Inheritance Law and the Evolving Family [1 ed.] 9781592137831, 9781592132218

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INHERITANCE LAW AND THE EVOLVING FAMILY

In the series

Gender, Family, and the Law edited by D. Kelly Weisberg

INHERITANCE LAW AND THE E V O L V I N G FA M I L Y

Ralph C. Brashier

Temple University Press PHILADELPHIA

Temple University Press, Philadelphia 19122 Copyright © 2004 by Temple University All rights reserved Published 2004 Printed in the United States of America The paper used in this publication meets the requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984 Library of Congress Cataloging-in-Publication Data Brashier, Ralph C., 1957– Inheritance law and the evolving family / Ralph C. Brashier. p. cm. — (Gender, family, and the law) Includes bibliographical references and index. ISBN 1-59213-221-9 (cloth : alk. paper) — ISBN 1-59213-222-7 (pbk. : alk. paper) 1. Inheritance and succession—United States. 2. Probate law and practice—United States. 3. Family—United States. I. Title. II. Series. KF755.B73 2004 346.7305'2–dc21 2

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Contents

Acknowledgments

vii

Introduction

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1

Spouses

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Unmarried Cohabitants

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Children

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Paternity

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Adoption

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Assisted Reproduction

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Final Thoughts: Where from Here?

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Notes

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Index

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Acknowledgments

Kelly Weisberg first recognized the need for a book on this topic, and I thank her for suggesting that I write it. My colleagues Lynda Wray Black, R. D. Cox, Thomas Gallanis, Janet Richards, Irma Russell, Gary Spitko, and Nick White provided insightful comments on drafts of various chapters. My research assistants—Cara Baer, Jennifer Harris, Andra Hedrick, Beth Holloway, Lynda Gilbert, Alicia Klyman, Angela Myers, and Dallas Scott—were indefatigable. I am particularly indebted to the students in my Decedents’ Estates classes at The University of Memphis. Their stories and the stories of their families are constant reminders of the great need for change in inheritance laws to fulfill the hopes and expectations of Americans and their families in the twenty-first century.

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herman Gordon died in 1974 at the age of twenty-eight, a victim of homicide. He had no will to cover his meager estate, which consisted only of a Plymouth worth about $2,500. Sherman was survived by his infant daughter, Deta Mona, who lived with him, and by his parents and siblings. Under probate law then existing in Illinois, Sherman’s parents and siblings received the vehicle and Deta Mona received nothing. Why? Because Deta Mona was illegitimate at a time when law and society preferred to ignore the existence of nonmarital children. Spurred on by the law’s refusal to recognize her daughter, Deta Mona’s mother challenged the Illinois law in a series of battles that eventually wound their way to the United States Supreme Court. Three years after Sherman’s death, the Court ruled that the Illinois law was unconstitutional.1 The fight had just begun, but the Court sent a clear warning: probate laws could no longer turn a blind eye to a man’s nonmarital children; as family structures evolved, states would have to adapt their inheritance laws to reflect at least some of those changes. Census statistics show the rapid change in family structure that has occurred in recent decades. The March 2000 Census Population Survey indicates that the number of family households (households having at least two members related by marriage, blood, or adoption, one of whom is the

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Introduction

householder) declined from 81 percent in 1970 to 69 percent in 2000. That same report classifies 3.8 million households as unmarried-partner households—a number that is probably underrepresentative because some unmarried cohabitants are reluctant to identify themselves as such and because the number excludes unmarried couples who reside in a household headed by someone else. More than two-fifths of the reported unmarried-partner households include minor children. Like households headed by unmarried cohabitants, single-parent households also continue to increase. By 2000 the number of single-mother families had grown to 10 million, an increase of more than 300 percent since 1970; the number of single-father families had grown to 2 million, an increase of more than 500 percent since 1970. Many children in these families are children of divorce; others are nonmarital children like Deta Mona.2 Although Deta Mona’s battle over a Plymouth profoundly affected modern inheritance law, it did not create detailed rules that a state must follow in developing probate laws for the evolving family. In fact, more than a quarter of a century after Deta Mona’s case, states often still struggle with the inheritance claims of nonmarital children. Unfortunately, the inheritance rights of many other members of nontraditional families are even more uncertain. The difficulty of establishing simple, efficient, and objective inheritance laws that accurately reflect the wide variety of modern family structures is formidable. Not surprisingly, many default inheritance rules in the United States still address only the traditional family. For example, despite the large number of unmarried cohabiting couples in long-term committed relationships, states rarely include the surviving partner in the default provisions of their inheritance laws. What is surprising is that inheritance laws often fail to protect surviving members in the traditional family. Consider these statistics: in more than 20 percent of married households, the wife continues in the traditional homemaking role while her husband is the sole breadwinner for the family. Even when both spouses work, the husband on average continues to receive substantially more yearly pay than his wife— 30 percent of the time he earns at least $30,000 more. Mortality tables tell us that women generally outlive men; consequently, most of these

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“poorer” wives are likely to survive their wealthier husbands. Compounding the gender disparity in spousal wealth and mortality rates, state property and inheritance laws often do not recognize the surviving spouse as an equal partner in the marriage. Rather, probate’s default rules may provide the widow with only a relatively small portion of her husband’s estate—even if she is poor and even if her homemaking efforts helped to make his earnings possible. Sad to say, probate laws can be so stingy that in some instances a widow would be better off financially if she had divorced her husband shortly before his death.3 The way inheritance laws develop to meet the needs of modern families concerns us all. Because legislators are often reluctant to change inheritance laws in the absence of judicial directive or public pressure, it is particularly important for the general population to become aware of the inadequacies of current probate statutes and to demand laws that better reflect the structure and needs of our families.4

Traditional and Nontraditional Families The term “traditional family” has no universally accepted definition.5 Even the widely used term “nuclear family” means different things to different people. To examine inheritance laws for the nontraditional family, however, we must separate that family from its more traditional counterpart. In this book, the term traditional or nuclear family will refer to a family headed by a husband and wife (a) whose only children are their combined genetic offspring and (b) who have not used any form of reproductive technology to procreate. Well into the twentieth century, state legislatures designed inheritance laws using this family form as the almost exclusive paradigm. I treat other forms of family, as relative newcomers to the world of probate law, as nontraditional. This nontraditional label reflects probate history, which often conflicts with modern societal attitudes about the family structure. While few people today consider a married couple and their adopted infant to be a particularly modern form of family, I treat them as nontraditional in this book. Why? Because the adoptive family is new to the world of default inheritance laws. True, some states began to permit formal adoption as early as the mid-nineteenth century.

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Introduction

Only in recent decades, however, have legislatures liberally included adopted children as potential heirs in the adoptive family. In contrast, many other families I discuss under the nontraditional label still seek both legal and social acceptance. Some of these families are welcomed in parts of the country but are, at best, only tolerated elsewhere. Gay and lesbian couples with or without children are an obvious example.

Heirship Like Deta Mona’s father, many Americans die without a will, or intestate.6 Each state has its own set of intestate succession statutes. Such statutes are default laws that govern the distribution of an intestate estate. Persons who receive the estate under intestate succession statutes are heirs of the dead person, who in legal lingo is called the decedent. The two principal questions intestacy statutes answer are “Who takes his stuff?” and “How much does she get?”7 Among the similarities that one finds in state intestacy laws, none is more important than the universal inclusion of the surviving spouse as a recipient of at least part of the intestate decedent’s estate. Until very recently state legislatures also believed that an intestate decedent would inevitably want his descendants, or issue, to receive part of the estate along with his surviving spouse. Lately, however, legislatures in some states have begun to consider family structure in allocating the estate between the decedent’s surviving spouse and children. Under this newer approach, if the decedent dies intestate survived by a spouse and children, and neither the decedent nor the surviving spouse has children by a third party, then the surviving spouse takes the entire estate of the decedent. In other words, the surviving spouse is the sole heir. The 1990 Uniform Probate Code (UPC)—an important set of model probate laws developed by top legal scholars that some states use in whole or part—employs this approach. In developing intestate succession laws, the first goal of the state legislature is to determine how the typical person domiciled in the state would want his estate to be divided. Until the last decades of the twentieth century, “legitimate” family life for the typical person was divided into two parts, both tied to relationships of blood and marriage. The

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pattern was something like this: during infancy and adolescence, our typical person lived within the family created by his married parents. As an adult, however, he created his own family by marrying and having children. Although legislatures recognized both families of the typical decedent, they always concluded that the typical decedent would want, first and foremost, to protect the family that he created or chose. This explains why the spouse and children (or their descendants) are the initial distributees under virtually all intestacy laws. Only once the laws have provided for the decedent’s chosen family do they provide for the decedent’s birth family—a family whose members include parents and siblings, nieces and nephews, grandparents and their offspring.8 By the mid-twentieth century, the adoptive family was an increasingly acknowledged variant of the created family. In response, state probate laws expanded to recognize the adoptive parent and adopted child as potential heirs from each other. Modern probate laws concerning adoption go much further and often provide that, for most (if not all) inheritance purposes, a legal adoption is the equivalent of the blood relationship typically connecting parent and child. Like the parent’s biological child, the adopted child can inherit not only from the adoptive parent but also from the adoptive parent’s relatives. By the last decades of the twentieth century, however, the number of American children available for adoption had declined. Nonmarital birth had become commonplace, and many unmarried parents who in former times might have placed their children for adoption chose instead to rear their children outside marriage. Deta Mona was one of these children. With its ruling in Deta Mona’s case, the Supreme Court recognized a nonmarital child as part of a deceased parent’s created family. States again began revising their probate laws, this time to account for nonmarital children like Deta Mona. As the twenty-first century begins, state probate laws still frequently fail to recognize members of the nontraditional family outside the adoption or nonmarital child setting. The old, circumscribed view of family—based almost exclusively on marriage and blood relationships— still carries the day in probate law, although it is increasingly at odds with many forms of nontraditional families we now create. To further the intent of today’s decedent, and to protect the family he creates, state

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Introduction

legislatures must eventually develop new indicators that—along with or apart from marriage and blood—will help identify membership in modern families and serve as the basis for more inclusive default inheritance rules.

Some Practical Concerns Probate rules should further the intent of the typical decedent to provide for his family. But probate rules should also be simple, objective, and efficient, and should provide consistent and predictable patterns of distribution. In light of these concerns, the reluctance of state legislatures to move far beyond ties of marriage and blood is understandable: spousal and blood relationships are usually easy to verify. Marriage decrees and birth certificates are still clear indicators of family ties in most instances. Moreover, to date the expansion of inheritance law to encompass adopted or nonmarital children has not seriously compromised the probate process, because adopted children can readily prove the parent-child relationship with adoption papers and nonmarital children often can prove the parent-child relationship with a paternity decree obtained during the decedent’s lifetime. In contrast, some survivors have no legal link to the decedent at his death. If the intestate decedent cohabited without marrying his significant other, did he create a new family? If so, at what point? When they moved in together? After six months of cohabitation? If a decedent is survived by a stepchild, should probate laws include the stepchild even though—unlike the adopted or nonmarital child—there was no legal parent-child relationship involved? Would most stepparents want their stepchildren to inherit the same as their “lawful” children? Does anyone know what most stepparents would want? After all, both Cinderella and the Brady Bunch boys had stepmoms, but the parent-child relationships in those two families were as different as night and day. Instead of authorizing probate courts to make detailed, individualized—not to mention potentially messy and embarrassing—inquiries about the relationships of the decedent with survivors claiming to be part of his family, state legislatures rely on objective rules for determining membership within the decedent’s created family. Under these

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objective rules, probate courts can usually determine family membership immediately. Recent developments in two or three states indicate that state legislatures will continue to rely on such objective rules for determining family membership, even as the laws expand to include more nontraditional families. Admittedly, objective rules cannot fulfill the desires of every decedent; moreover, judges have some limited discretion even under current American probate law. So far, however, legislatures believe it is neither wise nor feasible to grant American probate judges the pervasive discretion to decide who is and who is not in the family for each estate that comes before them. Untempered judicial discretion could lead to wildly inconsistent and unpredictable outcomes, reducing public confidence in the probate process. Also, a discretionary system permitting individually tailored solutions would demand far more resources than does an objective system. Like all laws, probate laws ultimately should promote and protect the state. Fortuitously, recognizing members of the decedent’s created family as heirs has a stabilizing effect on family life and society as a whole, as those family members are also the people most likely to be dependent upon him. In the following chapters I posit that states can develop default probate laws that better reflect modern American families, without sacrificing the objectivity and efficiency we have come to rely on. Chapters 1 and 2 of the book discuss the inheritance rights of spouses and spouse-like partners. Probate laws have long included the surviving spouse, but even today states disagree substantially about the manner of her inclusion. Very few states include spouse-like partners in their basic inheritance schemes, but changing public attitudes will force legislatures to reconsider that exclusion in coming years. In Chapters 3 through 6, I examine inheritance laws relating to children. All states make the decedent’s children his potential heirs, but in some respects our inheritance laws for children are much stingier than those in other parts of the world. Chapter 3 provides a discussion of children’s inheritance rights generally. Chapters 4 and 5 focus more narrowly on the inheritance rights of nonmarital children and adopted children, the two principal areas in which probate laws have expanded beyond the bloodand-marriage connection. Chapter 6 examines inheritance problems that now or soon will arise for children conceived through reproductive

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Introduction

technology. In the conclusion to the book I discuss the overarching hurdles we face in adapting probate laws to meet the needs of evolving families. I also present some guiding principles that can help us meet these challenges. Because the family has changed so rapidly in recent decades and is continuing to evolve, reasonable people can reach different conclusions on how to structure modern inheritance laws. Acknowledging this, I candidly admit that my recommendations often reflect a compromise among competing views. Yet for readers who stubbornly and unrealistically see the nuclear family as the only family worthy of probate inclusion, even these compromise positions will seem heretical. For readers who believe probate should define the family on a case-by-case basis— without regard to the constraints under which an efficient probate system must operate—the recommendations will be disappointingly conventional. However the reader views my suggestions, if the discussion here helps in some small way to stimulate thoughtful debate concerning inheritance laws for evolving families, then perhaps the book will have served a useful purpose.

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ountry singer Conway Twitty—whose estate was probated under his real name, Harold Jenkins—died in 1993, leaving everything by will to his mother and his four adult children from a prior marriage. Twitty’s will left nothing to Dolores, his wife. Dolores, however, claimed part of Twitty’s estate. When estate litigation came before the Tennessee Court of Appeals, the court did not inquire why Twitty had excluded Dolores from his bounty. The court showed no interest in Dolores’s own wealth or her need for a part of the Twitty estate. Such inquiries were irrelevant: Dolores was Twitty’s surviving spouse, and Tennessee law gives a surviving spouse an automatic right to part of the deceased spouse’s estate. Dolores walked away with one-third of the estate.1 All states have default inheritance provisions that include the surviving spouse in some fashion. Moreover, the marriage does not have to last long for the surviving spouse’s inheritance rights to kick in. In 1976 Robert and Naomi had just said “I do” and exchanged vows in a Presbyterian church when Robert slumped to the floor and died. Four days later Naomi sought to administer Robert’s estate, but someone questioned her status as a surviving spouse. A Pennsylvania court concluded that, because the couple had exchanged vows, the marital contract was complete even if the minister had not pronounced them husband and wife before Robert’s death. Naomi was entitled to the preferential treatment

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Chapter One

probate law gives a surviving spouse, including the right to administer Robert’s estate.2 In most states a surviving spouse receives “top billing” in probate even if she is estranged from the decedent at his death, regardless of the reason for the estrangement. For example, Kenzie married Mary in 1981 and died in 1992. Kenzie’s will, executed in 1984, left the bulk of his estate to his son from a prior marriage. When Mary sought her spousal portion of the estate, Kenzie’s son informed the court that Mary had abandoned Kenzie after only eighteen months of marriage and had lived apart from Kenzie until his death. (By now you’ve begun to detect a pattern: the surviving spouse and the decedent’s children from prior marriages often go at each other’s throats when the estate is probated.) The court concluded that the son’s evidence was irrelevant. Under West Virginia law, Mary was entitled to a spouse’s part of the estate, even if she had abandoned Kenzie.3 What if the spouses are in the midst of divorce proceedings when one of them dies? Does probate law favor the spouse even then? In 1993 Beverly died before obtaining a divorce decree from Ronald. Her will left her estate to her children from a prior marriage. When Beverly died, however, Ronald wanted his spousal part of Beverly’s estate. Beverly’s children argued that Ronald should not receive assets that would have belonged to Beverly had the parties completed the divorce. Ronald thumbed his nose at the children’s argument, paraphrasing John Greenleaf Whittier: “For all sad words of tongue or pen, The saddest of these are: ‘It might have been!’ ” An Iowa court ruled that Ronald was Beverly’s surviving spouse who could take his spousal portion.4 * * * In the United States, the surviving spouse receives greater protection in inheritance schemes than any other family member. In fact, in all but one state the surviving spouse is the only family member who consistently receives significant protection from intentional disinheritance by the decedent. Why should the surviving spouse receive such preferred treatment?

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In part the spouse’s favored position is historical. Americans long viewed the spousal relationship as the most important in life—a view the United States Supreme Court emphasized during the nineteenth century.5 Of course, the importance of marriage sometimes had little to do with romantic or spiritual union. Rather, marriage was often a practical imperative for women given the socially and legally enforced dependence of women on men and restrictive views of both gender roles and family life. Yet the spouse’s preferred position in probate law is not merely a relic. Despite the sexual revolution of the 1960s and the decreasing sex discrimination in modern society, most committed heterosexual couples desire to marry even today. Thus marriage remains extremely important in modern society. But the rules have changed in recent decades. For good or ill, marriage is now less central to American family life, and it is unlikely to regain the exalted position it once enjoyed. Today, many Americans find life’s most important relationship outside marriage. For many single or divorced parents rearing children alone, the parent-child relationship will be the most important (and permanent) relationship in life—particularly for mothers. An increasing number of heterosexual adult couples choose unmarried cohabitation despite their commitment to each other. And as long as states prohibit two men or two women from marrying one another, gay men and lesbians are unlikely to find life’s most important relationship in marriage.6 Nonetheless, inheritance laws still give the surviving spouse star treatment. This chapter examines the general structure of spousal inheritance laws and the need for spousal provisions in our changing society. To understand spousal provisions in probate, however, we first have to understand a bit about how spouses own property.

Separate-Property and Community-Property States In most states husbands and wives own their assets separately or individually, unless they choose to share ownership with each other. For example, assume that Ralph and Alice are a married couple who live in

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Chapter One

one of these so-called separate-property or “common-law” jurisdictions. Ralph uses wages he has earned to purchase an expensive boat in his name only. Under separate-property laws, Ralph alone is the owner of the boat. During the marriage, Alice has no interest in that boat. An important minority of states, however, treat the married couple as a single entity, not as two individuals, in determining ownership of at least some assets acquired during the marriage. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington are community-property states. In the 1980s Wisconsin adopted maritalownership principles based on community-property rules. In the late 1990s Alaska enacted a provision that allows spouses to choose community-property ownership if they wish. Under the communityproperty system, the spouses generally share the earnings that either received during the marriage. For example, if Ralph purchases a boat with wages he earned during the marriage, the boat is community property owned by Ralph and his wife. This is so even if title to the boat is in Ralph’s name only. In contrast, assets acquired by one spouse before marriage are the individual (or “separate”) property of that person. Assets acquired after the marriage by one spouse through gift, devise, or inheritance also remain the separate property of that spouse. Assets purchased with a spouse’s separate property remain separate property. Thus, if Ralph purchased the boat during the marriage with assets he owned prior to the marriage, it would be his separate property, not a part of the marital community.

The Spouse of a Testate Decedent The inheritance laws of all states provide the surviving spouse with a share of the decedent’s intestate estate. Most married decedents dying intestate would probably wish to include their spouse, and the provisions favoring the surviving spouse also reduce the likelihood that the survivor will be dependent on the state for support. But suppose Ralph gets fed up with his wife Alice. He executes a will specifically disinheriting her and leaving his estate to others. If the couple has lived in a community-property state, property laws give Alice substantial protection from disinheritance by awarding her a one-half

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interest in the couple’s community property during the marriage. Ralph can disinherit Alice, but he cannot deprive her of that one-half interest in the community property. In contrast, if Ralph and Alice spent their married life in a separateproperty jurisdiction and most of the family wealth was held in his name, the disinheritance provision in his will could easily leave Alice in financial trouble. In a separate-property state Alice acquires no automatic one-half interest in assets Ralph earns during the marriage. To prevent the potentially devastating effects on the surviving spouse who is disinherited, almost all separate-property states have laws that guarantee the surviving spouse a minimum part of the decedent’s estate, regardless of the provisions in the decedent’s will. It was such a provision that allowed Conway Twitty’s widow to receive part of his Tennessee estate even though his will left the entire estate to his mother and children. Such spousal provisions are the best example of the preeminent position that probate law gives to the surviving spouse in separate-property states. The most common form of protection against spousal disinheritance in separate-property states is the elective share. The elective share is a twentieth-century American creation. Its precursors are dower and curtesy, which are property and inheritance rules that colonists brought with them from England. Although the elective share has now replaced dower and curtesy in most separate-property states, a few states continue to rely on dower exclusively. The following paragraphs discuss various forms of spousal protection against disinheritance found in separate-property states. Dower Under old English law, when a husband died, his widow received her dower. Though his will could purport to leave everything he owned to a third party, the husband could not generally deprive his widow of her dower. Dower entitled the widow to a one-third interest in inheritable realty owned by her husband at any time during the marriage. Her interest in the realty expired at her death. So if Ralph owned sixty acres of land outright during his marriage to Alice, upon his death Alice would enjoy the use of twenty of those acres until she died.7

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Today, dower as a source of protection from disinheritance seems quaint and unsatisfactory, but the concept proved remarkably hardy until the middle third of the twentieth century. One reason for its longevity was that it did not remain static but evolved differently in different states. Dower still exists in some fashion in a few places, including Arkansas, Kentucky, Michigan, and Ohio. Yet considerable variation exists among the “modern” dower provisions: some laws extend the concept to personalty (that is, property other than real estate), some increase the fractional interest from one-third to one-half, and some convert the interest in the survivor from a life estate to outright ownership. Curtesy, the old English disinheritance protection awarded to the widower, seems to have disappeared from modern American inheritance law; however, to avoid nasty questions of sex discrimination, states employing dower usually extend its benefits to widowers.8 Over time, practical concerns caused most separate-property states to become disenchanted with dower. First, dower interfered with the state’s interest in promoting free transferability of land. A potential purchaser of Ralph’s land would be reluctant to buy that land from Ralph if Alice could claim a life interest in one-third of it when Ralph died. Second, because dower originally applied only to real estate, the protection it afforded against spousal disinheritance steadily diminished as intangible personalty (such as bank accounts and investments) increasingly replaced real estate as the principal form of modern family wealth. If Ralph had owned three acres during the marriage but held a fortune in stock at his death, under strict dower principles Alice would only receive a life estate in one acre if he chose to disinherit her. She would have no interest in the stock. Dower in its strict form was a relic; no wonder states abandoned it. The Conventional Elective Share During the second quarter of the twentieth century, lawmakers in separate-property states increasingly concluded that the surviving spouse should receive a part of the value of all assets owned by the decedent, not merely a life interest in land the decedent owned during the marriage. This conclusion led states to develop the elective share, under which a surviving spouse could elect to receive a certain part of the

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decedent’s total estate—realty and personalty—when she was unhappy with his will or with her intestate share. Initially, observers referred to the elective share as the “widow’s share,” implying that widows were more likely than widowers to need forced protection from spousal disinheritance. The realities of the time warranted the implication, for women had yet to enter the marketplace in significant numbers and they seldom controlled family wealth during the marriage. Women who did work outside the home usually held low-paying jobs and had little real opportunity for career advancement. In its conventional form, the elective-share statute permits the surviving spouse to claim a fixed portion of the decedent’s total estate. Often the statute—like the one governing Conway Twitty’s estate— provides the surviving spouse with one-third of the decedent’s estate. Suppose that Ralph dies leaving no debts and owning thirty acres and $150,000. Under such an elective-share statute, Ralph’s widow Alice receives one-third of the combined value of this land and money owned by Ralph at death. If Ralph’s will bequeaths a greater amount to Alice, she will probably choose her bequest and ignore the elective share. If Ralph’s will bequeaths a lesser amount to Alice or completely disinherits her, however, she will probably “elect against” or “dissent from” the will to obtain the elective-share amount. Not surprisingly, the elective share is also sometimes called a “forced” share, since Alice can force the estate to provide her with the guaranteed minimum despite Ralph’s wishes to the contrary. Although the conventional elective share is an improvement over dower, it is the least satisfying form of the elective share used in the United States today. The conventional forced share can soften the blow of spousal disinheritance; yet because it is an arbitrary award, the protection it affords is only incidental. Alice’s award is the same in all instances; the duration of the marriage and her own wealth or need are irrelevant. Some simple illustrations under separate-property laws demonstrate how ill equipped the conventional forced share is to protect the surviving spouse and our changing families. Assume that Alice is a young widow whose husband, Ralph, has disinherited her by will. She has no children. She has a job that pays well. In fact, at Ralph’s unexpected and untimely death Alice is the wealthier

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spouse by far. Assume also that Ralph is survived by dependent young children from a prior marriage or relationship. Under the conventional elective share, Alice can receive a fixed part of Ralph’s estate even if she does not need it and perhaps even if Ralph’s estate is insufficient to provide for his needy, dependent children. Now assume a scenario in which Alice and Ralph have three young children of their own. The couple agree that she will stay home and care for the children at least while the children are young. Alice puts her external career on hold to serve as the primary—indeed, almost exclusive—caretaker of the children, giving Ralph more time and opportunity to advance his career. At his unexpected and untimely death, Ralph is, unsurprisingly, the wealthier spouse. Assume further that the couple’s children are quite young and that Ralph leaves no dependent survivors outside the marriage. Unbeknownst to Alice, however, Ralph disinherited her and the children in favor of his mother and a girlfriend. Here Alice may very well need Ralph’s entire estate at his death; if and when she can obtain outside employment, she is likely to suffer from the career opportunities she missed while at home with the children. The elective-share amount that Alice will receive, however, is no larger than in the previous example, in which she has no children, has remained continuously in the work force in a job that pays well, and has substantial assets of her own. In short, the award in the first example seems to overcompensate Alice at the expense of Ralph’s dependent young children outside the marriage. In contrast, the award in the second example deprives Alice and the couple’s marital children of funds they need. These examples show the arbitrariness of the conventional elective share when one spouse meets an untimely death and leaves dependent children. But the unyielding approach of the fixed-fractional conventional elective share is not a problem for young couples only; many of the same inadequacies exist when the conventional elective share applies to long-term marriages. The disinherited middle-aged widow who has spent her entire adult life as a homemaker may have no children left to rear, but her long absence from the labor market could severely hamper her job prospects and therefore her ability to support herself. The disinherited elderly widow who has remained financially

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dependent on her late spouse throughout the marriage may be in the worst position of all surviving spouses. The conventional elective-share approach simply does not recognize or value the survivor’s contribution to the marriage. Alice receives the same fixed portion of Ralph’s estate, regardless of whether the marriage has lasted fifty minutes or fifty years. In a state using a conventional elective share, often the surviving spouse of a long-term marriage would be better off financially if she had divorced the decedent shortly before his death. In the typical divorce proceeding, a court can consider her needs, her contributions to the wealth accumulated over the course of the marriage, and her diminished future economic opportunities. By using the arbitrary fixed-fractional approach in probate, states have unwittingly made divorce more economically attractive than remaining married until death—at least for the less wealthy spouse in a long-term marriage who fears being disinherited by her marital partner. The decedent himself may attempt to reduce the effectiveness of the conventional elective share. On its face, the share applies only to assets owned by the decedent at death. If Ralph does not want Alice to receive even one-third of the value of his current estate through the elective share, then shortly before death he may transfer assets to friends or relatives to reduce the value of his estate against which Alice can elect. States using the conventional elective share often attempt to remedy this problem—a problem once frequently referred to as “fraud on the widow’s share”—by nullifying at least some such transfers. Two approaches to the problem are common. Under one approach, a state may disregard a decedent’s pre-death transfer if he made the transfer with the intent to deprive the surviving spouse of her share. Intent, however, is sometimes extremely difficult to ascertain. If Ralph silently transferred a vacation home to his sister shortly before his death, what was his motive? To reward his sister, to punish his wife Alice, or both? Some states focus not on the decedent’s intent but rather on the decedent’s control over the asset following the purported transfer. If the transfer appears illusory, then the asset or its value is included in the estate against which the surviving spouse may elect. Under this second approach, however, a transfer is not necessarily illusory just because a decedent has retained some rights to (or power over) the transferred

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asset. Thus determining whether a purported transfer is illusory is not a cut-and-dried process, either. In fact, neither the intent nor the control approach provides a perfect remedy to the problem of fraudulent transfers against spousal interests.9 The Uniform Probate Code—1969 Many scholars believe that a nationally uniform system of probate laws is preferable to a mishmash of state inheritance laws. In 1969 the National Conference of Commissioners on Uniform State Laws (NCCUSL) approved the Uniform Probate Code (UPC) as a model for states to consider. Among its provisions is an elective share that addresses some of the deficiencies of the conventional elective share. Under the 1969 provisions the electing spouse receives her award from the decedent’s “augmented estate.” The augmented estate includes the value of certain assets—most notably those transferred by the decedent through will substitutes—not included in the conventional electiveshare approach. The augmented estate is the most important contribution of the 1969 provisions. It substantially reduces the incentive for the decedent to make transfers shortly before death to deprive the surviving spouse of her elective share. But the 1969 provisions also introduced other important measures. The provisions count certain predeath or nonprobate transfers by the decedent to the surviving spouse against her elective-share amount, thus reducing the survivor’s part of the probate estate when the decedent has provided her with assets passing outside the probate process. For example, assume that Ralph owns $100,000 in cash and a $200,000 home. Shortly before death, Ralph places the home in a joint tenancy (a classic form of will substitute) with his son Seth from a prior marriage. Property held by joint tenants normally passes outright to the surviving joint tenant; it does not pass through the probate estate of the joint owner who dies first. Seth therefore receives the home at Ralph’s death by right of survivorship, not through probate. Because the house is nonprobate property, Ralph’s only probate property is the $100,000 in cash. Under a conventional forced share giving the surviving spouse one-third of the decedent’s probate estate, Alice receives an elective share of only $33,333.33. Alice could have the home or

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its value included in the probate estate only if she can prove that the joint tenancy created by Ralph came within the state’s fraudulentconveyance provisions. Under the 1969 UPC, however, Alice does not need to prove Ralph’s bad intent or continuing control over the joint tenancy property. Rather, the UPC provisions automatically include the value of the home in his augmented estate. Ralph’s augmented estate here is $300,000 and Alice’s one-third interest is $100,000. The provisions eliminate Ralph’s incentive to make such a transfer if the purpose of the transfer is to defeat or reduce Alice’s share. The drafters of the 1969 UPC also believed, however, that guaranteeing the surviving spouse an absolute right to one-third of the decedent’s augmented estate could be too generous—particularly if the decedent made nonprobate transfers to the surviving spouse. Assume in the preceding example that Ralph places the home in joint tenancy with his wife, not his son. At death, Ralph’s augmented estate again is $300,000, and Alice’s one-third is $100,000. But wait! Alice has already received the home (valued at $200,000) through survivorship principles that avoided probate. Because the value of the nonprobate transfer to Alice equals or exceeds her one-third share of Ralph’s augmented estate, Alice receives no further award when Ralph dies. The nonprobate property (the home) she receives from Ralph counts against her elective share to prevent her from double-dipping. The 1969 UPC improved on the conventional elective share. Yet, like the conventional elective share, the 1969 UPC elective share employs an arbitrary, fixed-fraction approach (one-third of the augmented estate) without regard to the overall picture of marital wealth, the survivor’s need, or the duration of the marriage.10 The Uniform Probate Code—1990 The conventional elective share and the 1969 UPC elective share implicitly view the decedent primarily as a source of support for the surviving spouse. In the last years of the twentieth century, however, scholarly observers began to view marriage as a gender-neutral economic partnership. If marriage is a partnership, then the conventional and 1969 UPC elective shares are difficult to justify, since neither guarantees that

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the surviving spouse will end up with at least 50 percent of the couple’s combined marital wealth, even if the couple was married for many years. In 1990 NCCUSL promulgated a revised UPC elective share that incorporates the partnership view. The new provisions, amended in 1993, begin by assessing the wealth of the couple, not just that of the decedent. Moreover, the presumed economic contribution of the surviving marital partner increases over time. In a long-term marriage— fifteen years or longer—the provisions treat the surviving spouse as an equal contributor to the marital partnership. Accordingly, the survivor in a long-term marriage winds up with at least 50 percent of the couple’s wealth.11 If the drafters had designed the 1990 provisions solely to reflect the marriage as an economic partnership, then a testator could have disinherited the surviving spouse any time the survivor owned more than one-half of the couple’s wealth. Such strict adherence to the economic partnership view of marriage, however, would have permitted this disinheritance even if the “wealthier” surviving spouse were left with insufficient means to support herself. Suppose Ralph dies with an estate of $5,000 and is survived by Alice, his wife of fifty years, whose own estate is $10,000. If the UPC economic partnership formula applied unwaveringly, Alice would not take any part of Ralph’s estate because she owned more than 50 percent of the couple’s combined wealth at his death. The drafters of the 1990 provisions believed that a blind commitment to an economic partnership view of marriage was inappropriate. Recognizing that marriage continues to include a support component, the drafters designed a supplemental provision for the surviving spouse who would be impoverished under the partnership-based award. The drafters currently recommend that, when possible, no surviving spouse should end up with less than $50,000 of the total marital wealth. Thus, applying the 1990 UPC to the preceding example, Alice will receive all of Ralph’s $5,000 estate—regardless of any provisions to the contrary in his will—because that amount combined with her own $10,000 does not exceed the recommended minimum of $50,000. The supplemental share protecting Alice is an important improvement in elective-share

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law: unlike its predecessors, the 1990 UPC takes into account (albeit in a crude fashion) the probable need of a surviving spouse.12 Even with its flaws, the 1990 UPC is far more sophisticated than its predecessors. Drafters of the 1990 elective share recognize its imperfections and continue to work toward its improvement. Constrained by principles of separate-property ownership across most of the country, the drafters have nonetheless managed to give us an elective share that treats the spouses as partners when one dies. Also, the supplementalshare provision demonstrates a concern for the needy surviving spouse that is lacking even under traditional community-property laws. Not everyone likes the notion of marriage as a partnership. Moreover, the 1990 UPC elective share is harder to apply than the conventional or 1969 UPC elective share. For these reasons, some probate lawyers and judges may dissuade state legislatures from adopting the 1990 UPC elective share.13 Competing Views of the Marital Partnership Both community-property laws and the 1990 UPC elective share view marriage as a partnership; yet the two approaches remain more different than alike. Community-property laws in the United States do not treat all assets held in marriage as community property. Property of an individual spouse acquired prior to the marriage or acquired by gift, devise, or bequest during the marriage remains separately owned, and the survivor has no automatic interest in the deceased spouse’s separate property. In contrast, the 1990 UPC provisions include all wealth of either spouse, without inquiring how or when a spouse acquired the asset. For example, assume that Ralph and Alice have lived their married life in a community-property state. Ralph dies with bank accounts of $450,000 consisting solely of wages he earned during his twenty-year marriage to Alice, whom he has disinherited. Also assume that before Ralph’s death Alice inherited $50,000 from her father (who died before she married Ralph) and $50,000 from her mother (who died after Alice married Ralph). Here Alice’s $100,000 is separate property, not included in the marital community; however, the $450,000 earned by Ralph during the marriage is community property. Thus, in a community-property state Alice will have acquired a one-half interest in the $450,000 even

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if the bank accounts were solely titled in Ralph’s name. At Ralph’s death her assets would be worth $325,000 ($100,000 of separate property plus her $225,000 interest in the community property). Now suppose the couple had lived in a separate-property state that adopted the 1990 UPC elective share with its universal inclusion of marital wealth. The 1990 UPC considers both Ralph’s $450,000 and Alice’s $100,000 in computing marital wealth. Following Ralph’s death in this long-term marriage, the disinherited Alice ultimately owns $275,000—that is, 50 percent of $550,000—consisting of the $100,000 she inherited from her parents and $175,000 from Ralph’s estate. The elective share protects her against total disinheritance, but the result is substantially different from that in a community-property state. Is the 1990 UPC’s universal inclusion of marital wealth proper? The answer depends on your view of marital partnership. Undoubtedly, the 1990 UPC’s refusal to differentiate “separate” and “community” assets avoids the hassle of tracing the origin of assets—a problem that frequently arises in community-property states.14 The most important difference between the 1990 UPC electiveshare provisions and the community-property system, however, lies in the moment when the spouses acquire their property rights. Community-property rights attach, if at all, at the time that either spouse acquires the asset in question. Thus, if Ralph or Alice earns wages during the marriage, the other immediately has a 50 percent interest in those wages. In a state following separate-property principles, however, the wage-earner spouse is the sole owner of those wages during the marriage as long as those wages remain in his or her name. The other spouse has no legally recognized ownership interest. The failure of separate-property states to treat the spouses as partners during the marriage causes one to wonder whether legislators in those states truly believe that spouses are economic partners: if marriage is a partnership, it is awfully bizarre that separate-property laws require one spouse to die before recognizing the other’s interest! Probate statutes like the 1990 UPC elective share can supply only a little belated relief to the surviving spouse; in contrast, laws recognizing marriage as a partnership during its existence substantially eliminate the need for inheritance “Bandaids” like the elective share.

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In sum, spouses in separate-property states remain independent economic actors during the marriage. Unfortunately, married mothers probably suffer the most under the separate-property system. The wifemother continues to be the primary caretaker of the couple’s children and she bears the burden of lost economic opportunities outside the home. We could remedy this disadvantage in part by focusing on the spouses collectively as an economic entity during the marriage. After all, when one spouse’s caregiving role contributes to family wealth by affording the other the freedom and opportunity for advancement in the workplace, it is only fair to acknowledge the caregiver’s role by awarding her a current interest in those economic gains that she helps make possible. Community-property principles do this; separate-property principles do not.15 Hoping to foster a transition from separate-property to communityproperty law, NCCUSL promulgated the Uniform Marital Property Act (UMPA) in 1983. The UMPA promotes the economic partnership theory of marriage by borrowing numerous concepts from communityproperty law. Despite initial excitement over UMPA’s appearance and occasional rumblings among state legislatures about conversion, no widespread adoption of UMPA appears imminent among the separateproperty states. In fact, Wisconsin is the only former separate-property state to adopt UMPA.16

Individually Tailored Solutions for the Family? Each marriage is unique. Some couples consider themselves equal partners in the marital endeavor; others clearly do not. Some couples view the husband as head of the household, on whom the family, including the wife, relies for support. With the variety of marital arrangements that exists today, it is not surprising that state legislatures disagree about the proper way to treat the survivor for inheritance purposes. No objective inheritance statute can possibly please all married couples. So why shouldn’t we just give probate judges the discretion to determine, on a case-by-case basis, what distribution is right and fair for a surviving spouse who is dissatisfied with the decedent’s will?

