to will dispositions in favor of caregivers diverges just
as markedly from American practice. The published case collections reveal
that China, unlike the United States, treats caregivers as "natural objects of
the decedent's bounty."' 6 For example, one court upheld an oral will leaving
302.
See id. at 47, 49.
303. See id. at 49.

304. See id.
305. See supranotes 237-38 (discussing U.S. restrictions on intestate inheritance by
steprelatives).
306. DUKEMINIER & JOHANSON, supra note 24, at 149. In the United States, one of
the principal requirements for mental capacity is that the testator "know[s] ... the persons
who are the natural objects of the decedent's bounty." Id. In practice, courts generally define
the term "natural objects" narrowly to refer to the decedent's closest family members as
stipulated in intestate succession statutes. See Madoff, supra note 40, at 590-91 (citing
definitions of "natural objects"). Will provisions in favor of nonrelatives are "frequently
regard[ed] as evidence of [undue] influence." Jeffrey G. Sherman, Undue Influence and the
Homosexual Testator, 42 U. Prrr. L. REv. 225, 227 (1981) (stating that in undue influence
cases, "courts frequently regard as evidence of such influence the fact that the will is
'unnatural'-that is, that the dispositions prefer strangers in blood to natural objects of the
testator's bounty"); see Leslie, supra note 40, at 243 (arguing that "the duty to family and
implicit presumption of invalidity where a will benefits non-relatives is especially evident"
in undue influence cases); Spitko, supra note 40, at 276 ("[The doctrines of mental capacity,
undue influence and testamentary fraud incorporate a rational bias in favor of the testator's
legal spouse and close blood relations... [that] imperils any estate plan that disfavors the
testator's legal spouse or close blood relations in favor of non-family beneficiaries."). Some
courts h ve enforced wills in favor of nonrelated caregivers, however, especially in cases of
family misconduct. See, e.g., Mason v. Estate of Reitz, No. CA 92-637, 1993 WL 57687
(Ark. Ct. App. Mar. 3, 1993) (rejecting daughter's undue influence challenge to will leaving
bulk of estate to a friend (Janette Stillman) who cared for testator). The court stated:
This Court firmly believes that natural family should inherit and when there is
nothing such as neglect and abandonment involved, then undue influence is
easier to find. But people have the right to love, respond to, and appreciate
whomever they please. Karen Mason neglected her own mother so badly that the
wedge was driven between them by circumstances, not Janette Stillman. Such
1246
the decedent's entire estate to a neighbor who had voluntarily assumed full
responsibility for her livelihood when the elderly decedent's sister refused to
care for her.30 7 The case commentary applauded the decision, emphasizing
that "[t]here are blood relatives who do not fulfill support duties and there are
nonrelated individuals who provide support for a long time and create a de
facto support relationship. 308
With this broader definition of "natural" recipients of a testator's
largesse, Chinese courts do not hesitate to enforce will provisions for
caregivers at the expense of the decedent's closest family members. Thus,
one court rejected a son's petition to overturn his mother's will leaving half
30 9
her estate to her niece and her neighbor who cared for her during illness.
The court proclaimed that it was "both legal and appropriate" for the testator
to devise property to "people who were not intestate heirs but provided her
considerable support. 3 10 Similarly, another court reduced a son's inheritance
when it upheld a will rewarding the decedent's cousin, Wang Yue, for his
extraordinary services.3 11
The court found that during the Cultural
Revolution, Wang had transported the decedent to the countryside, hidden

him from authorities, and nursed him back to health.312 Years later, when the
decedent became critically
ill and hospitalized, Wang once again was there
313
at his cousin's bedside.
a shame!!
Id. at *2. For extended discussion and analysis of recent will contests involving disinherited
family members and nonrelated beneficiaries, see Melanie B. Leslie, Enforcing Family
Promises: Reliance, Reciprocity, and Relational Contract, 77 N.C. L. REv. 551, 586-99
(1999). Drawing on relational contract principles, Professor Leslie argues that in such cases
courts "manipulat[e] doctrine" to enforce an implied family "reciprocity norm." Id. at 586,
587 n. 117. She states:
Specifically, courts seem to consider whether the testator and her closest relatives
enjoyed a trust-based relationship that by its nature would have created implied
understandings from which the parties benefited and on which they relied. If
such a relationship appeared to be in place, a court will likely find some reason
to invalidate the will-thus causing the testator's estate to be distributed via the
intestacy statutes to the testator's closest family members. Conversely, if no
trust-based relationship appeared to be functioning, either because it never
existed or because contestant family members appear to have breached it, courts
will honor the testator's autonomy and give effect to the will.
Id. at 587.
307. See Inheritance Case No. 15, in COLLECTION OF CASES, supra note 110, at 141 42.
308. Id. at 142.
309. See Sun Zili & Wang Shuyuan v. Du Zhiwei, in DETAILED EXPLANATION OF
INHERITANCE CASES, supra note 115, at 154.
310. Id. at 155.
note 117, at 64, 66.
312. See id. at 64.
313. See id.
1999:1199
1247
Unlike their American counterparts, Chinese courts routinely approve

