Laws Governing Restrictions on Charitable Gifts: The Consequences of Codification


Over the last two decades we have seen marked changes in the laws governing donor-imposed restrictions on charitable gifts. These changes have occurred primarily as a result of the adoption in many states of the Uniform Trust Code (the UTC) and the Uniform Prudent Management of Institutional Funds Act (UPMIFA). This Essay explains that codification in the UTC and UPMIFA of liberalized versions of cy pres and deviation, as well as other related changes to the common law, have had unintended negative consequences. Those negative consequences include a lack of coherence in the law, an elevation of form over substance when it comes to the laws applicable to a particular gift, uncertainties regarding how the statutory provisions operate, inequities between sophisticated or well-represented donors and donees and those who are less sophisticated and without the resources to hire experienced advisors, and confusion in the courts as they grapple with this new, much more complex landscape of laws. This Essay outlines these problems and begins to consider what might be done to address them.

About the Author

Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law, and Associate Reporter for the Restatement of the Law, Charitable Nonprofit Organizations. The author thanks the participants in the Fall 2022 UCLA Law Symposium on the Restatement of the Law, Charitable Nonprofit Organizations for their helpful feedback. This Essay reflects the author’s personal views and not the views of the American Law Institute or the symposium participants.