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England and some commonwealth countries now do something like that. Under the modern English “family maintenance” approach, the surviving spouse who is disinherited or dissatisfied can ask a court for an individually tailored ruling on her claim against the estate. The English system—which actually originated in New Zealand at the beginning of the twentieth century—is not an outgrowth or modification of the dower concept that led to the modern American elective share. Instead, the system emphasizes maintaining the decedent’s surviving family even at the expense of his testamentary freedom. As its name implies, the family maintenance system includes provisions not only for the surviving spouse but also for other family members. Indeed, one of the considerations that led Parliament to enact the family maintenance system in 1938 was its acknowledgment that very few civilized countries still permitted a testator to disinherit his children.17 The word “family” has broad meaning under the family maintenance laws. In addition to the testator’s spouse and children, any individual treated as a child by the decedent during any of the decedent’s marriages, and any other person being maintained in whole or in part by the decedent immediately prior to the decedent’s death, may make a claim for reasonable financial provision from the decedent’s estate. The system even includes a provision for spouse-like cohabitants and former spouses.18 Although the system provides a list of factors to guide judges in making their decision, the factors are quite general. Their overarching implication is that the court should make an award to the surviving claimant when the court deems it proper to do so. Simply put, the family maintenance system requires judges to engage in subjective determinations that can substantially—and perhaps even completely—disrupt the testator’s intended distribution. Because of the judicial discretion involved, a surviving spouse under the family maintenance system can even end up with far less than she would receive under American communityproperty or elective-share laws. For example, in a 1980 New Zealand case the decedent’s wife and his young lover, both of whom had minor children by him, competed for his estate. Finding that both women had moral claims against his estate, the court divided the estate into

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halves; however, the women were awarded only the income on the awards, while the principal was preserved for the children themselves.19 Could the family maintenance system be adopted profitably in the United States? Not without difficulty. Because notions of fairness and family obligation vary from judge to judge, and because individualized inquiries are inherently time-consuming and costly, the system can easily imperil the probate characteristics Americans have come to rely on: predictability, efficiency, and ease of administration. The surviving spouse bringing a claim under the family maintenance system does not know whether she will be successful or, if successful, what the size of her award will be. The surviving spouse with a weak claim has little incentive not to seek an award, because even a pre- or post-nuptial agreement will not necessarily defeat her claim under the system. Surviving spouses who are similarly situated but who appear before different judges may receive vastly different treatment, for even the wisest and best-trained judges may disagree on what is reasonable. Worse still, American probate judges run the gamut in terms of training, experience, wisdom, and knowledge. Recognizing this vast range of judicial ability and also the enormous variety of family life in the United States, applying the family maintenance system in the United States would magnify the possibility of wildly disparate solutions for surviving spouses bringing claims. It is also a bit frightening to acknowledge the number of potential claims from dissatisfied surviving spouses, considering how litigious Americans have become.20 In theory, the reasonable financial provision that the family maintenance system provides to the deserving surviving spouse is an amount that should approximate what she would have received had the marriage ended in divorce. If the system were adopted in the United States, presumably probate courts would invoke principles of equitable distribution commonly used in divorce proceedings. Those principles, however, are far from universally admired, for they too can be notoriously unpredictable in application and result. Moreover, unlike the divorce proceeding, the probate proceeding lacks the direct participation of one of the principal parties, for the deceased spouse is not present to counter the survivor’s claims. This is particularly important because

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the decedent may take to his grave the only evidence that would contradict the survivor’s claim. Current elective-share schemes in the United States require that the surviving spouse submit her claim to the estate executor. Objective rules determine her eligibility for the elective share and, assuming she is eligible, the probate court approves the award as a simple administrative matter. In contrast, the family maintenance system typically requires the court to receive and weigh carefully evidence regarding the survivor’s claim. If a knock-down-drag-out develops within the family, cost and delay will follow. The system’s structure provides an open invitation for the survivors to reveal very intimate details of the decedent’s private life. Judicial discretion under the family maintenance system is not limited to whether an applicant’s request should be granted and how much the award should be. The court also must decide who will lose his legacy to pay the surviving spouse. Suppose that Alice’s will disinherits her husband, Ralph, and leaves $100,000 to her daughter Barbara, $200,000 to her son Charles, and the residue of her estate (worth $300,000) to her mother. Suppose further, however, that a judge using family maintenance principles concludes that Ralph deserves reasonable financial provision from Alice’s estate. Where does Ralph’s award come from? The all-powerful judge may decide that Ralph’s entire award should come from the bequest to Alice’s mother, from all three beneficiaries equally, from Barbara and Charles only, or from the beneficiaries in some other manner. Under the family maintenance system, the testator can’t even be sure that the court will reduce bequests in a specific order when making reasonable financial provision to a successful claimant. Investing courts with such pervasive discretionary power reduces the incentive for will execution. If the judge can ignore virtually all parts of a testator’s will, why bother to prepare a will at all?21 To be sure, American probate judges have some discretionary power under our current probate laws. That discretion, however, is quite limited. American probate statutes often give the probate judge discretion to determine the value of the spouse’s temporary “allowance” from the estate that will tide her over until she receives her final distribution when the estate administration concludes. Unlike discretionary awards

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under the testator’s family maintenance system, the American allowance is clearly not intended to sustain surviving family members over a long period of time. Some states impose a statutory cap on the allowance that further circumscribes the court’s discretion. Although the allowance itself may deplete a very small estate or cause a redistribution of legacies under the testator’s will, this potential infringement on testamentary freedom is minuscule compared to the potential effects of complete judicial discretion under the family maintenance system.22 To sum up, the family maintenance system provides little assurance that a probate court will honor the provisions of a testator’s will. Americans are unlikely to welcome either the unpredictability of results under the system or the system’s substantial incursion upon testamentary freedom. If one day the American probate system possesses unlimited resources and judges of infinite wisdom, the family maintenance system may become a viable alternative to community property and elective shares. Right now, however, that day seems far away.

Georgia and the Unprotected Surviving Spouse If a spouse believes her husband is likely to disinherit her, she might want to make sure he doesn’t die domiciled in Georgia. Alone among states, Georgia affords the surviving spouse no community-property rights, dower, or elective share. A competent testator whose estate is governed by Georgia law may bequeath everything he owns to third parties—even if the surviving spouse is left penniless. Georgia’s approach demonstrates an extreme commitment to testamentary freedom, emphasizing the testator’s rights as property owner while minimizing his obligations to his family. Georgia does provide an allowance to the surviving spouse and minor children during the period of estate administration, but the Peach State is unique in its failure to provide longterm inheritance protection for the surviving spouse.23 Is Georgia’s approach outrageous? The legislators sitting in Atlanta apparently don’t think so. Moreover, nothing indicates that Georgia’s probate laws have weakened marriage and family relationships in that state. Does that mean Georgia is on to something that other states have

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yet to realize? Some people say yes. As we shall see a bit later, one can argue that the elective share is tainted by the stigma of paternalism and sexism, and that permitting spousal disinheritance eliminates that stigma and promotes gender equality. Well, maybe . . .

Disinheritance for Cause Most separate-property states provide the surviving spouse with an elective share. The elective share protects the survivor against disinheritance (to some extent) and may recognize her role as a contributing partner in the marriage. But should probate laws protect or recognize the survivor if she was a really bad or really lazy spouse? What if, judging by the standard of a reasonable person, the surviving spouse deserves nothing because of misconduct during the marriage? Consider the following provision from the will of a wealthy banker: “To my wife I leave her lover and the knowledge that I wasn’t the fool she thought I was.” This is one of several disinheritance provisions Fenton Bresler discusses in his entertaining book on wills, Second-Best Bed.24 Husbands and wives can do some pretty bad things to each other during marriage. On occasion—and sometimes rather gleefully—one spouse will disinherit the other in his will. Sometimes, if the rest of us knew the dirt about the surviving spouse, we might agree that the she deserved to be disinherited. Suppose that the banker’s wife not only took a lover but also abandoned the banker and lived with her lover for the last twenty years of the banker’s life. Shouldn’t he be able to disinherit her? Legislators in some states think so. In fact, even if the testator does not disinherit the surviving spouse, probate laws in a few states prevent her from receiving an intestate or elective share if she has abandoned or failed to support the decedent, has entered into an adulterous affair, or has entered into a subsequent and bigamous marriage. In recent decades, however, most states have concluded that probate courts should not investigate the surviving spouse’s “worthiness.” The UPC does not mention the spouse’s conduct in its intestate or elective-share provisions. Today, if the couple has not entered into a valid written agreement terminating inheritance or property rights, then typically the surviving spouse can receive her elective share, or

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her intestate share if the decedent dies without a will. Modern American probate laws generally consider spousal conduct irrelevant in determining the survivor’s inheritance award.25 Turning a blind eye to the behavior of the surviving spouse can lead to unsettling, if not bizarre, outcomes. Yet this modern majority approach is another instance in which lawmakers have concluded that objective rules will best promote predictability, efficiency, and ease of administration in the probate process—even if the rules occasionally seem unfair when applied to a particular family. Lawmakers may also fear that probate judges are ill equipped to evaluate the kind of “improper” behavior that separates the unworthy from the worthy surviving spouse. Worse still, if probate judges held a discretionary power to deny an inheritance to the “bad” spouse, greedy children and others whose shares are at stake would have substantial incentive to bring forth every scrap of evidence that might place the surviving spouse in an unflattering light. And of course, if probate judges could deny an inheritance to the bad spouse, then shouldn’t they be able to deny an inheritance to any heir or will beneficiary who acted badly toward the decedent? There is one notable instance in which probate courts throughout the United States do evaluate the alleged misconduct of a potential heir or beneficiary—including the spouse. Under a so-called slayer’s statute, states consistently deny inheritance rights, legacies, and various other death benefits to a person who with felonious intent brings about the death of the decedent. Usually the heir or beneficiary has been indicted or convicted of the felony that resulted in the decedent’s death. In most states, however, the heir or beneficiary can lose the right to inherit even if he was tried and acquitted or even if he was never charged with a crime. In such cases the estate or interested parties can establish the disqualifying felonious intent of the heir or beneficiary in a civil proceeding. For example, in the mid-1990s a probate judge ruled that a Chicago lawyer could not inherit the $2 million estate of his murdered wife. Even though the lawyer had not been criminally charged in connection with her death, the court concluded that he probably encouraged his homosexual lover to murder her. This was enough to deny him the right to inherit.26

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A person convicted of a felony that led to the decedent’s death does not necessarily forfeit benefits flowing from the decedent’s death. If the heir or beneficiary did not intend to kill the decedent, then he can still take part of the decedent’s estate. In a case from Tennessee, a wife died when her drunken husband wrecked the car in which she was riding. The wife’s life insurance policy named her husband as principal beneficiary and her children from a prior marriage as secondary beneficiaries. The husband pleaded guilty to vehicular homicide. The children argued that they, and not the husband, should take the life insurance proceeds. The Tennessee Supreme Court, however, ruled that the slayer’s statute did not apply. The husband could take the insurance monies because, although he did commit a felony that led to his wife’s death, he did not intend to bring about her death.27

Do We Really Need the Elective Share? No one knows exactly how often spouses disinherit each other, but inferences from several small studies indicate that such disinheritance is rare. The love that a testator typically feels for the surviving spouse is almost certainly the primary reason he includes her. But other factors also weigh in her favor. The testator may want to take advantage of estate tax laws that favor bequests to the surviving spouse. A more personal factor is the desire of most testators to be remembered favorably by their family, friends, and community. The testator who disinherits his spouse risks the possibility that she will vilify his memory in response. The testator may further believe that the truth of the disinherited spouse’s claims against him will be largely irrelevant—after all, he cannot rise from his grave to counter those claims. If the testator is worried that the spouse might air this real or manufactured dirty laundry, he may try to buy her silence by providing generously for her in the will.28 When we hear of spousal disinheritance, we tend to think, “oh, that must have been a troubled marriage,” or “one of them must have been bad.” In fact, a happily married testator may disinherit the beloved surviving spouse for altruistic reasons. When the surviving spouse has ample assets of her own, the testator and the surviving spouse may think

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it best for him to leave his estate to others. Moreover, the testator’s decision to disinherit the surviving spouse does not affect the survivor’s rights to numerous benefits that flow to her outside probate. So-called “survivorship” interests—including interests in a joint tenancy or tenancy by the entirety—do not pass through probate and are not affected by will provisions. Thus, if the husband and wife own their home as joint tenants, the survivor takes the home even if the testator has disinherited her in his will. Similarly, the testator’s disinheritance provisions cannot deprive the surviving spouse of some important federal benefits the survivor may receive through the testator. Social Security is among the most important of these—if a widow’s maximum Social Security benefits are derived through the testator rather than through her own earnings record, she is entitled to those benefits despite a disinheritance provision in his will. In like manner, her eligibility for Medicare based on the decedent’s eligibility is unaffected by a disinheritance provision in his will. In some instances, disinheritance of the surviving spouse does not affect the survivor’s rights to pensions and private benefits derived through the testator—even if the will’s disinheritance provision explicitly appears to cover those benefits.29 State property and probate laws also protect surviving spouses with laws other than the elective share. In virtually all states the surviving spouse is the first (and as a practical matter quite often the only) beneficiary of homestead laws that permit her continued residence in the family home or that provide her a monetary homestead payment from the decedent’s estate upon his death. State probate laws also entitle her to claim certain personal property from the estate and provide her an allowance from the estate for a period of time. The testator’s disinheritance of the spouse typically has no effect on the survivor’s ability to receive these awards. Do state legislatures in separate-property states, then, really need to be concerned about elective shares? If the marriage is a happy one, the testator is unlikely to disinherit the spouse except for very good and carefully considered reasons. If the marriage is an unhappy one, the modern testator is more likely to seek a divorce than to exact posthumous revenge through a disinheritance provision. Moreover, spouses increasingly use contractual and property agreements to protect themselves

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when the relationship ends by divorce or death. The surviving spouse also receives benefits under federal and state law that are unaffected by disinheritance clauses. And, ultimately, the surviving spouse disgruntled by being disinherited can always contest the validity of the will. Armed with these observations, detractors of the elective share can plausibly argue that separate-property states have no real need for the elective share. On the other hand, an occasional testator does disinherit his spouse for “improper” reasons, and sometimes her non-electiveshare benefits and protections are insufficient to meet her needs. For such a surviving spouse, the elective share—despite its imperfections— can help.

Often Too Little and Always Too Late: The Elective Share as Paternalism If elective-share and marital property laws in separate-property states provide less than perfect solutions to the problem of spousal disinheritance, then why aren’t legislatures in those states coming up with better solutions? One theory is that state legislatures are still dominated by men, and even today men are less likely than women to be affected by the problems spousal disinheritance can cause. Spousal disinheritance is more likely to be a real problem for women than for men for two reasons. First, husbands still control most family wealth, and thus widowers are less likely than widows to be destitute when disinherited. Second, and compounding the disparity in wealth between the sexes, is the disparity in mortality rates: the great majority of surviving spouses are women. (For those of you who have been counting, it is for this reason—that wives outlive husbands far more often than not—that in most examples I have made the husband the testator and the wife the surviving spouse.)30 Most states, however, disregard these differences. They simply apply one elective-share formula to both widows and widowers. While the laws blithely appear to be “gender neutral,” in fact women suffer most from the one-size-fits-all approach to elective shares. But if husbands are unlikely to need the elective share and the elective share often fails to account for wives’ disadvantaged economic posi-

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tion, what does that say? Well, it sure begins to look like the elective share—particularly in its conventional form—is not much more than a paternalistic bone that legislatures throw to a surviving widow. The benefit some widows receive from such an elective share may come at a steep price for women in general: the lingering notion of male dominance and female subservience during the marriage. In this light, the elective share certainly does not move us toward sex equality. Instead, it looks suspiciously like its precursor, dower, whose purpose was to protect and provide (inadequately, one notes) for “the little woman,” not to recognize her as an equal marital partner. Even the most progressive version of the elective share, the 1990 UPC provision, can only impose its economic partnership theory of marriage when at last a surviving spouse exists. What wives really need is not protection from disinheritance by their husbands but to have their economic contributions to the marital partnership recognized during the marriage.

The Spouse as an Independent Actor If the elective share is both paternalistic and seldom needed, why not abolish it altogether and just let spouses fend for themselves? Aren’t the husband and wife in the best position to decide how they will hold property during the marriage and at its termination by death or divorce? Aren’t lots of them already making that decision—and thereby opting out of the state’s default rules—anyway? Certainly a hands-off approach by state probate law would be consistent with separate-property principles, which treat the spouses as independent actors during the marriage. Presumably each spouse is competent to enter into arrangements concerning the treatment of his assets, her assets, and their assets. These arrangements, based on contract or property principles, permit the spouses to choose for themselves the manner in which they will own and dispose of their wealth. Most Americans know that they can enter into a prenuptial agreement. That agreement allows the prospective spouses to decide whether and to what extent each will have an interest in the assets of the other—not only during the marriage but also upon termination of the marriage by divorce or death. If a valid

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“prenup” includes a provision that the survivor shall have no right to any of the assets of the decedent’s estate or to an elective share, then the survivor will receive nothing from the decedent’s estate. Similarly, if the agreement provides that the surviving spouse will receive a certain sum in lieu of the elective share, the provisions of the contract will prevail over the elective share the survivor could have otherwise received. Today, the prenuptial agreement is a common planning device in second or later marriages in which the prospective spouses wish to preserve their assets for children and relatives from a prior marriage. More and more young professionals are also entering into prenuptial agreements. Even couples with few assets and little hope of acquiring substantial wealth can benefit from the prenuptial agreement.31 Although the requirements for a valid prenuptial agreement vary among the jurisdictions, states often insist that the parties provide full disclosure of their assets, or at least require full disclosure by the party who is seeking to protect his assets from later claims by the other. Because financial matters are often at the heart of marital disputes, the information the prospective spouses glean during the negotiations over the prenuptial agreement can strengthen the marriage. Moreover, because of the required disclosure, neither spouse is likely to have the nasty surprise of learning only after the wedding vows that the other is less financially sound than he appeared during the courtship. In short, the prenuptial agreement gives the couple the opportunity to learn each other’s views and expectations concerning their assets. The couple’s disagreement on important financial matters prior to the wedding is a valuable piece of information that could, and in some instances probably should, affect the decision to marry. The romantic view of marriage—one without concern for finances, commitment, and responsibility—is an incomplete picture: marriage is, and in some respects has to be, a business. Businesses know that advance planning is an important tool for averting later disasters. In this light, the premarital agreement should not, as some cynics would have it, be viewed as planning for marital failure. The agreement is not merely a contingency plan for death or divorce; rather, the contract encourages the couple to recognize the economic aspects of marriage and to plan accordingly.

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Spouses can also protect themselves from disinheritance by other kinds of contracts. A valid postnuptial agreement may be one way. A spouse may be able to protect herself from disinheritance by obtaining an insurance policy on the life of the other spouse. Property principles can also protect the surviving spouse from disinheritance. For example, in some states the couple may own property together with an indestructible right of survivorship that automatically entitles the survivor to the entire asset upon the death of the other. If states were to rely on competent adults to protect themselves from spousal disinheritance, would the absence of state-imposed protection against disinheritance weaken the family or cause fewer couples to marry? It does not seem to have done so in Georgia. Most people marry primarily for love, not in hopes of obtaining a forced share upon the death of the other spouse. In fact, for some couples the existence of elective-share laws can be a disincentive to marriage. If a man and woman want to preserve their separate assets for third parties and have qualms about using a prenuptial agreement, they may simply choose to cohabit to avoid the state-imposed elective share. Before concluding that separate-property states should abolish the elective share, however, we must consider some other factors. Contractual agreements and various forms of property ownership sound like effective forms of spousal protection in theory, but in practice their availability and effect are often skewed by the unequal bargaining power between the man and woman. If the financially weaker party wants to enter into the marriage, he or she may have no choice but to agree to a prenuptial agreement that gives little or no protection following a divorce or the death of the other spouse. Moreover, no one can doubt that otherwise intelligent and responsible people occasionally do very foolish things when they fall in love. When one party is still in the early stages of infatuation, the danger of lopsided financial arrangements is even greater. Thus it is unrealistic to think that most couples will plan their financial future carefully—including death provisions for each other—before entering into the marriage. While contractual arrangements and property principles can currently trump the elective share, that does not mean that a government-imposed safety net is unwarranted for those married

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couples who have not chosen to use private measures to protect themselves. Most observers would probably conclude that some form of governmental intrusion is still necessary. Although the elective share is less satisfactory than community-property law, most observers would also admit that the elective share—even with its paternalistic, sexist baggage—is better than nothing at all. The bottom line is that—needed or not—the elective share will probably last in some form for years to come.

The Elective Share and the Decedent’s Young Children To be complete, any discussion of the inheritance rights of the surviving spouse should also examine the implications of those rights for the decedent’s children. Writing in the eighteenth century, the famous legal scholar Blackstone noted that dower—the precursor of the modern elective share—was intended to protect the widow and the couple’s young children. The goal of protecting or maintaining both the surviving spouse and the couple’s young children makes sense: as the testator’s closest relatives in the created family, they are probably the people he most loves. They are also the people he is most probably obligated to support, and the state has a substantial economic interest in seeing that he fulfills that obligation. When divorce and nonmarital birth were unusual, the widow’s electiveshare award often trickled down to benefit the couple’s young children. Because the widow had a legal obligation to support those children, the state could even force her to use her assets (including the elective-share award) for the children’s support. This conduit or trickle-down effect often still occurs in nuclear families, because the decedent’s surviving children are also children of the surviving spouse. Today, however, almost half of new marriages end in divorce. Many adults will marry several times and have children by different spouses and unmarried partners. Although the elective share protects the decedent’s surviving spouse (to some degree) in these newer families, it provides no protection for the decedent’s dependent children from

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other relationships—and we have no forced share for the surviving exspouse or former partner to protect her young children by the decedent. To that extent, the modern forced share clearly fails to accomplish the historical goal of protecting young children of the decedent. The scenario may be even more disturbing: if Ralph dies with minor children from a prior relationship and his surviving spouse, Alice, also has young children from a prior relationship, then the elective share will directly protect Alice from disinheritance and could indirectly benefit Ralph’s stepchildren (Alice’s children) while leaving Ralph’s own children with no protection against disinheritance. Undoubtedly some stepparents have great affection for their stepchildren; it is strange, however, to have an inheritance law that provides indirect benefits to a decedent’s stepchildren but nothing for the decedent’s own disinherited, dependent children. How do we explain such a strange approach? Well, drafters of the early elective share had no reason to concern themselves unduly with this potential outcome when nuclear families were the overwhelming model of family life. But the fact that “times were different then” is hardly an adequate justification for excluding millions of children who now find themselves outside the nuclear family.32 In recent decades we have conveniently forgotten the decedent’s children. Judges, legislators, and scholars have transformed the elective share into a right of the surviving spouse alone. One way we have done this is by moving from the support model of the elective share toward the partnership model. In states using the partnership model, the elective share serves primarily as a belated acknowledgment of the survivor’s contributions to the marital endeavor. Once we have made that leap and decided that the elective share is something the surviving spouse has “earned,” then we have excluded children from sharing in its benefits except in indirect or attenuated ways. In Chapter 3, I examine the question of inheritance protection for the decedent’s children more fully. For now, it is sufficient to note how the modern elective share has separated itself from concern over the decedent’s children. Today we simply ignore what was once a fundamental goal of the elective share and its predecessor, dower—the protection and support of the decedent’s children.

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Conclusion Like the family itself, marriage is in a period of transition. The historical view of marriage, based on well-defined gender roles and entrenched assumptions about the dominant male as head of the household, is evolving toward a partnership view. The partnership view presumes that both spouses make important contributions to the family in various ways. Community-property laws employ a partnership theory throughout the marriage by giving each spouse an equal interest in the various assets earned by either during the marriage. Because each spouse owns half of the community property, disinheritance provisions in the will of the spouse who dies first cannot deprive the survivor of that interest. Separate-property states, however, treat the spouses as individual economic actors during the marriage. To protect the surviving spouse or to give belated recognition to the survivor as a partner in the marriage, all separate-property states but Georgia afford the surviving spouse some statutory recourse against disinheritance. The most progressive of these statutes, the 1990 UPC elective-share provisions, uses a partnership view of marriage that applies at the death of the first spouse. Unlike the community-property system, however, the partnership interests under the UPC are based on the duration of the marriage and include all assets of both spouses. When a couple has been married for fifteen years the husband and wife are deemed to be in an equal partnership. Because the partnership is equal, the survivor should end up with no less than 50 percent of total marital wealth. By requiring an evaluation of the wealth of both spouses when the first spouse dies, the 1990 UPC provisions are more complex than conventional elective-share laws. Conventional elective-share laws are typically simple but completely arbitrary; they make no pretense that spouses are participants in a partnership. Need of the surviving spouse and length of the marriage are irrelevant under the conventional elective share, which generally provides the surviving spouse with a fixed fractional part of the decedent’s estate. While the 1990 UPC provisions are a clear improvement on conventional elective-share laws, they are not perfect. They do nothing to further the economic partnership the-

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ory of marriage during the marriage. This criticism, however, merely points out the central flaw of separate-property schemes for those who view marriage as a partnership. Regrettably, there is no reason to believe that many separate-property states will adopt communityproperty principles in the near future. Some couples enter into contractual or property arrangements concerning the disposition of assets at death or divorce. These agreements trump elective-share laws. Most couples, however, take no substantial steps to protect themselves from spousal disinheritance. For them, elective-share laws remain potentially important. While elective-share laws may be inherently faulty, they are likely to remain on the books of separate-property states for decades to come.

2 Unmarried Cohabitants

M

argie and Sam had lived together in a spouse-like relationship for more than thirty-three years when Sam died in 1980. Margie and Sam, who were uneducated, did not marry because they believed Margie could not obtain a divorce from a husband who had abandoned her years before and whose whereabouts they did not know. During Margie and Sam’s partnership, Margie did the couple’s cooking, washing, and ironing, and the two shared their assets and liabilities. Like most couples, Margie and Sam never entered into a contract to pay each other for their services. Referring to her relationship with Sam, Margie said that “we was considered man and wife.” She buried him with her mother’s people. She planned to remain in the house where they had lived for twenty years. Unfortunately, Sam died without a will. Under state intestacy law, Sam’s sisters and nephews succeeded to his property, including the house. The blood relatives wanted Margie out. When a legal battle ensued, the Mississippi Supreme Court agreed that Margie had to go. Despite more than three decades of spouse-like commitment to Sam, under probate law Margie was nothing more than a guest in his house.1 Margie would be out of luck in most states even today. Despite growing numbers of unmarried heterosexual couples in committed relationships, probate law seldom includes them within its default rules. While the surviving spouse is

40

Unmarried Cohabitants

41

almost always entitled to the first cut of a decedent’s intestate estate, the surviving partner in an unmarried heterosexual relationship is almost never an heir unless a court can somehow characterize the relationship as a marriage. Moreover, community property and elective-share principles apply almost exclusively to married couples. The absence of a legally recognized marriage typically means that a surviving partner like Margie receives no intestate share or protection from disinheritance.2 Part of the reason for this treatment is our reluctance to have probate courts making subjective inquiries about family structure. A marriage is a fact easily proved by the existence of the marriage certificate. Relying on widely recognized, objective evidence of family structure simplifies administration and renders predictable results—two goals prized in American probate law. Further, unlike unmarried cohabitation, marriage almost inevitably signifies the existence of a family relationship. Virtually all Americans believe that a man and woman who marry have demonstrated that each is a principal object of the other’s affection. In short, the marriage speaks for itself; probate judges need not engage in messy and time-consuming assessments of the relationship. Yet probate’s exclusion of couples like Sam and Margie is troubling. This is particularly so now that unmarried cohabitation is common. The March 2000 Census Population Survey classified 3.8 million households as unmarried-partner households and indicated that this number is probably underrepresentative.3 Ease of administration and predictability of results are not the only important goals of probate law. Fairness—including concern for the decedent’s wishes and the needs of his family—immediately comes to mind as another goal. Recent developments in two or three states demonstrate that we can develop more inclusive inheritance schemes without sacrificing judicial objectivity or efficiency. This chapter discusses the inheritance rights of unmarried cohabitants or partners and explores proposals to further their inclusion in probate regimes.

Children of Unmarried Cohabiting Partners Near the end of the twentieth century, about one in four American adults had cohabited with another adult in a sexual relationship outside

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marriage. For young adults, the number was substantially higher. Today, about half of our young adults enter into a cohabiting relationship prior to or in lieu of marriage. A 2000 census publication indicated that more than 1.5 million unmarried-partner households included minor children.4 Suppose that Anne and Bob are in a committed but unmarried cohabiting relationship when Bob dies. Cohabitation alone would not make Anne Bob’s heir even if they have minor children. Because cohabiting couples are parenting children more and more frequently, one of the most disturbing aspects of ignoring the surviving cohabitant is the potential effect on the couple’s young children. In every state but Georgia, dower, the elective share, or community property protects the surviving spouse from disinheritance. The couple’s minor children receive an indirect benefit from this protection because the surviving spouse must support them. This indirect benefit is important, because parents are generally free to disinherit their children. Under traditional probate laws, children of an unmarried cohabiting couple like Anne and Bob have neither direct protection from disinheritance nor indirect protection in the form of a trickle-down benefit from a spousal award. Simply put, children of unmarried cohabiting parents have no significant inheritance protection when a deceased parent bequeaths his entire estate to parties outside the cohabiting family.

Why Not Marry? If the benefits of being married are so great, why do so many adult couples now choose unmarried cohabitation? For lots of reasons. Some couples don’t recognize the legal and financial benefits that can accompany marriage. In contrast, marriage is financially unattractive for some couples. If Anne currently receives Social Security payments based on the earnings record of her late husband, in some circumstances marriage to Bob could cause the payments to end. If those Social Security payments are greater than anything Bob can offer financially, Anne may prefer unmarried cohabitation to marriage.5 Some couples choose not to marry because they see marriage as an inherently oppressive institution. They reject a state-sanctioned union

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that historically made a wife subservient to her husband and that, even today, may function on principles of dominance and subordination. Of course, for homosexual partners, society has long made the choice for them: no state permits gay or lesbian couples to enter into a legal marriage, and as of September 2003 only one state—Vermont—allows such couples to enter into an “equivalent” alternative.6

Is It Cohabitation or Marriage? The term “cohabitants” can be a bit confusing. In traditional usage, it simply means those who live together. Using that definition, it is clear that cohabitants and spouses are not mutually exclusive terms, since most spouses live together. When distinguishing between married and unmarried couples today, however, observers increasingly use the term “cohabitants” to refer to an unmarried couple who live together. For convenience, and with apologies to purists, this book adopts the modern usage. Determining whether a survivor was the decedent’s cohabitant is not always easy. As we are about to see, on rare occasions the law may conclude that someone who initially appears to be a surviving cohabitant is in fact a surviving spouse—or should be treated like a surviving spouse. Being Married without a Ceremonial “I Do” In a few states, a man and woman can become husband and wife even though they never participate in a legally valid marriage ceremony. The common-law marriage—long a source of intrigue and melodrama in books and movies—is not entirely a relic. If a surviving partner can prove her common-law marriage to the decedent, she becomes a surviving spouse and receives the full panoply of spousal property and probate benefits under state law. Among the common probate benefits are the right to an intestate share or an elective share. She receives statutory priority among the potential appointees as administrator for the decedent’s intestate estate. She also receives homestead and personal property exemptions as well as a family allowance. As an heir of the decedent, she has standing to contest his will if one exists.7

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But don’t assume that the common-law marriage is widely available. During the twentieth century, most states rejected the concept. Today couples can enter into a common-law marriage only in a small minority of states. Occasionally, however, the surviving partner can successfully assert the common-law marriage even though the state of the decedent’s domicile at death does not permit couples to enter into common-law marriage within its borders. Assume that Anne and Bob entered into a valid common-law marriage while domiciled in Texas. Subsequently the couple moved to Illinois, a state that does not permit common-law marriages to be entered into within its borders. If Bob dies domiciled in Illinois, the Illinois probate court will treat Anne as a surviving spouse if she can show that the couple had entered into a common-law marriage under the laws of Texas. This result is not only permitted, but perhaps in some instances mandated by the full faith and credit clause of the U.S. Constitution. In contrast, if Anne and Bob had lived the very same lives but had never traveled beyond the borders of Illinois, Anne could not assert the existence of a commonlaw marriage.8 In states recognizing common-law marriage, what must the survivor prove to establish the marriage? Typical requirements are that the couple cohabit; that they enter into a present agreement to be husband and wife, or manifest an intent to be currently married; and that they hold themselves out to the community as married. Although these requirements seem minimal, they are stringent enough to defeat the claims of most cohabitants. The great majority of cohabitants today do not agree to be husband and wife. And if a cohabiting couple is engaged, the anticipated wedding day typically negates a common-law marriage claim—acknowledging their current engagement is a tacit admission that they are not currently married. Moreover, most modern cohabitants freely admit their cohabiting relationship; they do not feel it necessary to pretend to the community that they are married. In sum, only a rare cohabitant can successfully establish the existence of a common-law marriage today.9 Considering the probate system’s strong preference for objectivity, the decline of the common-law marriage is good news. It means that

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that probate courts rarely have to engage in individualized, subjective inquiries concerning whether a surviving cohabitant is in fact a surviving spouse.10 When the “I Do” Is Faulty The putative spouse doctrine is another concept that, on rare occasion, provides a surviving cohabitant with some degree of spousal protection. Unlike the common-law spouse, who typically knows that she has not engaged in a legally recognized marriage ceremony, the putative spouse is one who has cohabited with a person of the opposite sex under the good faith belief that the couple is legally married when in fact it is not. For example, if Bob marries Anne in a ceremony and cohabits with her unaware that she is not divorced from her prior husband, states recognizing the doctrine may treat Bob as a putative spouse. An individual who is a putative spouse may receive some, though not necessarily all, of the protections state probate law affords to a surviving spouse. Anne could die survived not only by her putative spouse Bob, but also by a legal spouse from a valid marriage undissolved prior to her death. Anne could even be survived by a string of innocent putative spouses who believed themselves married to her. In this titillating movie-of-the-week scenario, how should a probate court distribute Anne’s estate among her various “spouses”? Well, if the state recognizes the putative spouse doctrine, then the probate court could have to make some thorny, discretionary decisions apportioning inheritance benefits among the legal and putative spouses.11 Like common-law marriage, the putative spouse doctrine demonstrates that probate courts sometimes make particularized inquiries into the decedent’s spouse-like relationships. Because the survivor can rarely assert either a common-law marriage or the putative spouse doctrine, however, such particularized inquiries are a negligible departure from the objective approach characteristic of American inheritance law. It is the great mass of surviving cohabitants—those who cannot assert common-law marriage, the putative spouse doctrine, or one of several lesser-known alternatives for establishing spousal status—that we focus on in the remainder of this chapter.12

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The Cohabitant as Creditor or True Owner Because cohabitation alone does not make the survivor part of the decedent’s family under probate law, the decedent can effectively disinherit the survivor. The survivor’s assertion that the decedent would have wanted her to receive part of his estate is likely to fall on deaf ears. Sometimes, however, the survivor can assert a noninheritance claim against the estate. Perhaps she can prove that the decedent owed her money when he died. Perhaps she can show that she paid for assets titled in his name and that those assets rightfully belong to her. The following paragraphs discuss these and some other claims a surviving cohabitant may have against the decedent’s estate. The Palimony Claim Probably the most frequently asserted claim of the surviving cohabitant is that, prior to or during their cohabitation, she and the decedent entered into a contract whose terms entitle her to part of his estate. This claim is a variation of the “palimony” claim that one cohabitant occasionally asserts against the other when the couple splits during their lifetimes. While the cohabitation contract or agreement cannot make her an heir, it may entitle her to assert a creditor’s claim against the estate. In most states, the contract does not have to be in writing.13 Not that long ago, the surviving cohabitant’s chance of success on the claim was slim, even if she could prove that the couple had entered into the contract and that the decedent had violated its terms. Why? Because courts often concluded that such an agreement was essentially a contract for sexual services out of marriage—an agreement so against public policy that we simply couldn’t enforce it! Today, the couple’s sexual relationship is less likely to spell doom for the survivor’s claim. If the survivor can prove that the couple entered into a contract for other, lawful services, that she performed her end of the bargain, and that the decedent or his estate has not compensated her as the contract requires, then she will often recover from the estate. Most contract claims involving cohabitants are brought by the female. This disparity could be tied in part to women’s longer life expectancy, making the female the typical survivor when heterosexual cohabitation

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ends by death. The disparity probably also reflects the male’s traditionally stronger economic position and dominant role within heterosexual relationships. Put bluntly, a surviving male is less likely to be harmed financially when the cohabiting relationship ends by death. Although gay and lesbian couples are increasingly visible in modern society, even today few reported contract cases exist involving gay or lesbian surviving cohabitants. One suspects that gay and lesbian survivors may not pursue legal remedies because of perceived judicial hostility toward them, regardless of the merits of the substantive claim. Some empirical evidence suggests that the perception is accurate.14 The Will Contract Another contract claim available to a surviving cohabitant arises when a decedent breaches a binding promise to will part or all of his estate to her. Again, the survivor must prove the existence of such a contract. Often state statutes require the survivor to show written evidence of the will contract. Under these statutes, the contract can be a separate document apart from the will or it can be made a part of the will. If the will indicates that the contract exists but does not spell out the contract terms explicitly, the claimant can still perhaps assert those terms. If the statute requires written evidence and the survivor has none, in rare instances the court may allow the survivor to recover if she can demonstrate that her action or performance unequivocally refers to the existence of the contract. Moreover, a court may prevent or “estop” the decedent’s estate from denying the contract if strict adherence to a statutory writing requirement would defraud the survivor or unjustly enrich the decedent’s estate at the surviving cohabitant’s expense. The principal problem in these part performance or estoppel cases, however, is the claimant’s credibility: often she will be the only person who can testify concerning the purported contractual promises. The decedent, who is the other party to the alleged contract, cannot rise from his grave to confirm or deny the survivor’s assertions. Sometimes the survivor cannot prove the existence of a will contract with the decedent, but her evidence clearly shows that she performed uncompensated services for him and expected to be remunerated. When this scenario exists, the survivor may receive an award in quantum

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meruit—that is, an award for the value of her services to the decedent. The quantum meruit award is a second-best award for the surviving cohabitant because it is typically far less than the amount she seeks under the purported contract. Although better than nothing, the award is still something of a slap in the survivor’s face, for it treats her as a mere employee or servant of the decedent. Here, too, the survivor’s credibility is subject to attack. The estate may dispute her assertion that she was not paid for her services. If Anne lived with Bob in his home, Bob’s estate (or his relatives) may assert that the room and board he provided was ample compensation for Anne’s services. Even if Anne can clearly demonstrate that she received no compensation—for example, if she cared for Bob in her own home at her expense—she is not guaranteed an award. Instead, Bob’s estate may try to avoid paying her by claiming that, since Anne loved Bob, she rendered her services gratuitously. The estate may take a different tack and claim that Bob really didn’t want her assistance, and that Anne shouldn’t receive anything because she rendered her efforts officiously. On the whole, probate courts are wary of a survivor’s claim concerning an oral will contract. In most such cases, the survivor has a difficult time persuading the court to apply part performance or estoppel principles in her favor. In some instances she will receive a minimal reimbursement for her services to the decedent. To protect herself, the cohabitant who is a party to a will contract should make sure that she obtains the decedent’s promise of a legacy in writing.15 Implied Trusts Most cohabiting couples do not enter into formal contracts. Most cohabiting couples do not expect to be compensated as employees for the services they render to each other. Yet both members of the cohabiting couple often make economic contributions to their joint living arrangements. Those contributions typically vary in amount and nature over time. On occasion, the survivor has made a significant financial contribution to an asset that is titled in the decedent’s name and thus appears to be part of his estate. Because the surviving cohabitant is not an heir or

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surviving spouse of the decedent, inheritance law affords her no interest in the asset if the decedent has not bequeathed it to her. In some instances, however, a court will recognize the survivor’s financial contribution to the acquisition of the asset and provide her with an equitable remedy. One such remedy is the constructive trust, which a court can use to retitle the asset or a share of the asset from the decedent to the survivor to reflect her contribution to its acquisition or improvement. Courts can also use the constructive trust in other instances to prevent unjust enrichment of the decedent’s estate at the surviving cohabitant’s expense, or to prevent fraud against the survivor.16 Sometimes the survivor can persuade a court to impose a resulting trust upon assets titled in the decedent’s name. Traditionally courts have applied resulting-trust principles when one party provides the purchase money for real estate to which title is taken in another’s name. Suppose evidence clearly indicates that Anne, the surviving cohabitant, paid for the couple’s home with her money; however, the seller’s deed conveyed the property to Bob, her cohabitant. Historically, a presumption or inference of a resulting trust arises in favor of Anne—simply put, a court would presume or infer that, because Anne paid the purchase price, she is the true owner of the home, even though Bob held the title. In the immediately preceding example, Anne benefits by not being married to Bob. Had she been Bob’s wife, courts would probably presume that she intended her purchase to be an irrevocable gift to her husband. But because under traditional laws cohabiting couples are not members of the same family, no presumption of a gift arises against Anne if Bob is not her spouse. If the court applies resulting-trust principles, the court will change the title to the property to reflect Anne’s true ownership. The property will then belong to Anne and will not pass through probate to Bob’s heirs or will beneficiaries. Because constructive and resulting trusts are implied by law, they do not have to be based upon a writing between the parties. The surviving cohabitant can use oral evidence to demonstrate why the court should impose such a trust in her favor. Courts typically require clear and convincing evidence for the claimant to prevail, however, and such proof is often hard to come by. Again, the decedent’s heirs or will beneficiaries may assert that the survivor intended her contributions to be

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irrevocable gifts to the decedent. If they are successful in that assertion, they will destroy any presumptions or inferences in the survivor’s favor. The Importance of Self-Protection Probate laws do not permit courts to infer from cohabitation that the couple was an economic partnership, or that the survivor was a member of the decedent’s family. Cohabitation alone does not permit the surviving cohabitant to claim a temporary allowance from the estate immediately following the decedent’s death. Moreover, only rarely will the survivor be able to obtain part of the decedent’s estate through contractual or equitable principles. Thus, while the stigma once attached to nonmarital cohabitation has largely disappeared in modern society, flouting the social convention of marriage still exacts a very high price from many cohabitants. The message is clear: excluded from the default rules of traditional inheritance law, cohabiting couples should take affirmative steps to protect themselves from disinheritance by each other.