even informal, unconventional wills in favor of caregivers 14 Numerous
cases feature unwitnessed, handwritten wills,315 so-called "holographic wills"
that would be invalid in half of the U.S. jurisdictions. 16 For example, one
court "stunned" the decedent's relatives when it upheld the elderly woman's
holographic will.31
The testator left nothing to her family and expressly
disinherited her granddaughter for failing to support her, being "unfilial," and
"hav[ing] regard only for money and not people."31 Instead, the testator left
six gold rings to her "neighbor who looked after [her] during illness" and the
remainder of her estate to the "Municipal Children's Welfare Foundation to
educate those who do not understand respect 3for
19 the elderly, do not cherish
the elderly, and have regard only for money.
Moreover, Chinese courts apply statutory requirements liberally to
enforce wills that virtually no U.S. court would allow: audiotaped3 20 and oral
314. This is not to say that such wills are recommended. For example, in a June 20,
1991, Chinese newspaper legal advice column, the editor recommended formal scrutiny of
all types of wills by a public notary "in order to prevent a dispute emerging because of a lack
of legal expertise or a careless omission." Tradition in the Shadow of Modern Legal Practice:
Continuity and Change in the Delivery of Justice in China (), 31 CHINESE L. & GOV'T 70,
71 (Sept.-Oct. 1998) (Ethan Michelson ed. & trans.) [hereinafter Michelson, Lawyer Bao
Translations].
315.
Article 17, paragraph 2 of the P.R.C. Inheritance Law allows holographic wills
that are "in the testator's handwriting, signed, and dated." P.R.C. Inheritance Law, supra
note 13, art. 17 2.
316.
See DutEMINIER & JOHANSON, supra note 24, at 248 (stating that "[i]n about
half of the states... holographic wills are permitted"). For a list of U.S. states allowing
holographs, see id. at 248 n. 17.
note 117, at 68, 69.
318.
Id. The case summary suggests that the granddaughter fully deserved this
description. Initially, the granddaughter, her husband, and her son took in the old woman and
treated her well because they thought she would undoubtedly have substantial accumulated
wealth. See id. Apparently, the old woman kept her assets hidden from her relatives because
later the granddaughter and her family decided "they could not make any profit offher" and
acted "increasingly coldly" toward her. Id. Eventually, the situation deteriorated to the point
where the entire family "cursed her throughout the day ....
treated the old woman with
absolutely no respect and did not give her anything good to eat." Id. Indeed, on one
occasion, the granddaughter reportedly bought three large shrimp, cooked them, and let the
old woman watch as the granddaughter, her husband, and her son ate. See id. Ultimately, the
old woman was so "broken-hearted" that she moved out and "lived frugally" on her own. See
id. Even when the old woman became ill, her granddaughter "did not show any concern." Id.
It was only due to the good offices of a sympathetic neighbor that she received care during
illness. See id.
319. Id.
320.
Article 17, paragraph 4 permits audiorecorded wills that have at least two
witnesses. See P.R.C. Inheritance Law, supra note 13, art. 17 4. For an example of a case
involving an audiotaped will in favor of caregiver, see Case No. 38, in USING CASES TO
ExPLAN LAW: INHERITANCE LAW, supranote 117, at 70 (upholding audiotaped will leaving
estate to decedent's grandchild who supported her).
1248
wills321 that reward support of the decedent. A recent Shanghai case is
illustrative. The decedent's heirs contested an improperly witnessed oral will

