Isn't inheritance a positive right?

[u/gurgifriends]

It's such a well-established tradition that it tends to be thought of as simply a natural process, but in fact inheritance of property from the dead does not function except as a state-enforced guarantee -- a "positive right," granted to people by the state, rather than a "negative right, such as is usually preferred by libertarians, a right of free action without interference from others.

Outside of inheritance, the dead are not afforded any legal status. The dead may not own property (and it is exactly the hoards they leave behind, and the inevitable conflicts that these provoke, which inheritance law exists to address); contracts with people who die are generally invalidated; the dead are not even considered party to cases of the desecration of their grave. As such, any "right" to control the transfer of one's property after death, or to be granted a dead person's property, is a positive one -- it exists solely because it was created and enforced by the state.

Inheritance is not a negative right because it would not simply happen freely within the bounds set by restrictions against interference. If inheritance law didn't exist, the property of the dead would not be owned by anyone, and so would be free to claim, the same way that ancient artifacts -- which presumably used to belong to someone -- should be treated on discovery. This would be the properly libertarian state of affairs, and more economic activity would be stimulated if these hoards could be freely claimed and sold on the market rather than transferred in a government-mandated monopoly to the dead's relatives.

Of course, if a person transferred all their property to before death, or if one's family were in the home at the time of death to claim the property, then the tradition of inheritance would live on, but as the product of free action by individuals rather than as state-guaranteed generational welfare.

The practice of writing wills does not, as with contract law, bring inheritance into the domain of free individual action defended by negative rights. Firstly, the idea that a dead person should have legal standing is, as discussed above, only possible because of state interference. Secondly, the property of people without wills (and many people die without wills) is still transferred according to a preexisting legal code -- generally going to one's spouse, children, siblings, etc. in certain amounts and in a certain order defined by the state. Thirdly, wills are often invalidated -- they refer to property that the person no longer owns, or they were drafted under duress or manipulation, or are forgeries -- in which case they need to be disregarded and the aforementioned state-defined order of inheritance rules instead.

The strongest argument to show that inheritance is a positive right of state interference rather than a negative one of individual freedom is that even where wills have been written, when they must be found invalid, inheritance always reverts to a legal code defining the transfer of certain property to certain individuals by the fiat of the state.

How can inheritance be considered a negative right -- and if not, then is it a positive right that should be accepted into libertarianism?

[u/gurgifriends]

Since the topic is whether inheritance is a "positive right" -- an abstract concept -- then yes, theory is sufficient. I'm not going to do the amount of work you're demanding to prove to your satisfaction that I deserve to participate in this discussion. Please engage productively or not at all.

[u/CatOfGrey → u/gurgifriends]

Since the topic is whether inheritance is a "positive right" -- an abstract concept -- then yes, theory is sufficient.

You've barely shown that.

You are trying to artificially create scenarios where someone's intentions, expressed with a diligently prepared legal document during their lifetime somehow change after death. You need to prove that case, and anecdotal evidence isn't sufficient.

You are trying to prove that, among those without such a legal document, that the State's default allocations would be materially different, if such a legal document were prepared. Again, you need to prove that case, and anecdotal evidence isn't sufficient.

And you are far short of your claim that your suggested policy: a state-enforced abandonment of any property, is either a) not a positive right itself (the right of society to declare property abandoned after a death, and re-allocated) or b) a better allocation than the decedent would have chosen during their lifetime, or c) even a better idea that would benefit society compared to the existing framework.

You've put forth a legal theory, and that's it. Your basis is unproven, your benefit to society is unproven.

[u/gurgifriends → u/CatOfGrey]

The fact that people feel the need to write wills at all proves that their desired distribution differs from the rules of intestate succession. If they wanted the property distributed according to those default rules, they wouldn't write the will.

Your critiques of my suggested policy are as incoherent as your multiple misarticulations of it. a) Abandonment of property is not the product of a positive right. The state does not have to create the legal power to abandon property. b) The existence of wills proves that intestate succession is not entirely satisfactory. c) Whether it "benefits society" for inheritance to exist is irrelevant to whether inheritance is a positive right. The reason I posted this on a libertarian subreddit is that this ideology generally criticizes positive rights, so I wanted to show that inheritance is one of those and see how libertarians would respond. If you think this positive right benefits society, it may provoke you to question whether other positive rights -- such family law, intellectual property, or the right to counsel -- may be worthwhile.

[u/CatOfGrey → u/gurgifriends]

The fact that people feel the need to write wills at all proves that their desired distribution differs from the rules of intestate succession. If they wanted the property distributed according to those default rules, they wouldn't write the will.

Right. And 100% of those people are having their best desires documented and followed while living. The existence of a dispute outside of that is not a justification to abandon the property.

Abandonment of property is not the product of a positive right. The state does not have to create the legal power to abandon property.

It's a positive right compared to the default, where people have the right to declare their wishes, or default it to rules that were established by the state.

The existence of wills proves that intestate succession is not entirely satisfactory.

Your policy advocating abandonment is worse, and reflects the desires of the passed even less.

Whether it "benefits society" for inheritance to exist is irrelevant to whether inheritance is a positive right.

Correct, but the purpose of legal policies is practical, and laws should help support quality of life for society.

so I wanted to show that inheritance is one of those and see how libertarians would respond.

I find it incorrect. Your assumption that 'dead people can't consent' is absurd, given that a) wills and other instruments exist, and b) there is no evidence that existing rules by the state is materially unfair, and abandonment is somehow a better expression of intent before death.

If you think this positive right benefits society, it may provoke you to question whether other positive rights -- such family law, intellectual property, or the right to counsel -- may be worthwhile.

Yep!