Cohabitation and Commitment Even as cohabitation takes a place beside marriage in the evolving American family, state legislators remain reluctant to extend inheritance protection to cohabiting couples. If cohabiting families are here to stay—as seems likely—can we justify probate rules that treat the surviving cohabitant as a stranger to the decedent? The answer may be a qualified yes. One goal of probate law is to develop objective rules that reflect a best guess at what the typical decedent would want. But is there a typical cohabitant? Do most cohabitants want reciprocal inheritance rights? The Meaning of Cohabitation Studies indicate that many cohabiting couples—particularly young ones—view cohabitation as significantly different from marriage. Young adults living in a cohabiting relationship are likely to marry or break up within a short time. For these couples, cohabitation is often a practice session for marriage; for them, cohabitation is not “the real thing.”

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Of course, cohabitation may be a short-term arrangement for couples of any age. With this in mind, probably no one would argue that the default rules of inheritance law should protect any person cohabiting with the decedent at the time of his death. On the other hand, many cohabitants share long-term ties of love, commitment, and responsibility. They want reciprocal inclusion in the default rules of probate law. Survey information shows public support for inclusion in such cases. For example, in a 1996 telephone survey of 256 Minnesota residents, a majority of the respondents believed the surviving cohabiting partner in a “committed” relationship should receive a share of the deceased partner’s estate.17 Assuming that most people would favor including the surviving committed cohabitant or partner within the default rules of inheritance law, the question becomes how to distinguish “committed” partners from uncommitted partners. (Although the terms “committed partner” and “committed cohabitant” are awkward, I use them because they have gained some acceptance in scholarly writing about cohabitants in loving relationships.) The freedom and informality associated with cohabitation are the very characteristics that make third-party assumptions about its meaningfulness of doubtful value. Unlike the decision to marry, the decision to cohabit is often informal—in fact, there may never really be a “hey, let’s live together” statement at all. Cohabitation often simply happens over time, and its meaning varies substantially from couple to couple. In contrast, marital partners almost always decide to marry, and the marriage certificate they receive follows their decision. American probate courts like that marriage certificate, because it provides completely objective evidence of the family relationship. The court need not inquire about the intimate details of the decedent’s life. Moreover, some committed cohabitants intentionally reject marriage to avoid its financial obligations. Some couples choose cohabitation over marriage to preserve their individual rights and benefits and to protect their assets for children from earlier marriages. For couples like these, cohabitation is not the result of an informal decision or something that just happened over time; instead, it is a deliberate choice to avoid marriage and its financial consequences. Emotionally, these couples may be

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just as committed as any married couple. They may have exchanged rings. They may put part of their assets in a shared bank account. Even so, they have chosen cohabitation as an alternative to—and not merely a substitute for—marriage. A default inheritance rule that included the surviving cohabitant of these committed relationships would defeat their intent. Cohabiting relationships run the gamut of emotional and financial meaning. Cohabitants often do not enter into written agreements concerning their commitment. In light of these factors and others yet to be discussed, designing workable default inheritance rules for cohabiting partners may indeed be a tricky business. When Does Cohabitation Begin? If a state legislature decided to include cohabiting couples within its intestacy and elective-share schemes, how would it define cohabitation and measure its duration? Let’s again take Anne and Bob as our unmarried couple. In recent years, Bob has spent more and more time at Anne’s apartment. He is now often there five or six nights a week. On nights that he doesn’t stay with Anne, he sleeps at his own apartment. Are Anne and Bob cohabiting? They may disagree on this point. They may agree that they are now cohabiting, but disagree about when their cohabitation began. This kind of confusion about cohabitation is particularly likely when cohabitation “just happens” over time. Unfortunately, the indefinite beginnings of many cohabiting relationships could make the accrual approach of the modern elective share extremely difficult, if not impossible, to apply. The accrual approach (discussed in Chapter 1) requires that we know precisely when the marriage began. If inheritance laws granted surviving cohabitants a forced share based on a similar accrual approach, we would need to know the starting point of the cohabitation. Yet if unmarried couples themselves can easily disagree on the existence of cohabitation or the moment at which it began, how can a probate court distinguish a protected surviving cohabitant from an unprotected surviving lover who shared many nights with the decedent?

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The point is that a default rule giving a surviving cohabitant spouselike protection could prove unworkable unless tempered by an objective means for determining both the existence and the duration of the cohabitation. A marriage certificate provides objective proof of a family relationship and allows us to measure its duration. Without a similar objective criterion for determining a claimant’s status as a surviving cohabitant, probate courts could find themselves sinking in a morass of individualized, subjective inquiries involving both public and private aspects of the cohabiting relationship before them. Sex, Sharing, and the Roommate Problem What demonstrates the kind of commitment that should qualify a cohabiting couple for default inclusion in inheritance laws? Sexual intimacy? Pooled financial resources? Thus far I have presented cohabitation in terms of a relationship that, as in marriage, presumably includes a sexual component. But is it the sex between the cohabiting couple that makes them deserving of spouse-like inheritance protections? Does anybody think that? Everybody knows that sexual relations may play a small or even no role for spouses or committed cohabiting couples; moreover, sex holds different meanings for different people. Perhaps most importantly, no state legislature is going to enact laws that require probate courts to inquire about the couple’s sex life and that make inheritance protection dependent upon that sex life.18 If we then ignore the sexual component of the relationship, it seems that any cohabiting couple could be entitled to default inheritance rights upon a demonstration of its commitment. But how can the law distinguish the committed surviving partner from the interested surviving roommate? Should the law automatically impose a set of default rules on cohabiting couples any time the cohabitants combine their economic resources in whole or part? Suppose two elderly people move in together simply to cut costs. They are roommates. If both of them are survived by children and grandchildren, it is quite likely that each would prefer that the children and grandchildren inherit the estate, to the exclusion of the surviving roommate. So, odd as it sounds, financial intermingling

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can be like sex: pooled economic resources do not necessarily reflect a spouse-like commitment between the couple, and do not necessarily indicate that either envisions the survivor as a recipient of part of his or her estate. An Argument for Exclusion There is a simple way for most heterosexual cohabiting couples to obtain default inheritance protections under current law: the couple can marry. When marriage is an option, it is not entirely correct to say that inheritance laws exclude the cohabiting couple. More accurately, the couple has chosen to avoid inclusion by foregoing marriage. Nor is the legislative decision to favor marriage over heterosexual cohabitation arbitrary. It is still reasonable for legislatures to assume that marriage is more likely than cohabitation to promote social stability. A formal marriage requires a conscious choice on the part of the husband and wife. Spouses declare publicly their intention to be a family and to accept the responsibilities that accompany marriage; in exchange, the state sanctions the relationship through legal recognition and numerous benefits designed to protect the new family explicitly chosen or created. Recognizing heterosexual cohabiting couples and providing them with benefits currently afforded only to marital partners—benefits that include default inheritance protections—could weaken the incentive for couples to marry, since the couple could receive marriage-like benefits at death while avoiding the legal responsibilities of marriage during their joint lifetimes. These arguments—“they can marry” and “we don’t want to discourage marriage by making other options more attractive”—are the principal ones made by detractors of cohabitation, who claim that society has little reason to include cohabitants in probate laws. For the average male and female in a heterosexual cohabiting relationship, the first argument is irrefutable: they can marry if they choose to do so. This element of choice is important, because it demonstrates that the different probate treatment of spouses and heterosexual cohabiting couples is not the result of state discrimination toward the cohabitants as individuals. Spouses and heterosexual cohabiting couples are treated differently for inheritance purposes only because the cohabitants themselves have cho-

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sen to forego the state-provided legal benefits associated with marriage. The state does not deny these cohabiting couples access to marriage and its accompanying benefits. While it is true that state probate laws demonstrate a preference for marriage over cohabitation, the discrimination is between two kinds of relationships, and not among heterosexuals individually. Even admitting the state interest in marriage, the second argument is less persuasive. It ignores innocent people outside the cohabiting relationship who are affected by probate laws that exclude cohabitants. Perhaps the least defensible aspect of such exclusionary probate laws is their harmful effect on the cohabiting couple’s young children when their surviving parent has no guaranteed protection against disinheritance by the decedent. Yet this is more properly viewed as a problem for the decedent’s innocent young children, not for the surviving partner. As we will see in Chapter 3, legislatures could remedy that problem by providing direct protection from parental disinheritance to all young children, regardless of the marital status of their parents.

Homosexual Cohabitants When a Choice Is Not a Choice Unlike heterosexual cohabiting partners, homosexual partners cannot enter into a legally recognized marriage in any state. Even Vermont, which has taken the most progressive stance toward legal recognition of gay and lesbian unions, does not recognize such unions as marriages. As of July 2003 only three states permit gay and lesbian couples to enter into certain legally recognized relationships that will provide spouse-like treatment to the survivor for probate purposes. Thus, exclusion from probate law remains the rule even though gay and lesbian families are increasingly common in the United States: an estimate in a 1998 article co-authored by noted probate scholar Mary Louise Fellows indicated that as many as 3.4 million American adults live in same-sex partnerships. Nonetheless, traditional probate law does not recognize the surviving gay or lesbian partner as a natural object of the deceased partner’s bounty even if the relationship was long-term, solemnized publicly, and evidenced by a writing.19

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In forty-seven states, then, gay and lesbian couples cannot bring themselves within the spousal default rules of inheritance law. If lawmakers truly believe in promoting family stability, shouldn’t they provide homosexual cohabitants some opportunity to legalize their relationships? It is specious to argue that current probate laws are nondiscriminatory because gays and lesbians can enter into a legally recognized marriage with a person of the opposite sex. Virtually all reputable studies of homosexuality conclude that sexual orientation is an unchangeable aspect of personality for most men and women. The default rules of traditional probate law refuse to recognize this, and thus give homosexual couples no true choice for inclusion at all.20 Adopting One’s Same-sex Partner Gay and lesbian couples sometimes resort to unusual and creative means of establishing legally recognized relationships with each other. Occasionally a homosexual adopts his life partner and thereby establishes a pseudo-consanguinity link that allows the survivor to inherit as a child or parent when the other dies intestate. Not all courts permit one member of a gay or lesbian couple to adopt the other. Some judges have concluded that adoption of one’s lover offends traditional notions of a parent-child relationship. Some same-sex couples have been successful in the adoption proceeding only to find that, when one of them dies years later, the probate court will not recognize the adoption if the purpose of the adoption was to manipulate inheritance rights from some third person. Suppose Paul’s mother leaves a substantial bequest for Paul’s children that the children are to enjoy at Paul’s death. If Paul subsequently adopts his lover Charles so that Charles can receive the bequest at Paul’s death, some probate courts would probably refuse to recognize the adoption. Adoption is at best an “iffy” solution for gay and lesbian couples otherwise excluded from family and probate laws. No assurance exists that homosexual partners can adopt each other to create heirship rights or to give the survivor standing to fend off potential will contests by other relatives of the deceased partner. Moreover, adoption is seldom a satisfactory substitute for a legally recognized marriage or partnership.

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Spouses and partners can terminate their relationships when they grow dissatisfied; in contrast, parent-child relationships, including those established through the adoption of a lover, are typically binding forever, even if the relationship between the parent and child turns permanently sour. Gay Relations and Social Stability The state considers marriage a fundamental component of social stability. By marrying, two people make a public statement that they have created a new family and accept the responsibilities that accompany family life. State laws therefore provide incentives for heterosexual couples to enter into a marriage. We have seen that one frequently asserted argument for excluding heterosexual cohabiting partners from default inheritance rules is the state’s interest in encouraging social stability. Does that interest support the continued exclusion of homosexual partners from inheritance schemes? Gay men and lesbians cannot switch their sexual preference to take advantage of marriage laws written for heterosexuals. Nor do homosexuals cease to exist simply because laws ignore or punish them. Moreover, few homosexuals today feel compelled to enter into a sham heterosexual marriage—and it is hardly in society’s interest to encourage sham marriages of any sort. While the old stereotypes about gay sexual promiscuity die hard, in truth many homosexual couples form relationships based on love, commitment, and shared responsibility— relationships pretty much like many of those formed by their heterosexual counterparts. While gays and lesbians cannot enter into a legally recognized marriage, many gay and lesbian couples do commit themselves to one another privately, or in public ceremonies, within or outside a church. If social stability is an important state interest, shouldn’t the state encourage gay and lesbian couples to enter into committed relationships with shared responsibilities to each other and society? Institutions and Bloodlines Inheritance laws have never been linked exclusively to the institution of marriage. Millions of people die without having married. Millions of others, who were married at some point in life, die single. When these

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people die without a will, the laws of intestate succession must still provide for distribution of the estate. Under traditional default rules, the absence of a surviving spouse means that blood relatives typically receive the entire estate. Yet, while marriage and bloodlines have long formed the historical basis for determining the default rules of inheritance law, in fact this is so only because until recently marriage and blood were the principal building blocks for most families. Strict adherence to tradition—that is, using marriage and blood as the sole determinants of heirship—ignores the increasing inadequacy of these criteria for determining the composition of modern families. As I noted in the introduction, during the twentieth century states slowly acknowledged the growing imperfections of probate’s traditional, exclusive approach to classifying family life. Legislatures in all states eventually enacted inheritance provisions that permit adopted children and their adoptive parents to inherit from, and usually through, one another. This extension of inheritance rights to a decedent’s children chosen through adoption is a tacit but nonetheless clear admission that traditional gauges of family can and should change to reflect evolving family composition, particularly when objective evidence of that relationship exists. Another example involving children demonstrates how a historically disfavored group can eventually win recognition in inheritance laws as families change. For centuries, inheritance laws excluded large numbers of nonmarital children when distributing the father’s intestate estate. In part such laws reflected the social opprobrium long heaped upon “illegitimate” children—an opprobrium so strong that it trumped the probate tradition of including blood relatives as heirs. In the final decades of the twentieth century, however, the number of nonmarital births grew exponentially. Nonmarital children had become an undeniable factor in American family life, and probate law (prompted by the U.S. Supreme Court) had to develop more inclusive rules to account for nonmarital children within the family. Even though many people still object to unwed parenting, probate law no longer ignores the nonmarital child. Like adoption and nonmarital childbirth, homosexual partnerships are an undeniable part of American family life. Millions of Americans

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will die survived by a same-sex committed partner. As with parentchild relationships resulting from adoption or nonmarital birth, some people disapprove of gay and lesbian relationships. Yet the current treatment of adopted and nonmarital children shows that lawmakers have already concluded that the strict nuclear-family paradigm can no longer serve as the sole model for inheritance statutes. Inheritance laws must continue to evolve in ways that include members of commonly encountered nontraditional families—particularly if objective evidence provides a clear indication of the family relationship. Fairness Imagine a world in which only homosexual couples can marry and in which only those couples receive default inheritance protections for their spouses (and the indirect benefit that spousal protection affords their young children). Imagine further that a small minority of heterosexuals also live in this world—heterosexuals who cannot change their sexual orientation to bring themselves within the group protected by the state’s inheritance laws. Because the unmarried heterosexual couples are a small minority, they do not have the numbers to insist successfully that they be recognized by the homosexual majority. In such an imaginary world, would the inheritance laws be fair? In the real world, forty-seven states deny the surviving gay or lesbian partner the default inheritance protections available to the surviving spouse. Moreover, these states do not give families headed by homosexual partners their own set of default protections. Simply put, probate law does not disadvantage gay and lesbian families by placing them on an uneven playing field; it completely excludes them from the game. Even so, increasing numbers of gays and lesbians enter into life partnerships. Gays and lesbians are also parenting children in increasing numbers. Estimates near the end of the twentieth century indicated that as many as 10 million children were being reared in homes headed by a homosexual parent. Yet probate laws turn a blind eye to gay and lesbian couples. No wonder homosexuals often view the probate system as inherently unfair.21

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Gay and Lesbian Marriage Many gays and lesbians want to marry. To marry legally. Several times during the twentieth century, homosexuals went to court challenging heterosexual-only marriage laws. Until the final decade of the century, these efforts were singularly unsuccessful. Then, in the 1990s, courts in Hawaii concluded that, under the state constitution, Hawaii’s heterosexuals-only approach to marriage unlawfully discriminated against homosexuals. People were overjoyed, shocked, confused, appalled. What would happen next? Would Hawaii really permit same-sex marriage? Ultimately, Hawaiians answered no, opting instead to change the state constitution. The Hawaii lawmakers did, however, provide gay couples with significant new opportunities to legalize their relationships. At the beginning of the twenty-first century, California took a somewhat similar approach that it later expanded.22 Vermont stepped up to the plate in the final days of the twentieth century. The Vermont Supreme Court ruled that, under the state constitution, Vermont must provide committed homosexual couples the same benefits it provides to heterosexual spouses. Unlike Hawaiians, Vermonters did not respond by amending the state constitution. Rather, the state legislature enacted laws—effective in the spring of 2000—that permit same-sex couples to enter into a “civil union.” For the first time in American history, gay and lesbian couples can enter into a legally recognized partnership designed to be the equivalent of marriage. The civil-union legislation ends inheritance discrimination against gays and lesbians in Vermont, for it treats a surviving member of a civil union the same as a surviving spouse.23 As of September 2003, Vermont is the only state that provides gay and lesbian couples with the opportunity to enter currently into a legally recognized, marriage-like union. It appears unlikely that a substantial number of states will follow Vermont’s lead in the near future.* Worse *On the day this book went to press—November 18, 2003—the Massachusetts Supreme Judicial Court issued an opinion opening the door for gay marriage in that state. The court concluded that barring homosexual couples from the benefits, protections, and obligations of civil marriage violated both the due process and equal protection provisions of the state constitution. The court construed marriage as “the voluntary union of two persons as spouses, to the exclusion of all others.” The opinion gives the legislature 180 days to respond “appropriately.” See Goodridge v. Department of Public Health, 2003 WL 22701313 (Mass.). Although Massachusetts could thus become the first state to recognize homosexual marriage, opponents have already begun a campaign for a state constitutional amendment to define marriage as a union between one man and one woman.

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still for gay couples, the validity of a Vermont civil union remains uncertain when judged by the laws of another state. Suppose Anne and Barbara are domiciled in Vermont at the time of their civil union but later move to a second state when they retire. When one of them dies, will the second state give the survivor spouse-like inheritance rights? Suppose, alternatively, that Anne and Barbara live outside Vermont but travel to Vermont, where they enter into a civil union and have a honeymoon weekend. Will their home state provide the survivor with spouse-like inheritance rights when one of them dies? In 2002 a lesbian who had entered into a Vermont civil union could not persuade a Georgia appellate court to recognize its validity.24 Should states extend the right to marry to gay and lesbian residents? Some individuals who acknowledge the depth and irrationality of legal discrimination against gays and lesbians nonetheless believe that marriage should remain the exclusive domain of heterosexuals. Not surprisingly, traditionalists argue history and religion in support of the heterosexuals-only approach. Time and again, however, law has rejected history and religion when, viewed objectively, they are used as instruments of oppression. For example, marriage itself was historically built on the subordination of women to men. Religion encouraged (and in some cases still encourages) a dominant role for the husband and a submissive role for the wife. Yet despite the husband’s preferred position in both history and religion, modern marriage law rejects that view and instead purports to treat the spouses as equals. Similarly, history and religion played an important role in forbidding interracial and multiethnic marriages. Yet today the law does not engage in such discrimination. As in the case of sex and race discrimination, history and religion do not provide objectively convincing reasons for the law to discriminate against homosexual couples seeking state recognition of their relationships.25 Would homosexual marriage devalue heterosexual marriage? For whom? Not for heterosexuals, because heterosexuals have no inclination to enter into same-sex unions. Not for homosexuals, because homosexuals have no inclination to enter into heterosexual marriages. Even assuming that for a particular individual sexuality is fluid—that is, that he or she is not entirely straight or gay—the availability of either a heterosexual or homosexual union encourages the individual to enter into a committed, publicly recognized relationship. The state’s asserted belief

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in marriage as a stabilizing force would be more convincing if everyone were given the same opportunity to participate. The principal reason that states continue to exclude homosexuals from marriage laws is as simple as it is unfortunate: some people have an irrational dislike of homosexuals. Since prejudice seldom bows to logic, gays and lesbians should not count on state marriage laws to bring them within the default rules of inheritance law any time soon. Private Property and the Created Family A marriage certificate need not be the only document that a state recognizes as an objective indicator of love, commitment, and responsibility shared by a couple. States can retain a heterosexuals-only approach to marriage and still afford probate protection to lesbian and gay couples in committed relationships. Including such couples in probate laws without recognizing them as married is less likely to offend both those who zealously oppose homosexual marriage in principle and those who do not want such couples to receive the full panoply of state spousal benefits. Under a barebones plan, default inheritance laws for committed homosexual partners would affect only the distribution of the couple’s own property. Including the surviving partner under well-designed, objective probate laws would cost the probate system (and the state) nothing, since the estate has to be divvied up anyway. Extending default inheritance protections to the surviving homosexual cohabitant under objective criteria would help fulfill the legislature’s responsibility to provide a probate scheme that reflects the desires of the typical decedent. The desire of the typical decedent is to provide first for the family he or she created or chose. This is a stroke of good fortune for the state, because these natural objects of the decedent’s bounty are the same people who are most likely to be dependent upon him and who might otherwise be dependent upon the state if disinherited. To put the matter in crass economic terms, the state has a financial interest in protecting surviving family members from disinheritance so that the state itself will not have to foot the bill if those survivors are left impecunious. Like heterosexuals, gays and lesbians desire to protect the families they create, and the state has the same interest in seeing that

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the survivors are provided for. Yet inheritance laws in most states unrealistically assume that everyone is heterosexual. This exclusion means that inheritance statutes neither reflect legislative best guesses nor protect the state when one homosexual life partner inadvertently fails to provide for the other. Inclusion of the surviving gay or lesbian partner under default rules would reduce the likelihood that the surviving cohabitant and the couple’s young children are left dependent upon the state. Indeed, even people who vehemently object to homosexual marriage might favor a nonmarital probate alternative for gay and lesbian couples, since inclusion makes better economic sense for the state. Including committed gay and lesbian couples in probate laws also makes sense when we remember that default inheritance rules redistribute the decedent’s property to others. Currently only three states provide default rules that take the decedent’s property and distribute it to the surviving life partner he chose. The other forty-seven states ignore the life partner the homosexual decedent chose—even though it is the decedent’s property, and not state wealth, that is the subject of distribution. For the homosexual, current default rules of inheritance law mean that a will is essential; even when the decedent dies testate, however, the default rules of the elective share do not apply to protect the surviving partner if the bequest is inadequate. Thus, at every juncture the default rules in inheritance law are blind to the existence of gay and lesbian couples. Interestingly and perhaps surprisingly—particularly in view of the popular sentiment against gay marriage—public opinion seems to support the inclusion of inheritance rights for gay and lesbian couples. As early as 1992, a Newsweek/Gallup poll indicated that 70 percent of respondents believed that gay partners should receive inheritance rights, even though 58 percent disapproved of legally recognized gay marriage. This sentiment is rather telling in a society still struggling to understand and accept homosexuals and homosexuality. Many businesses and increasing numbers of cities now provide benefits to domestic partners, including death benefits for the survivor. Unfortunately, state inheritance laws lag far behind.26 Inheritance laws are in substantial part property rules, and homosexual property owners, like heterosexual property owners, should

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receive the protection of default rules that reflect their wishes concerning their survivors—especially when those wishes protect the chosen or created family the decedent leaves behind. No one would suggest that the state can take the property of a competent homosexual during her lifetime and require that it be used exclusively for her birth family rather than for the life partner she has chosen. Yet when the homosexual property owner dies intestate, this is exactly what probate laws do in most states. Can Criminals Inherit? No one can predict which newborns will be straight or gay. Most studies indicate that sexual preference is unchangeable; biology probably plays a significant role in its determination. Vilifying gay men and lesbians makes about as much sense as vilifying people who are lefthanded or freckled. Yet into the twenty-first century “sex act” statutes in a number of states made potential outlaws of some gay and lesbian couples. In June of 2003 the U.S. Supreme Court sounded the death knell for such statutes. Overruling a famous decision from the mid1980s, the Court held that a Texas statute criminalizing certain sexual conduct between two persons of the same sex violated their liberty interest under the Due Process Clause of the Constitution. Noting that its decision applied to consenting same-sex adult couples, the Court observed that a state “cannot demean their existence or control their destiny by making their private sexual conduct a crime.”27 In states that so recently criminalized the sexual acts that homosexuals often engage in, how can we possibly argue for the inclusion of gay and lesbian couples in the default rules of inheritance law? The question poses a reasonable but not insurmountable concern. The truth is that probate law is separate and apart from criminal law. Thus, if the Supreme Court had upheld the Texas statute, principles of probate law still would not mandate the exclusion of a homosexual couple from inheriting from each other even if the couple unquestionably did engage in “criminal sexual acts” together. Probate law is concerned with property ownership and family relationships; criminal acts of family members are typically irrelevant. A husband and wife may be convicted of any number of crimes they committed together, yet those convictions (and even the prison sentences

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that follow) do not deprive them of default inclusion in spousal probate laws. In fact, unlike Texas, some states with statutes prohibiting certain sexual acts between consenting adults did not limit their application to same-sex couples. Suppose that Hal and Wanda, a happily married couple, engaged in consensual sodomy, an act that violated criminal statutes in some states prior to the 2003 decision. Even in the unlikely case that the couple had been convicted of violating the statute, inheritance laws would not have deprived Hal or Wanda of inheritance rights from the other. Similarly, if default inheritance rules were extended to homosexual couples, evidence of a crime jointly committed—sexual or otherwise—would not extinguish the claim of the surviving gay or lesbian partner to the other’s estate. In sum, probate law does not inquire into the sexual practices of the decedent and his spouse or partner. Unfortunately, some individuals— including legislators and judges—cannot see beyond the presumed sexual acts of gays and lesbians that they find so offensive. For them, a family headed by gays or lesbians is unimaginable. Where such views are widely shared, gay and lesbian couples are unlikely to find themselves included in the default provisions of inheritance law anytime soon. But the fact that some states criminalized such acts until recently provides no convincing justification for this exclusion. The Constitutional Interest in the “Legitimate” Family Inheritance provisions are part of a larger scheme of laws that implicitly encourage heterosexuals to marry rather than cohabit. They were not designed with homosexual couplings in mind, because until recently almost no one considered the existence of gay and lesbian couples. Although current inheritance laws clearly favor the family headed by married heterosexual parents, few people will seriously argue that exclusion of homosexual couples from inheritance protections reduces the incidence of homosexuality or committed homosexual relationships in modern society. It is thus appropriate to question whether exclusion of committed homosexual partners from inheritance laws is constitutionally permissible when sexual orientation is as unchangeable for most homosexuals as it is for most heterosexuals.28 As a starting point, one might compare the homosexual to the nonmarital child. For much of American history, the nonmarital child expe-

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rienced great societal disfavor, although clearly he had no control over the circumstances of his birth. Until the last part of the twentieth century, state laws often excluded the child from the list of recipients of the father’s intestate estate. Then, in the 1970s, nonmarital children began to challenge default inheritance provisions that excluded them. In defense of the exclusion, states asserted their interests in promoting and protecting “legitimate” family relationships. In a series of cases, however, the U.S. Supreme Court concluded that such a defense was inadequate to sustain the discriminatory laws. The Court ruled that a state cannot attempt to promote traditional notions of preferred family arrangements by completely ignoring children born outside of wedlock. It’s tempting to deduce from this that the state’s exclusion of committed homosexual couples from default inheritance laws is also improper. The stigma and disdain that long followed nonmarital children parallels the stigma and disdain that still follow gays and lesbians. Painting with a very broad brush, we could say that the Court’s view in the nonmarital child cases is that the state has no business excluding family members from inheritance laws merely because society historically perceived the claimant’s relationship with the decedent as tainted, sinful, or “illegitimate.” The Supreme Court has never ruled on the exclusionary aspects of inheritance laws as they pertain to homosexuals. Moreover, a narrow reading of the Court’s view in the nonmarital child cases is simply that the child cannot be disadvantaged by inheritance laws for the perceived illegitimacy of the relationship between third parties (the child’s parents). Under that view, the analogy between homosexuals and nonmarital children seems to break down, for inheritance laws do not exclude the homosexual surviving partner because of the “sinful” acts of third parties. One could argue, however, that inheritance laws excluding homosexual life partners do indeed irrationally disadvantage the couple’s children. (Heterosexual unmarried partners could also make this argument, but the case may be more compelling for homosexuals because they have no option to marry and enter into traditional family arrangements.) For example, in the increasing number of cases in which two lesbians in a committed relationship are the legal mothers of a minor child, the failure of inheritance laws to provide an elective share to the

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surviving cohabitant deprives the child of the conduit protection generally available to the children of married parents in separate-property states. Most state laws—particularly those involving economic regulation— require only a minimal or rational justification from the state when someone attacks them as “unconstitutional.” But in its cases concerning nonmarital children, the Supreme Court concluded that state classifications based on the child’s nonmarital status are subject to more in-depth judicial inquiry. This more rigorous standard of judicial review is intermediate scrutiny, and it has certainly helped nonmarital children attacking state laws that treat them differently. Unfortunately for gays and lesbians, the Court has never extended this higher level of scrutiny to state classifications relating to homosexuality. Yet, like nonmarital children, homosexuals have historically been the targets of blatant discrimination; moreover, homosexuality, like illegitimacy, appears to be a status bestowed by fate, not choice. In this light, unbiased analysis suggests that heightened scrutiny should also apply to state statutes depriving homosexuals of the benefits enjoyed by other citizens. The Supreme Court has shown little inclination to extend that heightened scrutiny to state classifications involving gay men and lesbians, however.29 Even so, it is possible that a federal constitutional challenge to current inheritance statutes excluding surviving homosexual life partners could succeed under the less exacting rational-basis standard. If animus toward homosexuals is itself irrational, perhaps the only rational basis for states to assert in excluding gay and lesbian partners under probate law is the difficulty of determining which homosexual couples are spouselike. If the state could determine the survivor’s status as a committed, homosexual life partner objectively—in a manner that did not impede the probate process—even that basis for exclusion would disappear.30 A Precedent for Individualized Determinations? Neither history nor tradition provides a satisfactory justification for the continued exclusion of the surviving partner in a committed homosexual relationship. Homosexual couples enter into long-term commitments, form families, and forge economic partnerships similar to those of heterosexual couples. Gay and lesbian couples should be included in the

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default rules of probate when we can properly identify them. Married couples receive a state-recognized certificate that signifies their partnership to the world and—more important for our purposes—to the probate court. Homosexual couples have no state-recognized marriage certificate to guide the probate court. The evolution of inheritance law in the nonmarital child scenario could again shed light on future inheritance rights for gay and lesbian couples. In the nonmarital child cases, the U.S. Supreme Court recognized that a state has an interest in providing an orderly and efficient system of probating estates. That state interest accounts in part for our reluctance to engage in individualized determinations concerning the claimant’s conduct, the nature of her relationship with the decedent, and her worthiness to inherit. Despite the state’s interest in the integrity of the probate process, however, the Supreme Court’s rulings required increased inclusion of nonmarital children under state inheritance laws. Because state statutes regarding nonmarital children are subject to heightened judicial scrutiny, many states have chosen to allow the nonmarital child to assert paternity of the putative father after the father’s death. In some instances no objective evidence of the father-child relationship—such as DNA tests or written acknowledgments of paternity by the decedent—exists to guide the probate court in making its determination whether the child is an heir of the decedent. In other words, when a paternity claim is brought by a nonmarital child following the alleged father’s death, the probate court’s decision may be both individualized and subjective. Moreover, with growing numbers of nonmarital children, we can expect an increase in these posthumous assertions of paternity. Thus, despite probate’s general dislike of individualized, discretionary decision making, numerous state legislatures now have laws that may require such determinations in the case of paternity claims first brought after the putative father’s death. Drawing from this development, homosexuals might argue that the merits of their inheritance claims should also receive individualized treatment in the probate courts. Gays and lesbians could note that their claims are likely to be no more taxing on probate courts than are the claims of nonmarital children. After all, the number of nonmarital sur-

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viving children who could bring posthumous paternity claims on any given day is probably far larger than the number of homosexual surviving partners who could bring spouse-like inheritance claims. Almost one in three children born today is a nonmarital child; only a very small percentage of the population is gay or lesbian. Does the states’ increasing willingness to investigate the existence of parent-child relationships after the death of a putative father mean that they would also be more willing to investigate the existence of committed gay or lesbian partner relationships after the death of a putative partner? Probably not. Despite the nonmarital child provisions in inheritance law, states do not seem to have abandoned their commitment to objective inheritance rules. Moreover, in many cases today the paternity claim can be proved objectively with extremely accurate DNA testing, thus minimizing the opportunity for erroneous guessing by courts. As a result, the instances in which courts have to engage in discretionary, subjective decision making about the existence of a parent-child relationship are likely to be uncommon. Undeniably, in some instances the paternity/inheritance inquiry remains one that involves a subjective evaluation of various facts and circumstances. Even so, individualized inquiries on behalf of a child are more supportable than individualized inquiries into facts and circumstances concerning a spouse-like relationship. This is not only because parent-child and spouse-like relationships are themselves fundamentally different, but also because the nonmarital child may have had no opportunity to establish a relationship with her father and to protect herself from disinheritance by him. In sum, the fact that many states permit paternity determinations after the death of a putative father is probably of little value to the homosexual surviving cohabitant desiring an individualized determination of his claim regarding his life partner’s estate.