that devised the bulk of the decedent's estate to his niece and his sister. 22 The
court acknowledged that the will was formally defective but nonetheless
declared it valid. 23 The court made a point of noting that the testator's niece
In contrast, U.S. courts have traditionally rejected taped wills. See, e.g., In re Estate
of Reed, 672 P. 2d 829 (Wyo. 1983) (denying probate to audiotaped will). "There seems no
immediate likelihood that courts will accept videotaped or recorded wills as substitutes for
'written' wills ....
"
JOHN RITCHIE ET AL., DECEDENTS' ESTATES AND TRUSTS
240 (8th ed.
1993). The 1990 Uniform Probate Code does not explicitly reject taped wills, however,
which leads some commentators to speculate that the "situation may be changing." ROGER
W. ANDERSEN, UNDERSTANDING TRUSTS AND ESTATES 51 (2d ed. 1999) ("That situation may
be changing, however. The revised UPC leaves the door open by being silent on the question
of whether a videotape is a 'writing."'). See generally Gerry W. Beyer & William R.
Buckley, Videotape and the Probate Process: The Nexus Grows, 42 OKLA. L. REV. 43 (1989);
James Lindgren, The Fall of Formalism, 55 ALB. L. REv. 1009 (1992); Lisa L. McGarry,
Note, Videotaped Wills: An Evidentiary Tool or a Written Will Substitute?, 77 IOWA L. REV.
1187 (1992).
321. Article 17, paragraph 5 of the P.R.C. Inheritance Law provides: "Under
emergency circumstances, a testator can make an oral will. The oral will should be witnessed
by at least two witnesses. Once the emergency circumstances have been removed, the oral
will is null and void, provided the testator is capable of making a written or recorded will."
P.R.C. Inheritance Law, supra note 13, art. 17 5. The published case collections feature
numerous oral wills. There appears to be no strict interpretation of the term "emergency
circumstances" or limitation on the size or type of property devised by oral will. The major
obstacle to enforcement of oral wills is compliance with witnessing requirements. See, e.g.,
Inheritance Case No. 21, in COLLECTION OF CASES, supra note 110, at 147 (rejecting oral will
due to interested witnesses and allowing all three children who provided support to decedent
to inherit). This liberal Chinese approach to wills is strikingly different than that of the
United States where "[o]ral wills admitted to probate are extremely rare." DuKEMINIER &
JOHANSON, supra note 24, at 208 n. 1; see ELIAS CLARK ET AL., CASES AND MATERIALS ON
GRATUITOUS TRANSFERS 316 (4th ed. 1999) ("There have been virtually no reported cases
involving nuncupative [oral] wills in recent years."). The few probate codes that do permit
oral wills generally require that oral wills must be made during the testator's "last sickness"
or military service, "devise personal property of small value (say, up to $1000)... [and] must
be uttered before three persons, who must reduce the declaration to writing within a specified
period." DUKEMINIER & JOHANSON, supra note 24, at 207-08 n. 1. Although China does not
similarly require oral wills to be reduced to writing, it does enforce such wills. See P.R.C.
Inheritance Law, supra note 13, art. 17 3 (authorizing wills written by witness on testator's
behalf so long as that witness writes, dates, and signs will and the testator and at least one
other witness sign the will). See, e.g., Yu Lai v. Yu Jing & Chen Xia, in CIVIL AND
COMMERCIAL LAW PRACTICE, supra note 12, at 103. During illness nearly two years prior to
her death, Wu Yuzhi orally dictated to her danwei leader a will devising her entire estate to
two individuals who cared for her. See id. The danwei leader wrote and signed the will. See
id. Wu and two other witnesses signed as well. See id. The court found the will formally
valid but required allocation of a mandatory share from the estate for Wu's minor son. See
id. at 104.
323. See id. at 2 (upholding will "[a]lthough the witnessing document had defects").
The court found that the will did not reserve a mandatory share for the decedent's elderly
1999:1199
1249
and sister had been his principal caregivers during his final bout with lung
cancer and that his niece had arranged and paid for all funeral expenses.3 24
There appears to be one significant limitation, however, on China's
favorable treatment of caregivers in wills cases. The published case
collections suggest that in judicial practice, freedom of testation generally
preempts courts from recognizing acts of care.325 Although Chinese courts
regularly vary will distribution schemes to ensure continued support of the
decedent's dependents,3 26 they do not do so to reward support of the
decedent. As both cases and commentaries emphasize, courts have a narrow
function in such cases. They327
judge only the formal validity of the will, not
the good deeds of claimants.
The results are often unfortunate. For example, the capricious Wang
Yuzhen was able to leave her entire estate to only one of the two sons who
had helped defray her living expenses for nearly twenty years. 328 Apparently,
one day shortly before her death Wang "felt her elder son was very kind to
her" and wrote a will in his favor. 329 A case reported in 1996 tested the
boundaries of freedom of testation. In a holographic will, Yang Jingsheng
expressly disinherited his three sons who had supported their father,
stepmother, and half-siblings for twelve years out of their own meager
resources. 330 The court upheld the will as "legally effective," insisting that
Yang Jingsheng "had the right to dispose of his own property."'33' The case
analysis praised the court for ignoring the sons' extensive support and
focusing exclusively on the will's compliance with testamentary
formalities.332 The analysis summed up the lesson of the case: "It should be
made clear that even if an heir performed duties toward the decedent, the
decedent can, nonetheless, make a will leaving his or her estate to another
mother, however, and declared it partially void. See id. at 2-3.
324. See id. at 2.
325. There is one case commentary, however, that takes a different view. See CIVIL
AND COMMERCIAL LAW PRACTICE, supra note 12, at 50 (stating that it is "impermissible" to
use wills to disinherit "people who performed the main duties of support, especially...
female heirs who performed the main duties of support").
327. For a clear statement of this view see text accompanying infra note 333.
note 117, at 61-62.
329. Id. at 61. The case commentary stressed that both sons were adults and able to
work and hence mandatory share provisions did not apply. See id. at 61-62.
330. See Case No. 85, in COLLECTION OF CASES FOR TEACHING, supra note 185, at
201. The testator directed his children to "live independently, relying on their own labor, and
become good children of China." Id. He left his entire estate to his surviving spouse. See
id.
331. Id. at 202.

332. See id. The case analysis emphasized that the sons were not eligible for
mandatory share relief "[T]he testator's children were adults and had fixed-wage earnings;
they did not have the problems of being unable to work or of having no source of income."
1250
person. To be effective, the will need only conform with the requirements
stipulated in the Inheritance Law. 333
C. ContractualArrangements
Finally, China's approach to lifetime care contracts between decedents

and legatees is diametrically opposed to that of the United States. Rather than
disfavoring such arrangements, 334 China actively promotes 335 them as a
practical and ethical support mechanism that "lightens" the welfare burden
on State and society.336
Article 31 of the P.R.C. Inheritance Law broadly authorizes Chinese
citizens to enter into so-called "bequest and support agreements," under
which one individual promises to devise all or part of his estate to another
individual or collective organization in exchange for "lifetime support and
burial after death. 337 Unlike corresponding American probate code
provisions regarding contracts to devise, China's Inheritance Law contains
no explicit formal or evidentiary restrictions on enforcement of bequest and
support agreements. For example, in contrast with the "modem trend 33 1 in
333. See id.

