Families & Freedom of Disposition in Georgia

 

This guest post is from Blake Gaither, Regent Law Class of 2023:

Freedom of disposition is an important concept in estate law. Like the contract’s principal freedom of contract, which allows the parties to bargain and create terms to their liking without judicial interference, the estate’s concept of freedom of disposition allows a testator to dispose of their property in any way they desire. There are several important reasons parties should have disposition freedom. Here are two: (1) incentivizes individuals to accumulate and pass wealth to their friends and family; (2) motivates individuals to give to specific organizations, such as a charitable organization, that produces community good.

Georgia allows for a testator to dispose of his property in a unique way. For example, “[a] testator, by will, may make any disposition of property that is not inconsistent with the laws or contrary to the public policy of the state and may give all the property to strangers, to the exclusion of the testator’s spouse and descendants.” Ga. Code § 53-4-1 (emphasis added). Georgia is the only remaining state that allows for a person to exclude a spouse or child with a will.  If ambiguity exists, Georgia requires that “the court shall seek diligently for the intention of the testator and shall give effect to such intention as far as it may be consistent with the rules of law.” Ga. Code § 53-4-55. Freedom of disposition in Georgia is an important concept, even to the exclusion of a spouse and child.