Wills and Will Contests Some observers might say that the growing concern for cohabiting couples in inheritance law is making a mountain out of a molehill. After all, while it is true that traditional inheritance laws do not provide default rules for unmarried couples, those same laws do allow those

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couples (heterosexual or homosexual) to take affirmative steps to direct the passage of their property at death. Any competent American adult can execute a will. Moreover, when a person executes a will, the default rules of intestacy often become irrelevant. Thus—so the argument goes—the opportunity to execute a will substantially reduces any ill effects of excluding committed partners from intestacy rules. But isn’t it a real burden to execute a will? Many Americans apparently think so. Even though states give us the right to put in writing how our estate should pass at our death, millions of us never do so. No one knows precise numbers, but some commentators suggest that a large majority of American adults die intestate. Perhaps it is not surprising that many of us never formally prepare for the passing of our property at life’s end: we do not like to think about death—particularly our own.31 No evidence suggests that unmarried committed partners are less inclined by nature to fear death or more inclined to prepare for its occurrence. Because the law ignores their unmarried partnerships, however, these couples often recognize that they must take greater responsibility than heterosexual spouses in ordering many aspects of their personal lives. As a result, unmarried partners in committed relationships are perhaps a bit more likely than spouses to have wills. Certainly the AIDS epidemic that took a disproportionate toll on the gay male community forced many gay men to confront death and provide for those they loved best by will or nonprobate transfers. Nonetheless, many homosexuals in committed relationships, like many of their heterosexual counterparts, die intestate. Following the September 11, 2001, terrorist attack on the United States, several surviving same-sex partners of victims sought assistance from the Lambda Legal Defense and Education Fund. It turned out that two-thirds of those victims did not have wills. Often the biological “family” of the victim claimed the victim’s entire estate, sadly ignoring the victim’s grieving partner—even when the committed relationship had lasted for years.32 Reluctance to consider death is not the only reason people fail to execute a will. Like many other people, unmarried couples may distrust attorneys or believe that they cannot afford the cost of legal assistance. Although lawyers do not have to play a role in the preparation and exe-

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cution of a valid will, it is probably a good thing that most people do seek legal assistance in having their wills drafted. Part of the lawyer’s role is to assess, at least in a general way, the testator’s capacity to execute the will. In so doing, the lawyer looks to see whether the client knows the natural objects of her bounty, knows the general nature of her assets, has an orderly plan for distributing those assets, and understands that plan. Spouses and blood relations (particularly descendants) are generally considered to be among the natural objects of the testator’s bounty. When the testator deviates from the expected order of distribution—as would probably be the case when an unmarried person wishes to leave all or a substantial part of her estate to a life partner— further inquiry on the part of the lawyer may be proper. Although the information divulged by the client is confidential, some individuals may nonetheless be reluctant to explain their testamentary motivations to the lawyer. The discussion may make the unmarried client uncomfortable if she senses the lawyer’s surprise or disapproval. The unmarried client may also be reluctant to explain to the lawyer the relationship with her partner if the couple lives in a conservative community. In light of these various factors, the failure of an unmarried person in a committed partnership to execute a will is unlikely to be a tacit statement that he or she would prefer that blood relatives receive the entire estate at the expense of the surviving partner. Default distribution to the blood relatives, however, is exactly what happens under traditional probate law when the first partner dies intestate. In fact, application of the traditional default rule can be particularly cruel— for example, the blood relatives of a lesbian who died intestate will take to the exclusion of her life partner, even if the blood relatives rejected the decedent during her lifetime because of her homosexuality. Clearly the structure of traditional intestacy laws places a premium on will execution for unmarried partners.33 Even when the unmarried testator executes a facially valid will leaving all or a substantial part of her estate to the surviving cohabitant, she may still have cause for concern that the exclusionary default rules of intestate succession will ultimately govern the distribution of her estate. Blood relatives (most likely parents or siblings) who are disinherited in favor of the surviving partner can contest or threaten to contest the

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validity of the will when the testator dies. Typically their claims are that the testator lacked capacity at the time of the will’s execution, that the will was the product of fraud perpetrated upon the testator by the surviving partner, or that the will was the product of the partner’s undue influence over the testator. In many states, will contests are decided by a jury. Unfortunately, juries sometimes unwittingly ignore the legal issue (that is, whether the will is valid) and instead substitute their own ideas concerning how the decedent’s estate should be distributed. If the jury believes that the cohabiting relationship was immoral or illicit or that the testator’s blood family should receive the estate, the jury may find the will invalid without due regard for the testator’s competence or true wishes. If the surviving partner knows on the front end that a significant percentage of jurors is likely to be prejudiced against him, he may abandon the bequest or try to settle with the blood relatives out of court.34 If states were to include the surviving committed partner in default inheritance statutes, blood relatives would have less reason to file manipulative or spiteful will contests when the will includes the surviving partner. Compare, for example, the relative positions of spouse and unmarried partner in the will contest scenario. Assume that Harold, a heterosexual testator in a nuclear family, leaves half of his estate to his wife Wilma, a woman who is disliked by Harold’s blood relatives. Despite their dislike of Wilma, under current law Harold’s other family members may have little incentive to contest since Wilma will probably receive a substantial award (through intestacy) even if the contest is successful. There is no similar disincentive against contest where the survivor is the committed but unmarried partner, because under traditional inheritance rules the committed partner receives no intestate share if the will is invalid.35 Inclusion of the committed partner in intestacy statutes would also provide the survivor with standing to contest the will of the deceased partner. For example, assume that George, a gay man in a committed relationship with Hank, is in his last illness. George’s estranged parents visit him shortly before his death. When George dies, the parents produce an informal will that George executed during their visit alone with him. The will leaves everything to the church George’s parents attend,

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even though George had consistently denounced the church’s tenets. All objective evidence other than the will indicates that Hank was the principal object of George’s love and affection. Moreover, shortly before the visit of his parents, George had expressed a desire to execute a will in favor of Hank. Under traditional inheritance law, because Hank is not included in the state intestacy statute, he is not George’s heir and will probably have no standing to question the validity of the will that George executed under suspicious circumstances. George’s heirs are his parents. Although the parents have standing to contest, they will not do so, because the will appears to reflect their wishes for George’s estate. If Hank, as a committed partner, were included under the intestacy statutes covering George’s estate, Hank would have the right to contest the will, and if he did so successfully, he could receive a part of the intestate estate.36 Requiring unmarried partners to execute a will to protect the most likely natural object of their bounty—the surviving committed partner— places in their path a hurdle that is not set before married couples. Moreover, exclusion of committed partners from intestacy statutes increases the incentive for the decedent’s blood relatives to contest a will in which the testator has provided a substantial legacy to the surviving partner. Finally, the exclusion can also deprive the surviving partner himself of standing to contest the deceased partner’s will, even when that will is almost certainly the product of fraud, lack of capacity, or undue influence.

A More Inclusive Elective Share? Like the default rules of intestacy, the default rules of testate succession fail to include the surviving unmarried partner. Assume that Mary executed a will leaving her estate to her sister. Subsequently Mary met Nancy and the two entered into a committed partnership. Although Mary intended to execute a new will in Nancy’s favor, she died unexpectedly before doing so. In these circumstances, Mary’s will is given effect and Nancy receives nothing from Mary’s estate, even if Nancy is left destitute and the couple has young children in the home. In contrast, if a spouse executes a will but fails to provide for the surviving

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spouse, laws in all but one state would potentially protect the survivor through an elective share, dower, or community-property principles. In recent years, commentators have increasingly come to view the elective share as a legislative acknowledgment that marriage is an economic partnership, and that the surviving spouse should not be deprived of her contribution to that partnership by the decedent’s attempt to disinherit her or by an inadequate intestate share. Historically, however, the principal purpose of the elective share (and its predecessor, dower) has been to support or protect the surviving spouse and the couple’s young children by giving the surviving spouse a share in the decedent’s property even when his will evidences a contrary intent. When the testator’s intent clashes with the state interest in protecting the family, the state interest prevails. Since the purpose of the elective share is typically to recognize the economic contribution of the surviving spouse as partner or to protect the surviving family, neither heterosexual or homosexual cohabitants should necessarily be excluded from an elective share.

The Future Gay and lesbian couples seeking inclusion under the default rules of probate laws have reason to be cautiously optimistic in some parts of the country. California has recently joined Vermont and Hawaii in allowing gay and lesbian couples to obtain the benefits of default inheritance protection typically available elsewhere only to married, heterosexual couples. In coming years, efforts by gays and lesbians to gain legal recognition of their relationships will cause some states to reassess their existing inheritance provisions. The laws of these three states are likely to serve as models as more states decide to acknowledge new family forms. Heterosexual spouse-like cohabitants have less reason to be optimistic about potential inclusion under default inheritance schemes. Such cohabitation is a rejection of marriage, and states continue to assert their interest in promoting and protecting marriage. Including heterosexual partners in probate schemes would make marriage less attractive, since the partners would receive inheritance benefits without having the burdens and responsibilities of marriage imposed upon them. It is prob-

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ably telling that while three states now broadly extend inheritance rights to gay and lesbian partners, none provides similarly broad inclusion to heterosexual cohabiting partners who can marry each other—in fact, Hawaii and Vermont exclude them completely.37 Making predictions about the future treatment of cohabiting partners is risky. Not long ago, few observers would have guessed that gays and lesbians would soon be included within any probate laws. Moreover, despite the traditional reliance of American probate law on objective rules, some probate scholars are now advocating a system of individualized determinations that would allow inheritance rights to straight or gay unmarried couples. Individualized Inquiry under a Multifactor Test In the mid-1990s Lawrence Waggoner, one of the country’s foremost probate scholars, published a working draft of a proposal granting an intestate share to certain surviving unmarried partners. Acknowledging that the draft does not afford the surviving partner the full panoply of probate rights available to the surviving spouse, Professor Waggoner has stated that, at least in the initial stages of the proposal, he intended to err on the side of caution. He has also candidly admitted some of the limitations of the proposal and has never insisted that the proposal is the only (or even the best) solution to the problem of inheritance rights for unmarried cohabitants. The proposal is nonetheless remarkable.38 Determining a surviving cohabitant’s eligibility under the proposal requires a balancing of various factors. The proposal attempts to include the bright-line objective markers characteristic of most distributive schemes in American probate law. Eligibility for inclusion is not based on sexual orientation, but certain individuals cannot be committed partners under the proposal. For example, a decedent who is married at the time of his death cannot have a surviving committed partner. Moreover, if a couple is prohibited from marrying because of a blood relationship, the survivor is not eligible for inclusion under the proposal.39 One of the requirements for being a surviving committed partner under the proposal is that the claimant “shared a common household with the decedent in a marriage-like relationship.”40 Common household is a defined term requiring the couple to have shared the same

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place to live.41 The couple does not have to hold the common household in both names. Moreover, the survivor can prove that a common household existed even if one or both members of the couple maintained other places to live, and even if one or both members of the couple were residing elsewhere when the decedent died.42 The proposal properly recognizes that a couple can share a common household even though only one of them owns the place where they live: if Anne and Bob live together as a couple in Bob’s house, they share a common household whether married or unmarried. In some respects, however, the common-household guidelines could be a bit problematic. Although a husband and wife may share a common household while one or both maintain another place to live, the great majority of married couples do not have such living arrangements. If evidence shows that unmarried partners maintain separate households significantly more often than married partners, that may indicate that unmarried partnerships are significantly different from marriage and demonstrate a lesser degree or different kind of commitment, and perhaps should not receive default inclusion in inheritance laws. In an earlier version, the proposal required the couple to be “regularly living in the same household.” Professor Waggoner has noted that under the earlier language the survivor would not have a claim as a committed partner if the couple were separated at the time of the decedent’s death.43 The common-household requirement of the current draft is broader, perhaps reflecting the fact that today spouses are unlikely to lose their intestate share simply because they are living apart at the decedent’s death. Nonetheless, when cohabitants are living apart at the time of the decedent’s death, it may not be unreasonable to suspect that the relationship—whatever it may have once been—is as over as it ever will be, since no divorce decree is available to cohabiting couples. Presumably, if the couple has clearly and permanently parted ways, the proposal does not protect the survivor. A question of what constitutes a clear separation or abandonment of the “common household,” however, could be difficult to determine. This is particularly so if the couple has a history of spats and feuds accompanied by temporary estrangements in which one or both are absent

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from the residence. The ultimate decision concerning the continued existence of a common household could be quite subjective. A more fundamental problem, not fully addressed by the proposal, is how to determine that a couple has actually lived together or cohabited. We have already noted the difficulty of distinguishing cohabitants from those couples who spend the night together frequently. Even the couple itself might disagree on the question of whether they are cohabiting, particularly if they both own or rent a place of their own. In such scenarios, courts employing the proposal would again have to make the kind of discretionary decision probate prefers to avoid. Assuming the survivor meets the hurdles of eligibility and “common household,” she must then show that the couple was in a “marriagelike” arrangement. The proposal provides a list of factors “among those to be considered,” noting that no one factor or group of factors is determinative. The factors examine the nature of the relationship; the extent of financial intermingling by the couple; the extent to which the couple formalized its commitment; whether the couple co-parented; whether the couple participated in a commitment ceremony; and the evidence of commitment the couple presented to others concerning the relationship.44 Although the proposal requires the court to determine whether the relationship was “marriage-like” on a case-by-case basis, a presumption exists that the relationship was marriage-like if any of the following four factors occurred: the couple shared a common household for five of the six years preceding the decedent’s death; the couple was registered under a domestic-partnership arrangement at the decedent’s death; the couple engaged in a commitment ceremony evidenced by a contemporaneously certified writing from an “organization”; or the survivor is a parent of a child of the decedent or a party to a written co-parenting agreement with the decedent, and the child in either instance lived in the common household prior to reaching eighteen. In the event that only one of these factors occurred, the proposal provides that the presumption should be rebuttable by a preponderance of the evidence. If more than one of the factors occurred, then clear and convincing evidence should be required to rebut the presumption.45

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The manner of determining the cohabitant’s intestacy award is somewhat similar to that for determining the surviving spouse’s intestacy award under the UPC. Unlike the spousal intestate share under the UPC or most other systems, however, the proposal’s intestate share for the surviving committed partner never entitles the partner to the entire estate. In fact, all awards to the surviving cohabitant are typically less generous than those available to a surviving spouse in a similar family setting. Professor Waggoner has noted that this aspect of the proposal continues to make cohabitation less financially attractive than marriage and therefore continues to support the state interest in marriage. Under the proposal, if the decedent has no parent or descendant or, alternatively, if the surviving descendants of the decedent are also descendants of the partner and the partner has no other surviving descendants, then the partner receives a legislatively determined amount (which the draft recommends to be $50,000) plus one-half of the balance of the intestate estate. In all other cases, the surviving committed partner receives one-half of the intestate estate.46 The proposal does not provide the surviving cohabitant with an elective share to protect her against intentional disinheritance or to recognize her contribution to the partnership. This less generous treatment to the surviving cohabitant again continues to make cohabitation less attractive than marriage. In this regard, the proposal may be more palatable to those who generally oppose providing cohabitants with marriage-like treatment. But if a court has actually determined that a relationship is “marriage-like,” it seems that inheritance rights for the survivor should closely approximate those of widows and widowers. This is particularly so in the case of homosexual cohabitants who cannot marry. Nonetheless, considering the lack of inheritance alternatives for cohabitants under centuries of probate law, the absence of an elective share and the smaller intestate share for surviving cohabitants under the proposal are perhaps minor points over which to quibble.47 On the whole, the proposal is both ambitious and well crafted. In terms of its procedural departure from other American probate schemes, the most objectionable aspect of the proposal is its requirement for individualized determinations—determinations that potentially require

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the court to engage in subjective, discretionary decision making. Advocates of the committed-partner proposal can point out that its discretionary, subjective components are significantly tempered by objective factors incorporated into the proposal and by presumptions that assist the court in making its decision. Moreover, to the extent that discretion could play an important role under the proposal, the discretion exists only in determining the claimant’s right to an award. The court has no discretion concerning the amount of the award if the claimant is successful. In this regard, the proposal does not mimic the family maintenance system of commonwealth countries.48 While the proposal’s potential reliance on individualized inquiry would mark a notable break with probate tradition, it may be the proposal’s inclusion of heterosexual cohabitants, ironically, that is even more likely to prevent its widespread adoption. Individuals who express concern about the sanctity and preservation of heterosexual marriage (and they appear to be the majority of Americans) are unlikely to support legalization of homosexual marriage. Even so, these individuals might be willing to allow homosexual couples a second-best inheritance solution. Whether these same individuals would be willing to allow a second-best inheritance solution to heterosexual cohabitants is doubtful. A solution that includes heterosexual cohabitants who can but do not marry at least partly reduces the incentive for marriage, even if— as the proposal provides—the surviving cohabitant receives a smaller inheritance award than a surviving spouse. Any inclusion of heterosexual cohabitants in default inheritance schemes can be viewed as an attack on marriage.49 Discretionary Awards Adoption of the committed-partner proposal discussed above would move probate law somewhat closer to the discretionary schemes typically used in family law. Adoption of the proposal would also bring us a bit closer to the highly discretionary testator’s family maintenance system used in England (and discussed in the previous chapter). Under the family maintenance system courts make individualized inquiries and determinations concerning the distribution of the decedent’s estate.

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Essentially, the overarching guidelines under the family maintenance system direct the court to do what it believes to be just and proper when dividing the estate. No doubt, in some instances a judicial ruling based on discretion is more likely than a fixed rule to accomplish the decedent’s wishes and provide properly for the surviving family. A discretionary system does not come without costs, however. Unlike purely objective systems, the family maintenance system subjects the intimate details of the relationship to judicial review when the decedent cannot counter the testimony. Outcomes are often unpredictable and have little or no value as precedent. Worse still, discretionary power placed in the wrong hands can result in decisions that are just as arbitrary as those under traditional American fixed rules. For example, judges differ widely in their views of unmarried cohabitation and of homosexuality. In 2002 an Alabama Supreme Court justice stated that “[h]omosexual behavior is . . . an inherent evil, and an act so heinous that it defies one’s ability to describe it.” The family maintenance system would be unlikely to help the gay surviving partner whose fate is determined by the discretion of such a judge.50 Although some probate scholars have suggested that increased judicial discretion could improve the American probate system, it does not appear likely that states will soon abandon their traditional reliance on objective rules. Hawaii’s Registration System for Self-Identified Partners At the end of the twentieth century, Hawaii became the first state to adopt a registration approach concerning the inheritance rights of unmarried adults. The legislature enacted the statutes following a lengthy battle in which gays and lesbians were ultimately unsuccessful in seeking the right to marry in the Aloha State. The statutes permit two individuals who are legally prohibited from marrying each other to receive certain rights and benefits by filing a signed declaration of their relationship as reciprocal beneficiaries. To enter into the reciprocal beneficiary relationship under Hawaii law, neither party can be married, each must be at least eighteen years old, and both must sign the declaration.

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Either party may terminate the relationship by filing a signed, notarized declaration of termination.51 Using a registration system like Hawaii’s, a state legislature would not have to develop a separate or alternative set of inheritance laws for registered couples. Rather, the legislature could simply amend existing spousal inheritance statutes to include the surviving registrant. In community-property states, legislatures could use the couple’s registration as the starting point for determining when community-property principles should apply. Alternatively, community-property states could wait until the death of the first partner and then apply quasi-communityproperty principles retroactively to the period of the registered partnership. Although Hawaii does not permit registration of heterosexual cohabitants who can marry each other, a state could choose to permit such cohabitants to register under the system. The most important benefit of registering is that the surviving reciprocal beneficiary is treated the same as the surviving spouse under state probate laws. Like the surviving spouse, the surviving reciprocal beneficiary receives the first cut of the decedent’s intestate estate. He or she is also included in the state’s elective-share provision, and thereby may receive treatment as an economic partner and protection from disinheritance. Outside the probate code, Hawaii’s property statutes also provide that reciprocal beneficiaries may hold realty or personalty as tenants by the entirety—a form of concurrent ownership that previously could be created only in a married couple. Numerous other state benefits available to married couples remain unavailable to reciprocal beneficiaries in Hawaii, however. In fact, the Hawaii statutes clearly indicate that the rights bestowed upon reciprocal beneficiaries are limited, and are not the same as those bestowed upon marital partners. For example, reciprocal beneficiaries do not receive the right to equitable distribution upon the dissolution of the relationship while both are living.52 The reciprocal beneficiary system or any other registration approach— like any probate provision designed to protect the family on an objective rather than subjective basis—will not serve all registrants equally well. For example, assume that Anne and Mary are a lesbian couple who have registered as reciprocal beneficiaries. Mary has adult children from

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a prior marriage. During the couple’s relationship, Anne and Mary agree that Anne should have a child using artificial insemination by an unknown donor. (The inheritance ramifications of artificial insemination are discussed more fully in Chapter 6.) The couple takes no measures (such as a second-parent adoption by Mary) to establish Mary’s legal relationship with the child when it is born, although the women and the child clearly consider themselves a family. If Mary dies intestate, Anne can take her intestate or elective share as a reciprocal beneficiary and Mary’s adult children will receive their intestate shares. Anne and Mary’s child will probably not receive an intestate share, however, because the child is not legally Mary’s child. If Mary had been Anne’s husband, the child would have been the legal child of the couple and would be Mary’s potential heir in all states. One of the things that is likely to make Hawaii’s form of registration system attractive to state legislatures is its potentially broad application to a variety of family forms that do not threaten traditional marriage. Gay and lesbian couples are not the only ones who can register as reciprocal beneficiaries. The reciprocal beneficiary law recognizes that economic, family-like partnerships can exist for many kinds of couples. Elderly unmarried siblings, or an elderly widowed parent and an unmarried adult child, for example, often cohabit and function as a family economic partnership. The Hawaii provisions afford such family members the opportunity to provide default inheritance protections for one another through registration. In that regard, the reciprocal beneficiary statutes can actually promote and strengthen traditional family structures. Proponents of heterosexual marriage have no cause to object to Hawaii’s registration system, for registrant status is limited to persons who cannot enter into marriage with each other. This of course includes not only homosexuals but also close blood relatives such as the elderly siblings or the parent and child just mentioned. The statutes promote and encourage family ties, economic and otherwise, and do not foster heterosexual cohabitation at the expense of marriage. The statutes also do not attack existing spousal relationships, for persons who are married cannot register as reciprocal beneficiaries.53 Proof of registration provides the probate court with a completely objective basis for determining inheritance awards. Neither inquiry into

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the nature of the relationship nor evidence of cohabitation is required. The system does not sacrifice the ease of administration and judicial efficiency prized by probate law. Of course, the registration system requires that the parties come forward and declare themselves reciprocal beneficiaries during their joint lives. Yet while the burden of registering is on the couple, it is not a great one—certainly it is substantially less than the burden of marrying required for treatment as a spouse under traditional probate law. Although some commentators have criticized the requirement of formal registration, it is the formal registration itself that acts as a safeguard in determining the presumed intent of the couple concerning inheritance rights. The registration indicates to the probate court that the decedent wished the survivor to be included under the state’s default inheritance rules.54 Because there is no requirement that the couple have been in a marriage-like relationship, there is no need for the probate court to investigate whether a sexual relationship existed between the reciprocal beneficiaries. This aspect of the statute is important, because it should promote registration by homosexual couples who might otherwise be reluctant to register for fear of violence or prejudice. Two unrelated male reciprocal beneficiaries or two unrelated female reciprocal beneficiaries may be heterosexual or homosexual—the provisions do not require a revelation of sexual preference. Significantly, this means that the provisions could work successfully as default inheritance rules in any state. Because the registration process does not necessarily imply anything about the private aspects of the partners’ relationship, it is not unreasonable to exclude from beneficiary status those couples who fail to register, leaving them to assert their contractual and equitable claims if they are dissatisfied with what the deceased partner has provided them.55 Hawaii’s reciprocal beneficiary provisions are among the most significant probate default rules enacted in the last part of the twentieth century. The implicit acknowledgment of gay and lesbian property owners by the Hawaii legislature in the reciprocal beneficiary statutes represents a remarkable step toward developing a probate code that reflects America’s changing family structures. Fortuitously, although the provisions may have originated as a response to demands by homosexual litigants, the protection the registration system provides also serves the

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interests of many nongay Hawaiian families. The reciprocal beneficiary provisions successfully demonstrate one way in which state legislatures can extend existing inheritance laws through a simple registration system to better serve its citizens. Separate but Equal? Civil Marriage and Civil Union in Vermont In December 1999 the Vermont Supreme Court held that state laws denying homosexual couples the opportunity to marry violated the Common Benefits Clause of the Vermont Constitution. The clause is essentially a state equal protection provision, guaranteeing that the government cannot be instituted “for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community.” Examining “history, logic, and experience,” the court concluded that the state had presented no reasonable and just basis for continuing to deny same-sex couples the benefits flowing from a civil marriage license under state law.56 To remedy the violation, Vermont’s high court mandated that the state legislature develop a system of laws to provide homosexual couples the common benefits and protections flowing from marriage under Vermont law. In response, the legislature enacted provisions that became effective on July 1, 2000. The marriage-like alternative the legislature fashioned for gay and lesbian couples is known as a civil union. The legislature chose to preserve the term “marriage” for heterosexuals. In the legislative findings to the act creating the civil union, the Vermont general assembly noted the state’s “strong interest in promoting stable and lasting families, including families based upon a same-sex couple.” The assembly also noted the numerous obstacles same-sex couples face in the absence of the legal protections, benefits, and responsibilities associated with civil marriage. No doubt recognizing that the new civil union would be viewed by some state citizens as infringing upon the sanctity of heterosexual marriage, the assembly also noted carefully that the new system of civil unions does not bestow the status of civil marriage upon the couple. Instead, the assembly found that granting benefits and protections to same-sex couples through civil unions would satisfy the state constitution while also respecting tradi-

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tion and longstanding social institutions. Moreover, the assembly noted that a separate system of civil unions would permit adjustments to address future needs and unanticipated consequences. In essence, the civil union and marriage are different, but ostensibly equal, in terms of state benefits and protections.57 To enter into a civil union, the individuals must be of the same sex, cannot be parties to another civil union or a marriage, and must comply with state licensing and records requirements. As with civil marriage, the parties to a civil union cannot be closely related. The parties must be eighteen or older to enter into a civil union. The statute specifically provides that parties to the civil union have “all the same benefits, protections and responsibilities under law . . . as are granted to spouses in a marriage.” Any definition of spouse, family, next of kin, or other such terms under Vermont law is now deemed to include a party to a civil union. The statute provides detailed requirements concerning licensing and recording the civil union and also lists those persons who are authorized to certify civil unions.58 The statute provides a nonexclusive listing of benefits to which the parties of a civil union are entitled. These include treatment as a spouse for purposes of probate law and procedure. The statute also provides that parties to a civil union, like married couples, can hold property as tenants by the entirety. The statute permits parties to a civil union to enter into contractual arrangements that modify the terms, conditions, or effects of the civil union to the same extent that married couples may enter into prenuptial or other agreements. The Vermont statute gives the family court jurisdiction over dissolution proceedings. Dissolution of a civil union must follow the same procedures involved in dissolution of marriage.59 Between April 2000 and August 2002 Vermont registered 4,306 civil unions. At least initially, lesbian civil unions outnumbered those of gay men almost two to one. Only 16 percent of the registrants were Vermont residents. Will other states recognize a Vermont civil union? Certainly the widespread and virulent prejudice against gay marriage— evidenced by the federal Defense of Marriage Act (DOMA) and numerous state statutes limiting marriage to heterosexual couples—does not

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bode well for parties to a Vermont civil union seeking to have that union recognized elsewhere. Some courts from other states have already refused to recognize the validity of a Vermont civil union as the equivalent of marriage. Nonetheless, proponents of recognition have viable federal constitutional arguments that may eventually prevail. Under the Vermont statutes, a civil union review commission is to collect information about the recognition of Vermont civil unions in other states, including accepted procedures for dissolution. Of the several thousand couples who initially registered under the Vermont civil union law, as of August 2, 2002, only six had filed for dissolution.60 In addition to the civil union, the Vermont legislature adopted provisions for reciprocal beneficiaries that, as in Hawaii, have important inheritance consequences for registrants. Registration gives the surviving registrant the inheritance rights of a surviving spouse. The class of eligible registrants is smaller in Vermont than in Hawaii. Notably, gay and lesbian couples cannot register as reciprocal beneficiaries in Vermont because they can enter into a civil union. In Vermont, persons who register as reciprocal beneficiaries must be related by blood or adoption and be prohibited from establishing a marriage or a civil union with each other. In addition, the parties to a reciprocal beneficiary arrangement must be at least eighteen years old, and neither can be a party to another reciprocal beneficiary relationship, a marriage, or a civil union.61 The Vermont civil union laws represent the first time in American history that statutes have made available to gay and lesbian couples the full panoply of state benefits, including those of inheritance, enjoyed by heterosexual married couples. Vermont’s decision to include civil unions and reciprocal beneficiary relationships is a promising development. The legislation recognizes that the modern family exists in various forms, many of which can be protected without sacrificing the objectivity and efficiency characteristic of the American probate system and without threatening heterosexual marriage. If over time the Vermont civil union proves successful, other states will probably permit gay and lesbian couples to enter into civil unions—or even gay marriages— within their borders.

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Recognizing Families in a Time of Terrorism: California’s Reaction Among the victims of the terrorist attacks of September 11, 2001, was Jeffrey Collman, an American Airlines employee who was on the first jet to hit the World Trade Center. Jeff was survived by his partner of more than eleven years, Keith Bradkowski. Keith helped identify Jeff’s remains by providing the serial number from the couple’s matching wedding bands. Despite the long-term relationship between Keith and Jeff, Jeff’s father argued that Keith should not receive Jeff’s last paycheck or the $25,000 death benefit paid by American Airlines. Although Keith and Jeff were registered partners under California law, Jeff had no will and Keith had no inheritance rights. Instead, Jeff’s legal family included his father, from whom he was estranged. Jeff’s father told an interviewer that he disapproved of Jeff’s relationship and that Keith was entitled to nothing.62 Keith’s testimony before the California legislature helped persuade the state lawmakers to extend inheritance rights to couples registered under its domestic partnership laws. Enacted in September 2002 and effective July 1, 2003, the inheritance provisions grant the surviving partner a spousal share of the intestate decedent’s separate property. In September 2003, California amended the domestic partnership laws. Effective January 1, 2005, the amendments provide domestic partners most of the rights and responsibilities associated with marriage. Like a husband and wife, the partners will be able to acquire and hold community property.63 To register, the partners must have a common residence and agree to be jointly responsible for each other’s basic living expenses. They must be at least eighteen, and neither can be married or in another domestic partnership. The partners cannot be related by blood in a way that would prevent them from marrying each other. Like Hawaii and Vermont, California also requires objective evidence of the relationship: the couple must register its declaration of domestic partnership with the secretary of state.64 Perhaps the most surprising aspect of the domestic partnership law is that—unlike Hawaii or Vermont—California extends the availability

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of domestic partnership registration to unrelated, opposite-sex partners if at least one of them is sixty-two or older and meets Social Security eligibility criteria. Of course, the age and Social Security restrictions substantially limit the number of opposite-sex couples who can choose a registered domestic partnership over marriage. Nonetheless, California has opened the door a bit for unrelated, opposite-sex domestic partners to inherit from each other.65

Conclusion The experience of our everyday life confirms what statistics tell us: growing numbers of American families are headed by unmarried cohabitants. Yet lacking a relationship to the decedent by marriage or blood, the surviving committed partner remains outside the intestate succession and elective-share laws of most states. There are two main reasons for this continued exclusion: first, American society is reluctant to recognize relationships that could devalue marriage, and second, our probate system is ill equipped to make individualized, subjective determinations of who is a surviving cohabitant. Neither of these reasons presents a compelling case for complete exclusion of all cohabiting partners. Certainly the relationships of many unmarried cohabiting couples pose no threat to marriage. Because gay men and lesbians are unlikely to enter heterosexual marriage (and it is probably against society’s interest to encourage them into sham marriages), gay and lesbian unions do not compete with or lessen the importance of heterosexual marriage. In fact, most Americans now believe that homosexual couples should be included as potential heirs of each other. But it is not just gay and lesbian unions that deserve inclusion. Most notably, the family partnerships of many heterosexual relatives— for instance, an elderly brother and sister—do not pose a realistic threat to heterosexual marriage. By contrast, two people who can wed but choose not to do so have rejected marriage. Most state inheritance laws will probably continue to exclude such couples, unless the court can characterize their cohabiting relationship as a marriage. The expansion of probate law to include unmarried partners is likely to proceed slowly. When states decide to include some unmarried part-

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ners in their inheritance laws, they will also have to determine the manner of inclusion. Recent developments in Hawaii, Vermont, and California demonstrate that we can develop objective probate rules under which some cohabiting couples receive inheritance protection. Because of widespread opposition to gay marriage, states are more likely to opt for a simple registration process. Unless constrained by their state constitutions, state legislatures can limit the applicability of the registration system to property owned by the couple itself, thus sparing the state the costs of providing the full set of benefits it provides to married couples. The registration approach is easy to administer, provides consistent and predictable results, furthers the desire of the decedent as indicated by the fact of registration, and promotes stability within these family units. The objectivity of the registration approach also avoids the charge of “special treatment” that might undermine a system of individualized determinations for cohabiting couples. This chapter has focused primarily on harmful effects that inheritance exclusion can have on the surviving but unmarried partner; but unmarried couples often have young children who can suffer from inheritance laws that exclude the surviving parent. As family structures evolve, it becomes increasingly important for legislatures to reconsider the inheritance rights of such children who, lacking a political voice, are particularly vulnerable to exclusion under American inheritance schemes. The inheritance rights of children are the focus of the remaining chapters of the book.

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ometimes American parents disinherit their children. The disinheritance usually goes off without a hitch; occasionally, however, it backfires on the parent. When Joan Crawford disinherited her adult daughter Christina, Christina penned a best-selling exposé of Crawford’s abusiveness that would forever taint the way film buffs think of the actress. If Crawford had been able to read the tea leaves, perhaps she would have attempted to “buy” her daughter’s silence by providing for Christina in her will.1 Sometimes parents disinherit their very young children— children who, unlike Christina, can’t fend for themselves. For example, a noncustodial father may prefer to ignore his young children, particularly if his relationship with the children’s mother is bitter. In such a case, he may will everything to his current wife or girlfriend and his children with her, leaving nothing to his children from prior relationships. American probate statutes generally permit a testator to disinherit any or all of his children, regardless of their age or need. This aspect of testamentary freedom originated in England; Americans largely take it for granted. We have traditionally assumed that inheritance laws benefiting the decedent’s spouse will also indirectly benefit his young children, and that those children therefore do not need separate protection from parental disinheritance. But family structures have changed in recent decades. Significant loopholes for

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effectively disinheriting children now exist as a result of the increase in divorce, remarriage, nonmarital birth, and successive cohabitation. The American testator’s freedom to disinherit his children means that increasing numbers of young children in nontraditional families will probably receive nothing when a parent dies. The American parent’s ability to disinherit his children is unimaginable to most people of the world. In most European and South American countries, children receive a forced portion of their deceased parent’s estate based simply on the existence of the parent-child relationship. In several countries whose inheritance law originated in English common-law principles, courts can provide a disinherited child with reasonable financial provision from the parent’s estate under family maintenance laws. Decades ago England itself adopted the family maintenance system, ending the English testator’s unfettered discretion to disinherit a child. When adopting family maintenance principles in 1938, Parliament specifically acknowledged that very few civilized countries afford a testator complete freedom to disinherit his children.2 More than sixty years later, the United States steadfastly clings to a position most of the world rejects. In fact, America’s failure to protect its children from parental disinheritance may be its most notable departure from world inheritance norms. With rare exceptions, when an American parent intentionally disinherits his child, the law does not second guess him—the child’s age, her need, her relationship with the parent-testator, and the effect on the state are irrelevant.3 Sometimes family protection statutes under American probate law give the child a bit of protection from disinheritance. Homestead awards, personal property exemptions, and allowances ordered by the court during the period of estate administration can benefit a testator’s child (particularly if the child is a minor). Statutes often substantially limit the amount of these awards, however; the awards are hardly sources of long-term support or maintenance. If the testator’s surviving spouse receives a legacy or an elective share, the bounty she receives may flow to the decedent’s minor children for whom she is legally responsible. If, however, the testator leaves no surviving spouse, or if the surviving spouse is not the parent of the testator’s children and not responsible for their support, then the testator’s children will not receive

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this indirect, trickle-down benefit. Such would be the typical case when the surviving spouse is the stepparent of the decedent’s children.4 Should American probate laws protect children from a parent’s disinheriting act? Should it matter that the disinherited children are adults at the time of the parent’s death? If we were generally to protect children from parental disinheritance, would we want to acknowledge exceptional instances in which a parent could still disinherit his child? These are fundamental questions made even more important as American family structures evolve. It is our minor children—innocent, needy, and politically powerless—who are most vulnerable under probate laws that unduly emphasize testamentary freedom. Unfortunately, minor children are increasingly likely targets for disinheritance by noncustodial parents. Our legislators need to acknowledge this problem and to develop solutions that balance our concern for testamentary freedom with concern for our children. Related to the fundamental questions about child disinheritance are newer questions of primary concern to evolving families. Should nonmarital children and children of divorce receive special protection from parental disinheritance? Would doing so place children in traditional families at a notable disadvantage? When a child has a variety of parentlike figures in her life, who are her parents for inheritance purposes? What are the effects of reproductive technology on a child’s parentage and his inheritance rights? Should we ever permit a child to inherit from and through three or more parents? Not surprisingly, legislatures have also generally failed to address these questions. As a result, courts have had no choice but to make ad hoc rulings for modern families seeking answers. To avoid the piecemeal, inconsistent results of such judicial determinations, we need well-reasoned legislative solutions to these questions. This chapter examines current laws governing a child’s inheritance rights from her parents. It concludes that elevating testamentary freedom over the interests of the child is not only misguided but morally offensive. Acknowledging that large-scale change is not likely in the near future, this chapter suggests a modest form of forced support to protect young children from complete disinheritance by a parent.

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Chapters 3 through 6 discuss the newer and more specific inheritance concerns arising from nonmarital birth, adoption, and reproductive technology.