334. See supra notes 270-73 and accompanying text (discussing U.S. treatment of
contracts to devise).
335. See, e.g., Inheritance Case No. 428, in NEW TYPES OF CIVIL AND COMMERCIAL
LAW CASES, supra note 12, at 1211, 1213 (case commentary stating bequest and support
agreements should be "vigorously developed and promoted"); Case No. 57, in USING CASES
To EXPLAIN LAW: INHERITANCE LAW, supra note 117, at 103, 104 (case commentary asserting
bequest and support agreement "deserves the utmost encouragement").
336. See Inheritance Case No. 428, in NEW TYPES OF CIVIL AND COMMERCIAL LAW
CASES, supra note 12, at 1213 (arguing bequest and support agreement "lightens the burden
on society.... [and] can also encourage the younger generation to support the elderly and
nurture the disabled and minors"); see Inheritance Case No. 427, in NEW TYPES OF CIVIL AND
COMMERCIAL LAW CASES, supra note 12, at 1205, 1210 (case commentary stating bequest and
support agreement "encourages the socialist ethical practice" of supporting elderly and
minors).
337. P.R.C. Inheritance Law, supra note 13, art. 3 1. Article 31 stipulates:
A citizen can enter into a bequest and support agreement with a person who
supports him or her. By such agreement, the supporting person assumes the
obligation to provide said citizen lifetime support and burial after death, and has
the right to receive a bequest.
A citizen can enter into a bequest and support agreement with a collective
organization. By such agreement, the collective organization assumes the
obligation to provide said citizen lifetime support and burial after death, and has
the right to receive a bequest.
Id.
338.
See GERRY W. BEYER, WILLS, TRUSTS, AND ESTATES: EXAMPLES AND

220 (1999) (stating that in United States, "the modem trend is to require a
writing to prove the contract"). See supra note 272 (discussing writing requirement for
contracts to devise).
EXPLANATIONS
1999:1199
1251
the United States, China's statute does not require written evidence of the
agreement.
As in the wills context,33 9 Chinese courts apply statutory text
expansively to reward support of the decedent. In practice, they accord
bequest and support agreements the highest legal status for inheritance
4
purposes. 4 Under express directive from the Supreme People's Court, '
they give such agreements precedence over conflicting will provisions. For
example, in one published case, an elderly couple entered into a bequest and
support agreement with the Wooden Junk Transport Cooperative.342 The
couple agreed to leave their house and wooden junk to the cooperative in
return for care and burial.343 The wife subsequently wrote a will devising her
entire estate to her daughter. 344 After the couple died, the court declared the
will partially void with respect to the property covered by the bequest and
support agreement." It distributed the house and junk to the346
cooperative and
only the remainder of the estate to the decedents' daughter.
Courts permit bequest and support agreements to override intestacy rules
as well.347 Once again confirming that a support relationship can supersede
a status relationship to the decedent,348 courts enforce such agreements even
at the expense of the decedent's closest family members. A case reported in
1996 is illustrative. An elderly widow, Lin Xiu, signed a bequest and support
agreement with two nephews, under which she promised to leave them her
house in exchange for "food, clothing, care, and burial" and cash payments
of five yuan per month. 349 After Lin's death six years later, her daughter
challenged the agreement and asserted intestate succession rights to the
339.
See supra Part IV.B.
note 117, at 104 (case commentary stating "[t]he bequest and support agreement has the
highest legal force of the five methods for transferring estates"); Inheritance Case No. 428,
in NEW TYPES OF CIVIL AND COMMERCIAL LAW CASES, supra note 12, at 1213 (case
commentary stating "a bequest and support agreement has the greatest force of the four forms
of inheritance").
341. See Inheritance Law Opinion, supra note 123, art. 5 (stating that if decedent's
bequest and support agreement and will "are in conflict, [the estate] is disposed of in
accordance with the agreement, and the will that conflicts with the agreement is entirely or
partially void").
342. This case appears in CIVIL AND COMMERCIAL LAW PRACTICE, supra note 12, at
177 [hereinafter Wooden Junk Transport Cooperative v. Li Guiyue].
343. See id.
344. See id.
345. See id. at 178.
346. See id.
347. See generally Inheritance Case No. 428, in NEW TYPES OF CIVIL AND
COMMERCIAL LAW CASES, supra note 12, at 1213 (asserting bequest and support agreement
has higher legal status than intestate succession).

348. See supra Parts III.B.2, IV.A (discussing China's emphasis on support rather
than status in intestate succession).
349. Case No. 88, in COLLECTION OF CASES FOR TEACHING, supra note 185, at 209.
1252
house.35 She argued that due to her mother's short lifespan the nephews
"had performed relatively few support duties but had reaped a large
reward. 35 1 The court disregarded the length and value of the services and
upheld the agreement. 352 The case commentary applauded the decision,
emphasizing that a bequest and support agreement "is sufficient to defeat the
inheritance rights of intestate heirs" regardless of the ultimate "length of the
period during which the supported person ...receive[d] support. 353
In the published case collections, Chinese courts uphold bequest and
support agreements with a wide variety of parties-relatives, nonrelatives,
and collective organizations alike.354 Unlike their American counterparts,355
Chinese courts adopt a liberal and flexible approach to such agreements.
They look principally to the substance of the agreement rather than its form.
For example, in several published cases, courts disregard a document's title
to find it "actually constituted a bequest and support agreement. '35 6 Similarly,
although courts frequently state that such agreements should be in writing and
meet contractual formalities, they enforce oral as well as written bequest and
support agreements.357
350.
See id.
351.
Id.
352. See id at 210.

