All the same, showing how a set of legal provisions for inheritance might be justified is not the same as showing that they are justified, all things considered. Are they? In this section, I shall argue that they are not. My argument has five elements: first, that whatever interest heirs or relevant dependents have in inheritance may easily be matched by the interests of strangers; second, that it is not fair that heirs’ (forced or otherwise) needs get priority over others’ needs; third, that there is no need in modern societies to rely on inheritance to satisfy putative heirs’ needs, not least because inheritance is not a particularly good way of satisfying them to begin with anyway, either—fourth—economically or—fifth—morally. None of these elements ought to be too hard to swallow.

The first two stages of the argument require only a very little elaboration. If we allow that a person has an interest in inheriting from an estate, and that this is morally important, it seems straightforward enough to point out that there will be plenty of others who would benefit from that same estate, and so have an interest in inheritance. More widely, the community as a whole may well benefit from getting at least a share of the assets. While my interests—and we can allow that they are worth taking morally seriously—might be served by inheriting from Aunt Mabel, others have a comparable interest. Whatever needs I have are likely to be mirrored by at least some other people; and even if my needs are sui generis, the community as a whole has needs of its own, which we might be in a better position to serve if we could liquidate Aunt Mabel’s estate. Bluntly, there is a moral reason to allow the state to seize her property and to sell it off to whomever will take it. This will help fund public services, reduce house-prices by increasing supply, and so on. This, even if not compelling in the end, probably ought to be taken seriously. So much for element one of the argument.

The second element is elaborated even more quickly. We have already seen how patterns of inheritance may distort the circumstances of justice. My inheriting Aunt Mabel’s assets gives me an advantage that others lack, with the associated social benefits. In most cases, inherited assets are not “earned”; therefore I am benefitting from serendipity in a manner that is not only unfair, but also unjust. Moreover, if inequality is undesirable in itself, and the effects of inequality also undesirable, it would seem to follow that the community sensu lato would have an interest in there being less inequality. Thus if (a) other members of the community have an interest in there being less inequality, and (b) inheritance is something that feeds inequality, there would be the opportunity to say that we ought not to support laws that formalise it. The point common to the first and second elements of the argument is that, if interests are providing the moral motor for our arguments in defence of inheritance rights, it looks as though that motor may backfire to at least some degree by providing people who would not otherwise inherit with a bankable right to benefit from an estate.

The third element of the argument rests on the claim that there is no need for inheritance in modern societies to meet putative heirs’ legitimate interests. Allow, arguendo, that it is wrong to make no provision for a certain group of people (dependents, family members, or something like that) after one’s death in circumstances in which it is reasonably foreseeable that this will leave them destitute. A lot is riding on what we may reasonably foresee. The risk of destitution is high in some parts of the world, and has been high everywhere for most of history. To have a legal system designed to minimise the chance of destitution would seem to be morally desirable, and therefore might have stood a fighting chance of justifying inheritance for the bulk of human history. But—and this makes a difference—while there was nothing like a comprehensive welfare state in post-Classical Arabia (per the Islamic tradition) or in Enlightenment Europe (per the civil code origins of the French law), and there probably could not have been, it is possible today. That possibility ought to guarantee that no one would be left destitute without an inheritance. In fact, one of the functions and justifications of the state is that it can ensure that no one is left destitute; and a state that has the capacity to ensure that no one is left destitute but that does not pursue policies that make use of that capacity is arguably to that extent unjust. If an adequate welfare system exists, then nobody should be reliant on inheritance to avoid destitution. Hence the idea that inheritance can serve as prophylaxis against destitution in a modern, functional state seems to lack heft.Footnote 7

For sure, some modern states may be unable to provide adequate welfare for their people; others may be able but—for reasons best known to the electorate—unwilling. In such cases, we may have to admit that there is a reason to support inheritance, based in an appeal to the interests of people who may be left destitute otherwise. After all, it’s probably better that some people’s interest be served than that none be. But that can only take us so far. Legislating for inheritance rights in order to make good the insufficiency of social support is to admit that available social support is not good enough, and so much the worse for the children of the worst off. This is hardly a ringing endorsement of the institution of bequests. Working the other way, the kind of social safety net that it is reasonable to want to see in an admirable society—or even a decent society—would obviate any pressing need for inheritance ab initio.Footnote 8 Of course, some people might not be as well off under such a dispensation as they otherwise could have been; but so long as they are at least well enough off, the idea that they have been wronged would be hard to sustain without presupposing a right to inherit. And this brings me to the next elements of the argument, between which there is significant overlap: arguing in defence of inheritance in states that do not or cannot protect the interests of putative beneficiaries is likely to come a cropper by dint of the fact that inheritance is not a good way to protect the most urgent interests anyway, either economically or morally.