The Parental Obligation to Support the Young Child Through the centuries, eminent jurists have discussed the parental obligation of support. Writing in the eighteenth century, Sir William Blackstone noted that the obligation to support one’s child is a part of natural law. For centuries the human race indeed relied solely on the parents’ moral sense to ensure the support of the child. No one dreamed of writing down child-support laws—after all, parents naturally take care of their offspring, don’t they?5 Well, not always. The truth is that some parents feel no moral or natural responsibility to support their children. Acknowledging this, at the beginning of the nineteenth century Jeremy Bentham disputed Blackstone’s contention that the support of one’s child is a natural law. According to Bentham, providing for oneself is a natural law; providing for others, even one’s children, simply is not.6 Bentham’s view won out. Legislatures did eventually reinforce the widely perceived moral duty of the parent with support laws that served to protect both the child’s interest and state coffers. Today the need for support statutes is manifest. In 1991 a federal district court in Ohio noted that “lack of adequate child support has become a serious problem. It affects almost one-quarter of all American children; more than three million of whose fathers do not live in the home and do not provide financial support for their upbringing.”7 Sadly, many American parents are not inclined to support their children. In the last half of the twentieth century, vast numbers of parents (mostly fathers) gained notoriety as deadbeat obligors who would not support their children and who felt little compunction over their failure to do so. As divorce and nonmarital birth rates increased, obtaining and enforcing child-support orders became one of the most important concerns in family law. The mantra appears in case after case: a parent’s duty

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to support his minor children is fundamental. According to some courts, the child’s right to parental support derives from our Constitution.8 Today society is increasingly hesitant to address moral obligation and to engage in moral judgments. This is not always unfortunate, for the judgments we have to make in a complex world are often not black and white. Society’s thoughts about child support do not fall in a fuzzy gray area, however. On this topic, our views are not separated by race, religion, or political affiliation: we believe a parent should support his young children and we consider a capable parent who intentionally breaches the support obligation to be a moral villain. Congress has noted that welfare problems in the United States are largely tied to lack of support from absent parents. In the mid-1990s almost two out of three single mothers received no child support or alimony. At the same time, the number of American children under eighteen living in a family headed by a female had climbed toward 15 million—an increase of almost 300 percent since 1960. While nine out of ten married fathers provided at least $5,000 annually to family income, only about one in twenty absent fathers provided that amount. Moreover, the absent father’s failure to support often has nothing to do with his financial status or earning power: incidents abound in which wealthy fathers have taken extreme measures to avoid paying child support.9 When parents do not or cannot provide for their children, society often must step in. When society uses its resources to protect such children, however, there is a corresponding reduction in resources available to other citizens. This is not an unexpected or unfair shifting of resources when the parent’s failure to support results from an inability to provide for the child—after all, no one can condemn the parent who tries his best but simply cannot support his child. Moreover, if failure to support one’s child occurred only in such instances, the incremental reduction of societal resources to others would be small. On the other hand, a capable parent who simply refuses to support his minor children has breached his moral duty to the child and to society. As a New Jersey court noted in 1997, the state and its taxpayers should not be left “holding the bag” when such a parent attempts to avoid his childsupport obligation.10

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How Should We Slice the Pie? Most intestate succession statutes provide not only for the decedent’s surviving spouse but also for his children. Like the spouse, children are part of the family that the decedent created. Legislators generally presume that a decedent viewed members of his created family as the principal objects of his love and affection—in probate terms, as the natural objects of his bounty. The preference for the created family over the family into which one was born means that the surviving spouse and children are typically favored over parents, other ancestors, and collateral relatives, including siblings and their issue. Although this statutory preference for spouse and children is a legislative guess concerning the desires of citizens, the preference also parallels the principal legal support obligations that a decedent is likely to have during his lifetime— those toward his spouse and his children. In short, including the decedent’s spouse and children in intestacy laws reduces the likelihood that the state will have to support them when the decedent dies. Yet potential problems arise when the child receiving an inheritance award is a minor. Because a young child is typically incapable of managing substantial assets, a court is likely to appoint a guardian to manage the child’s inheritance until she is older. One of the most likely candidates to serve as guardian of the inheritance award is the child’s surviving parent. The surviving parent, however, may not be the surviving spouse of the decedent. In fact, the surviving parent may be someone whose relationship with the decedent was strained—perhaps an ex-spouse or ex-girlfriend who frequently sued him to obtain child support. In such instances, someone whom the decedent did not like or trust may wind up managing assets from his estate for the benefit of his child. If the decedent would clearly not want the surviving parent to serve as guardian for the child’s inheritance award, the estate can perhaps successfully petition to have someone else manage the assets— particularly if reliable evidence shows that the surviving parent is likely to mismanage the assets or engage in self-dealing.11 A guardian is in a special or fiduciary relationship with the child whose assets she manages. Because of that relationship, the guardian is legally responsible if she uses the inheritance award for her own benefit.

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Unfortunately, by the time the mismanagement or self-dealing becomes apparent, the guardian may have wasted the child’s inherited assets and have none of her own with which to indemnify the child for the loss. To help protect the child, the court can (or may be required by statute to) demand a periodic accounting from the guardian concerning the child’s inheritance. These accountings, however, can be cumbersome and time-consuming, and preparation may require the assistance of an attorney or other professional. Thus, even when the problems of guardian mismanagement and self-dealing are not a serious concern, the costs of the guardianship—including compensation to the guardian for her services—can diminish the child’s inheritance.12 Some Americans now believe that, at least when the decedent dies survived by a nuclear family, his entire intestate estate should go outright to the surviving spouse, since the surviving spouse is also the surviving parent of the decedent’s children. Suppose that Harry dies survived by his wife, Wanda, and their minor children Billy and Grace. Because this is a nuclear family, Wanda has no children by someone other than Harry. Thus, if Wanda receives Harry’s entire estate, she is not tempted to use the inheritance for children who were hers but not his. Similarly, because Harry had no children by someone other than Wanda, Wanda is not tempted to deny the use of the inheritance to children who were his but not hers. Moreover, by law Wanda has a continuing obligation to support the couple’s young children, Billy and Grace. The 1990 UPC has adopted this “all to spouse” approach for the decedent who dies in a nuclear family setting. This distributive solution avoids the problems associated with guardianships for minors. Billy and Grace do not get an inheritance of their own, but the generous award to their mother may help to ensure they are provided for at least while they are young. Unlike young Billy and Grace in the preceding example, most children reach adulthood before they first experience the death of a parent. When that parent dies, his surviving spouse is likely to be approaching (or to have reached) retirement age. Suppose then that Billy and Grace are adults when their dad dies. Here, the “all to spouse” award truly means that his wife gets everything without any strings attached, since she has no support obligations to the children. Wanda may live many years following Harry’s death and may need the entire estate to

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meet the costs of old age. This is particularly likely if, as often happens, Harry leaves only a modest estate and Wanda has no significant assets of her own. It is reasonable to assume that many (perhaps most) decedents like Harry would want the surviving spouse to take everything in this setting, at least when the children are adults. The UPC’s “all to spouse” approach, however, does not depend upon the age of the surviving children. Even within the nuclear family, allocating the decedent’s entire intestate estate to the surviving spouse is hardly a perfect solution. Suppose again that Wanda, our wife/mother in the nuclear family we’ve been describing, indeed receives all of Harry’s intestate estate upon his death and that Billy and Grace take nothing. If Wanda subsequently marries John and then predeceases him, many states provide John with guaranteed rights to a part of Wanda’s estate—even if that estate consists totally of assets she received from Harry, her first husband, and even if her will attempts to leave her estate to Billy and Grace. Moreover, if Wanda and John have young children of their own, Wanda is legally required to support those children. If Wanda has received all of Harry’s estate in her own right at his death, she may (or the law may require her to) use that inheritance to support the children of her marriage to John. Simply put, with the passage of time, the natural objects of the bounty of the surviving spouse may differ from those of the decedent. When this occurs and the surviving spouse has received the decedent’s entire intestate estate, the decedent’s children are likely to suffer. Also, laws may protect the surviving spouse’s new family in a way that prevents her from passing her estate to the children of her prior marriage as she wishes. For those parents in nuclear families who would like a guarantee that some part of their estate will wind up in the hands of their children and not in the hands of the surviving spouse’s latercreated family, the “all to spouse” approach offers no comfort. Many states do not take the “all to spouse” approach. These states adhere to an older approach, which distributes the decedent’s intestate estate to both his surviving spouse and children, regardless of family form. The children thus take in their own right, but may need a guardian to manage the inheritance if they are minors. Moreover, since need is irrelevant, financially independent adult children receive part of the

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intestate estate even when the estate is small and the surviving spouse needs the entire amount simply to meet her living expenses. Neither the modern “all to spouse” approach of the UPC nor the older “parent and child” approach to estate distribution is completely satisfactory for the nuclear family. For nonnuclear families, all states provide that surviving children are potential heirs along with the surviving spouse. Legislatures are apparently convinced that when either spouse has children from other relationships, the surviving spouse who takes all will distinguish unfairly among his children, her children, and their children. Interestingly, this means that under the UPC—which applies the “all to spouse” approach for the nuclear family—children in the nonnuclear family are better off than their counterparts in the nuclear family. The former are always potential heirs of the deceased parent, while the latter are excluded in favor of the surviving spouse.13

Civil Law and Forced Shares Young children depend upon their parents for support. Parents must support their young children. We take these things for granted. Then why do our probate laws largely ignore the child’s need for support when the parent dies? How perverse our system is: if an American parent chooses by will to disinherit a child—even a minor child with not one red cent of his own—the disinheriting provision is typically the final word on the matter. If we really value children and family, how can we justify our support and inheritance laws? In a civil-law country, a testator generally cannot deprive his child of an inheritance even when his will includes the clearest possible attempts to do so. In contrast, as we saw in Chapter 1, the testator in a civil-law country may be able to disinherit the surviving spouse. Why? Because spousal disinheritance is not devastating to the family in a civillaw regime. The surviving spouse has previously acquired community property during the marriage and cannot be deprived of that property by any disinheritance provision.14 The inheritance laws of most jurisdictions in the United States stand in direct contrast to those in civillaw countries. In the United States, most states do not recognize com-

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munity property. Moreover, no American jurisdiction gives children of all ages a forced share of a parent’s estate. Not long ago, however, Louisiana did protect all of a testator’s children from disinheritance. But after a long and downright ugly struggle in the 1990s, Louisiana changed its laws. Today a Louisiana testator can disinherit his children if they are able children who are at least twentyfour at the parent’s death. In other words, only young or disabled children now receive a forced share (or legitime) under Louisiana law. This limited protection is the only vestige of a true forced share for children existing within the United States today. Moreover, the dwindling popular support for the legitime in Louisiana does not augur well for those who would like to see a forced share for American children.15 Like citizens in civil-law countries, Americans intuitively recognize that, along with the decedent’s surviving spouse, children are most likely to be the closest objects of the decedent’s bounty. Although the parent-child relationship differs from the spousal relationship in obvious ways, both relationships are fundamental to society. In fact, for increasing numbers of people—particularly mothers—the parent-child relationship is the most significant relationship in life. Yet while fortynine states within the United States protect the spouse from disinheritance in some fashion, Louisiana stands alone with its forced share for young children. Ironically, a forced share for at least some children makes more sense than the forced share for the surviving spouse. Even before being whittled down to its present form, Louisiana’s legitime did not guarantee an inheritance to the child in every instance. Moreover, a Louisiana testator can still disinherit any child for just cause. In this regard, the child’s forced share is unlike most American spousal forced shares. For instance, a Louisiana parent can disinherit a child who has done any of the following: attempted to take the parent’s life; accused the parent, without reasonable cause, of committing certain egregious crimes; used violence or coercion to prevent the parent from making a will; committed a crime punishable by life imprisonment or death; married while a minor without consent of the parent; failed (without just cause) to contact the parent for two years after attaining the age of majority; raised his hand to strike his parent; or been guilty of cruel treatment or grievous injury toward his parent.16

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The Merits of a Child’s Forced Share One obvious argument for providing America’s children with a forced share is financial: a forced share for children could protect the decedent’s created family more fully than does present law, particularly in those millions of families in which the surviving spouse is not the parent of one or more of the decedent’s children. The child’s forced share would also help protect the state and other members of society from having to step in to provide for the decedent’s young or dependent children. Some commentators suggest that since the parent is responsible for creating the child, that parent should also remain responsible to some degree for that child whatever the child’s age. Under this view, the child’s forced inheritance claim may be stronger than that of the surviving spouse, for the child was brought into the decedent’s family without her consent, whereas the surviving spouse chose her relationship with the decedent. Moreover, spousal relationships today come and go, while parent-child relationships typically last until the death of the parent or child. Although some people may see this argument—that the blood relationship between parent and child itself entitles the child to a part of the decedent’s estate—as old-fashioned, others are convinced it is correct. People in civil-law countries believe it to be so. They find the American system unfathomable.17 Most Americans, however, do not believe that an adult child should necessarily inherit from the parent’s estate.18 Americans expect competent adults—including their own children—to provide for themselves. The American position can encourage young adults to become strong and independent; to lead their own lives free from the parental purse strings that sometimes quell creativity and ambition; and to be responsible citizens who establish and provide for their own families. The self-sufficient adult child does not need a forced inheritance from her parent. Thus, while few Americans would deny a parent’s moral duty to support his minor child, most would probably conclude that a parent who has reared his child to adulthood has no moral obligation to provide the child with an inheritance. By including all children of a testator in its inheritance protections, the civil-law system goes much too far to suit American tastes. Americans don’t generally believe that a

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parent’s procreative act entitles the child to support and forced heirship rights, even if the child “didn’t ask to be born.”19 Despite our probate and child-support laws, it appears that Americans don’t really believe that a parent should be able to leave his young children totally unprovided for at the parent’s death. Unlike a capable adult child, a young child needs parental support. If a parent dies when his child is young, a forced inheritance can help meet those needs. Yet even here the civil-law forced share for children is not a perfect solution. Because the civil-law award is typically a fixed fractional amount of the parent’s estate, it may bear no relation to the child’s actual support needs. In sum, although the civil-law forced share for children is the most common form of protection against disinheritance in the industrialized world, most Americans are likely to object to it because it includes adult children and, even with regard to minor children, does not reflect the child’s needs. Any incursion upon the testamentary freedom of Americans—even one to benefit their children—will probably require a more narrowly tailored solution, in terms of both potential beneficiaries and the amount of their awards, to gain widespread acceptance.

The Testate Parent and the Forgotten Child Although outside Louisiana state probate codes provide little protection to the child intentionally disinherited by a parent, they typically provide significant protection for children unintentionally disinherited by a parent. This protection comes largely from so-called pretermittedchild statutes. Under one variant of these statutes, a child omitted from the parent’s will, but not expressly disinherited by that will, may be able to claim an intestate share from the parent’s estate. Most pretermission statutes apply only if the child was born after the parent executed his will. In essence, if the child shows that the testator did not anticipate the child’s birth at the time of the will’s execution or that the testator inadvertently failed to amend the will to account for the child following the child’s birth, the law will presume that the child should be included in the testator’s bounty. Pretermission statutes vary considerably, both in their potential coverage and in the way courts treat them. For example, some courts rely solely on the language of the will itself

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in determining the validity of the child’s claim; other courts consider external factors to ascertain the testator’s intent regarding the child. Unfortunately, because pretermitted-child statutes often provide the pretermitted child with an arbitrary portion of the parent’s estate (such as the intestate share mentioned above), the child may receive more or less than his siblings who are specifically included in the parent’s will. In other words, the award may bear no relation to what the parent would have wanted the child to have. A more disturbing problem is the way that children can sometimes use a pretermitted child statute to obtain a distribution that the testator very clearly did not intend. This is particularly true in states that refuse to consider anything other than the will itself in determining the validity of the child’s claim. For example, assume that Harry and Wanda are a married couple with two children. They appear to be a traditional nuclear family, but Harry has a secret—he fathered a child, Ned, by another woman during his marriage to Wanda. Harry has no relationship with Ned, who is happy and well provided for by his mother and her husband. Harry’s will, executed before Ned was conceived, leaves everything to Wanda and their two children. The will does not specifically disinherit or even obliquely refer to Ned or to nonmarital children. Harry’s hope is that Wanda and their children will never know about his genetic link to Ned. In these circumstances, Ned may claim part of Harry’s estate under a pretermission statute if he proves Harry’s paternity and the court focuses solely on Harry’s failure to mention Ned in the will. On the other hand, if Harry had expressly disinherited Ned, the disinheriting provision would have been valid in the overwhelming majority of states.

The Will Contest A pretermission statute is not the only way in which a child may be able to alter his parent’s will. Because we consider a child to be an object of the testator’s bounty, a child who takes little or nothing from his parent’s estate may elicit our sympathy. Disinheritance of a child often seems unnatural, particularly when the testator favors more distant relatives or nonfamily members in his will.

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In response to being disinherited, a child may contest the validity of the will. By doing so, the child may hope to receive an intestate share or a legacy under an earlier will of the parent. If evidence indicates that the testator lacked capacity, was unduly influenced by others, or was the victim of fraud, the beneficiaries named in the contested will must weigh the chances of the child’s success. Sometimes the beneficiaries will conclude that a settlement with the child is the best solution, even if they believe the settlement terms conflict with the testator’s true intent. In civil-law jurisdictions, the child’s forced share generally prevents a parent from completely disinheriting the child. Because the child receives a fixed minimum regardless of the terms of the parent’s will, the child has less incentive to contest the parent’s testamentary dispositions.

Noncustodial Parents and Disinheritance Why do parents disinherit their children? For lots of reasons. A testator may feel no duty to include adult children in his will, particularly if a surviving spouse is likely to need most or all of the estate. Some people—Thomas Jefferson among them—have noted that a large legacy can cause children to lead less productive lives. Some parents— including Henry Fonda—provide generously for one child and less generously for another because the financial needs of the children differ, and not from a desire to reward and punish. Some testators disinherit a child because of the child’s misdeeds toward the testator or others. Of course, some parents disinherit their children out of spite or revenge, enjoying one final slap at the child.20 Whatever the reason for the disinheritance, at least through the 1960s some commentators maintained that child disinheritance was not worth worrying about.21 Since that time, however, divorce and nonmarital birth rates have soared. Families frequently splinter and parents form new attachments and nurse old grudges toward former family members. Indeed, courts have noted that as the family evolves—and particularly as feuding parents battle over child custody and support—the incidence of child disinheritance is likely to increase. As early as 1978, the Illinois Supreme Court recognized the problem in the following passage:

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[W]hile it is comparatively rare for a nondivorced parent to leave a spouse and their children out of a will, it is not so uncommon for a divorced parent to do so. A divorced parent may establish a new family which may command primary allegiance in a subsequent will. The well-being of children of a former marriage may seem more remote to a noncustodial parent than the wellbeing of those children over whom the same parent has immediate care and custody. In addition, the divorced parent may harbor animosity toward a former spouse, which disposition might obscure the natural tendency to provide in a will for their mutual children.22

Unfortunately, it seems that growing numbers of parents feel no responsibility for their young children and thus disinherit those children because they can. Today about half of all new marriages end in divorce. Following divorce the noncustodial parent may grow apart from biological children he seldom sees; it is sad but perhaps not surprising that such a parent may come to prefer a later-born child of a current relationship. Evidence indicates that a father may even tend to favor stepchildren reared in his household over biological children whom he seldom sees. Nonetheless, allowing the noncustodial parent to disinherit his minor children—children whom he helped to create and to whom he owes an obligation of support—seems clearly wrong. But unless a childsupport obligation binds the noncustodial parent’s estate through a contract or court decree, the custodial parent is often left holding the entire bag of support responsibility when the disinheriting noncustodial parent dies.23 Young children of divorce are not the only ones at increased risk of being disinherited by a noncustodial parent. Millions of American children are now born outside of wedlock—estimates are that one-third of the infants born in the United States during the 1990s were born to single mothers; in some metropolitan areas, the rate was closer to one-half. Like children of divorce, nonmarital children face increased risk of disinheritance from the noncustodial parent. Many fathers of nonmarital children clearly do not consider the child a natural object of their bounty. Such fathers are less likely than a divorced noncustodial father to be a part of the child’s life, and thus may have even less incentive to provide for the child.24 In those cases in which the one parent obtains a child-support order against the other parent, the obligor may view the child-support obliga-

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tion as nothing more than another bill to pay. Story after story recounts the difficulties of enforcing child-support orders. In theory, the law requires the obligor to comply with the order, but hundreds of thousands of obligors do not. If a parent fails to comply with a child-support order imposed under threat of judicial sanction against him during his lifetime, can we really expect him to provide voluntarily for his minor children by testamentary disposition? Even in the lamentable view that the young child is nothing more than a financial obligation—that is, a mere creditor among creditors of the parent—current probate law makes irrational distinctions. Probate law does not permit the testator to “disinherit” his ordinary creditors. In contrast, in the absence of a binding contract or court decree, the testator is free in most states to leave nothing to the needy young child he created. Where is the logic in this? The parental act of disinheriting a minor child does not always indicate that the parent has reneged on his moral responsibility to the child. A parent who disinherits his minor child may provide for the child outside the probate process through inter vivos trusts, life insurance policies, payable-on-death accounts, and the like. For that reason, even large-scale studies of probate records concerning the disinheritance of minor children—assuming that such a daunting task could be undertaken—would not necessarily reflect the true meaning of the disinheriting act. In fact, there are no comprehensive studies examining actual rates of child disinheritance in modern America. Yet common sense and empirical observation—including that of judges—tell us that the rates are probably rising. From the reported cases we find an Idaho testator who devised everything to his current wife while acknowledging his infant child from a prior marriage;25 a New Mexico father who bequeathed $1 to his infant child a few weeks after divorcing the child’s mother;26 and a Kentucky father, apparently feeling somewhat more generous than the New Mexico testator, who bequeathed $10 of his estate to his infant daughter being reared by his ex-wife.27 Of course, most cases of child disinheritance do not reach the courts, because the children (or their representatives) know that the testator’s act is legally permissible even when morally reprehensible.28

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Children and Surviving Spouses Compared Even if it were only the rare parent who disinherited his minor child, that alone would not be a sufficient reason to uphold the status quo. Studies in the related area of spousal disinheritance indicate that disinheritance of the surviving spouse is quite rare. Nonetheless, lawmakers in all separate-property states except Georgia have enacted statutes to protect the surviving spouse from disinheritance. In contrast, although all legislators would seemingly agree that a parent has a moral obligation to support his young children, only Louisiana protects young children with a forced share. Worse still, a minor child is usually more vulnerable than a surviving spouse to the effects of disinheritance. Unlike a minor child, the testator’s spouse is typically a competent adult who can protect herself from disinheritance by various contractual devices, including prenuptial and postnuptial agreements, insurance policies, and will contracts. The spouse can also protect herself through various forms of property ownership during the marriage. In contrast, a minor child has little or no ability to enter into or demand any of these forms of protection from disinheritance. Simply put, unlike the spouse, a minor child typically cannot bargain with the testator or others to protect himself from disinheritance. Moreover, the surviving spouse chose to create a family with the testator, while the child had no choice in the matter of his parentage or family connections. Comparing the relative positions of the testator’s spouse and his minor children, the child’s vulnerability and lack of choice indicate that he may have greater need than the surviving spouse for protection from disinheritance.29

Lack of Reciprocal Treatment between Parent and Young Child A largely unnoticed insult to the minor child under current probate law is the lack of reciprocity in the disinheritance process: although a parent can disinherit his minor child virtually everywhere in the United States, the young child typically has no ability to disinherit her parent. Why?

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Because typically only adults or emancipated minors can execute a valid will. As a result, minor children almost always die intestate, and in most states the child’s intestate heirs are her parents. The child’s parents in effect receive a forced portion of the child’s estate even though the child has no corresponding forced portion of the parent’s estate. Under the traditional rule, still used in some states, even a deadbeat parent—that is, a parent who intentionally failed to support the minor child—can inherit or receive other benefits stemming from the child’s death. For example, in a well-publicized Rhode Island case, a father had little or no contact with his child for ten years prior to her death in a traffic accident. Nonetheless, he received a part of a substantial insurance settlement resulting from the accident simply because he was the child’s father. Can there be any principled basis for inheritance laws that make a deadbeat or abandoning parent the forced heir of his minor child? Increasing numbers of people say no, and now the laws of several states provide that the parent may not inherit from the child unless the parent openly treated the child as his and did not refuse to support the child. Such “acknowledgment and support” statutes have joined slayer’s statutes in that rare category of probate laws in which inheritance rights depend upon the survivor’s conduct.30 Since a parent can disinherit a minor child, shouldn’t a minor child be able to disinherit a parent in return? Well, maybe or maybe not. Although many minor children could satisfy the minimal standards required to have testamentary capacity, an arbitrary default rule lowering the age threshold significantly—for example, a rule that presumes anyone thirteen or older has testamentary capacity—would be rather dangerous. On the other hand, determining a minor child’s testamentary capacity on a case-by-case basis could be both difficult and inefficient. One alternative would be to allow adolescents or teenagers to execute a negative declaration: that is, to allow the child by a formally executed writing to remove someone (such as an estranged parent) from the list of his intestate heirs, without giving the minor the broader ability to direct in detail the disposition of his estate among various will beneficiaries. Even this more limited option would be risky, however. The teenager who is mad at her parents because they refuse to allow

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her to date on school nights might be inclined to execute a negative declaration against them. (Yes, adult testators disinherit relatives for reasons that may seem just as ill considered, but on the whole it is true that minors are less emotionally mature than adults. One hopes.) Moreover, as commentators have pointed out, if minors were given the power to execute wills or negative declarations and thereby disinherit relatives, there is reason to fear that one parent might unduly influence the child to disinherit the other, particularly when the parents themselves are in a strained or embittered relationship. In fact, a disinherited child often will be unaware of the parent’s disinheriting act until the parent dies. As a result, providing the child with a reciprocal ability to disinherit her parent through a negative declaration or full-blown will is not a particularly helpful solution to the child disinheritance problem. Moreover, because most minor children have insubstantial assets, few parents would have any reason to fear being disinherited by the child. The better solution is to ensure that the parent’s moral duty to support the minor child is fulfilled in a fair and efficient manner upon the parent’s death.

Family Maintenance The European civil-law system provides all children with a forced share. The American common-law system gives the child no forced share or right to support. Between these two extremes lies the protection afforded by the much newer family maintenance system used in several commonwealth countries. The family maintenance system provides the testator’s children and other dependents the opportunity to claim a part of the estate even when his will expressly disinherits them. The system is predominantly characterized by judicial discretion. Loose guidelines allow the judge to deviate from the testator’s will and to make distributions to various categories of claimants when to do so seems proper under all of the circumstances presented. Under the system, courts address the question of disinheritance on a case-by-case basis and may provide substantially different awards from one case to the next. While the family maintenance system avoids the

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arbitrary extremes of the civil-law and common-law systems, some observers view its unpredictable results as a weakness. Moreover, even if the older systems are arbitrary, at least they are objective. Decisions under the older systems seldom depend upon the quality of the parentchild relationship. In contrast, the family maintenance system is largely subjective, often requiring the court to explore details of the claimant’s relationship with the decedent. As a result, the family maintenance system is slower and less efficient than the older systems. Despite these disadvantages, the family maintenance system has one important advantage over the older approaches: when administered by wise and well-trained judges, the family maintenance system will likely lead to fairer results. As the newest of the three principle systems of inheritance laws in the industrialized world, drafters of the family maintenance system had the opportunity to learn from the civil-law and common-law systems. The family maintenance system does seem to be working in those countries where it is used.31 A few commentators have suggested that American states adopt the family maintenance system. Other writers believe the system would not work in the United States because of the notable differences in training and qualifications among American probate judges. The family maintenance guidelines are nebulous, and detractors of the system fear that American probate judges might use the system’s discretionary approach haphazardly. In addition to fears of judicial incompetence or overreaching, our American obsession with efficiency and predictability also hampers the chances for widespread acceptance of the family maintenance system in the United States. Then, too, Americans appear to love their testamentary freedom more than do citizens in most countries and are unlikely to embrace a system that permits deviation from the testator’s plans not only for spouses and minor children but also for adult children, other dependents, and even paramours. Despite some inroads made on testamentary freedom in this country, the notion that a testator should be able to distribute his assets as he wishes remains ingrained in the American psyche. There is little reason to believe that the notion will change substantially in the near future.32

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Nonprobate Protections for the Young Child Traditionally, the parental obligation of support terminates at death, even if the parent is under a child-support contract or judicial decree during his lifetime. If the contract or decree specifically binds the parent’s estate, however, courts will recognize the child’s claim against the estate. Thus, to protect children outside the nuclear family, the custodial parent may seek a written support agreement or judicial decree that clearly indicates that the support obligation does not cease at the death of the other parent. In some states, courts can now impose a childsupport obligation beyond the parent’s death even in the absence of a prior contractual obligation or judicial decree to that effect. For example, in an important opinion from Massachusetts in 2000, the state’s highest court concluded that a parent’s death does not terminate his obligation of support for his minor child; the obligation continues even if the parent has expressly disinherited the child. How wonderful!33 In light of these options, do we need any additional protection against disinheritance for young American children? Yes, we do. Unfortunately, someone must take an affirmative step on behalf of the child to obtain a support agreement or decree since the young child is unable to make these demands herself. Many parents apparently consider that step futile or too burdensome, for millions of minor children outside the nuclear family are not covered by any child-support contract or decree. Perhaps it is not surprising that many custodial parents do not bother to obtain a support contract or decree, given the difficulty of collecting child support even when such documents exist. Yet for a child who is not covered by a support agreement or decree, disinheritance by a parent typically is final: the needs of the child are irrelevant, as is the ability of the deceased parent’s estate to provide support. Unlike the Massachusetts opinion from 2000, the laws of many states will carry out the parent’s desire to disinherit the young child—even when the disinheritance is founded on spite, anger, malice, revenge, and the like— if no contract or decree binds the parent’s estate. In such cases, the law does not pretend to concern itself with the best interests of the child.34 The protections afforded by child support contracts and decrees are also underinclusive for another reason: children in nuclear families have

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no similar opportunity for protection from disinheritance. In the nuclear family, typically there is no need for child-support agreements or decrees because the child is living in the home with both parents. As a result, children in the nuclear family are almost never protected by a posthumous obligation of support imposed upon their parents’ estates. Suppose Harry and Wanda and their son Sam are a nuclear family living happily together. In this setting, no support contract or support order exists to protect Sam. Harry and Wanda are free to leave their assets to third parties in virtually all states. If, on the other hand, Harry and Wanda divorce and Wanda obtains custody of Sam, she may very well obtain a decree making Harry’s obligation of parental support binding upon his estate during Sam’s minority. Thus, in a twisted and almost certainly unintended way, current law provides the child outside the nuclear family the opportunity for disinheritance protection that is usually unavailable to the child in the nuclear family. To the extent that these protections exist, they are the result of family law, not probate law. Probate laws are even stingier toward the disinherited minor child. As mentioned earlier, most states provide for limited cash disbursements or property distribution during the period of estate administration, or exempt some items from administration altogether. These provisions typically apply regardless of whether the decedent died testate or intestate. The most common of these protections are the homestead award, the personal-property exemption, and the family allowance. The generosity of these protections varies widely among the states, but more often than not their total value is not great. Even in states in which their combined value is potentially large, the benefit to the minor child (or adult child, for that matter) is often small or nonexistent. Why? Because the benefits of these provisions often flow primarily to the surviving spouse and may completely exclude the decedent’s children. A provision relating more specifically to needy and disinherited minor children is on the books in a few states. In these states, when a parent leaves his child dependent upon the county for support, the county may bring a support claim against the parent’s estate. The dearth of reported opinions concerning these statutes may indicate that counties almost never assert their rights in this manner. A number of factors

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could account for a county’s failure to use such a statute. First, if the disinherited child has one surviving parent, that parent must shoulder the burden of supporting the child. Thus, while the burden is unfairly shifted to the surviving parent without regard to the ability of the deceased parent’s estate to provide posthumous support, the county has no basis for making a claim because the child is not dependent upon it. Second, if probate of the decedent’s estate is accomplished quickly, the county may not be aware that the child will be dependent upon the county until after probate is final. Third, county officials may believe that the costs and administrative burdens of filing and proving a claim against the estate outweigh any benefit it could expect to receive. Fourth, there is always the possibility that the county officials are unaware of the statute’s existence, since very few states have such provisions. Such statutes could provide relief to the county, and indirectly protect the interests of society, by shifting the burden of supporting the child back to where it properly belongs—with the parent or his estate. Yet even were such statutes more widely adopted and used, there would still be reason for dissatisfaction. The statutes provide the claim against the estate to the county, not the child. Because ultimately the support obligation derives from the parent’s moral obligation to the child, it is more appropriate to provide a support claim against the estate to the child herself.

No Defense for the Status Quo We have seen several excuses for continuing to allow the disinheritance of America’s minor children: most parents willingly provide for the child; the child disinherited by one parent often has a surviving parent who will provide for him; nonprobate sources—such as child support agreements made binding upon the estate of the parent—are available to protect some children; our tradition of testamentary freedom cannot be lightly tossed aside; and devising an appropriate and effective protective scheme could be difficult and costly. Of course, although we can cite a litany of excuses while professing our commitment to family life, it may be that we really just don’t want to think about the problem. Or,

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worse still, we don’t care. One commentator has candidly suggested that America’s probate schemes permitting a parent to disinherit a child perhaps reflect a parent-child bond that is weaker here than in other countries.35 Whatever the reason for our stubborn resistance to change, none justifies a general probate approach that lets able parents leave their minor children completely impoverished. We know absolutely that some parents disinherit their young. We know that many children have no childsupport agreement that binds the decedent’s estate and protects them from disinheritance. Some minor children have no surviving parent who is responsible for their support. Eventually we must acknowledge that our tradition of testamentary freedom does not exist in a vacuum but must be weighed against the needs of evolving families. If children’s lack of a political voice is the problem, then caring adults must speak for them. Although no one system of protection is likely to please everyone, we can devise a scheme that attempts to provide the young child with minimal support from the parent’s estate. The parent owes his minor child an obligation of support, and the child’s needs do not vanish merely because the parent has died. Our unusual laws permitting parental disinheritance of minor children paint a sad picture of the parent-child relationship in America. Rather than recognizing the ties that should bind the parent and child, we instead protect a parent’s right to dispose of his own property even at the expense of his minor children. In a perverse way, our probate laws imply that the testator’s relationship with his property is more important than his relationship with his young children. Disinherited children have no claim to the parent’s property at his death, even if the parent himself inherited the property. If probate laws reflect our values, then it appears we love our things more than we love our young children. Placing ourselves above our children unfortunately appears to be more natural than we previously thought. Today deadbeat dads are not the only ones who are pleased to have the right to disinherit their children. The attitude is summed up in the words of a Louisiana legislator who, arguing for the abolition of the child’s share in the 1990s, stated, “This is my money, I made it and I can do what I want with it.”36 Apparently a lot of Americans feel the same way.

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Disregarding his role as a parent, the legislator’s statement is of course untrue. We cannot do exactly as we please with the money we earn (or, for that matter, with the money we inherit from others). We must all pay taxes and abide by laws that prevent us from doing absolutely as we wish with our assets. Probate laws themselves place numerous restrictions on the passing of our property, as Chapter 1 showed in discussions of spousal shares and fraudulent conveyances. Moreover, courts refuse to uphold will provisions that violate public policy. For example, because it is in the public interest to promote marriage, a court will not enforce a bequest whose purpose is to encourage divorce. Strangely, however, in America it is not currently against public policy to disinherit one’s minor child, even if the child will be left destitute.37 The traditional American approach to child disinheritance is no longer satisfactory. Yet, as we have seen, neither of the two principal alternatives—the civil-law forced share and the family maintenance system—is a likely candidate for widespread American acceptance in the near future.

A Family Law Solution One possible solution to the problem of minor child disinheritance in America is a compromise that borrows from both the civil-law and family maintenance systems and still pays due respect to testamentary freedom. More specifically, a compromise plan could borrow universal coverage for the minor child from the civil-law system, base the child’s award on reasonableness and need as under the family maintenance system, and thereby intrude on the American parent’s traditional right of testamentary freedom only to the extent necessary to ensure compliance with his moral obligation to support the child and prevent shifting of that obligation to society at large. The easiest way to do this is to recognize the parent’s posthumous duty to support his children during their minority. Such a compromise would not even have to be enacted in a state’s probate laws—it could be provided for under state family laws concerning child support. In fact, because legislators and lawyers are often reluctant to change state probate laws, the posthumous-support obligation is perhaps more likely to be enacted if fashioned as a family law.

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By expanding support statutes to include all minor children, our laws could begin to protect our young children from the worst financial aspects of parental disinheritance. In light of the difficulty of enforcing child-support obligations against deadbeat parents during their lifetimes, in many parent-child relationships death of the parent could present the very best opportunity to ensure that the parent meets his support obligation.38 Moreover, a posthumous-support award can easily avoid both the arbitrariness of the civil law’s fixed award and the pervasive judicial discretion of the family maintenance system. For example, the award can be tied to schedules or formulas similar to those found in child-support guidelines currently used in determining inter vivos support awards. The guidelines can factor in the child’s age and his other sources of support. As with inter vivos child-support guidelines, judges could have discretion to deviate from the recommended award in limited circumstances.39 Because it would serve primarily as a guarantee of support, the posthumous award should take into account testamentary provisions that the parent has made for the child. If the testamentary provision is equal in value to or greater in value than the anticipated child-support obligation, then the estate should have no posthumous-support obligation. The system could also incorporate options that permit the responsible parent to leave his entire estate to others if he wishes. For example, the parent should be able to provide for the child through lifetime gifts or nonprobate transfers that would satisfy the posthumous obligation of support. A life insurance policy would be a simple way to satisfy the obligation of support. The parent could also use survivorship properties or survivorship accounts as well as trusts to satisfy the obligation. By employing one or more of these alternative tools effectively, the parent would still be free to “disinherit” the child by will. Of course, a surviving minor child may be needy even if his parent dies intestate. If the child’s posthumous-support award exceeds his intestate share, then the posthumous award should go to the minor child in lieu of the intestate succession award that he would otherwise receive. For example, assume that Harry dies intestate survived by an adult child and an infant. Harry’s estate is worth $50,000. Further assume that had Harry lived, his support obligation to the infant would exceed $25,000.

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Under current law, the support obligation is irrelevant and Harry’s estate will be divided between the two children equally. If a posthumouschild-support award applied, however, the minor child would receive that amount, since it is larger than his intestate share. The adult child’s intestacy award would be correspondingly reduced. A posthumous-support award should at least meet the minimal needs of the minor child—the child’s need for food, clothing, and shelter. Should it include the cost of education? A private education may be better than a public one in a particular locale or for a particular child, but our laws do not generally obligate a parent to send his child to the school that is best for the child. Similarly, although many parents provide for the child’s post-minority education, many others do not. At least initially, legislatures are more likely to adopt a posthumous-support award if it is carefully limited. Even in such a barebones form, the award would represent a marked improvement over existing treatment of disinherited children. If the parent dies leaving minor children and creditors, whom should the estate pay first? The posthumous-support award should trump the claims of general or unsecured creditors of the estate. In fact, the child currently receives similar priority in the bankruptcy setting, where a child-support obligation is treated as a nondischargeable debt.40 A more difficult priority battle to resolve is that between the surviving spouse and the decedent’s minor children. Throughout the twentieth century, the legislative trend was to provide the surviving spouse with increasing protection—both in testate and intestate settings. In light of this trend, a state adopting posthumous-support laws might be tempted to give the surviving spouse preference over the minor child. An alternative approach would be to satisfy the children’s support award and the spousal award on a pro rata basis. Considering the disparity in their positions, however, the most compelling solution is to give the childsupport claim priority. As previously noted, the surviving spouse is capable of providing her own protection from disinheritance and, unlike the child, she chose a relationship with the decedent. That said, one must acknowledge that difficult cases could arise in which a surviving spouse is as needy as the minor children. Again, the support guidelines could

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account for such cases by providing judges with a power to deviate from the recommended awards in limited circumstances. A parent seeking to avoid the posthumous-support obligation might attempt to transfer property away shortly before death. Legislatures could address the problem through traditional approaches—such as the intent test or the illusory transfer test—used to rectify fraudulent transfers to reduce spousal shares. A better solution, however, is the automatic approach employed by the UPC in its elective-share provisions. Automatic inclusion of the value of the transferred property avoids the subjective component of traditional approaches to fraudulent transfers. To facilitate administration and prompt closing of the estate, the court should generally reduce the posthumous support award to a lump sum. One management approach would be to place the sum in trust for the minor child. The trustee could be a financial institution or an individual selected by the decedent or his estate and approved in the administration of the estate. The trust instrument could direct the trustee to pay a certain amount per month to the child’s guardian. Alternatively, the trust instrument could provide that payments on the child’s behalf be made directly by the trustee. In either event, the trustee would have a fiduciary duty to the child, giving the child recourse in the event that the trustee breached its obligations under the trust. In lieu of a trust, the probate court could distribute the award directly to a guardian to manage the award for the child’s benefit. Like the trustee, the guardian would have a fiduciary duty to the child and could incur personal liability for breach of that duty.41 The simplest management solution, however, is to distribute the award directly to the child’s custodian (typically the surviving parent who is also the child’s natural guardian) for the child’s benefit. Of course, there is a danger that a custodial parent would not use the award for the child’s benefit, or at least not solely for the child’s benefit. Yet the possibility that a surviving parent may improperly deflect child support funds away from the proper recipient should not cause us to reject the notion of the posthumous award. In fact, the same potential abuse exists in the inter vivos child-support scenario, but we have not eliminated child support because of that possibility.