353. Id. at 210-11. A similar point was made in the May 23, 1991, Lawyer Bao
newspaper legal advice column. See Michelson, Lawyer Bao Translations,supra note 314,
at 69-70. A reader questioned the validity of a bequest and support agreement between his
brother and a nephew signed only eight months before the brother's death. See id. at 70. The
reader and his brothers thought that the agreement should not be binding for inheritance
purposes because of "how briefly Nephew A took care of our eldest brother and how
insufficient his work was." Id. The editor rejected this argument, responding that the bequest
and support agreement "should be respected and absolutely should not be changed because
the time for which support was provided was short and the work lacking." Id.
354. Indeed, in practice, only heirs with legally-prescribed support obligations
toward the decedent are ineligible parties to bequest and support agreements. See Wooden
Junk Transport Cooperative v. Li Guiyue, in CIVIL AND COMMERCIAL LAW PRACTICE, supra
note 12, at 181 (case commentary stating that intestate heirs with a legally-prescribed support
relationship with the decedent cannot be parties to bequest and support agreements).
356. See, e.g., Inheritance Case No. 428, in NEW TYPES OF CIVIL AND COMMERCIAL
LAW CASES, supra note 12, at 1212 (Shanghai court disregarding title--"bequest
document"-indicating outright, unrestricted bequest and finding that document "actually
constituted a bequest and support agreement"). Similarly, courts recharacterize "five
guarantees" arrangements with collectives concluded in the 1970s as bequest and support
agreements. See, e.g., Case No. 57, in USING CASES TO EXPLAIN LAW: INHERITANCE LAW,
supra note 117, at 103 (holding 1973 "five guarantees" agreement with village collective
"constituted a bequest and support agreement").
357. See Wooden Junk Transport Cooperative v. Li Guiyue, in CIVIL AND
COMMERCIAL LAW PRACTICE, supra note 12, at 182 (case commentary asserting that unlike
foreign practice, Chinese bequest and support agreements can be in oral or written form).
Chinese commentators emphasize that although the bequest and support agreement "takes a
contractual form," it cannot "simply be summed up as a type of contract." Inheritance Case
No. 427, in NEW TYPES OF CIVIL AND COMMERCIAL LAW CASES, supra note 12, at 1210. See
1999:1199
1253
The published bequest and support agreement cases suggest that

Chinese courts treat parties' performance of support obligations as the key
determinant of inheritance rights.35 a Indeed, in several cases, courts reward
support of the decedent even under invalid bequest and support agreements.
For example, in a case reported in 1995, the decedent's adopted son and sole
intestate heir, Zhang Minhua, signed an agreement with a neighbor, Chen
Hailong, for lifetime care of Zhang's senile father.359 Zhang promised that
in return for such care he would renounce his intestate rights to his father's
estate and allow Chen to inherit the entire estate. 360 After the decedent's
death, an appellate court ruled the arrangement between Zhang and Chen an
ineffective bequest and support agreement because Zhang was an improper
party-he neither received support nor provided support under the
agreement.361 Chen's contributions to the decedent's welfare did not go
unrecognized, however. Despite the formal defects of the agreement, the
court ultimately awarded him one-half of the decedent's estate.362
also Inheritance Case No. 428, in NEW TYPES OF CIVIL AND COMMERCIAL LAW CASES, supra
note 12, at 1212 (asserting that "[i]n comparison with a ... conventional contract" the
bequest and support agreement "has a character all its own").

358. This emphasis on parties' performance of support obligations is consistent with
China's behavior-based model of inheritance as well as its focus on support. See Foster,
Behavior-BasedModel, supra note 15, at 113-17 (discussing how Chinese courts reward
"good" behavior and penalize "bad" behavior in bequest and support agreement cases).
359. The case appears in ANNOTATED INHERITANCE LAW, supra note 112, at 187
[hereinafter Zhang Zhidi v. Chen Hailong]. According to the case report, Zhang Minhua
concluded that his father's illness would likely be "prolonged and difficult to recover from"
and "did not feel like providing long-term care and support." Id. at 187.
360. See id.
361. See id. at 188. In so ruling, the appellate court reversed the lower court's
decision upholding the agreement as falling "within the category of bequest and support
agreements." Id.
362. See id. (applying Article 14 to reward Chen Hailong). Zhang Minhua received
none of his father's estate because he validly renounced his inheritance rights. See id.
Because of this renunciation, the decedent's sole second-order heir-his brother, Zhang
Zhidi-became eligible to inherit. See id. The court split the estate between Chen Hailong
and Zhang Zhidi. See id. For another case allocating estate property to an individual who
provided support under an invalid bequest and support agreement, see CIVIL AND
COMMERCIAL LAW PRACTICE, supra note 12, at 185 (awarding one-half of decedent's estate
to cousin who cared for severely ill, bedridden decedent under invalid bequest and support
agreement with decedent's adopted son). In contrast, if a party fails to perform support
obligations under a bequest and support agreement, Chinese courts do not enforce the
agreement even if it meets formal requirements for validity. For example, in one case, an
elderly man, Xie Zhaohe, entered into a bequest and support agreement with a neighbor, Zhao
Lanying. See ANNOTATED INHERITANCE LAW, supra note 112, at 188, 189 [hereinafter Zhang
Shenpu v. Zhao Lanying]. A few months later, Zhao stopped "pay[ing] attention to Xie
Zhaohe's food and clothing." Id. After Xie complained to village authorities about Zhao's
"maltreatment," Zhao retaliated by stealing a cabinet out of his house. See id. After Xie's
death, the court declared the agreement invalid, making special mention of Zhao's theft of
Xie's property as well as her failure to provide support. See id.
1254

