In English history, the ages-ago method of bequeathing one's estate consisted of the "fee-tail" system - that is, property was passed (or "entailed") by lineal descent in a way that allowed the testator to control it for generations to come (for example, "I bequeath Blackacre to the eldest surviving male from x line, provided that he does not marry a non-Aryan wife and, if he does, then to the next male heir in succession and, should so-and-so (or anyone in his line) die without male issue, then Blackacre shall revert to the oldest surviving male in y line.") This is the world of Pride and Prejudice.

Now that was a system that cried out for reform and it was reformed, in time, to the point where legislatures abolished the fee-tail system in favor of a "fee simple" system - meaning that, once property was transferred, the transferee had the full bundle of rights relating to its disposition, including the power to alienate it during that person's lifetime and the power generally to bequeath it to whomever that person desired.

In the midst of this, the law injected value judgments of varying types, one of which was to favor children, meaning that if someone died intestate (without a will), the law set up default categories by which the decedent's property would pass, and this routinely favored spouse first and then direct lineal descendants, i.e., children. Indeed, even if a testator (person with a will) intended to disinherit children, he had to follow prescribed forms for doing so or the law would presume that he intended to leave appropriate shares to all children.

This is the legacy we have in the United States from the English common law tradition. It is based fundamentally on the idea of private property and on laws promoting what we today call the "nuclear family." And this is, by and large, the way the law has continued to this day, though the idea of "family" has broadened somewhat.

In theory, none of this needs to be as it is. If the state reigned supreme in people's lives, and if private property were regarded as an evil, then confiscatory policies could be enacted as desired. Of course, if one's estate were to be routinely confiscated upon one's death, then the equivalent of the modern "gift tax" proscription would also need to be in place, preventing a living person from making inter vivos transfers to his children as a way of circumventing the ultimate confiscation that society deemed to be fair. This would mean that the idea of "private property" would become largely illusory. No one would own property as such. Rather, each person would have a lease of sorts on property during one's lifetime, with a reversionary interest held by the government.

Since such a system would ultimately lead to widespread government confiscation, it would not long leave us with a free society but rather one in which we each would be required to seek permission from the sovereign state to use "its" resources as its bureaucrats and regulators deemed just.

The modern estate tax doesn't do this because, even while it seeks to promote the idea of busting up large estates at a person's death in the name of fairness, it comes nowhere close to doing this. The vast majority of average middle class people have always fallen under the minimum threshold such that the tax has not applied to them and, if it has, it has applied in a comparatively innocuous way - that is, it has imposed a tax on some portion of the estate such that the heirs still retained the larger portion. For extremely wealthy people, a system of foundations has been established by which the heirs can effectively control the family fortune even as it bypasses the normal estate-tax mechanism.

Thus, the question becomes, is the fee-simple form of property ownership, with its system of vesting the full powers of ownership and disposition in the hands of private individuals largely free from the authority of the state, a system in need of reform in the same way that, say, the old fee-tail system cried out for reform?

This is ultimately a question of the values a society seeks to reflect, with a state-run society of individuals largely beholden to the government for major elements of their subsistence versus a society grounded in individual rights, as best summed up in the Declaration of Independence, who are free to engage in "life, liberty, and the pursuit of happiness" free of the influence of the state. "Fairness" in this context in a purely subjective term rooted in one set of values or the other.

It took centuries to move from a system of medieval serfdom to a system of fee-tail to a private property system of fee-simple ownership. I doubt that we would want to throw the modern system of property ownership away without some pretty careful thought and not without careful consideration of what has happened (or one might say the horrors of what has happened) in societies that do not respect private property ownership.