I often sit with families in our Manhattan office who are worried about the future of what they’ve built. They ask, “Can someone really challenge my final wishes? Is my will enough to protect my legacy?” These questions go beyond legal documents. They touch a fundamental American principle: the constitutional right to control your own property.
Most people do not think of estate planning in constitutional terms. They see it as filling out forms. But the ability to decide who inherits your home, your business, and your savings is a profound expression of personal liberty—a right protected by the same document that guarantees our freedom of speech. Stewardship of your assets is the final act of ownership. It deserves to be handled with intention.
The Fifth Amendment and Your Right to a Legacy
The U.S. Constitution’s Fifth Amendment, applied to the states through the Fourteenth, protects against the deprivation of “life, liberty, or property, without due process of law.” While many associate this with criminal proceedings, its principles extend to the stewardship of your personal legacy. The right to own property is hollow without the corresponding right to dispose of it as you see fit.
An estate plan is more than a practical tool—it is the legal instrument for exercising this constitutional right. New York law puts this principle into practice. The Estates, Powers and Trusts Law (EPTL) § 3-1.1 grants every competent person aged eighteen or over the right to create a will. This statute gives life to your constitutional property rights after death. Without a will or trust, your property is distributed according to New York’s intestacy laws, silencing your intentions and overriding your right to choose.
A deliberately constructed plan is your assertion of this right. It is your directive, backed by the force of law, ensuring your property passes to the people and causes you have chosen—not to a default list created by the legislature.
Privacy, a Principle That Extends to Your Estate
The Fourth Amendment protects us from unreasonable searches, establishing a right to privacy. While its text concerns government intrusion, the underlying principle—the “right to be let alone”—is a major consideration in how we structure an estate plan. Many of my clients are deeply private people who do not want their family’s affairs laid bare for public inspection.
The distinction between a will and a trust is critical here. When a will is submitted for probate in New York, it becomes a public record in the Surrogate’s Court. Anyone can view the document, the approximate value of your estate, and the identities of your beneficiaries. For many families, this public exposure is an unwelcome intrusion.
A properly structured and funded revocable living trust, however, is a private document. Its administration occurs outside of court, managed by a trustee you appoint. It keeps your family’s financial affairs within the family. This is not about hiding anything—it is about exercising a choice to keep personal matters private. It is a prudent contingency against a world of endless public curiosity.
Your Final Statement: The First Amendment in Estate Planning
The First Amendment protects our freedom of expression. An estate plan can be one of your most powerful and lasting statements—a final declaration of your values. This is your last word, and the law protects your right to say it.
Through charitable trusts and bequests, you can provide enduring support for the institutions and causes you championed during your lifetime. I have worked with clients who have endowed scholarships, created foundations to support local arts, and made legacy gifts to their places of worship. This is more than a financial transaction. It is a form of protected expression, a definitive statement on what you stood for.
Your estate plan is the framework that ensures your voice and your values continue to resonate for generations. It is a final act of stewardship, grounded in fundamental rights. Protecting your constitutional right to direct your property, however, requires deliberate action. It does not happen by default.
A prudent first step is to create a clear inventory of your assets and write down, in plain English, who you intend to receive them and why. This simple document can serve as the foundation for a formal conversation about the legal structures—whether a will, a trust, or both—that will best execute your intentions.