In sum, the bequest and support agreement exemplifies China's
distinctive approach to inheritance.3 63 Like the system as a whole, its

Moreover, the bequest and
principal purpose is to promote support.3
support agreement mirrors China's overall approach to inheritance365 by
specifically addressing both sides of the support relationship. It uses
inheritance to protect those who need support and to reward those who
provide support.366 Finally, in its very name, the bequest and support
agreement captures the essence of China's new model-it explicitly links
support and inheritance.367
V. CONCLUSION
In his 1977 article Notes Toward a Truly Modern Wills Act, Professor
John Gaubatz painted a bleak picture of the U.S. inheritance system. He
depicted a system so rigid and formalized that it could not respond to the
"broad spectrum of fact patterns presented by life and death. 3 68 He
described general rules and techniques designed for a "mythical 'normal'
family situation" that proved "at best inadequate and at worst unjust" when
363. The bequest and support agreement exemplifies both key features of China's
innovative approach to inheritance-China's behavior-based model of inheritance as well as
its model for linking support and inheritance. See Foster, Behavior-Based Model, supra note
15, at 113 ("[B]equest and support agreements exemplify the behavior-based model of
inheritance.").
364. As this Article has argued, "[slupport, not entitlement, is the principal basis of
Chinese inheritance law" as a whole. Supra Part III at 1217. At the same time, the bequest
and support agreement also reflects a second goal of the Chinese inheritance system. It
promotes donative freedom. See Wooden Junk Transport Cooperative v. Li Guiyue, in CIVIL
AND COMMERCIAL LAW PRACTICE, supra note 12, at 183 (stating bequest and support
agreement "embodies a property owner's freedom to dispose of his own property"). For a
discussion of this goal in Chinese inheritance law generally, see supra notes 186, 325 and
accompanying text.
365. See supra Parts III, IV (discussing how China's comprehensive inheritance
scheme recognizes both types of claimants in support relationships with the decedent-those
who received support and those who provided support).
366. For a clear statement of this dual focus of bequest and support agreements, see
Inheritance Case No. 428, in NEW TYPES OF CIVIL AND COMMERCIAL LAW CASES, supra note
12, at 1213. The case commentary emphasizes that such agreements allow "widowers,
widows, orphans, and the childless, or blind and other disabled people who are unable to
work and have no source of income" to "resolve the large problem of 'lifetime support and
burial after death' .. . [and to] receiv[e] physical assistance and emotional warmth." Id. The
case commentary stresses as well the impact on the supporting party. "The signing of a
bequest and support agreement can also encourage the younger generation to support the
elderly and nurture the disabled and minors." 1d.
367. Indeed, one scholar has even translated the Chinese term as "inheritance-forsupport agreement." Michelson, Lawyer Bao Translations,supra note 314, at 70.
368. Gaubatz, supra note 40, at 499 (pointing to the "problem of the inability of the
existing highly formalized and structured substantive succession law to provide consistently
acceptable results in a broad spectrum of fact patterns presented by life and death").
1999:1199
1255
369
applied to particular, real world cases that deviated from this norm.
Professor Gaubatz portrayed a system that put certainty and administrative
convenience ahead of need, affection, and merit.370 The result, he showed,
was a scheme that "penalize[d] the needy family member, '3 71 ignored
emotional ties with "nonblood, nonaffinity 'family,' 372 and "frustrated"
3 73
decedents' "desire to reward those who support them in their last years.
Gaubatz sketched the outlines3 74 of an "entirely different picture of
inheritance, ' 3 7 one with sufficient flexibility to respond effectively on an
individual level to such factors as "dependency, need, regularity of
behavior, 3 7 6 and "affective relationship to the decedent. 3 77 He concluded
with the "hope... that the current law of decedent's estate is not that which
will take us into the twenty-first century. 378
On the eve of the new century, Professor Gaubatz's hope remains
unrealized. Mechanical, "fixed rules" of inheritance still formally govern.379
369. See id. at 556. "The flaws in the system stem from the fact that it postulates a
mythical 'normal' family situation and tailors the law to fit this norm ....There are many
common fact patterns where the decedent and his family do not fit the normal family model.
In these situations the law is at best inadequate and at worst unjust." Id.
370. See id. at 520, 546 (criticizing emphasis on certainty and administration
convenience).
371. Id. at 551.
372. Id. at 534 (criticizing "insufficient coverage" of intestate succession statutes for
failing to "recognize non-blood, non-affinity 'family"'); see also id. at 524 (criticizing
"narrow" definition of spouse as ignoring other "equally meritorious" people who "may have
similar emotional ties and reasonable expectations").
373. Id. at 520.
374. See id. at 562-63 (providing "outline [of] how the proposed system would work
in practice" and inviting "[o]ther alternatives" with the "hop[e] that they would improve upon
the suggestions made here"); id. at 556-63 (setting out suggestions for reform in full).
375. Id. at 562.
376. Id. at 562 n.258. Professor Gaubatz specifically recognized the need to address
both sides of the support relationship. His proposals included schemes under which courts
could deviate from will provisions and intestacy rules to "tak[e] into account" both "support
previously furnished by the decedent" and "support fumished decedent by the claimant." Id.
at 562-63.
377. Id. at 563.
378. Id.
379. For examples, see supra notes 187-93, 237-39 (discussing intestate succession
rules). If anything, "fixed rules" may have become even more entrenched than two decades
ago as a result of Professor Mary Ann Glendon's highly influential 1986 defense of fixed
rules and critique ofjudicial discretion. See Glendon, Fixed Rules and Discretion,supra note