The most obvious point here is that, if inheritance is intended to be our primary bulwark against destitution, it often isn’t a very convincing one. This is straightforwardly shown when we consider forced heirship systems. The most that inheritance can offer to do in respect of destitution under this kind of dispensation is to stave it off from those who come from a reasonably well-heeled background already. And since those who come from such a background are less likely than those born into poverty to face destitution, the safety-net of inheritance will likely turn out to be most useful when deployed on behalf of those who need it least. As such, inheritance is potentially rather economically irrational, not to say—simply because it serves to protect the children of the wealthy more than the children of the poor—unjust. In fact, it might bake in inequality.

Insofar as that English law does not specify proportions that have to be left to certain people, it perhaps does not have to face down this particular objection quite as urgently as the French and Koranic systems, or systems that behave in a comparable way. The accommodation it makes for dependence at least opens the way for those who genuinely would face destitution to get their voices heard when an estate is administered. On the other hand, even this provision depends on the needy having the good fortune to be tied (a) in the right way to someone who (b) is wealthy and (c) dies at the right time. Most of the truly needy are not in that position: it’s worth noting that the needy do not have anything like the same rights if the person on whom they’re notionally dependent is currently either in rude health—in which case, inheritance is not the cure for their current needs—or not much better off herself—in which case there’ll be little to nothing to inherit anyway. Moreover, there is a special place reserved for close family members in cases of intestacy irrespective of their need; it is up to those facing destitution to show that they should receive more.

Whichever way we pare things, the point would stand that laws guaranteeing any kind of inheritance right are likely simply to ensure that wealth stays with those who are already fortune-favoured. One needs only to glance at a nineteenth-century novel from Austen to Zola to see the mechanism of this kind of worry played out. (The Jacobin stipulation that one-tenth of the value of an estate should leave the immediate family is a slight mitigation of the problem, but only slight.) If there is an interest in not being destitute that the law ought to serve, it is not at all clear why the destitution or otherwise of family members—much less the interests of non-destitute family members—should weigh more heavily than the destitution of strangers.

So the economic and the moral defences of a legally-sanctioned right to inherit seem to be either rebuttable or to meet substantial counterpoints: such a right serves the interests of those whose needs are likely to be least pressing, while doing nothing to serve the interests of those whose needs are most pressing. At the same time, and thereby, inequality is allowed to pass down the generations. To the extent that inheritance rights are supposed to reflect rights based in certain interests, the interest that Smith has in inheriting seems to be matched Jones’, and it is not clear why Smith should benefit from having wealthy patrons or family members. Smith may have a right to inherit what he needs; but this doesn’t imply a right to inherit more than he needs, since his interest in possessing that extra amount would have to be balanced with Jones’ interest in acquiring some share of it. More, if the state can ensure adequate welfare and opportunities for all, Smith turns out not to need very much from the estate to begin with. Finally, Jones (and possibly Smith as well on some accounts, though I shall not explore them here) has an interest in greater equality for its own sake. Hence it may turn out that the state would be justified in taking some, or all, of Smith’s patron’s estate and dividing it between Smith and Jones. In other words: a confiscatory and redistributive inheritance tax would seem to violate no rights based in an interest in welfare or equality, and it may serve them.

Strictly speaking, none of this sanctions state appropriation. We could recognise that people have a critical interest in distributing their fortune as they see fit and simply insist that they should be allowed to distribute it ad lib, so long as it is outside the family. (After all, if a legal system can define who is sufficiently close a relative to inherit, it can presumably define who is sufficiently close a relative not to.) In essence, we could mandate some form of post-mortem philanthropy.