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Ultimately, a posthumous-support award for the decedent’s minor child could prove politically popular. The award would recognize the importance of the parent-child relationship regardless of family form. Moreover, a posthumous-support award would help ensure that a parent meets his obligation to support his young children and does not unfairly leave the rest of society with that tab. Most important, the award would benefit our children.

Conclusion In the United States, legislatures have recognized a parent’s moral obligation to support his or her young children and have enforced that obligation through support laws applicable during the parent’s lifetime. By and large, however, American legislatures have failed to consider the role that probate law should play when the child’s intestate share or legacy from the parent is less than the amount needed for the child’s support. When a parent dies intestate, under traditional probate laws the child receives a fixed portion of the parent’s estate without regard to the child’s age or need. In an increasing number of states, however, the surviving spouse receives the entire estate and the children receive no award if the deceased parent dies as a member of a nuclear family. The surviving spouse continues to have the inter vivos obligation of support to the minor children and thus her receipt of the decedent’s entire estate may incidentally benefit them. On the other hand, because the award is hers, no part of the award is specifically earmarked for the couple’s minor children. Moreover, following the decedent’s death the surviving spouse may remarry or have other children, or both. In these instances, the surviving spouse will incur obligations to the new family that may result in redirecting the inheritance received from the decedent to those new family members, at the expense of the decedent’s children. Although children remain potential heirs of the parent in all states, only Louisiana provides young children with a forced share to protect them from parental disinheritance. This American approach to testate succession seems embarrassingly primitive compared with the wills law

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of most advanced countries. In civil-law countries throughout the world, children receive a forced part of the parent’s estate regardless of the children’s age and the parent’s testamentary desires. In an increasing number of commonwealth countries, the testator’s disinherited children can seek a judicial distribution that provides them with reasonable financial provision, even when the parent’s testamentary desires are clearly to the contrary. Americans apparently do not believe that parent-child relationships are so important that the child deserves a forced part of the parent’s estate. There is no reasonable prospect, therefore, of changing American testate succession laws to protect the adult child whose parent disinherits her. Yet Americans continue to express concern about families and young children. We recognize that the young child is the most innocent and vulnerable member of the family—the member who both needs and deserves the support of the parents. Today millions of young children live outside the nuclear family. Moreover, a noncustodial parent may be particularly likely to disinherit his children because he now prefers a new family or wants to punish the child’s other parent by saddling her with the entire child-support obligation following his death. Under existing probate laws, the best protection against parental disinheritance for the child outside the nuclear family is a child-support agreement or decree that specifically provides that the child-support obligation is binding upon the parent and his estate for at least the period of the child’s minority. Ironically, the child-support decree or agreement made binding on the parent’s estate can give children in nontraditional families more protection from disinheritance than that typically afforded to children in nuclear families, whose protection is indirect at best. Of course, many minor children outside the nuclear family are not covered by a child-support decree or agreement—in most states, these children have no protection from parental disinheritance. One way to remedy the neglect of young American children under current probate law is to recognize that all minor children have a right to minimal support from the estate of the deceased parent. Such recognition avoids the extremes of the civil-law forced share and the discretionary award of commonwealth systems. Moreover, to circumvent

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legislative reluctance to change probate laws, we can fashion the solution as a child-support provision under state family laws. In so doing, we admit that the parent’s moral obligation to support his minor children does not end at death, and therefore the award is more appropriately termed support than inheritance. Parents are responsible for bringing the child into the world. The ensuing obligation for that child’s support during her minority lies with her parents. Death of either or both of the parents does not diminish the young child’s needs. The parent should not be able to write off his moral obligation to support the young child through a disinheritance provision in his will. Unfortunately, minor children have no political power to obtain protection from disinheritance for themselves. With increasing numbers of young children at risk, those American adults who care about young children should begin to demand laws that recognize the parent’s posthumous obligation of support.

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ntil the last part of the twentieth century, it was easy to identify father-child relationships in most families. If Hank and Wanda married and Wanda then gave birth to Boyd and Gert, the law almost always concluded that Boyd and Gert must be Hank’s children and potential heirs. Even today, the law typically begins by presuming that Hank is the father of Boyd and Gert. But now we also admit what we’ve always known— that husbands and wives sometimes play around—and we often have the scientific means of proving whether the child in question is biologically related to both the husband and the wife. Today, if the evidence shows Boyd to be the offspring of Wanda’s affair with some man other than Hank, in some instances the law severs the presumed father-child link between Hank and Boyd. In that event, what initially appeared to be a nuclear family is no longer nuclear at all. It may be Hank’s marital infidelity that causes us to redefine family status. Wanda and the children, Boyd and Gert, may not know that Hank sired a child by an unmarried woman during a one-night stand. Perhaps Hank doesn’t even know about the child. If the child later brings a successful paternity action against Hank (or his estate), however, then again what appeared to be Hank’s nuclear family turns out not to be nuclear at all. The accuracy of modern paternity testing is just one development that increasingly affects estate administration.

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Yes, there are some families like Hank’s that appear to be nuclear but are not. More common, however, are those millions of families that never appeared to be nuclear ones. In fact, so many family forms exist today that there really is no average family. Nonmarital birth and single parenting abound, homosexual coupling and parenting are no longer rare, blended families surround us, and assisted reproductive technologies provide parents with procreative options that often involve the contributions of several adults. These and other nontraditional family settings increasingly create difficult questions concerning father-child relationships for inheritance purposes. Until recent decades no one argued that legislators should overhaul probate statutes to account for new family forms. Why? Because new forms of families appeared slowly and in relatively small numbers, giving legislatures plenty of time to consider amendments to probate law. During the course of the twentieth century, society increasingly came to view the adopted child as the child of his adoptive parents. In response, states gradually altered inheritance statutes to include adopted children as potential heirs of their adoptive parents. In contrast to the older, incremental changes in American family structure, during recent decades new family forms emerged rapidly. Moreover, a substantial part of the population now finds itself in one of these new family forms.

Parentage and Heirship Let’s begin by stating the obvious: to determine whether a person should inherit as a child of the decedent, we must know the child’s parentage. Yet determining the parentage of children today is often difficult, as demonstrated by some scenarios involving artificial insemination—the oldest form of assisted reproductive technology. Although a number of statutes and cases govern the artificial insemination of a woman with sperm of someone other than her husband, new questions of parentage continue to arise. Suppose that Mary, a single woman, is inseminated with the sperm of Bob, her dead lover. (The sperm may have been frozen before or harvested after his death.) Should the law

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recognize the child as Bob’s? Should it matter whether Bob’s estate has been distributed to others prior to Mary’s insemination? Despite the large numbers of children in nontraditional family settings, state legislatures have not paid much attention to the question of parentage for inheritance purposes. As a result, more and more families must resolve the question of heirship with a court battle. Today’s parentage questions even implicate motherhood. Comparatively few courts or legislatures have addressed the inheritance rights of the child born of a surrogacy arrangement. When a child is biologically related to two mothers—the genetic or egg-donating mother and the gestational or womb-supplying mother—and one father, who are the child’s parents? If the two women are a lesbian couple and the father is an anonymous sperm donor, should we recognize both women as the child’s parents? Some courts have answered yes, abandoning the once universal notion that a child’s legal parents must be male and female. Courts continue to follow the traditional view that a child can have only two legal parents at one time, despite the potential biological contributions of more than two “parents” to the child’s existence and despite the potential participation of more than two parent-like figures in the child’s day-to-day life. Courts have yet to hold that a psychological attachment to a parent-like figure is itself a sufficient basis to award the child inheritance rights from that figure. On the other hand, while a child cannot have more than two legal parents at one time, both judicial decisions and statutes sometimes permit a child outside the traditional family to inherit from and through three or more parental lines.1 Legislatures are reluctant to enter into the politically controversial waters of parentage and heirship. Without legislative guidance, however, court rulings on some of these parentage/inheritance questions are, and are likely to remain, inconsistent and seemingly haphazard. This and the following two chapters discuss possible legislative solutions that could better ensure fair and consistent inheritance treatment for all children, including that shrinking percentage of children who fall neatly within existing statutes. Legislative solutions are important, first and

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foremost, for the sake of the children. Decedents themselves also have a substantial interest in these solutions, however, since such laws may ultimately govern or affect the distribution of their estates. The stability afforded by universally applicable statutory solutions to inheritance problems is also important to probate judges, attorneys, and estate planners. Finally, legislative solutions could help protect the probate system itself by promoting public confidence in fair, simple, and more nearly uniform treatment for children in all families.

Paternity Chapter 3 concluded that minor children should receive support from a deceased parent’s estate. In that discussion, a tacit assumption was made that the child’s parentage was not in question. This chapter, however, focuses on the problem of determining the child’s inheritance rights when paternity is initially unclear. In recent years the question of legal paternity has engendered far more litigation than any other issue relating to children’s inheritance rights. Though paternity disputes have existed from time immemorial, no quick and easy universal resolutions are on the horizon. While the advent of modern procreative techniques has led to some new questions concerning paternity, the great majority of reported cases continue to involve disputes over the paternity of a child conceived the “old-fashioned” way—through sexual intercourse between a man and a woman. At first blush, it may seem that the man whose sperm fertilized the mother’s egg through sexual intercourse must be the child’s father; moreover, because genetic testing can confirm the biological fact of paternity with great accuracy, the determination should be straightforward. The law of paternity is not so simple, however. Modern paternity decisions may reject the child’s irrefutable genetic link to one man and instead find that a man who unquestionably is not the child’s genetic progenitor is nonetheless the child’s legal father. Because of the sheer numbers of nonmarital children conceived through intercourse each year, the resolution of paternity disputes in this setting remains extremely important for determining heirship.

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Nonmarital Children in Probate History The historical treatment of nonmarital children by society and by the legal system is a sad tale. Under early common law the child was filius nullius—the child of no one. Even the mother from whose womb the child came was not a legal parent of the child! Correspondingly, the child had no potential heirship rights from the estate of a parent. Of course, this early fiction that the nonmarital child had no parents is immediately disturbing: while the identity of the child’s father might be in doubt, the identity of mother was quite clearly ascertainable. The harsh early approach nonetheless reflected long-established mores regarding sex, gender, and marriage. In hindsight, it is easy to see the irrationality of this approach, which punished the innocent nonmarital child for the perceived transgressions of her parents. Eventually, the law relented somewhat and began to recognize the parent-child relationship between the mother and her nonmarital child. With this recognition, the nonmarital child became the mother’s potential heir.2 The law’s continued reluctance to acknowledge the father-child relationship is more understandable, for until recent decades there was no foolproof method for establishing genetic fatherhood. On the other hand, providing the child with only a maternal line of inheritance hardly discouraged men from nonmarital dalliances, since the law did not divert the father’s assets from his “legitimate” family to the nonmarital children. Perhaps in part for this very reason, until recent decades male-dominated legislatures continued to favor laws preventing a nonmarital child from bringing a paternity/inheritance claim against the putative father’s estate.3 Ultimately—although, as we shall see, often only after judicial prompting—all states enacted parentage laws that in some circumstances permit a nonmarital child to establish a legal relationship with her father. For the nonmarital child to become a potential heir of her father, however, the child (or her proxy) must jump through various legal hoops. The requirements for establishing the legal relationship vary tremendously among the states and have been the subject of much litigation. If the child gets through the hoops successfully, however, she becomes a potential heir of her father.

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The terminology applied to the nonmarital child through history reflects the increasing generosity of the law toward the child. The bastard of the early common law gradually became the illegitimate child, a term used in state laws during most of the twentieth century. While “illegitimate child” is less jarring than bastard, it is both stigmatizing and imprecise; regardless of one’s views about sexual relationships outside of marriage, the child herself has done nothing improper. Recognizing that it is unfair to brand an innocent child as illegitimate, commentators in the last quarter of the twentieth century began to refer instead to the child born out of wedlock—an improvement over “illegitimate,” but certainly a mouthful. Today commentators increasingly use the less cumbersome term nonmarital child. The term is simple, accurate, and entirely nonjudgmental. Statutes in many states now use the modern term, but “illegitimate” remains on the books in some states.4 Because the nonmarital birthrate in the United States remained low until the final decades of the twentieth century, relatively few children suffered the brunt of older statutes that precluded the nonmarital child from inheriting from and through her father. Shortly before the sexual revolution of the 1960s and 1970s, only one in twenty children was nonmarital. By contrast, today almost one in three births in the United States occurs outside marriage, and in some parts of the country more than half of annual births are to unwed mothers. The stigma once following the mother and her nonmarital child has largely disappeared. In fact, increasing numbers of women embrace the opportunity to give birth outside of marriage. Importantly for the probate system, the heirship claims of the millions of nonmarital children born since the late 1960s will begin to ripen in large waves during the twenty-first century as their fathers die. Unless legislators address the inheritance concerns of these nonmarital children, probate courts can expect to see more and more paternity/heirship claims. Such claims are likely to impair prompt, orderly, and efficient estate administration and increase the number of seemingly ad hoc, inconsistent court rulings—problems that statutory guidance could prevent or reduce. While there is no one correct answer to paternity/heirship questions, there are important policy concerns that

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legislatures should consider. Before examining these policies and the ways in which legislatures could simplify the process of determining paternity for inheritance purposes, some background is necessary: we must examine the minimal constitutional requirements for state inheritance laws concerning nonmarital children and, for comparison purposes, explore existing state laws on the subject.

The Supreme Court’s Intervention In 1968 the U.S. Supreme Court decided the first in a long series of cases involving state discrimination against nonmarital children. The timing of the case is not surprising; as the nonmarital birthrate began its rise in the late 1960s, it was inevitable that an “illegitimate” child (or someone on her behalf) would challenge state laws that denied her the benefits received by her “legitimate” counterpart. Among those challenges were three cases in which a nonmarital child sought to inherit from her intestate father’s estate.5 In 1977 the Supreme Court decided Trimble v. Gordon, the landmark case whose facts are outlined at the beginning of this book. Even in 1977 states still commonly placed substantial hurdles in the path of the nonmarital child seeking to inherit from her intestate father. In Trimble, the decedent Sherman was a homicide victim. His daughter, Deta Mona, claimed to be an heir of his intestate estate, which consisted of a vehicle worth about $2,500. Although Sherman had never married Deta Mona’s mother, no one disputed that Sherman was Deta Mona’s father. In fact, during Sherman’s lifetime a circuit court had entered a paternity order against him requiring him to pay child support. At the time of Sherman’s death, however, Illinois probate law recognized a nonmarital child as an heir from and through her deceased mother only; state law did not recognize a child such as Deta Mona as an heir from and through her deceased father if the child’s parents had not married each other. Under the statute, therefore, Deta Mona received nothing— despite the paternity order and Sherman’s open acknowledgment of Deta Mona as his child during his lifetime. Under existing law, Sherman’s heirs were his parents and siblings. Had Deta Mona been a

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marital child, she would have been Sherman’s sole heir under the Illinois statute and thus the recipient of the vehicle. Deta Mona and her mother unsuccessfully challenged the constitutionality of the statute in the Illinois state courts.6 Ultimately, however, the Supreme Court ruled in Deta Mona’s favor. The Court concluded that, rather than simply rubber-stamping state laws concerning illegitimate children, courts should engage in a more searching inquiry—one that is now called intermediate scrutiny. Illinois had asserted that its statute furthered the state interest in promoting “legitimate” family relationships. The Court found, however, that the statute bore only a “most attenuated relationship” to that goal. The Court easily rejected the notion that adults will refrain from “illicit” or nonmarital relationships if the state imposes an inheritance penalty upon their children. The Trimble opinion meant that state probate codes could no longer attempt to promote “legitimate” family life by punishing nonmarital children for the perceived sins of their parents. At the same time, however, the opinion recognized that states do have an important interest in facilitating an orderly disposition of a decedent’s property. Because of the state interest in its probate process and the difficulty of proving paternity at the time Trimble was decided, the Court concluded that state probate laws can impose some demands upon a nonmarital child claiming a part of her father’s estate that are not imposed upon a marital child making a similar claim. Moreover, state probate laws can impose some demands upon a nonmarital child claiming part of the estate of her father that are not imposed upon a marital or nonmarital child claiming part of the estate of her mother. The Illinois statute, however, had gone too far: it had not merely imposed higher demands upon Deta Mona but had altogether excluded her from inheriting, even though Illinois courts had established Sherman’s paternity during his lifetime. In 1978 the Supreme Court turned its attention to New York’s intestacy law and its effect on nonmarital children. In Lalli v. Lalli, New York’s statute permitted a nonmarital child to inherit from her father only if a court had entered a paternity order during the father’s lifetime. (Deta Mona would have been fine under such a statute, for she had obtained such an order during Sherman’s lifetime.) Robert, the non-

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marital child making the claim, produced a notarized document in which the decedent Mario had referred to Robert as “my son.” Evidence also showed that Mario frequently and openly acknowledged Robert as his child. Because Robert had not obtained a paternity order from a court during Mario’s lifetime, however, he was not an heir under the statute. Like Deta Mona, Robert asserted that the New York statute violated the federal Constitution.7 Writing for a plurality of the Court, Justice Lewis F. Powell, Jr. recognized the state’s interest in providing a just and orderly disposition of decedents’ estates. Justice Powell also reaffirmed Trimble’s conclusion that, in light of the difficulty of proving paternity, a state may impose greater demands on a nonmarital child seeking to inherit from her father than upon a marital child making the same claim. The plurality then ruled that the New York statute, unlike the Illinois statute in Trimble, passed constitutional muster. Why? Because requiring a paternity judgment within the father’s lifetime ensures accuracy and reliability by putting the paternity question before a court, simplifies estate administration, discourages fraudulent assertions of paternity, and permits the alleged father to defend his reputation. Justice Powell recognized that, under the facts presented by Robert, the result might seem unfair; however, he noted that most statutory classifications can sometimes produce unfair results. The opinion also pointed out that, unlike the Illinois statute in Trimble, the New York statute did not condition the child’s inheritance right upon marriage of her parents. Moreover, the statute’s history indicated that its purpose was not “to discourage illegitimacy, to mold human conduct or to set societal norms.”8 In the last of its cases concerning the intestacy rights of nonmarital children, the Court restated its Trimble and Lalli conclusions. Decided in 1986, Reed v. Campbell involved a Texas statute—similar to the Illinois statute in Trimble—prohibiting an “illegitimate” child from inheriting from the father’s intestate estate unless the child’s parents had married. The nonmarital child asserted her claim after the Supreme Court’s Trimble decision, but the decedent had died prior to that time and the Texas state courts refused to apply the Trimble holding retroactively. The Supreme Court held for the child, finding no reason for the state’s failure to acknowledge the Trimble holding.9

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Reed v. Campbell provides a helpful summary of the Court’s view of the inheritance rights of nonmarital children. Stated briefly, it is unconstitutional for a state statute to make the child’s inheritance rights dependent upon the marriage of her parents. This is so because a marriage requirement in this setting does not truly promote the state’s interest in family but simply penalizes the innocent nonmarital child. Similarly, a state cannot place statutory restrictions upon the inheritance claims of nonmarital children as a way to disapprove of their parents’ conduct. Yet the state can impose some special requirements upon a nonmarital child seeking to inherit from her father’s intestate estate. These requirements are permissible to further the state’s substantial interest in the orderly disposition of intestate estates, and may include limitations upon the timing and manner of asserting claims. Moreover, in light of the state’s interest in the finality of settling estates, the state can completely prohibit belated claims.

The Statutory Response Prior to Trimble many states employed the Illinois approach and treated the nonmarital child as an heir of her father only if she had been “legitimated” by her parents’ marriage. Following Trimble these states had to provide the nonmarital child with additional ways in which to inherit from her father. The Supreme Court, however, did not give state legislatures precise details as to what the new ways must be. Moreover, while the Court indicated that a state can impose some special requirements upon a nonmarital child claiming an intestate share from her father, it did not specify just how stringent these requirements can be. Not surprisingly, states developed different approaches to the treatment of nonmarital children under intestacy statutes. Today’s statutes vary substantially among the states, in terms of both proof requirements and timing of claims. Scholars have promulgated interrelated uniform acts that address the problems faced by a nonmarital child seeking to inherit from her father. The most important of these acts are the Uniform Probate Code (UPC) and the Uniform Parentage Act (UPA). Under alternative 2 of section 2-109(2) of the 1969 UPC, a person born out of wedlock is a child of a

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male intestate decedent (1) if the decedent married the child’s mother before or after the child’s birth (even if the attempted marriage was void), or (2) if the decedent’s paternity was established by an adjudication before his death or is established thereafter by clear and convincing proof. Several states have adopted this provision. Its first prong is largely a restatement or extension of “legitimation” approaches commonly used by states prior to Trimble. The second prong, however, provides that the child (or her proxy) can establish the father-child relationship, without legitimation, by proof of paternity.10 The 1990 UPC parent-child provisions state that a child is the child of her parents regardless of marital status and that the parent-child relationship may be established by appropriate state law. Both the 1990 version and alternative 1 of the 1969 version of the UPC specifically recognize that the parent-child relationship may be established by the UPA if the state has adopted the UPA. As its name implies, the parentage act can be important in defining the parent-child relationship during the parent’s life or at his death. The original UPA was promulgated in 1973; a new UPA was approved in 2000. The 2000 UPA provides detailed rules for establishing paternity in a large variety of settings and takes into account modern reproductive technology.11 Despite the existence of the UPA, state legislators have generally ignored or rejected the need for national uniformity in this area, preferring to enact their own solutions or to ignore certain aspects of the paternity problem completely. Some states do use the uniform acts. About a third of the states have adopted the 1973 UPA in whole or in part. Unfortunately, states that simply borrow from or adapt UPA provisions defeat the movement toward national uniformity desired by the drafters of the statutes. It is too early to tell whether the 2000 UPA will fare better than the 1973 act.12 In the mountain of paternity cases reported each year, the principal issue is child support. In most of these cases, neither the parties nor the courts address the question of inheritance. The putative father is typically young or middle-aged—not likely to die soon—and so the probate implications of the proceeding often go unnoticed. Nonetheless, if the child establishes paternity, she becomes a potential heir from and through her father.

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Modern Paternity Claims The accuracy of modern paternity testing was unimaginable at the time of the Trimble decision. In fact, the Supreme Court stressed the thenexisting difficulty of proving paternity as one of the reasons the state could impose more stringent requirements on the nonmarital child seeking a share of her putative father’s intestate estate. Today, however, we can determine genetic paternity with extreme accuracy. Moreover, if a putative father’s genetic material is available for testing, the man does not have to be living for science to establish his genetic link to the child in question. Indeed, if paternity today were solely a question of genetics, most modern paternity litigation would disappear. In the world of evolving parent-child relationships, however, the genetic link between adults and children now often competes with environmental factors in determining family composition. Perhaps nowhere is this battle between nature and nurture better exemplified than in the realm of legal fatherhood. Yet even now paternity law often begins with the notion that blood is thicker than water. The genetic tie typically (but not always) gives the genetic or natural father the first opportunity to establish his social, nurturing role as father to the child. When the genetic and nurturing roles are separate and in conflict, however, courts today often recognize the nurturing social father, and not the genetic father, as the child’s legal father. Particularly when the child is born into a nontraditional family, courts are likely to view fatherhood as a social rather than a biological construct.13 If it appears outwardly that a child’s parents are its custodial, genetic mother and its nurturing father (for example, a man who is married to the child’s mother but who has no genetic link to the child), in some instances the genetic father may have no opportunity to establish paternity. In other instances, however, a genetic father can establish paternity even if his claim is likely to disrupt the existing family structure consisting of mother, nurturing (but nongenetic) father, and child. A full discussion of the various aspects of paternity determination is beyond the scope of this book. The following sections, however, pro-

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vide a general overview of some commonly litigated paternity questions and their importance for inheritance purposes.

Presumptions When a child is born to a married woman, the law presumes that the woman’s husband is the child’s father. Even if a child is born after the marriage is over, the law presumes the woman’s former husband is the child’s father if conception could have occurred during the marriage. These presumptions derive from Lord Mansfield’s rule, a common-law presumption of paternity that none could challenge if the husband had “access” to the mother within the gestation period and was capable of procreating. Unlike their common-law predecessor, however, modern presumptions of paternity arising from these circumstances are often rebuttable. Today, even though a child is conceived and born during the mother’s marriage, the child may be a nonmarital child under state law. The child could be nonmarital if there is adequate proof that the child’s genetic father is someone other than the mother’s husband and the husband denies paternity.14 When a child is conceived and born outside of marriage, a presumption of paternity may attach to a man the mother subsequently marries. The 2000 UPA presumes such a man to be the father of the child if he marries the mother after the child’s birth, voluntarily asserts paternity, and (a) the assertion is appropriately filed with the state agency in charge of birth records, (b) he agreed to be and is named on the child’s birth certificate, or (c) he promised in a record to support the child as his own. The 1973 UPA presumes such a man to be the natural father of the child if he marries the mother after the child’s birth and (a) acknowledges the child as his own in a writing properly filed, (b) is named (with his consent) on the child’s birth certificate, or (c) is obligated to support the child through court order or a voluntary written promise. In proper circumstances, the presumption of paternity is rebuttable under both the old and new acts.15 A presumption of paternity may arise under some statutory schemes even when the man and the nonmarital child’s mother never marry. The 1973 UPA presumes a man to be the natural father of a child if he

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receives the minor child into his home and openly holds out the child as his own. The 2000 UPA, as amended in 2002, has altered this presumption and imposed a time frame. The amendment presumes a man to be the child’s father if, “for the first two years of the child’s life, he resided in the same household with the child and openly held out the child as his own.” The 1973 Act also presumes fatherhood when a man properly files an acknowledgment of paternity that the child’s mother does not dispute within a reasonable time. The 2000 Act drops this presumption because under the newer act a valid acknowledgment actually establishes paternity.16 A growing number of cases focus on how to rebut an existing presumption of paternity. The mother’s husband or ex-husband seeking to avoid child support and other parental obligations attacks the presumption in many instances. The mother, the child, or the state sometimes attempts to rebut the presumption to pursue paternity and child-support orders against another man, most likely the genetic father. The genetic father (perhaps a boyfriend of the married mother) sometimes wants to rebut the presumption that the mother’s husband is the child’s father so that he can later prove himself to be the child’s father.17 Because state law governs paternity proceedings, the class of potential challengers to an existing presumption of paternity varies from state to state. A particular paternity presumption may be rebuttable or irrebuttable, depending upon the party seeking to attack it. State law may permit the mother, child, or presumed father to attack the presumption and yet bar other would-be challengers. Further complications in paternity proceedings arise from overlapping presumptions, conflicts of law, and the inability of a deceased putative father to provide evidence against the paternity claim. The paternity case scenarios are often fascinating and melodramatic; however, the stories they tell are extremely disheartening when one remembers that the parties are not fictional characters. Too often the child is a real-life pawn who suffers greatly from the conduct of the adult parties to the litigation. Yet the ever-expanding number of paternity cases is perhaps inevitable in view of the increasing nonmarital birth rate. The paternity presumptions are the starting point in many of these battles.

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Disestablishing Paternity One of the most difficult questions that courts have faced in recent years is when to allow a presumed father to disestablish paternity. The question is particularly thorny when the presumed father has spent years nurturing and supporting the child and acting as the child’s parent. The following paragraphs discuss some common scenarios, but the outcome in a particular case is likely to depend upon both the jurisdiction and the precise circumstances presented to the court.18 In one line of cases, a presumed father has married the child’s mother although he knew or suspected that the child was not genetically his. In a later divorce proceeding, the man asserts that, because he is not biologically related to the child, he is at most a stepfather and therefore does not have to pay child support. If during the marriage the man knowingly and voluntarily assumed the paternal role, however, some courts will find him to be the legal father despite the absence of a genetic tie with the child. Such a court is likely to apply principles of equitable estoppel—in essence, the court concludes that he cannot now deny paternity when his prior actions indicated his willingness to be the child’s father and the child (and perhaps the child’s mother) reasonably relied on his assumption of that role. If estoppel applies, the man is the child’s legal father and the child is the man’s potential heir.19 Not all courts estop the father in these circumstances. A Massachusetts court held that a husband could raise a nonpaternity defense even though the child in question was six years old when the husband stopped acting as her father. As a matter of public policy, courts try to encourage rather than discourage bonding between children and their stepdads. Some courts fear that if they apply equitable estoppel in these cases, the result may have the unintended effect of discouraging stepfathers from developing nurturing relationships with their stepchildren. In other words, these courts fear that using estoppel principles in paternity cases will cause the pragmatic man to distance himself from his stepchildren during the marriage, lest he himself later be estopped from denying paternity if he should divorce their mother. Nonetheless, even these courts will apply estoppel in egregious cases—such as when the mother made the decision to bear the child reasonably relying on the

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man’s promise to support the child and treat the child as his own even though he knew it was not biologically his.20 In a second line of cases, the husband (and presumed father) believed that his wife’s child was his only to learn later—sometimes years later— that the child is genetically unrelated to him. The revelation of the child’s genetic paternity often occurs in the midst of a divorce proceeding. In these circumstances, some courts are reluctant to apply estoppel against the man. If the man is successful in disestablishing paternity, the child will become a nonmarital child. Today, however, there is so little stigma attached to that label that most courts are unlikely to view this as a sufficient reason to rule against the man. Of course, if the husband is successful in disestablishing paternity, the child is thereafter a potential heir of only one parent, the mother, unless the child can establish paternity in another man.21 A variation on the preceding scenario occurs when the mother asserts the genetic paternity of another man to prevent her ex-husband from obtaining custody or visitation rights to the child following a divorce. If the ex-husband has relied on the mother’s prior assertions of his paternity and he desires to continue in the paternal role, some courts will apply estoppel principles against the mother and refuse to consider her assertion. In a Pennsylvania case involving inheritance rights, a mother first asserted that her husband was not the father of the child when the child died intestate at age twenty-three. The court estopped the mother from denying her husband’s paternity, and thus as the child’s father the man shared the child’s estate with the mother.22 If a man succeeds in disestablishing legal paternity, one would expect him to have no further obligations to the child. Following the divorce, he will be a former stepparent of the child—and courts generally do not impose a parental support obligation on a stepfather who divorces the child’s mother. Yet some courts may consider legal paternity and child support separately. In a New York case a husband severed “the loving bond” he had with his presumed child when he learned she was not his genetic offspring. The court concluded that although he could successfully disestablish the legal parent-child relationship, he could still be held responsible for the child’s support. In such an unusual case, the

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man is obligated to support the child, but the child is not a potential heir of the man since no legal father-child relationship exists.23 In a third line of cases, the court has entered a child-support order against a man who discovers much later that the child is not genetically his. If he then seeks to renounce paternity, he may face severe legal hurdles. Courts may hold that the earlier support proceeding decided the question of his paternity, which he cannot now relitigate. Some courts, however, have allowed the man to proceed if the prior ruling was tainted by fraud, such as when the child’s mother knew that the man was not the father of her child but nonetheless remained silent in the earlier proceeding and allowed the court to issue a support order against him. Other courts, however, have refused to revisit the paternity question even if the mother’s conduct was egregiously bad by any standard, such as when she perjured her testimony or falsified her paternity petition in the earlier determination.24 Similarly, if a divorce decree indicates that the ex-husband is the father of the child, the ex-husband may face a difficult battle in his later efforts to disestablish paternity. This is true even though the exhusband did not litigate the question of paternity during the divorce because at that time he had no reason to know or suspect that the child was not his. Thus, a divorcing husband should be aware that what appears to be a mere uncontested recital of paternity in a divorce decree may later prevent him from denying paternity of the child even if subsequently discovered evidence shows he has no biological connection to the child. In light of this, today a husband has every incentive to investigate and litigate fully the paternity question at the time of the divorce.25 The preceding scenarios concerned men who at one time were married to the child’s mother. As previously noted, however, a man who has never been married to the mother can be a presumed father of the child. Such a man could be a one-time lover or a long-term cohabitant of the mother. Under statutory provisions in several states, a cohabitant may be the presumed father of his lover’s child if he executes an affidavit of parentage and stipulates an order of filiation and support. If the man undertook such action believing himself to be the child’s father,

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and later learned that the child’s genetic father is someone else, he too may seek to rebut the presumption of paternity. In some states, it appears that courts are more liberal in entertaining the severance petition of the “nonhusband” who is a presumed father than in entertaining such a petition from a husband or former husband of the mother. The 1973 UPA itself suggests that the mother, child, or presumed father may attack the presumption of paternity that results from a marriage (or attempted marriage) only within the first five years of the child’s life. In contrast, there is no stated time limit on the attack when the presumption of paternity is not based on marriage.26 This more liberal treatment for the “nonhusband” may come from the conservative view that family sanctity is tied to marriage. With millions of children and their parents now existing in new and rapidly evolving family structures, however, the conservative view is too narrow. Moreover, the legitimacy/illegitimacy distinction has little social significance today. Paternity, however, remains extremely important as a means of providing the child with a source of support and potential inheritance. Indeed, the 2000 UPA rejects the earlier distinction and provides simply that a proceeding to adjudicate parentage of a child with a presumed father generally must be brought within two years of the child’s birth.27

Relitigating Paternity When the child’s mother or the state has unsuccessfully sought to establish paternity of a putative father, can the nonmarital child herself bring a later paternity action against the same man? If one considers the mother or state to be a mere extension of the child—in legal terms, if the mother or the state is in privity with the child—then it seems unfair to subject the same man to the same lawsuit twice. Many courts, however, have found that privity does not exist, because the child’s interests differ from those of the mother and the state. In these courts, the child who was not a party to the earlier proceedings is not bound by their outcome and may pursue her own paternity action against the man or his estate. Similarly, a determination of nonpaternity in a divorce pro-

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ceeding may bind the formerly married couple but is less likely to bind the child herself. Many courts have found that the child is not in privity with her mother in the earlier divorce action and is thus free to bring her own paternity action against the man or his estate.28 Some courts, however, have found the child to be in privity with the mother or the state in the prior paternity actions. These courts believe that the child’s interest is undifferentiated from that of the mother or state in the initial paternity determination. Under this view, the child can bring no subsequent filiation suit against the man. Some commentators have suggested that to avoid potential claims by a child asserting paternity following earlier paternity claims by the state or the child’s mother, the putative father should always attempt to join the child as a party in the original paternity litigation. If the child herself is a party to the earlier proceeding, she is generally bound and cannot later relitigate paternity.29

The Genetic Father’s Claim and Disruption of an Existing Family Sometimes a man will attempt to establish paternity of a child living in what appears to be someone else’s nuclear family. If Harry and Wanda are married and Wanda gives birth to Gail, the law presumes that Gail is Harry’s child. But how should the law respond if John steps forward and claims that he is Gail’s “true” father?30 In some such cases, the genetic father’s attempt to establish a legal relationship with his offspring is altruistic. Particularly when compared to the millions of fathers in America who run from support and other parental obligations, the genetic father seeking to nurture and support his child may elicit our sympathy. Yet the genetic father’s claim, if allowed, forever changes the existing family unit consisting of the mother, her husband, and the child whom the husband considers his own. Some observers believe that in circumstances such as this, preservation of the existing family unit is more important than permitting the genetic father to establish paternity. Under this view, if the mother and her husband have agreed that the child is his, then

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the law should recognize the husband’s legal paternity and bar the genetic father’s claim.31 In 1989 a plurality of the U.S. Supreme Court upheld a California statute forbidding a genetic father from challenging the husband’s presumed paternity when the husband and mother sought to rear the child as their own. Thus it is constitutionally permissible for states to prevent the genetic father from establishing his paternity when the child is born into an existing family and the married couple objects to the genetic father’s claim. This approach—an irrebuttable presumption against the genetic father—places primary emphasis on promoting stability within existing families; however, it does not permit a court to consider the best interests of the particular child whose parentage is in question. The blanket exclusion of the genetic father’s claims can also be disturbingly one-sided. If the presumption bars the genetic father’s paternity claim, does it also bar the child’s paternity claim against the genetic father? Not necessarily. At least one state court has concluded that such a lopsided approach is not only unwise but perhaps also a violation of equal protection guarantees.32 An irrebuttable presumption of paternity in the mother’s husband can also have devastating consequences for men who seek the assistance of various forms of reproductive technology. If a man’s sperm fertilizes the egg of a married woman who has agreed to be a surrogate mother of his child, under such an irrebuttable presumption the man may be up the creek if the mother and her husband decide to keep the child as their own. Fortunately for genetic fathers, however, the tide has turned: in recent years states have increasingly abandoned the irrebuttable presumption that the husband is the child’s father in these circumstances.