20. It should be noted, however, that fixed rules do not necessarily determine "actual
outcomes of cases"; in fact, "unwritten norms may prevail in clashes with the traditional
printed sources of law because such norms have greater persuasiveness." Walter 0.
Weyrauch & Maureen A. Bell, Autonomous Lawmaking. The Case ofthe "Gypsies," 103
YALE L.J. 323, 379 (1993). See Spitko, supra note 40, at 275 ("[W]hen cultural minorities
attempt to use formal legal processes to give effect to choices which are inconsistent with
prevailing community norms[,] ... the substantive merit of their legal claims is at risk of
being subjugated to majoritarian values .. ").See generally Lynn M. LoPucki & Walter
1256
The nuclear family paradigm, which has become even more mythical and
removed from the reality of today's American family and society, prevails. 8
Certainty and administrative convenience arguments continue to dominate
and block efforts to introduce more flexible, equitable inheritance
1
mechanisms. 38382
And, just as in 1977, the human cost remains
"tremendous."
This Article has followed the lead of previous scholarship in the field
and looked to foreign inheritance models and experience to help illuminate
problems in our own system. 3 More than a decade ago, Professor Langbein
found in Australian inheritance law a lens that revealed our approach to
testamentary formalities to be an embarrassing relic.384 Through the lens of
Chinese inheritance law, this Article has found our approach to support to be
equally embarrassing.
China's model highlights significant flaws in American treatment of the
decedent's dependents.38 5 U.S. inheritance law allows testators to impoverish
even their most helpless dependents by will. 386 Thus, the disinherited
American daughter severely disabled from childhood illness, the 91-year-old
destitute mother, or the orphaned minor stepbrother or neighbor supported
since infancy by the testator would experience very different fates than their
Chinese counterparts. Rather than receiving mandatory or "appropriate"
shares of the estate, they would likely be left to fend for themselves or to rely
on the kindness of others or public welfare. Similarly, in the United States,
the penniless 80-year-old husband could not count on meaningful protection
when his wife of twenty-five years disinherited him in favor of her former
husband's nephew.38 7 Although as a disinherited surviving spouse he would
be the preferred claimant of American inheritance law, he could ultimately
find statutory remedies inadequate. He would receive marital property
calculated solely on the basis of fixed formulas rather than his actual needs.
Statutory probate exemptions and family allowance provisions could
supplement this amount but offer only minimal, short-term relief. Unlike his
0. Weyrauch, A Theory of Legal Strategy, 49 DuKE L.J. (forthcoming Mar. 2000) (arguing
virtually any rule can be defeated through legal strategy).
380. For an extended discussion of this point, see Foster, Nuclear Family Paradigm,
supra note 17.
381. See supra notes 81-87 and accompanying text (discussing opposition to reforms
based on commonwealth model).
382. See Gaubatz, supra note 40, at 520 (describing "tremendous cost" of certainty).
383. See supra Part II.
384. See Langbein, Excusing HarmlessErrors,supra note 14, at 54 (describing U.S.
testamentary formalities as "relics so embarrassing").
385. See supra Part III.
387. See supra notes 103-08, 130-40 and accompanying text (discussing contrasting
U.S. and Chinese approaches for protecting disinherited spouses).
1999:1199
1257
Chinese counterpart, then, the disinherited American husband could lose the
house he had called home for over two decades.
U.S. dependents do not fare any better in intestate succession."' Under
mechanical intestacy statutes, the American court does not have the Chinese
court's flexibility to readjust shares to recognize heirs' differing
circumstances. 38 9 As a result, in our country, the ten-year-old schoolchild, the
mentally ill brother facing lifelong treatment and hospitalization, or the
elderly penniless mother would receive no special consideration. They would
split the estate equally with a wealthy, able-bodied heir of the same intestate
relationship to the decedent. For blended family, extended family, and
nonrelated American dependents, the situation would be even worse.39
Under rigid, status-based intestacy rules, their needs would be disregarded
altogether. Their caregiver's closest relatives by blood, adoption, or affinity
would automatically inherit. Unlike their Chinese counterparts, the bedridden
sister, the aged, infirm grandmother, or the destitute elderly resident of the
decedent's hometown would have no claim to continued support after their
caregiver's death.
Contrasting Chinese experience reveals another major defect of
American inheritance law-our system's failure to recognize and reward
support of the decedent. 391 In the United States, acts of care are irrelevant for
intestate succession purposes.392 As in the dependency context, mechanical
status-based rules prevail at the expense of individual justice. In our country,
the son who remained at his father's bedside would receive the same share as
his brothers who left home to make their fortunes. Even the most exemplary
nonheir would be ineligible to take.393 The American stepson, daughter-inlaw, sister, or friend would receive no recognition for years of selfless
devotion to the decedent's welfare.
Chinese inheritance law highlights as well the negative American
attitude toward testamentary efforts to reward support.394 Unlike Chinese
practice, U.S. courts treat will provisions in favor of caregivers with suspicion
rather than approval. Thus, in marked contrast with her Chinese counterpart,
the American neighbor who provided round-the-clock nursing services to an
elderly testator could well find herself labeled an "unnatural object of the
decedent's bounty," her very acts of care raising a presumption of "undue
influence."
Finally, China's approach to lifetime care contracts underscores the
extent to which our own system disfavors contractual arrangements to reward
388.
389.
390.
391.
392.
393.
394.
See supra Part III.B.