Yet the problem here is fairly evident: even discounting the possibility that Aunt Mabel will leave her property to her friend on the nod-and-a-wink understanding that that friend will make an inter vivos gift of it to me, such a system may ensure that money leaves the family, but it may not be able to provide for the needy if their needs happen not to coincide with Aunt Mabel’s preferences. Charitable gifts are unreliable ways of satisfying needs, and may do little more than reflect the donor’s personality. One might think here of Mrs. Jellyby’s works of “telescopic philanthropy” in Bleak House (Dickens 2003), or—less comically—of Saccard’s support for the wildly opulent Work Foundation, which is based substantially in the pleasure he takes in “regulating this crazy dance of millions [of francs]”, and not insubstantially in the prospect of his being recognised as “the king of charity, the god adored by masses of the poor” (Zola 2014, 44–45). There is no reason to suppose that charitable bequests would be any less shaped by folly and self-regard. Moreover, charity comes into its own, and is only really necessary, when the state is unable or unwilling to provide the services in question. The state, on the other hand, has the ability to require contributions and to distribute them not according to the tastes of donors or testators, but according to genuine need; and an inheritance tax would be one way to go about that.

A nagging doubt lingers, however, and it speaks to the notionally Nozickian claim that I mentioned at the start of this paper. Let’s allow that inheritance laws do little or nothing to serve the interests of the neediest, and that there are interests that would be served by confiscation. Let’s allow that these interests balance out rights to inherit or bequeath, so that whatever rights Smith has are matched by those that Jones has. All the same, there might be something that weighs in favour of Smith’s inheriting property—a right that tips the balance, which serves as a side-constraint that we ought not to violate. It has to do with the interest we have in family ties.

Recall Nozick’s point about the moral value of inheritance: that bequest marks and serves morally important bonds between people. For him, inheritance is a demonstration of a particular form of relationship with others that we do and should value, and is a guarantor of that relationship (Nozick 1990, 30). If this is correct, then we would seem to have a moral reason to take bequest morally seriously, whatever we think of the arguments considered over the preceding few paragraphs.

Still, we should not be convinced by Nozick’s claim—indeed, we perhaps ought to be slightly repulsed by it. After all, the link that it draws between morally desirable ties between people and property is not all that attractive: although Nozick is not such a naïf as to claim that inheritance is a necessary condition of expressing one’s care for others, he does say that it can create and does intensify bonds between people. This does seem rather to imply that the bonds between people are stronger roughly thanks to the property that passes between them—which suggests that those with little or no property therefore don’t have the same chance for such strong bonds. This is hardly plausible. Indeed, it would be strange to think that my bonds with Aunt Mabel are deepened in any morally important way because of the prospect of my getting the china dogs she promised to (or will inflict on) me.

And this leads us to an important point: the morally important ties between people are not dependent on property. Property might represent a bond, but it is not a substitute for it; and not to have that property does not have any knock-on effects for that bond. It might be nice to own some item from a relative’s estate, but the significance of my relationship with that relative does not depend on that item. I might be miffed to discover that I have been left out of a will; but this is a sign that I was mistaken about my relationship with the deceased, and it tells us nothing about rights to inherit or bequeath. Perhaps more importantly, we are now talking about sentimental value, which has nothing at all to do with financial value. Something of little or no financial value may have great sentimental value; and there is no reason at all to suppose that either financial value or ownership has much to do with sentimental value—at least, not in any way as to make inheritance important. For instance: I might pass my childhood home as I walk along the street, and smile at some happy memory; that doesn’t depend on my owning or expecting that I will own the building, though. Hence it’s not so clear why the state may not confiscate it and sell it on the open market when my parents die; that will not erase my happy memories, and my not owning it would be unlikely to cause distress if I never had any expectation that it would be mine to begin with.

Having said that, while the community may have an interest in seizing the value of a house or goods worth more than a certain amount, it has little interest in many of the accoutrements of everyday life—the family photo albums, the china dogs, the old oak cabinet—and it cannot confiscate memories. And it’s these things, which constitute precisely the stuff that would likely fall below the threshold of any plausible confiscatory inheritance tax, that carry the moral weight in relationships. Hence a confiscatory tax would likely do nothing to erode the bonds that exercise Nozick.