Paternity Claims against the Estate of the Putative Father Today most states generally permit a child to prove paternity after the father has died. The child typically must establish the decedent’s paternity by clear and convincing evidence, although in some states the stan-

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dard of proof is more favorable to the child. Whatever the proof standard, if the child successfully establishes paternity, the child becomes an heir of the man. If the man died with a will that does not specifically provide for the child, in some instances the child may still obtain part of the estate through class gifts or as a pretermitted heir (see Chapter 3). Even if a child who successfully asserts paternity takes no assets directly from the estate, the paternity determination can still be important in enabling the child to claim various benefits as a child of the decedent— things like Social Security payments based on the decedent’s earnings record and inheritance rights from other relatives of the decedent.33 The difficulties of establishing paternity often increase when the child first brings the claim after the death of the putative father. If the child has a presumed father other than the decedent, the child will probably have to rebut that presumption to demonstrate that she is the decedent’s nonmarital child. If state law precluded the putative father from establishing paternity of the child, the decedent’s “legitimate” family may claim that the law should similarly preclude the child from establishing paternity at the decedent’s death. The decedent’s legitimate family may also attempt to avoid the paternity claim by promptly administering or divvying up the estate, thereby hoping to foil the nonmarital child’s attempt to develop her case. Moreover, courts may have little sympathy for a nonmarital child who appears to have intentionally and unreasonably waited to assert her claim until the putative father’s death, or who has previously inherited from a nonbiological (but presumed) father. Evidentiary rules may also severely restrict testimony that the child can put forth against the decedent and his estate. And, of course, the decedent may have taken to the grave much of the evidence that he alone could have provided on the paternity question.34 In some respects, however, nonmarital children are similar to potential creditors of the estate. Published notice of estate proceedings to creditors is often also made binding against nonmarital children when the estate administrator acts in good faith and is unaware of the existence of such children. Like other creditors, the nonmarital child must file her claim against the estate within the period prescribed by state law.35

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The Exhumation Cases Genetic evidence to support a child’s paternity claim can exist long after the decedent’s death. Because of the great reliability of modern paternity tests, their results may be the most important evidence that a claimant can provide to establish paternity. In fact, increasing numbers of children asserting paternity/inheritance claims now seek to have the decedent’s body exhumed to gather genetic evidence. In a Mississippi case decided in 2000, the body of an elderly man who died intestate was exhumed for DNA testing to determine whether twins who had been born almost sixty years earlier were his nonmarital children. Although evidence by one expert indicated an 83.7 percent probability that the decedent was the father of one twin and a 72 percent probability that he was the father of the other twin, the chancellor concluded that the twins were not the children of the decedent. As in many of the paternity/inheritance cases, the court heard a substantial amount of dirty family laundry and community gossip—fascinating but undoubtedly hurtful as well.36 The collective availability of posthumous paternity actions, genetic testing, and exhumation can lead to treasure hunts against the estates of men who could have fathered nonmarital children. The statutes of most states do not specifically address whether the results of genetic testing conducted posthumously are admissible evidence for paternity/ inheritance purposes. To date, courts faced with exhumation requests have generally required a showing of good or reasonable cause before ordering disinterment. If a court refuses to order exhumation or the body is otherwise unavailable, the claimant may seek to establish a genetic connection with the decedent through forced testing of the decedent’s known blood relatives. Although such relatives have argued that a constitutional privacy interest protects them from unwanted bodily invasion, at least some courts have found that blood testing is only a minimal invasion that must give way to the nonmarital child’s interest in knowing the identity of her father. Ironically, the decedent’s closest blood relatives are also likely to be his heirs and therefore the very individuals most likely to have their inheritance reduced if the

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claimant proves paternity through use of their genetic material. The initial invasion of privacy (or violation of bodily integrity) coupled with the potential reduction in inheritance provides two slaps in the face of such relatives.37

Reassessing Post-Death Paternity Claims Permitting the nonmarital child to bring claims of paternity against a putative father’s estate has also led to another recent development: the ability of some nonmarital children to inherit from two legal fathers in succession, even when the child had no relationship with the second father during that father’s lifetime. In some states, by taking advantage of paternity presumptions and posthumous paternity actions, a child who has previously inherited from her presumed father can bring a paternity claim against the estate of another man (typically the genetic father) and, if successful, inherit from that man’s estate.38 A child who attempts to establish paternity to inherit from a genetic father may appear quite greedy if she also had a presumed father from whom she has previously inherited. Yet inheriting from the intestate estates of two or more fathers itself is not a new concept. In many states a child who is adopted by a stepfather is a potential heir from and through the biological father and the adoptive father. Of course, the positions of the adopted stepchild and the nonmarital child are not precisely the same. The adopted stepchild, unlike the nonmarital child bringing the posthumous paternity claim, will typically have established a legal parent-child relationship with both of the fathers (at different times) within the lifetimes of the men. A more serious concern, however, is the potential for post-death paternity claims to impede the probate process itself. Undoubtedly, many nonmarital children obtain paternity determinations during the father’s lifetime. Their claims are unlikely to interfere with probate administration, for the previously obtained paternity order establishes their status. But in the decades ahead—if current patterns hold true— great numbers of nonmarital children will have obtained no paternity order within the father’s lifetime, will have no other written proof or

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acknowledgment of the decedent’s paternity, and will not have been “legitimated” during the decedent’s lifetime. It is the claims of these children, filed after the putative father’s death, that may cause states to reconsider the propriety of permitting paternity claims in probate. In fact, the simplest approach is to prohibit all nonmarital children from asserting paternity after the death of the putative father. Although this solution is severe, it facilitates estate administration and may be fairer to the decedent. Requiring the child to bring a paternity claim within the putative father’s lifetime recognizes the man’s interest in the litigation and provides him with the opportunity to dispute or refute the allegations. It also helps to prevent stale claims: children who are aware of the putative father’s identity should not be able to sit back for years— well into their adulthood and possibly into middle age or later—and then bring the paternity suit when the putative father is no longer present to defend himself.39 The Lalli opinion, which indicates that the state may lawfully take this stringent approach, could become increasingly important in the future. Although Lalli was decided before the advent of modern DNA testing, the ruling is still justifiable. After all, legal fatherhood is not necessarily dependent upon genetic links. Then too, other state interests noted in the opinion—prompt and orderly estate administration and protecting the rights of the putative father to defend himself—remain important. But while barring paternity claims against the estate may be constitutionally permissible, it is not without serious drawbacks. A complete bar has a particularly harsh impact upon young nonmarital children, who must rely on the efforts of the mother, the state, or a third party to bring the paternity action within the putative father’s lifetime. If the man dies and no one has brought the paternity action for the minor child, the bar on posthumous claims punishes her, though she herself is not at fault for the delay. At present there is no movement toward a complete bar on paternity claims in probate. States may have decided that the simplification in probate that accompanies a Lalli-type restriction is outweighed by the interests of the children asserting such claims.40 States could choose an intermediate approach that makes availability of the posthumous paternity claim dependent upon the child’s age at .

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the time of the father’s death. The age of majority (perhaps extended by a relatively short grace period) would be a logical age limit imposed upon nonmarital children seeking to bring such a claim,41 since presumably in most states the father, if living, would have a support obligation throughout the child’s minority. Under this approach, the claims of the decedent’s nonmarital minor children—those who are most likely to need and deserve continued support from the estate—would remain viable even though no paternity action was filed on their behalf during the father’s lifetime. A statute distinguishing minor and adult nonmarital children in this way would survive constitutional attack if the minor child’s right is linked to the support the father would have owed had he lived. As discussed in Chapter 3, although child-support and inheritance awards differ in important ways, inheritance awards can undoubtedly help meet the minor child’s needs. The state’s interest in its minor children as well as in its own coffers, coupled with the presumed dependence of the minor child, provides the state with a reasonable basis for permitting minor nonmarital children to bring paternity claims in probate while forbidding adult nonmarital children from doing the same. Moreover, if states one day recognize the minor child’s right to posthumous support from the parent’s estate, the right would extend to the decedent’s nonmarital minor children. Permitting the minor nonmarital child to bring the paternity claim upon the father’s death would allow the child to establish his eligibility for the posthumous support.42

Conclusion Determining legal fatherhood today is often difficult. Paternity may result from the circumstances existing at the child’s conception or birth or from acts that occur later. States have taken a variety of approaches regarding time limitations and proof requirements in paternity actions. Presumptions of paternity, some of which have very deep historical roots, remain important in determining the father-child relationship. Yet notable differences in state law exist regarding when paternity presumptions arise, when they are rebuttable, and who may attack them.

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Moreover, because presumptions of paternity are not always mutually exclusive, presumptions of paternity can exist simultaneously in two or more men. As families evolve, neither blood nor love is an essential component of legal fatherhood. Thus the genetic father who has no desire to participate in the life of his nonmarital child may nonetheless be the child’s legal father. Alternatively, a mother’s husband who voluntarily assumes the role of father to her child may become the child’s legal father despite the lack of a blood tie. A cursory glance through family law decisions is enough to show the frequency of paternity litigation today. Children who establish paternity during the father’s lifetime present little concern for estate administrators—the adjudication clearly establishes the father-child relationship necessary for the child to be a potential heir. Most states, however, permit paternity/probate claims by children who failed to bring a paternity action during the putative father’s lifetime. Such posthumous claims are still relatively uncommon; however, the vast increase in nonmarital births—more than a million each year by the 1990s—is a relatively new development. Not until the fathers of these children reach old age and begin to die are we likely to see a substantial increase in paternity claims in probate administration. If the increase in paternity claims seriously hampers prompt and efficient estate administration, states may turn to a more restrictive approach. While the simplest solution is to bar paternity claims first asserted after the putative father’s death, a more just solution would permit paternity claims by children who are minors at the time of the father’s death. Such a distinction between adult and minor children is quite reasonable if legislatures are willing to view the economic plight of young nonmarital children and link inheritance with support. A father should not be able to shirk his support duty to the minor nonmarital child merely because no one has brought a paternity action on the child’s behalf during the father’s lifetime. In sum, the age-old question of paternity remains fundamental for determining a child’s inheritance rights. Yet, except when necessary to comply with Supreme Court mandates, state legislatures by and large have spent little time addressing the probate problems or policies impli-

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cated when nonmarital children first assert paternity following the death of a putative father. Almost one in three children born today is nonmarital. Not surprisingly, increased concerns about nonmarital children have begun to change modern probate planning and estate administration. As the putative fathers of these nonmarital children die, many of the children will seek to inherit. It is impossible to know the extent to which these claims will affect probate administration, but if states retain their existing statutory schemes, it is safe to assume that the problems will increase substantially.

5 Adoption

A

t first blush, it might seem odd to characterize families with an adopted child as nontraditional. Yet adoptive families are relatively new in American probate history, and state inheritance laws are far from uniform in the rights they afford to adopted children and their adoptive and biological relatives. Of course, some adoptive families are nontraditional by any standard. In a Minnesota case from the 1970s, Robert, a twenty-nine-year-old man, sought to adopt Maxine, his fiftythree-year-old mother. The state supreme court concluded that the state adoption statute authorized the adoption. Robert’s mother would become his daughter following the adoption. But why would anyone want to adopt his biological mother? Well, Robert candidly admitted that the purpose was to bring Maxine within the terms of a trust potentially benefiting his issue. One other fact: the trust had been set up by Robert’s father—who just happened to have divorced Maxine more than twenty-five years earlier.1 Probate courts often puzzle over the distribution of estates involving atypical adoption scenarios. Yet inheritance questions also arise even when the adoptee is a newborn. In general, during the last half of the twentieth century inheritance laws became more inclusive of adopted children—especially those children adopted as infants. In some instances an adopted child has inheritance rights even more generous than those enjoyed by a child in traditional nuclear families.

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But before we examine the laws, a brief overview of adoption and its use in the United States is in order.

Some Background Adoption is an ancient practice, but its purpose has varied among societies. England, with its traditional emphasis on blood lineage, was long reluctant to recognize adoption as a means of establishing a parentchild bond or heirship. Consequently, legal adoption did not exist for decades after the United States acquired independence. By 1846, however, Mississippi had a process by which a stranger could legally become an heir. And by 1851 Massachusetts had enacted the first comprehensive set of adoption laws in the United States.2 Today adoption is a common procedure in the United States, and all states recognize the parent-child relationship between the adoptive parent and the adoptee if the family complies with state adoption requirements. States may place limitations on who can adopt or who can be adopted, however. The inheritance rights between the adoptee and her adoptive parents, the adoptee and her birth parents, and the adoptee and her adoptive and biological relatives other than the parents, vary widely among the states. Indeed, more than 150 years after adoption first became available in the United States, a number of basic questions regarding inheritance and the adopted child remain unanswered.3 In the early 1980s, one study indicated that there were between 5 and 9 million adoptees in the United States.4 Unfortunately, the government does not currently collect comprehensive national adoption statistics. Materials from the National Adoption Information Clearinghouse, however, indicate that approximately 120,000 children were adopted in the United States each year in the 1990s, a decline from a high of 175,000 in 1970.5 Moreover, a 1999 report from the National Center for Health shows that the percentage of babies born to nevermarried women and relinquished for adoption decreased from about 9 percent in 1979 to about 1 percent by the mid-1990s.6 In fact, while we often think of adoption as providing a child with a fresh start in a new family unrelated to the birth parents, such adoptions have declined precipitously since 1970. Estimates vary, but it appears that in 50 percent

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or more of American adoptions today, a relative of the child is one of the adoptors.7 The increasing use of surrogacy, artificial insemination, and various forms of medical assistance to conceive has added a new twist to some adoption questions. Inheritance questions stemming from assisted reproductive technology are discussed in Chapter 6.

The New Family Adoption In modern America, a legally recognized adoption by a married couple previously unrelated to the child establishes a completely new parentchild relationship between the adoptive parents and the adopted child. Once the adoption is complete, the child is a potential heir of the two adoptive parents. In the great majority of states, after the adoption the child is no longer a potential heir of the former parents, who in most cases are the child’s biological parents. The UPC takes this approach when a new family adopts the child.8 In a few states, however, adoption does not sever the child’s potential inheritance rights from her biological parents. Under this minority approach, the adopted child who properly makes her claim receives a child’s portion of the biological parent’s estate if the biological parent dies intestate. This is so even if the adoptive parents have amply provided for her and even if she had no contact with the birth parent following the adoption. Thus, in states like Mississippi and Oklahoma, a child adopted into a new family may wind up with four parents—two adoptive and two biological—from whom she can potentially inherit. Having four parental lines of inheritance is a perk not shared by most other children, and certainly not by children in a traditional nuclear family.9 Although the minority approach seems to give the adopted child an inheritance windfall, several factors suggest that only a few children adopted into a new family can take full advantage of its benefits. First, the adopted child must overcome the often formidable hurdle of identifying and locating the biological parent. Second, the adopted child must prove the biological parent-child connection. Third, since the biological parent is free to execute a will that excludes the child, the

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adopted child must show that the biological parent has not disinherited her. Fourth, although the adoption itself occurred in a state using the minority approach, the adopted child will not be an heir if the law applicable to the birth parent’s estate uses the majority approach. If Jane—the birth mother of an adopted child—died as a Tennessee resident with all of her assets located in Tennessee, for inheritance purposes it would not matter that she had given up an infant for adoption in Mississippi. Tennessee’s inheritance law, which employs the majority approach, would apply to Jane’s estate, and the child would have no claim against that estate. The minority approach could play a role in the debate over sealed adoption records. While adopted children everywhere sometimes seek to identify birth parents for psychological or medical reasons, the minority approach also gives adopted children a financial incentive to learn the identity of their birth parents. Adopted children could even argue that the potential right of inheritance itself constitutes good cause for a court to authorize release of sealed birth records. Adopted children who seek the identity of their birth parents solely for potential financial gain seem unlikely to garner much judicial sympathy—particularly when the law also provides the adopted child with full inheritance rights from and through that adoptive family. Yet with the accuracy of modern genetic testing and the increasing use of exhumation to prove the biological connection between parents and children, treasure hunts are bound to occur from time to time under the minority approach. The adopted child’s claim against the purported biological parent’s estate could delay administration, particularly if the child must resort to litigation to prove her genetic link to the decedent.10 If the law recognizes the new family relationship between the adopted child and adoptive parents, and if the adopted child is a potential heir of her adoptive parents in all states, why would a few states continue to recognize the child as the potential heir of her birth parents as well? The additional benefits afforded to the adopted child under the minority approach is not an attempt to assuage the loss that some adopted children feel in having been given up by their birth parents. Rather, the minority approach seems to be rooted in history. Under early adoption laws, legislators and judges were unwilling to ignore the

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fact of the child’s consanguine relationship with her birth parents. Thus, while statutes permitted the adoption and recognized the legal parentchild relationship between adoptive parents and their adopted children, the early adoption process did not sever one of the basic rights traditionally tied to blood—namely, to be a potential heir of one’s birth parents. Today the minority approach’s fierce attachment to the importance of blood seems old-fashioned. Indeed, it is quite possible that the continued use of the minority approach simply reflects a legislative failure to update adoption laws, not a continued belief that blood ties are so fundamentally important that adoption cannot sever heirship rights from the birth family. The majority approach—severing the child’s rights of inheritance from her biological family—is certainly more consistent with the premise of the new family adoption. Under the majority approach, the child not only does not inherit from the biological parent, she also does not inherit from the biological parent’s relatives. (In probate terms, the child does not inherit from or through the biological parents.) Thus, in the great majority of states, the child adopted by two new parents is not a potential heir of her biological grandparents or her biological siblings—even though those “blood” relatives may die intestate with no one else to claim their estates. Since the adopted child is a full-fledged member of the new family, she usually has the right to inherit not only from, but also through, her adoptive parents. In other words, for inheritance purposes the law treats her as though she were the adoptive parents’ biological child. She is thus a potential heir of her adoptive father’s relatives, even though no blood ties exist between her and them. The old “stranger-to-the-adoption” rule—whereby adopted children could not inherit through an adoptive parent from the adoptive parent’s relatives who were not parties to the adoption—has fallen by the wayside. Judges and legislators seldom use it as a default rule, at least when the adoption occurs before the child is an adult. And what if the child adopted into a new family dies intestate? Not surprisingly, intestacy statutes typically exclude biological parents from sharing in the child’s intestate estate. (This is true even in states that recognize the child as a potential heir of her biological parents after

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adoption.) Intestacy statutes also typically provide no heirship rights for other pre-adoption relatives of the child. In contrast, the child’s adoptive parents are potential heirs. Moreover, the adoptive parents’ relatives are also likely to be potential heirs of the child under intestacy statutes. This would include siblings in the adoptive family or the adoptive grandparents, among others.11 In sum, the majority approach treats members of the adoptive family as the adopted child’s potential heirs; it excludes members of the biological family when the adoption is a new family adoption, even if the child maintains a warm and loving relationship with the biological relatives following the adoption. Today, however, probably most adoptions are not new family adoptions. In an increasing number of adoptions, relatives of the birth parent adopt the child. Perhaps the parents of the birth mother adopt the child. Following such a “kinship” adoption, family relationships shift. Here, the adopted child’s biological maternal uncle becomes her brother—and is treated as such for inheritance purposes. Still, whether one is a potential heir of the adopted child depends upon the connection with the child and the adoptive parents, not with the biological parents. Thus the pre-adoptive uncle/post-adoptive brother is a potential heir because he is the child of the adoptive parents, not because he happened to be the brother of the child’s biological mother.

Stepparent Adoptions With the increase in the number of blended families, it is not uncommon for a child to be adopted by a stepparent. While a new family adoption gives the child two new legal parents, adoption by a stepparent gives the child only one new legal parent. When the spouse of a biological parent adopts the child, the adoption has no effect on the legal relationship between the child and that biological parent. If a stepfather adopts his wife’s child, the adoption has no bearing on the child’s right to inherit from and through her mother. The mother and her relatives also remain potential heirs of the child following the adoption.12 In most cases, however, before a stepparent can adopt the child, the child’s other parent (in our example, the child’s biological father) must

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agree to the adoption. Since a child can have only two legal parents, in agreeing to the adoption that other parent also agrees to terminate his legally recognized parent-child relationship with the child. One would thus expect that the child would have no further inheritance rights from or through that parent who has agreed to terminate the parent-child relationship by allowing the stepparent adoption.13 Once again, however, state laws give different results. Some states do terminate the child’s rights as a potential heir from and through the parent who has voluntarily terminated his legal relationship with the child; others do not. The 1990 Uniform Probate Code and the 1994 Uniform Adoption Act take the latter approach, allowing the child to be a potential heir from and through both biological parents and from and through the stepparent who has adopted the child. Interestingly, the parent who gives up the child for adoption does not retain the reciprocal right to inherit from and through the child under this provision.14 Of course, recognizing the child as the potential heir through three parental lines is not only inconsistent with the “two legal parents” principle, but also gives the adopted stepchild a windfall not available to the child in the traditional nuclear family.

Three or More Parents? In what circumstances, if any, should a child in the nontraditional family be a potential heir from more than two parental lines? In states where the adopted child potentially has more than two simultaneously existing parental lines for inheritance purposes, one might expect that other children in nontraditional families would also have a stronger claim to inherit from and through three or more parents. As we saw in Chapter 4, the question of multiple parental lines of inheritance increasingly occurs in scenarios involving nonmarital children. The nonmarital child who has inherited from her biological mother and her presumed father may later seek to inherit from her biological father. In Chapter 6, we will see the question of multiple parental lines arise in the context of children created with the assistance of reproductive technology. In fact, under the UPC stepparent approach it is possible for the adopted stepchild to be the potential heir from and through an unlim-

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ited number of parental lines. Following the adoption by a stepfather, the child’s biological mother and the adoptive father (former stepfather) could divorce, and the new wife of the adoptive father could adopt the child if the biological mother agrees to terminate her parental rights. The child in these circumstances is a potential heir from and through two former stepparents who are now the child’s legal parents, as well as from and through the biological parents who have given the child up for adoption. Further divorce, remarriage, and adoption by later stepparents could create additional simultaneously existing lines of parental inheritance for the child. Although such scenarios will probably be rare, the fact that an unlimited number of simultaneous parental lines potentially exists for inheritance purposes could have important ramifications for other children in nontraditional families seeking to inherit from three or more parents. Permitting an adopted stepchild to inherit from a former parent with whom the child has no legal relationship at the time of the parent’s death at least opens the door for children of reproductive technology to assert the right to three or more parental lines for inheritance purposes—a child of surrogacy might claim to be a potential heir of a biological mother, a gestational mother, a legal mother, a genetic father, and a presumed father. As observed earlier, even the UPC terminates the adopted child’s status as a potential heir of her former parents when a new family adopts her. The drafters of the UPC clearly do not believe that inheritance is an aspect of a parent-child blood relationship too fundamental to be denied. Then why the different treatment in the stepparent adoption setting? One could argue that the UPC approach to stepparent adoption promotes adoption while strengthening ties in the blended family by implicitly acknowledging that the adopted child may maintain a relationship with the parent who has given him up for adoption. Well, maybe. In fact, while some parents giving up the child for adoption might prefer to keep the child as a potential heir, there is plenty of evidence that many would not. Many such parents would probably prefer to be completely off the financial hook for the child. Under the UPC default rules, however, the former parent must take affirmative steps to disinherit his child even though his legal parental rights were extinguished to permit the stepparent adoption.

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In states not adopting the UPC approach, the timing of the stepparent adoption can be important in determining the child’s inheritance rights. A number of states generally reject the UPC approach that allows the child to be a potential heir of three or more parents following the stepparent adoption. Even in these states, however, if the stepparent adoption occurs after the death of that legal parent—for example, when the stepfather adopts the child following the death of the child’s biological father—the child often may inherit from and through both the biological father and the adoptive father. The rationale here is that the parent who died did not at any time surrender his legal parent-child relationship with the child, and therefore the child is entitled to his full set of inheritance rights from and through that deceased parent. Termination of the parent-child relationship by death is indeed far different from termination by parental act or intent. It seems logical in the former setting to permit the child to inherit from and through more than two parental lines, since the child has more than two legal parents during the course of her lifetime—and the parent-child relationships were not terminated by legal action during a parent’s lifetime. Moreover, not only do all of the legal parent-child relationships in this scenario continue until the death of the parents, but also the child does not have to disestablish a prior parent-child relationship or overcome presumptions of parenthood to reach the estate of any of these parents. Thus, allowing inheritance from and through more than two parental lines in this setting does not advance the claims of nonmarital children or children of reproductive technology that they should be able to inherit from and through more than two parents.15

The Unadopted Stepchild In our multiple-marriage society, step-relations are a common part of American family life. Most stepparents do not adopt their stepchildren, even when the stepparent and stepchild establish a loving, caring relationship similar to that of parent and child. Without the adoption decree, the stepchild almost never has the right to inherit as a child of her intestate stepparent. One notable exception exists in California, which by statute permits a stepchild to inherit if the parent-child relationship

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began during the stepchild’s minority and continued throughout the parties’ joint lifetimes and clear and convincing evidence indicates that the stepparent would have adopted the child but for a legal barrier. The typical legal barrier to stepparent adoption, of course, is the objection of the child’s legal parent who is not married to the stepparent seeking to adopt. In a few states a stepchild may on rare occasion inherit from an intestate stepparent, but typically only as a last resort to avoid having the estate pass to the government. On the whole, the instances in which stepchildren inherit from an intestate stepparent are negligible.16 The sweeping but easily administered objective rule that denies stepchildren an intestate share under the laws of most states undoubtedly is at odds with the wishes of many stepparents who die intestate. Yet an automatic inclusion of stepchildren in intestacy schemes would certainly also be intent-defeating for stepparents in large numbers of blended families. Perhaps the most accurate method of ascertaining the proper treatment of a stepchild of an intestate stepparent would be individual judicial inquiry into the relationship between the two. Because stepparent-stepchild relationships number in the millions, however, state legislatures are unlikely to open probate courts to the potential inheritance claims of all stepchildren—and certainly not under a loosely defined system permitting unfettered judicial discretion. Thus, while California has the nation’s most progressive stance toward stepchildren and inheritance rights that can require individualized judicial inquiry, the approach is so stringent that the stepchild will seldom have viable grounds to pursue a claim. In the late twentieth century, recognizing these problems and yet dissatisfied with the current system, Margaret M. Mahoney recommended a limited discretionary system that would permit stepchildren to inherit from intestate stepparents (and vice versa) if the relationship began during the child’s minority and continued thereafter, and the stepparent served in the place of a parent during the child’s minority. The proposal would permit far more stepchildren to claim intestate shares than does the current California approach. In support of the proposal, Professor Mahoney points out that courts (including probate courts) have experience in evaluating what constitutes a parent-like relationship. To date, however, no state has adopted her proposal.17

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For now, stepchildren—like numerous other survivors outside the nuclear family—remain virtually excluded from intestate succession laws. They will probably remain there as long as the drafters of American inheritance law continue to shun individualized, discretionary probate determinations of what constitutes a family.

Cohabiting Heterosexual Couples and Adoption By the mid-1990s more than a million unmarried heterosexual cohabiting couples had minor children in the household.18 When the cohabitants are the biological parents of a child in the household, the child’s status as a potential heir of those parents is unlikely to be a problem. Presumptions of paternity will often assist the child in proving his relation to the father. The mother-child relationship is unlikely to be questioned. In contrast, when the child is the product of a short-term cohabitation or a brief sexual encounter, and the mother subsequently marries or cohabits with someone other than the child’s biological father before or shortly after the child’s birth, the child may have a more difficult time proving his status as an heir of the biological father. As discussed in Chapter 4, the child may have to overcome presumptions that the mother’s subsequent husband or cohabitant is the child’s father before attempting to establish paternity in the biological father. In some cohabiting scenarios, however, no presumption will arise that the cohabitant of the biological parent is the child’s other parent. When the child’s legal parentage has been determined and yet the custodial mother or father cohabits with another adult, that other adult is neither the child’s stepparent nor her presumed parent. This is true even if the parent’s cohabitant is the most important parent-like figure in the child’s life. In these circumstances, the child is not a potential or expectant heir from the parent’s cohabitant. Unlike stepparent adoption, adoption by a biological parent’s cohabitant has remained largely neglected in state statutes. Since marriage of adult heterosexual couples remains the cultural and legal norm, the silence could mean that adoption by a parent’s heterosexual cohabitant is implicitly forbidden. Such an argument, if accepted, would not com-

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pletely foreclose the cohabitant’s opportunity to become the child’s parent, since the cohabitant could in most instances choose to marry the child’s parent and then proceed with a stepparent adoption. Some courts, however, have permitted adoption of a child by the biological parent’s cohabitant. When the law allows such adoptions, presumably the child’s inheritance rights are the same as those of an adopted stepchild.19

Gay and Lesbian Couples and Second-Parent Adoptions The desire to parent is not limited to heterosexuals. In fact, gays and lesbians have parented children throughout history; however, that parenting typically occurred within the context of traditional heterosexual reproduction in marriage. Although the reproductive technology of tomorrow may include male pregnancy and children who are the combined genetic offspring of two men or two women, at least for now all children continue to be the combined genetic offspring of opposite-sex parents. Moreover, because states continue to deny homosexuals the right to marry (although, as we have seen, in Vermont homosexual couples may enter into marriage-like civil unions), a gay or lesbian partner cannot engage in a true stepparent adoption of the other partner’s children. Nonetheless, with remarkable displays of ingenuity and determination, many homosexual couples in committed relationships are parenting children. Yet while virtually all studies of gay parenting have concluded that parenting skills are not dependent upon sexual orientation, gay and lesbian parents still often encounter hostility and prejudice, even within the legal system.20 In an effort to ensure that the child of a gay or lesbian couple is the legal child of both parents, gay and lesbian couples have sometimes turned to adoption laws. Lesbian couples in particular have been at the forefront in these so-called “second-parent” adoption cases. In the proceedings, the lesbian partner of the biological mother typically seeks to adopt the biological mother’s child without severing the biological mother’s legal mother-child relationship. Most of these efforts in reported case law have been successful. Following the decree of adoption

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establishing the partner’s parental status to the child, the child has two legal mothers. Thereafter, the child is an expectant heir of both the biological mother and the adoptive mother.21 Not all courts have recognized such adoptions, however. Courts prohibiting such adoptions are likely to read the state adoption statute narrowly, interpreting it to prohibit a child from having two legally recognized same-sex parents. If the court takes this approach, it will probably not even consider whether the adoption would serve the child’s best interests.22 Permitting adoption by the partner of a homosexual parent can raise new inheritance questions. If a lesbian biological mother uses sperm by a known donor to conceive the child, in some instances a court may consider the donor to be the child’s legal father. In such cases, the court would probably have to terminate his parental rights before permitting adoption by the biological mother’s lesbian partner. In a UPC state, if the adoption terminates the biological father’s legal rights, could the child assert that the adoptive lesbian mother has engaged in a stepparent-like adoption, and thus assert the right to inherit from and through three lines—two maternal and one paternal? This and many other questions resulting from second-parent adoptions await resolution in most states.

The Adult Adoptee Although most adoptees are minor children, the statutes of many states expressly permit the adoption of an adult. Some of these statutes place no restrictions on adult adoptions. Other statutes limit the category of permissible adult adoptees—the statute may provide that the adult adoptee must be the child of the spouse of the adopting parent. Still other statutes place age limitations upon the adoptor and adoptee—the statute may provide that the adoptor must be older than the adoptee, perhaps by a certain number of years.23 Even when the adult adoption is complete and the parent-child relationship between adoptor and adoptee is unquestionably legal, the adult adoptee and adoptive parent often do not share the same inheritance rights that the state bestows upon minor adoptees and their adoptive

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parents. Why? Because legislatures and courts often seek to prevent adoptors and adult adoptees from using adoption as a tool to manipulate inheritance rights through each other to reach the estates of third parties. In a 1993 Missouri case, a grandmother had established a trust that named her grandson as beneficiary until he reached age forty, at which time his descendants would split the corpus. Shortly before his fortieth birthday, the grandson—who was a lawyer—adopted six adults: his secretary, her son, three acquaintances, and a nephew. The parties to the adoptions argued that the adopted adults should receive the trust corpus when the grandson turned forty. Their inclusion, however, would reduce the distributions to the grandson’s biological children, who were minors living with the grandson’s former wife. (The court sent the case back to the local judge for further consideration.)24 To prevent this kind of manipulation of inheritance rights from the estate of a third party (such as the grandmother) when the third party has not indicated whether adoptees are to be included, statutes may impose a presumption or rule that class gifts to children, issue, or descendants of the adoptive parent do not include an adoptee who was an adult at the time of the adoption. Apparently some legislators believe that an adopted child should be treated as a true child of the adoptive parent only when the adoptive parent has had some form of child-rearing obligation to the adopted child. In other words, if the daily burdens of rearing a child accompany the adoption, it is more likely that folks will not adopt merely to manipulate inheritance rights to reach assets of third parties.25 In the absence of statutory guidance, some courts have indicated that they retain the inherent equitable power to deny an adult adoptee’s claim to inherit from a third party through the adoptive parent when the adoption was a collusive effort to create the claim. It is often difficult to gauge whether a court will ignore an otherwise legal adult adoption in probating a third party’s estate. Again, however, the lack of an ongoing parent-child relationship during the adoptee’s minority may weaken the adoptee’s claim. If the adoptor played a parent-like role during the adoptee’s childhood, however, the adoptee’s claim is typically stronger. If a stepfather adopts his adult stepchild, whom he reared but could not

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adopt during the child’s minority because the child’s biological father refused to grant permission, a court not constrained by statutory considerations would probably allow the child adopted as an adult to inherit both from and through the adoptive father. The adult adoption here is not a sham adoption in any way.26 Some forms of adult adoption are so unusual that they immediately raise judicial eyebrows. Two examples will suffice. In the first, one spouse has adopted the other spouse in an attempt to manipulate inheritance rights from third parties, either under intestate succession laws or laws pertaining to class gifts. In a Kentucky case a man adopted his wife so that at his death she could enjoy a devise from his mother made to benefit his children. Strange though it may seem, occasionally the spousal adult adoptee has been successful in making inheritance claims against the estate of a third party. More frequently today, however, courts reject the adoptee’s claim when the parties used the adoption laws to manufacture a claim to assets passing under someone else’s will.27 The collusion between the adoptor and adoptee is not the only reason for rejecting inheritance claims in these kinds of cases (and for disallowing the adoption to proceed in the first instance, as well). Creating dual relationships among family members can be a dangerous undertaking. If, as in the Kentucky case, a man’s wife becomes his daughter by adoption, what is the relationship between him and any later-born child the couple has? He appears to be the child’s father and grandfather. Many states have settled rules for determining the inheritance rights of a person who is related to a decedent through two lines, usually providing that the claimant inherits only through the line that provides her with the largest amount. Other states, however, appear not to have addressed the issue legislatively or judicially.28 In a second somewhat jarring line of adult adoption cases, one member of a gay or lesbian couple has attempted to adopt the other. These adoptions are often “second-best” solutions so that the couple can obtain some benefits—including certain inheritance rights—that the state makes available to married couples. Some courts have permitted such adoptions; others have not. Particularly since the mid-1990s, however, gays and lesbians have largely abandoned these typically covert

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adoption efforts and instead have begun to demand that states recognize homosexual marriage or establish alternative solutions that provide marriage-like benefits for gay and lesbian couples.29 Although the use of adult adoption solely or primarily to manipulate inheritance rights from third parties dates from ancient times, some observers believe that the adoption of an adult homosexual by his or her partner makes a mockery of the adoption process. Just as the idea of a husband adopting his wife does not fit into society’s expectations of a true parent-child relationship, the idea of one lover adopting the other may seem equally if not more bizarre. The presumed sexual relationship between husband and wife or between gay or lesbian partners who through adoption become parent and child is impossible to reconcile with traditional notions of adoption. The statutory or judicial limitations placed on the parties to an adult adoption typically prevent them from inheriting through each other to claim assets from the estates of third parties. In almost all states, however, if the adoption itself is legal, then the adult adoptee and the adoptive parent are potential heirs from one another’s estates, even if the adoption appears to have been undertaken primarily to manipulate inheritance rights concerning the estates of third parties. Because both the adoptor and adult adoptee have selected the parent-child relationship, it is logical to recognize their inheritance rights from each other.

Equitable Adoption Sometimes a husband and wife agree to adopt a child. They take the child into their home and hold him out to be their own. Unknown to the child (and perhaps the couple), the husband and wife never complete the adoption process or the completed process turns out to be defective. When the parent-like figure dies in this setting, the child is not an intestate heir because he is not the legally adopted child of the decedent. Adoption is a creature of statute, and courts thus require substantial if not total compliance with statutory adoption procedures before recognizing the child as the legal child of the would-be adoptive parent or parents.

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Nonetheless, the child who mistakenly believed himself to be adopted under circumstances similar to those described above may have a claim against the putative adoptive parent’s estate if that parent died intestate. In a majority of states, courts have developed the doctrine of equitable adoption to give such children a limited right of inheritance. The doctrine is sometimes referred to as virtual adoption, adoption by estoppel, or de facto adoption.30 The requirements vary among the jurisdictions. If the child knew he was not legally adopted, or his mistaken belief that he was adopted did not stem from the decedent’s own words or conduct, he is unlikely to receive anything from the decedent’s intestate estate. In these circumstances, courts generally consider the child to be nothing more than a foster child of the decedent, no matter how close and loving the relationship between the child and the decedent. Moreover, to inherit as an equitably adopted child, the child must usually show that he was taken in at a relatively young age by the decedent. In almost all courts, the child must also prove a valid contract to adopt between the decedent and the adults who possessed authority to place the child with the decedent. A variant approach focuses less on the contract and its performance and more on the equities of the scenario, preventing the decedent’s estate from denying the parent-child relationship when the decedent made representations to the child concerning their parent-child relationship, and the child relied upon those representations.31 Even when the child can prove his status as an equitably adopted child, he typically only acquires the rights to inherit from the putative parent, not through that parent. In a Maryland case, the decedent died intestate with a substantial estate and no heir unless her sister’s foster child could successfully claim under equitable adoption principles. Even though the child had been taken in by the decedent’s sister more than sixty years before the decedent’s death, the court held that the decedent died without heirs. The decedent’s almost $400,000 estate ultimately passed by default to the local school board because the court held that an equitably adopted child cannot inherit through her equitably adoptive parents to reach the estate of the parents’ intestate relatives.32 If the child predeceases her equitably adoptive parent, that parent is typically not an heir of the child. In other words, for inheritance pur-

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poses, proof of equitable adoption benefits only the child, not her putative adoptive parents. Since the failure to complete the legal adoption is probably attributable to the parents, the rationale for this one-way flow of inheritance rights may in part be that equity should not relieve the putative parents of their own mistakes. Yet when the putative parents act in good faith and are not aware that the adoption was not complete, application of the one-way approach seems unfair.33 Because the equitably adopted child is not legally the child of her putative adoptive parents, she remains a potential heir of the parents who attempted to surrender her for adoption. The equitably adopted child can also inherit through the surrendering parents. The parents who gave up the child for the unsuccessful adoption, and the child’s other pre-adoption relatives, also remain potential heirs from and through the equitably adopted child. In this latter instance, however, modern statutes may impair the right of the pre-adoption family to inherit from and through the child by requiring that a parent who seeks to inherit from a child must not have abandoned or failed to support the child. Many young American children today grow up in the care of a grandparent or relative other than a parent; many other children grow up in foster care. Often these children develop a deep relationship with the parent-like figure. The stringent elements of the equitable adoption doctrine usually prevent these children from inheriting from the parentlike figure no matter how strong the bond between the parties. This result is not completely heartless, however. First, the child remains a potential heir from and through her legal parents and thus, to the extent the child can prove her equitable adoption, inheritance from the equitably adoptive parents is something of a windfall—that is, the equitably adopted child will have four parental lines of inheritance for intestate succession purposes. Second, the caretaker’s failure to complete a legal adoption may indicate that, despite her relationship with the child, she did not want the child to be hers in law. Third, expansion of the equitable adoption doctrine could discourage nonparents from gratuitous acts of care for those children whose parents cannot or will not care for them. For example, a newly married man might distance himself from his young stepchildren if establishing a warm rapport with them could lead to obligations on the part of his estate.34

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Conclusion The inheritance rights of adopted children in America vary from state to state. In the twentieth century, legislatures increasingly viewed adoption as a legally complete substitution of a new parent-child relationship for an old one. In the great majority of states, therefore, when a new family adopts a minor child, all rights between the child and her former parents cease for inheritance purposes. The child becomes a “descendant” of her adoptive parents and may inherit both from and through them. In a few states, however, the adopted child also continues to be a potential heir of her birth parents. States disagree on the inheritance rights of an adopted stepchild. In some states, when the pre-adoption parent’s legal relationship with the child ceases because of that parent’s actions or agreement, the child has no further inheritance rights from or through that parent. Other states, however, allow the child to inherit from and through the pre-adoption parent who marries the stepparent, from and through the adoptive parent who was the child’s stepparent prior to the adoption, and from and through the pre-adoption parent who permitted severance of his legal ties to the child so that the stepparent could adopt the child. Although gay and lesbian couples cannot marry, and therefore one partner cannot engage in a true stepparent adoption of the other partner’s child, increasingly courts are allowing stepparent-like or second-parent adoptions. Following such a second-parent adoption, the child has two legal mothers or fathers from and through whom to inherit. With adult adoptions, both legislatures and courts have been somewhat wary of attempts to manufacture lineal relationships to permit the adoptor or adoptee to inherit from or through third parties. Some states have a statutory presumption that class gifts from third parties do not include adult adoptees. In the absence of such statutes, some courts have asserted their inherent equitable powers to deny the adult adoptee inheritance rights to a third party’s estate, even when the adoption is otherwise legally recognizable. The adoptor and adoptee in an adult adoption still have potential inheritance rights from each other’s estates in such cases.

