Inheriting Privilege

Abstract

All families may be created equal, so to speak. But differences between families in terms of economic wealth, resource networks, and access to cultural capital are both severe and stark. A large part of what shapes this scenery of economic possibility is the legal framework of wealth transfer. Wealth travels through generations and sticks, crystallizing in predictable places and shapes, thereby embedding complex forms of inequality within and between families. The family trust, in particular, is a mode of transfer that facilitates wealth preservation as well as wealth inequality. Family trusts are tailored to convey and defend complex patrimonies in ways that no other form of wealth transfer can do. Wills, the other most common form of wealth transfer, do not have the same functionality and can only effectuate a one-time transfer, making it difficult to exert long-term control over beneficiaries.

This Article’s primary goal is to excavate the myriad ways in which the family trust is a driver of inequality by explaining the family trust’s plasticity and ability to bend to the needs of high-wealth families. The Article accomplishes this by demonstrating how the family trust facilitates not only wealth inequality but also social and cultural inequality. These explorations into complex inequality and its furtherance by the family trust are useful because they help us better appreciate the significant role that family trusts play in the evolving story of class, gender, and race privilege in the United States. Attending to the practices and possibilities of the family trust also leads us to a better understanding of how trust reform might begin to dislocate the family trust from its central positioning within the legal architecture of inequality. Ultimately, the family trust does not have to be coextensive with elite family advantage; it can be reimagined to work on behalf of communities that are economically vulnerable and historically dispossessed.