See supra Part III.B.1.
See supra Part III.B.2.
See supra Part IV.
See supra note 268 and accompanying text and Part IV.A.
See supra notes 278-305 and accompanying text.
See supra note 269 and accompanying text and Part IV.B.
1258
support.395 Unlike China's enthusiastic and liberal enforcement of bequest

and support agreements, the United States views contracts to devise between
decedent and caregiver "with misgivings"3 96 and imposes significant "barriers
to enforcement., 397 As a result, the American niece who provided her uncle
room, board, and continual care and comfort during his final years could end
up with nothing under an oral contract to devise.398 The decedent's entire
estate could pass by intestacy to heirs who the court admitted were
"indifferent to his welfare. 3 99 The American court could only lament, as its
Chinese counterpart would never do, how "unfortunate" it was that the uncle
did not make a will or otherwise compensate the niece he regarded as his
"nearest and dearest relative. ' 4
In sum, the Chinese inheritance stories of human need, greed, and
compassion are familiar but their results are not. Under the American
inheritance system, there would be few such happy endings for the needy and
the caring. From China we thus can draw a moral for our own country about
the value of a more flexible, individualized approach to inheritance.
395.
396.
397.
398.
399.
400.
See supra Part IV.C.

See supra note 270 (citing Fahringer v. Estate of Shrine).
See supra notes 271-73 (citing Gaubatz).
See In re Clark's Estate, 221 Wis. 569, 572, 267 N.W. 273, 275-76 (Wis. 1936).
Id. at 275.
Id. at 275-76.

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LINKING SUPPORT AND INHERITANCE:

HI. The Influence of Foreign Models on U.S. Inheritance Reform ....

In 1996, Congress passed landmark legislation' that promised to "end

WISCONSIN LAW REVIEW

grounded in personal responsibility3 rather than public entitlement.4

Linking Support and Inheritance

Chinese welfare reform rhetoric is strikingly similar to its American

WISCONSIN LAW REVIEW

rather than any legal or constitutional right to public welfare.' 0 Likewise, it

Linking Support and Inheritance

experiment to use inheritance law to activate private sources of support. Over

WISCONSIN LAW REVIEW

succession, testate succession, and contracts to devise is to undermine, not

In Part H,this Article examines U.S. scholars' responses to the support

her influential article Fixed Rules and Discretion in ContemporaryFamily

See id. at 1186-91.

JESSE DumEmINm & STANLEY M. JOHANSON, WILLS, TRUSTS, AND ESTATES

(5th ed. 1995).

Linking Support and Inheritance

WISCONSIN LAW REVIEW

and occasionally rewritten format with accompanying analytical discussion

Linking Support andInheritance

In theory, the U.S. inheritance system already performs a vital social

For broad systemic analyses of how American inheritance law disserves

A vast literature has focused on how U.S.

WISCONSIN LAW REVIEW

In response to these flaws of the U.S. inheritance system, leading

Generally overlooked in the literature is the U.S. inheritance system's failure to

(1996) (proposing a new "care-sensitive" standard of undue influence to promote inheritance

238-50 (1989) [hereinafter GLENDON,

Linking Support andInheritance

WRIGHT, TESTATOR'S FAMILY MAINTENANCE IN AUSTRALIA AND NEW ZEALAND

N.Y. LEGIS. DOC. No. 19 (1965) (considering

WISCONSIN LAW REVIEW

Two approaches have attracted particular scholarly attention: forced

family members, most commonly the decedent's children and descendants of

Linking Support and Inheritance

deceased children. 50 Forced heirship awards these shares exclusively on the

WISCONSIN LAW REVIEW

Linking Support and Inheritance

they contend, forced heirship can provide much-needed relief to an

of children on parents rather than the taxpayers.63

WISCONSIN LAW REVIEW

See MACDONALD, supra note 45, at 291.

Linking Support and Inheritance

model as fundamentally unsuited to the U.S. environment. They claim

WISCONSIN LAW REVIEW

Linking Support and Inheritance

restrict protection solely to the decedent's closest family members. 98 In so

In stark contrast with American law and practice, China recognizes

worldwide, China explicitly extends its support protections to individuals

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disabled, and unborn children without cause or remedy. 0 2 U.S. inheritance

516 (2d ed. 1997) [hereinafter

only relative favored by a protection against intentional disinheritance."). Children may be

Linking Support and Inheritance

As recently published Chinese case collections and commentaries reveal,

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Linking Support andInheritance

"calculating" Chinese testator deliberately impoverished his mentally and