Will construction—the process wherein a trier of fact must determine
the testator’s probable intent because the testator’s actual intent is not
clear—is too little discussed and too often misunderstood in succession
law jurisprudence. Yet, construction issues are becoming increasingly
important due to a growing number of will and trust disputes concerning
the determination of beneficiaries in a post-Obergefell United States.
Currently, courts are being asked to construe terms like “spouse,”
“husband,” “wife,” “child,” “son,” “daughter,” and “descendants” in
estate planning documents during a time in which understandings of
marriage, identity, reproduction, religious liberty, and public policy are
rapidly evolving. Interestingly, these various construction cases may
have disparate legal outcomes depending upon the states in which the
cases are litigated, even in cases with similar underlying facts. In fact,
these definitions and consequent outcomes may correlate with the views
of the state’s dominant political party—whether a state is red or blue.
Data support the notion that red states and blue states generally have
different attitudes toward LGBT issues, artificial reproductive
technology, and religion. Data also support the inference that judges—
particularly elected judges—tend to be influenced by their respective
state’s attitude. Where a judge’s decision-making is influenced one way
or the other—toward the red side or the blue side—her approach to will
construction and her understanding of public policy may reflect that
tendency. Therefore, diverging public policies in red states and in blue
states may affect judicial construction and govern dispositions.
Accordingly, this Article addresses real-world construction issues in the
estate planning context where a particular state’s approach to the
redefinition of both words and policy may influence the deemed intent
ascribed to a donor’s words.