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Equitable adoption is a limited, last-resort inheritance claim when a child reasonably believed and relied on the putative parents’ indications that they were his adoptive parents. Recognized in most states, the equitable adoption doctrine usually provides the child with a share of the putative adoptive parent’s intestate estate; the equitably adopted child typically remains a potential heir from and through his legal parents who intended to give him up for adoption. States are unlikely to reach uniform agreement on the precise treatment of adopted children for inheritance purposes. One of the most interesting, and potentially confusing, aspects of the inheritance rights of adopted children is the number of instances in which adopted children are the potential heirs from and through more than two parental lines. A large and increasing number of children outside the adoption setting may be able to assert that, by analogy, they too should have three or more simultaneously existing parental lines for inheritance purposes. In particular, children of assisted reproductive technology are likely to assert this claim in coming decades. Their inheritance rights are the topic of the next chapter.

6 Assisted Reproduction

I

n 1978 Louise Brown, the first child conceived outside a mother’s womb, was born in Great Britain. Medical breakthrough? Ethical nightmare? Observers disagreed. Within a few years, however, in vitro fertilization (IVF) became an accepted part of fertility treatment. By the end of the twentieth century IVF and other reproductive technologies— some of them also controversial—had led to the births of thousands of children. The next step in reproductive technology is likely to be human cloning. Beginning with Dolly the sheep in 1996, the list of cloned mammals now includes pigs, goats, cows, a mule, a horse, and even a common house cat. Regardless of moral and legal opposition, scientists will almost surely replicate a human being, and soon. This chapter discusses the inheritance problems that can arise from assisted reproductive technology (ART). Like other children, children of ART may be marital or nonmarital. If a married couple conceives a child through reproductive technology using only the couple’s combined genetic material, and if the wife gestates and bears that child while her husband is living, the resulting child is almost certainly a marital child. Such is the case with the typical IVF procedure. Here, no questions arise concerning the parentage of the child or the child’s inheritance rights. Yet in other cases very difficult questions of parentage arise because several individuals play a biological, genetic, or decision-making

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role concerning the child’s conception and birth, or because the conception or implantation occurs after a genetic donor is dead. These latter cases are the focus of this chapter. Adults do not decide casually to use reproductive technology. Indeed, it is a sad paradox that while at least one or more adults very much desire the child of assisted reproduction, the child’s legal connections to those adults is often in limbo. Many state legislatures have not addressed the legal parentage of children of ART, particularly when three or more adult figures have potential parent-like ties to the child. Perhaps the most carefully considered provisions are those found in the 2000 Uniform Parentage Act (UPA), which has yet to be widely adopted. Not surprisingly, would-be parents of ART children often wage war against one another in the courtroom. Responding to individual lawsuits, courts have not provided perfect or even consistent solutions to the problems. Worse still, some judicial decisions define parentage in such a way that virtually guarantees a splintered family life for the ART child. In cases involving these children, typically the court’s focus is on determining parentage and custody, not the child’s potential inheritance rights. When courts identify a child’s legal parents, one might assume that the child is a potential heir only from and through those parents. That assumption may be too narrow, however. As we have seen in preceding chapters, children conceived by traditional means but reared in nontraditional circumstances—most notably, adopted or nonmarital children—sometimes have more than two simultaneously existing parental lines for inheritance purposes. In light of this, there are plausible arguments that at least some children of assisted reproduction should also have more than two parental lines for inheritance purposes.1

Artificial Insemination The possibility of artificially inseminating a woman intrigued scholars centuries before the first documented case arose. In Artificial Insemination, Wilfred Finegold notes that religious passages theorizing about the use of artificial insemination date back at least to the third century. By the thirteenth century, rabbis even questioned whether a sperm

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donor for a child conceived by artificial insemination (AI) would properly be considered the father.2 By 1400 fish had been the subject of artificial insemination techniques. As with other reproductive technologies first applied to lower life forms, it was only a matter of time before human beings applied the procedure to themselves. The first recorded case of human impregnation by artificial insemination occurred in the late 1700s; the first recorded case in the United States dates from 1866.3 In the early cases of human insemination, the woman’s husband served as the sperm donor. By the end of the nineteenth century, husbands were no longer invariably the donor. By the end of the twentieth century, artificial insemination by a nonspousal donor (AID) was a frequent alternative to artificial insemination by one’s husband (AIH). Even so, many twentieth-century doctors would only participate in the AID process if the patient was a married woman whose husband had consented to the procedure. It is still this setting—married woman with consenting husband—in which AID finds greatest public approval.4 Artificial insemination is a form of assisted reproduction because it involves conception without intercourse. Yet it requires no great technological, medical, or biological knowledge. The process is so simple that a woman possessing sperm can often successfully accomplish her goal at home. As cases and commentary have pointed out, parties can accomplish AI using nothing more sophisticated than the household turkey baster. Many women thus undergo artificial insemination without medical assistance. Perhaps largely because the procedure is simple and a woman can perform the insemination privately, growing numbers of single women are using artificial insemination to conceive a child. No one knows precisely how many children of AI are born each year. In the mid-1980s one court cited an apparently conservative estimate that up to 20,000 women each year undergo artificial insemination, and that up to 1,500 of them are single. By the 1990s a commentator estimated the number of births from AID at nearly 30,000 per year. At the end of the twentieth century, a leading scholar of reproductive technology, Lori B. Andrews, noted that about 60,000 births occurred each year in the United States as the result of donor insemination.5

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State legislatures were slow to enact statutes defining artificial insemination, the rights of the individuals to the procedure, and the status of the resulting child. Courts frequently had to resolve these questions. One early concern was whether an AID child born to a married woman is a marital child. By 1948 at least one court had ruled that a child conceived by artificial insemination is legitimate as long as the mother’s husband consents to the procedure. By the mid-1960s, states began to enact statutes to this effect. Under such statutes, as long as the parties follow the statutory procedures for AID and the husband consents to the procedure, the child born of AID is a legitimate child of the marriage. Because the mother’s consenting husband is the child’s legal father, the child is a potential heir of the husband and the mother.6 Even if the state has no statutory scheme concerning AID, courts today are likely to hold that a consenting husband cannot later deny paternity of the AID child—something fathers of ART children have tried to do to avoid child-support obligations when divorcing the mother. Similarly, whether or not a statutory scheme exists, courts are likely to hold that a mother cannot deny the consenting husband’s parental privileges concerning the child if the couple subsequently divorces. This means also that the mother cannot deny her ex-husband the parental privilege of visitation, nor can a man she later marries adopt the child without the consent of the ex-husband who had agreed to her use of AID during their marriage. Again, because the ex-husband continues to be the child’s legal father, the child is his potential heir.7 It appears from the few cases on point that a husband can avoid parental obligations if he can prove that his wife conceived the child without his knowledge and that he did not subsequently ratify the AID procedure. Courts may begin the inquiry by presuming that the husband consented to the procedure; moreover, they may require clear and convincing evidence from the husband to overcome the presumption of consent. Even if a statute generally mandates that the husband’s consent be in writing and there is no such writing, a court is likely to examine whether the husband implicitly consented by his actions. Courts have used various equitable and contract theories against the husband to impose child-support obligations against him. In cases in

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which a husband (or ex-husband) has unsuccessfully attempted to avoid parental obligations, the child is his potential heir.8 Claims by or against the nonhusband sperm donor can also present difficult questions. Statutes governing artificial insemination may provide generally that the donor is not the father of the child. Even so, courts have sometimes found the donor to have parental rights or obligations. This result is particularly likely in either of two settings: first, if the mother and donor agreed that the donor would be a parent to the child; and second, if the mother is unmarried. In the first instance, courts are concerned that upholding the statutory termination of the donor’s parental rights may infringe upon his constitutionally protected due process interest. In the second instance, some courts seem reluctant to deny the donor’s paternity because they desire to provide the child with two legal parents. Thus, although single women are increasingly using AID, in some states a donor may be able to assert parental rights against the mother’s wishes. Of course, this can be a doubleedged sword: the child may be able to assert a paternity claim against the known sperm donor who does not want to be the child’s legal father. In either case, if a court recognizes a legal parent-child relationship between the child and sperm donor, thereafter the child and father are potential heirs of each other.9 When the mother obtains sperm from an anonymous donor, it seems clear that the donor has no desire to serve as the child’s parent. Often the anonymous donor is a student—sperm banks particularly favor the medical student as a donor—financing his education by selling his seed to a sperm bank. The future doctors of America, like other sperm sellers (“donor” is really a misnomer because the man is paid by the sperm bank) would be substantially less willing to “donate” their semen if they believed their contributions could also spawn paternity actions against them. So far, courts have protected the apparent intentions of the parties, concluding that the anonymous donor has no rights or responsibilities to the resulting child. If a child conceived by anonymous donation should learn the identity of her genetic father, it thus appears that the child has no inheritance claim from or through the genetic father, and would not partake of class gifts to the genetic father’s children. On the other hand, the donor who perpetrates a fraud against the mother

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or the sperm bank may be subject to an action for damages. In a disturbing scenario that led to much litigation in the 1990s, Cecil Jacobsen, a Virginia physician, misrepresented to his infertility patients that he used anonymous donor sperm when in fact he used his own sperm to conceive as many as seventy-five children with those patients. Even in circumstances like these, however, a husband who consented to AID would probably be the legal father of the child his wife bore.10 To summarize, although the practice of artificial insemination is relatively common, statutes and judicial opinions have not reached entirely uniform conclusions concerning the child’s relationship with her mother’s husband or with the sperm donor. In some states whose AID statutes appear to sever all potential parental ties between the donor and his biological child, it is still possible that a donor could be the legal father of the resulting child. This might occur if the parties attempt but fail to comply with the statute, or if the parties enter into a specific agreement that conflicts with the statute. In many states, a man considering sperm donation has good reason to worry about a potential paternity action against him, particularly if the donation will not be anonymous and the mother is unmarried. Conservative courts may treat the known sperm donor and the unmarried mother the same as an unmarried couple who conceive through sexual intercourse. In other words, each would be a legal parent of the child. Even an anonymous donor may have reason for concern in states without AID statutes in light of the increased information required from sperm donors, the trend toward allowing children greater access to information concerning biological parents, the scientific certainty of modern paternity testing, and the desire of courts to provide a child with a legal mother and father. Conversely, an unmarried mother using AID in states without a statute providing that she is the child’s sole legal parent has cause for concern that the sperm donor may later seek to establish paternity.11 While the law of parentage and inheritance rights resulting from the use of artificial insemination is somewhat muddy and difficult to predict, at least one point is relatively certain: if the husband consented to his wife’s use of AID, courts or statutes will almost always provide that he is the child’s legal father. This is also the position of the 2000 UPA. In these cases with a consenting husband, the child is a potential heir of

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the mother and her husband. The UPA also provides that a nonhusband sperm donor is not the father of a child conceived by artificial insemination, whether or not the mother is married.12 Although our concern here is the child’s inheritance rights, underlying the inheritance/parentage questions of donor insemination is a larger, more difficult ethical concern: should society permit men and women to sell their genetic material to create lives for which they will have no responsibility? The question will surely become more important as scientists perfect new reproductive technologies, including cloning. In fact, the question has received some attention as applied to women in the context of surrogacy, the topic to which we now turn.13

Surrogacy Surrogacy is the practice in which one woman gestates a child for a couple. We sometimes forget that it is an ancient practice recorded in early biblical passages. In earlier times, however, parents conceived the child through sexual relations between the surrogate and the husband of the intended, nonbiological mother. Today, the parties use reproductive technology to conceive the child. Americans paid little attention to surrogacy until the mid-1980s, when Mary Beth Whitehead, a New Jersey wife, reneged on her contractual agreement to relinquish the child she bore, Baby M, to the biological father and his wife. Only then, with media attention focused on the would-be parents in one of the most controversial cases of the century, did we first begin to consider the propriety of modern surrogacy arrangements. Today there is still no consensus on the subject, and the statutes and judicial opinions addressing surrogacy reflect the disagreement existing in society at large. Not surprisingly, however, both commercial and noncommercial surrogacy continue. At the end of the twentieth century, scholarly commentary estimated that surrogacy agreements in the United States led to the birth of more than one thousand babies each year.14 In some ways, surrogacy is the converse of artificial insemination. A married couple wanting a child may choose artificial insemination when the husband is infertile. If the wife is infertile, the couple may choose

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surrogacy. Artificial insemination allows a lesbian couple to have a child; surrogacy allows a gay male couple to have a child. Yet it is also partly correct to view surrogacy as a specialized form of artificial insemination, since the surrogate mother is likely to be artificially inseminated by donor sperm. Unlike the typical artificial insemination scenario, however, the artificially inseminated surrogate and her husband (if she is married) do not intend at the time of the insemination to be the child’s parents. The roles of the male in AID cases and the female offering to gestate a child for a couple are also radically different. Although the goal of each may be to assist others in having a child, the surrogate’s contribution to the child’s development—nine months of gestation within her body—is profoundly more intimate and incomparably more substantial than that of the male sperm donor. Moreover, the surrogate’s contribution is unlikely to go unnoticed, for she carries the evidence throughout her pregnancy. In contrast, no one need ever know of the sperm donor’s efforts. He bears no tell-tale signs of impending fatherhood, and can therefore remain quite anonymous while selling large quantities of sperm to create many children. Indeed, few observers have commented negatively on the practice of selling sperm, while many people—including those who generally believe in procreative and contractual freedom—are greatly offended by what they view as “womb rental.”15 Paternity Many of the questions raised in nonmarital birth and adoption settings can appear in surrogacy arrangements. The surrogate mother may be a married woman inseminated with the sperm of a man other than her husband. In such a case, the sperm donor and surrogate mother are the genetic parents of the child. But is the child nonmarital? If the birth mother gives up the child in accordance with the surrogacy agreement, must the genetic father’s wife adopt the child to become the child’s legal mother? Should the intentions of the parties before conception determine the child’s legal parentage? In many states, courts and legislatures have not provided clear answers for determining the parentage of a child born of a surrogacy agreement.16

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If the surrogate mother is married, one possible starting point for determining legal parentage is the presumption of legitimacy that attaches when a child is born to a married woman. Outside the surrogacy setting, the U.S. Supreme Court has held that a state can make the presumption conclusive when the mother and her husband object to a third party’s paternity claim—even if that third party is known to be the child’s genetic father. Under such a conclusive presumption in a surrogacy setting, the child’s legal parents would be the surrogate mother and her husband who joins her in objecting to the genetic father’s paternity claim. In that event, the child would probably have no inheritance rights from or through the sperm donor or his wife, even though they were the child’s intended parents at the time of conception. Applying the conclusive presumption in favor of the mother’s husband would also mean that the husband could not later deny paternity of the child. Even if the mother and her husband divorced, the child would continue to be the ex-husband’s potential heir because of the legal father-child relationship.17 While a conclusive presumption of legitimacy against the genetic father may prevent him from establishing paternity of the child, it may not always prevent the child from suing to establish her genetic father’s paternity. For instance, outside the surrogacy setting a child presumed to be a marital child has sometimes been able to inherit at her presumed father’s death, only to turn around and later assert paternity of the genetic father and claim part of his estate.18 Today, however, states are increasingly abandoning the conclusive presumption of paternity in the mother’s husband. Thus when the genetic father desires to assert his paternity of a newborn infant, many states allow him to pursue his claim even though the mother and her husband object. Under this modern approach, the intended father whose sperm impregnated the surrogate mother would have an opportunity to establish his paternity when the child is born. If he is successful on that claim (assuming for the moment his wife is not asserting legal motherhood), he and the surrogate mother are the child’s legal parents. The child has potential inheritance rights from and through them. The mother’s husband and the father’s wife are stepparents, and under the vast majority of state laws the child has no inheritance rights from or through those stepparents.19

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Adoption Assume again that the state provides no legislative guidance on the matter of surrogacy and that a court has concluded that the intended/ genetic father and the surrogate/genetic mother are the child’s legal parents, even though both of the genetic parents are married. (This was the result in the case of Baby M.) Further assume that the parties to the surrogacy agreement intended for the wife of the genetic father/sperm donor to be the child’s legal mother and that all parties to the agreement wish to fulfill its terms. Here, a court must terminate the surrogate mother’s maternal rights, and the sperm donor’s wife must adopt the child to become the child’s legal mother. Though unusual because it involves a child of surrogacy, the adoption is in fact a stepparent adoption. Following the adoption, the child is a potential heir from and through her genetic father and adoptive mother.20 In some states, however, a stepparent adoption does not terminate the child’s potential inheritance rights from the former parent whose parental rights a court has terminated. (The UPC takes this approach, as discussed in Chapter 5.) Under this liberal approach to inheritance rights in the stepparent adoption setting, the child of surrogacy who is adopted by the intended mother would thus remain a potential heir from and through the surrogate mother. Maternity Thus far we have assumed that the surrogate mother is gestating her own fertilized egg for the genetic father and his wife. But the scenario can be substantially more complex. The surrogate may instead gestate the fertilized egg of another woman. Until scientific advances in reproductive technology permitted the implantation of one woman’s fertilized egg into another woman’s womb, legal motherhood had never been in question at a child’s birth. A woman from whose womb the child entered the world was always the child’s legal mother because the gestational and genetic components of motherhood were inseparable. But today’s surrogate mother may have no genetic link to the child she bears. If the genetic mother (egg donor) and gestational mother (surrogate) are two different women, who is the child’s legal mother? Should

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we recognize the child’s connection to each woman and permit the child to inherit from them both? If a third woman is the child’s intended mother, should we allow the child to inherit from her as well?21 In a 1993 California case the surrogate gestated the fertilized egg of a married couple. The parties to the surrogacy arrangement had agreed that the husband and wife—the child’s genetic parents—were the intended parents of the child. The gestational mother later changed her mind and sought a declaration of her legal motherhood. The court concluded that when the genetic and birth mother are not the same person, then the woman who intended to rear the child at the time of the agreement is the child’s legal mother. Presumably the child is a potential heir only of her legal parents and not of her birth mother.22 Whether genetics should trump biology in determining legal motherhood is a difficult question. While egg donation by the genetic mother requires a greater degree of bodily invasion than sperm donation, both donations can be accomplished relatively quickly. In contrast, the woman who contributes her body for the pregnancy makes a ninemonth commitment. Her experience is profound and miraculous; she is not merely an incubator. Thus it is not surprising that some observers believe it more appropriate to analogize the egg donor to a sperm donor and to conclude that the biological/gestational mother is the mother of the child. So far, however, there are relatively few judicial or legislative answers to the question of maternity in the surrogacy setting. Scholarly commentary remains divided on the question of legal motherhood: some observers favor the intended mother in all circumstances, some favor the gestational mother, and others favor the genetic mother.23 Further wrinkles appear when a woman gestates intrafamily genetic material without the benefit of a judicially enforceable surrogacy agreement. Suppose Mary gestates the fertilized egg of her daughter Debra. If a court were to conclude that Mary is the legal mother of the child, then Debra is both the child’s genetic mother and the legal sister (or half-sister, depending upon presumptions of paternity). Debra’s husband becomes the child’s brother-in-law, even though he may be the child’s genetic father (and possibly legal father, again depending upon presumptions of paternity). Mary is the child’s legal mother but genetic grandmother. If Mary is married, her husband is probably—at least

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initially—the child’s presumed legal father even though he may be the child’s genetic grandfather. The dual roles are almost as outlandish as those in the song “I’m My Own Grandpa,” written long before the advent of modern reproductive technology. Today, however, families increasingly use intrafamily genetic donations to create children, and the potential for confusion over dual lines of inheritance and inclusion in class gifts is great.24 Statutory Solutions Opposition to altruistic, noncommercial surrogacy arrangements is likely to diminish in coming decades. The debate over surrogacy for pay, however, is unlikely to diminish any time soon. Paid surrogacy raises the specter of gender, class, and even race discrimination. It is almost certain that, regardless of public opinion, surrogacy arrangements will continue. Unfortunately, in many states the parties to a surrogacy agreement cannot be sure of its legal ramifications. States that have addressed surrogacy have taken a variety of approaches. Some states have recognized them; others have declared them void. Some states prohibit compensation to the surrogate mother. Most state legislatures have yet to weigh in at all.25 Reacting to current developments and anticipating future developments in reproductive technology, in 1988 the National Conference of Commissioners on Uniform State Laws approved a uniform act—the Uniform Status of Children of Assisted Conception Act (USCACA) for consideration by the states. The act provided two alternatives concerning surrogacy: Alternative A, which recognized a surrogacy agreement in narrowly defined circumstances involving judicial approval prior to conception, and Alternative B, which rendered all surrogacy arrangements void. The purpose of the USCACA was not to regulate surrogacy itself but to provide for “the security and well being of those children born and living in our midst as a result of assisted conception.” As its name indicated, the USCACA applied generally to assisted conception, not just to surrogacy scenarios. One notable aspect of the USCACA was that, like existing parentage law, it provided that the child would have only two legal parents. The act did not provide for dual maternity or paternity, however. Regarding inheritance matters, the USCACA

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provided that the legal determination of parentage governed the child’s intestate succession and probate rights and the child’s inclusion in class gifts. Despite the substantial contributions that the USCACA could have made to secure the well-being of children of assisted conception, virtually all states ignored it. Only Virginia and North Dakota chose to adopt parts of the act, Virginia adopting a variation of Alternative A and North Dakota choosing Alternative B.26 The conference withdrew the USCACA when it promulgated the 2000 UPA. Articles 7 and 8 of the 2000 UPA largely recodify parts of the USCACA. Article 8 deals specifically with gestational agreements. (The taint sometimes associated with “surrogacy” contributed to the decision of the drafters to use the term “gestational” in the 2000 UPA.) The article provides for judicial approval of a written gestational agreement between the intended parents and the gestational mother, her husband (if she is married), and other donors prior to the child’s conception. If a court validates the agreement, then the intended parents will become the child’s legal parents. Under the act, within three hundred days of the child’s birth the intended parents are to file notice with the court that approved the gestational agreement. The court then issues an order confirming them as the child’s parents and directing the appropriate state agency to issue a birth certificate naming the intended parents as the child’s parents. Like the USCACA, the 2000 UPA does not require adoption by either of the intended parents.27 Under the 2000 UPA the intended parents must be married and must both be parties to the gestational agreement. The statute further provides that a gestational agreement that is not judicially approved is unenforceable. An unenforceable agreement may still have ramifications for its parties, however. The statute specifically states that intended parents under an unenforceable agreement may still be held liable for child support.28 Recognizing the volatility of the surrogacy question, the drafters made the provisions of Article 8 an optional part of the 2000 UPA. Although Article 8 is an admirable attempt to bring parentage laws in line with medical developments, it seems likely that, for now, many state legislatures will remain reluctant to address the topic of gesta-

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tional agreements. Not surprisingly, parents seeking the assistance of a gestational mother may increasingly engage in forum shopping to find those states hospitable to such arrangements. In states without legislative guidance, courts remain likely to manipulate existing parentage laws to reach results approximating those in more traditional cases of disputed parentage. In any event, a court is unlikely to declare a child born as a result of a gestational agreement to be the child of three or more legal parents. Thus far, however, legislatures and courts have generally failed to discuss the child’s potential inheritance rights. As in other scenarios involving children in nontraditional families, there may be instances in which the child of surrogacy will ultimately find himself entitled to inherit from three or more parent-like figures by manipulating adoption laws or paternity presumptions.

Genetic Material Cases dating from the 1800s recognize that an individual or his estate has some proprietary rights in his body. Yet a well-known California case from 1990 held that tissues removed from a patient during surgery, and products ultimately derived therefrom, do not fall under traditional laws concerning personal property; rather, laws governing human tissues, organs, fetuses, blood, and dead bodies are unique. In light of scientific advances in reproductive technology, the question of property rights in one’s genetic makeup has become increasingly important. Does a woman own her eggs? Does a man own his sperm? Should eggs and sperm be inheritable or devisable? The following discussion examines some of the difficult questions that surround ownership and transferability of genetic material.29 Sperm and Eggs as Estate Assets Occasionally a man has identifiable sperm deposits—typically stored at a sperm “bank”—at the time of his death. Should those deposits be part of his estate, inheritable like the money he leaves deposited at a financial bank? Should a court order the destruction of the sperm deposits without regard to the decedent’s wishes or the wishes of his heirs or will beneficiaries?

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There is little case law on this point, but some courts have concluded that genetic material can pass to the decedent’s legatees or heirs. In an attempt to avoid litigation at a depositor’s death, storage facilities for genetic material today are likely to obtain instructions from the owner concerning the use or destruction of the stored material in the event of his death. If the contract between the owner and the storage facility provides that the facility is to destroy the genetic material at the owner’s death, then the facility must comply with its contractual obligation. Apparently this is so despite vociferous protests from the decedent’s family or significant others. If a recipient acquires the sperm or eggs by will, intestate succession, or contract, however, he or she can use that material to create a new life. In fact, maternal conception with a deceased husband or lover’s properly stored sperm is relatively simple because artificial insemination is a straightforward technique. Not surprisingly, we now have several reported cases in which a widow has given birth to her late husband’s child conceived after his death. Then too, the opposite may one day occur: a man may fertilize his deceased wife or lover’s frozen eggs (which a surrogate will then gestate). Although the parentage, child-support, and inheritance problems resulting from posthumous conception can be great, legislators are unlikely to enact laws requiring destruction of a person’s known eggs or sperm at death in all cases. First, existing policy supports the view that sperm is an asset of the individual. As previously noted, sperm banks commonly pay medical students for deposits to be used in AID procedures. In that setting, the parties clearly and unapologetically treat sperm as property that the male can sell, donate, or withhold as he wishes. In other words, he owns it. (So far, with its silence, society has implicitly approved such transactions.) If a man has a property or quasiproperty right in his sperm during his life, then one can argue that his estate has a corresponding right in the sperm at his death, and that the principles of intestate or testate succession should apply to the deposits he leaves behind. Second, although use of the sperm and eggs for posthumous conception means that the resulting child will be born into a nontraditional family and perhaps have only one parent, the nontraditional family status is hardly a reason to order destruction of the dece-

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dent’s sperm or eggs. For years single women have conceived with anonymously donated sperm from a sperm bank—who knows if the donor is living or dead? Moreover, some states even have statutes explicitly providing that a single mother of a child conceived by AID is the sole legal parent of the child. In sum, courts are likely to follow the early legal decisions and conclude that sperm and eggs are devisable and inheritable. If the decedent is a party to a contract concerning the material, however, the contractual provisions will prevail at his death. But while the statement of these rules is straightforward, the probate and family law problems they are likely to present for courts is great. The following materials examine those problems.30 Group Decisions, Financial Interests, and Presumptions It is easy to imagine all sorts of difficult problems if a group of people inherit one egg. Suppose that the decedent dies, leaving her frozen egg to three female friends. The friends disagree on whether to attempt fertilization and implantation. What should happen to the egg? There are numerous possibilities, none of which is perhaps totally satisfying. One approach is to follow the majority vote. Yet if two vote for fertilization and implantation and a child is subsequently born, what obligations do the women—as co-owners of the egg—have to the child and to one another? Should the dissenting co-owner have any obligation to the resulting child or the other co-owners of the egg? If all three women agree to a posthumous conception using the egg, and one of the three women in fact gestates the fertilized egg, is she alone the child’s legal mother? Suppose now that the decedent dies intestate leaving a husband and children from a prior marriage as heirs. If the spouse and the children share ownership of the egg, again a group must decide upon its use. But here the decedent’s existing children may have a financial interest in preventing posthumous conception. Why? Because intestate succession statutes typically provide first for the surviving spouse and then leave the remainder equally to the decedent’s children. An increase in the number of children could decrease each child’s slice of the pie. Unlike the single egg, a sperm deposit may be divisible. Thus if a man devises his deposited sperm to three women, each woman will

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probably receive one-third of the total deposit. Yet even in the scenario in which a surviving widow inherits all of the sperm, problems can arise. Suppose evidence clearly indicates that the husband intended that she use the sperm to become pregnant after his death; however, she first remarries and only then with her new husband’s consent undergoes insemination. Who is the child’s father? Under AID case and statutory law, it appears that the woman’s new husband is the legal father of the child because he agreed to the insemination. But it would be foolhardy to advise the would-be mother, her new husband, or the relatives of the decedent that such a result is certain. Inheritance and the Child Conceived Posthumously There are two overarching probate questions concerning reproductive materials. The initial question, previously discussed, is whether reproductive material is devisable or inheritable. Existing law answers yes to this question. Once heirs, will beneficiaries, or others obtain the reproductive materials the recipients can use the sperm or eggs to create a new life. The creation of the new life leads to the second question: Should the child conceived or created after the death of a genetic parent have any claims to that parent’s estate or to other benefits springing from that parent?31 Traditional intestacy laws include a child born after his father’s death. These so-called afterborn- or posthumous-child statutes were designed to treat a child conceived through sexual intercourse but born after the father’s death the same as the father’s children conceived through sexual intercourse and born during his life. When promulgated, the statutes did not anticipate the possibility that one day a child could be conceived after—potentially long after—the death of her genetic parent. Nonetheless, the wording of some afterborn-child statutes is broad enough to include the child who is conceived posthumously. For instance, if the statute provides intestate succession rights “to a child born after the death of her parent,” the child conceived posthumously falls within the literal terms of the statute. But if the statute provides intestate succession rights to “the child conceived before, but born after, the death of her parent,” then the statutory language seems to foreclose the claim of the child conceived posthumously.32

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There are scenarios in which one can argue that the law should treat the child conceived posthumously as an heir of the predeceased parent. If the decedent is survived solely by his spouse, the couple had wanted a child, and the surviving spouse conceives the child shortly after the decedent’s death, why shouldn’t the child be an heir of the decedent? In Estate of Kolacy, decided in March 2000, a New Jersey court concluded that twins born about eighteen months after their father’s death were his intestate heirs. The circumstances of the case are compelling. Suffering from leukemia, the husband made sperm deposits for his wife’s future use. When he died of the disease at age twenty-six, his widow obtained the sperm and then employed IVF procedures to produce embryos that were transferred to her womb. Lacking guidance from appellate courts and the legislature, the judge concluded that existing state probate statutes demonstrated a general intent to provide amply for children of a decedent and therefore that the children should be considered the heirs of the genetic father.33 It is important to note that the declaration of the twins’ heirship rights had no immediate impact for inheritance purposes. The father died with few assets, and what he owned was held jointly with his wife and passed by survivorship to her at her death. In other words, the twins received nothing directly from their father’s estate, despite the heirship determination in their favor. But if the children inherited nothing from his estate, then why should it matter whether they were his heirs? Well, it is possible that the twins could one day obtain probate benefits if other assets pass to the father’s estate or if a third party makes a class gift to the father’s heirs. The primary reason for seeking an heirship determination, however, was to make the children eligible for Social Security benefits as heirs of their father, a deceased worker. In short, the children were not seeking to take from their father’s estate but from the government. Indeed, one can imagine that in many instances the posthumously conceived child’s paternity/heirship claim will be brought not to gain an inheritance but to draw benefits from social programs. The scenario in the Kolacy case was relatively straightforward, at least compared to those that can arise. In Kolacy, no serious delay in estate administration occurred. The outcome did not adversely affect any other claimants to the decedent’s estate. Yet for purposes of establishing broad

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policies in inheritance (and Social Security) law, perhaps it is unfortunate that such a simple case provided the first reported opinion on children conceived posthumously as heirs of the predeceased parent. Despite our sympathy for the widow and the twins, the propriety of the Kolacy decision is questionable. The state of New Jersey had discouraged adjudication of the case, urging the judge instead to wait for the legislature to address the problem. But legislatures are not likely to respond quickly. Instead, we are likely to see a patchwork of solutions from state courts before legislatures take a hard look and attempt to resolve the question. In 2002 the Supreme Judicial Court of Massachusetts also concluded that a child conceived posthumously can in proper circumstances be the heir of her predeceased biological father.34 Probate statutes could specifically provide inheritance rights for children conceived posthumously. Such statutes, however, would represent a marked break with the once-unquestioned rule that only relatives in being (which includes those in the womb) at the time of the decedent’s death are the decedent’s potential heirs. This historical approach provides a bright-line cutoff that simplifies estate administration. If we abandon the time-of-death rule, the door could be open for claims not only from the decedent’s own children conceived posthumously but also from other “relatives” of the decedent conceived posthumously. Thus, a posthumously conceived child of the decedent’s predeceased son—by lineage a grandchild of the decedent—could make such a claim against the decedent’s estate if the law abandons the time-of-death test for heirship. The Unconsenting Daddy On occasion a wife or other loved one seeks to harvest sperm from a man who is comatose or recently deceased. In this setting the man cannot consent to the procedure or the subsequent use of his sperm to procreate. Since legal parenthood has always been based on the parent’s act or decision, explicit or implicit, it appears inappropriate to treat this man—who had no choice in the matter—as the legal father of the child. Thus, if a widow becomes pregnant from sperm retrieved from her dead husband without any evidence of his prior consent to the retrieval, she should be treated as the child’s sole legal parent. The same result

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should occur when a wife retrieves sperm without consent from a comatose husband, unless he later regains consciousness and affirms her decision. Indeed, even though in 2002 the high court of Massachusetts concluded that a child conceived posthumously could be an heir of her predeceased father, the court expressly stated that the determination was dependent upon a showing that the father had consented to reproduce posthumously.35 Perhaps the most important concern in these scenarios is not estate distribution or the dispersing of public benefits to the resulting children. Rather, our real concern should be whether to allow unauthorized sperm retrieval at all. Fortunately, some legal and medical ethicists are now debating the propriety of such sperm collection. One leading legal commentator has compared sperm retrieval from dead or comatose men to rape.36 A Conundrum: Inheriting One’s Self Now here’s something that’s really problematic: if genetic material is an inheritable asset (as it appears to be) and a child conceived posthumously and born from that genetic material is the sole heir of the predeceased and intestate parent (as he could be under current case law), then the child should have inherited the genetic material that made him and should have had the opportunity to decide whether he would exist. What? Let’s try it again with names. Assume that Bob dies childless and intestate, leaving a sperm deposit. At the time of Bob’s death, his sister Mary is his closest relative and, as his apparent heir, receives the sperm. Mary, being generous, gives the sperm to Bob’s girlfriend, Jane, who uses Bob’s sperm and delivers baby John eleven months after Bob’s death. If the law treats a child conceived posthumously as an heir of his deceased parent, then John is Bob’s sole heir, because intestacy laws invariably favor one’s children to the exclusion of one’s siblings. Therefore John should inherit all of Bob’s estate—which at Bob’s death included the sperm deposit used to create John. As Bob’s heir, John should also have the right to determine the fate of those assets. Of course, it is now impossible for John to decide that Bob’s sperm should not be used to conceive a child. After all, John already exists and he has, as it were, inherited himself.

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Perpetuities and Prompt Estate Administration Our previous discussion has highlighted some of the practical probate problems that are likely to arise if, in determining heirship, we abandon the traditional moment-of-death test and instead adopt an unlimited-time test. In addition to these problems is the potential conflict that an unlimited-time test would present with property principles regarding transferability and ownership. One of these principles, stated very generally, requires that certain restrictions on property—including those for determining ownership—should not last for an unreasonably long time. For property to be transferable from one owner to the next, we must be able to ascertain ownership within a reasonable period. The most famous property law in this area is the so-called Rule Against Perpetuities (often simply called “the Rule” or “RAP” by property lawyers). Under traditional RAP, certain interests in property are invalid unless they must vest, if they vest at all, no later than twenty-one years following some life in being at the creation of the interest. Vesting is a legal term that means the holder of the interest acquires a fixed right of enjoyment over or to the property, although the holder may not yet be entitled to possession. (If you are now thoroughly confused, not to worry. Many successful lawyers and judges never really understand the intricacies of RAP. Its complexities are legendary, and some courts have even concluded that, owing to RAP’s difficulty, an attorney’s misapplication of RAP when representing a client is not professional malpractice.) For our purposes, a couple of simple examples will suffice to give an idea of how an unlimited-time test for determining heirs would violate RAP.37 Testators often devise property to a class of people such as “my children.” Assume that a testator devises realty to his children who reach age twenty-one. Further assume that at the testator’s death, his two children are seven and six years old. Because RAP does not take into account the possibility of posthumous conception, the gift to the children is valid. Under RAP, the only children the testator can ever have are in existence at his death (in property lingo, the class is closed). The interest of those children will necessarily vest (that is, they will have a

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fixed right of enjoyment when they reach the age of twenty-one, as required by the will), if at all, well within twenty-one years from when the interest is created at the testator’s death. Similarly, if the same testator left a devise to his grandchildren who reach twenty-one, the devise would still be valid under RAP. Why? We have just seen that all of the testator’s children are necessarily in existence at the moment of the testator’s death. (Again, remember that RAP does not contemplate the possibility of posthumous conception.) Taking those children individually, we further see that no grandchild of the testator can be conceived following the death of the last surviving child of the testator. Thus, any grandchild who is born will reach age twenty-one (thus satisfying the will’s vesting condition tied to age), if at all, within twenty-one years following the death of the testator’s last surviving child. The analysis would be completely different if RAP included the possibility of posthumous conception. Numerous class gifts valid under common-law RAP would fail under the broadened rule. Look again at the first devise above, in which the testator leaves realty to his children who reach twenty-one. If RAP were to acknowledge the possibility of posthumous conception, then the class of children would not close at the testator’s death if his genetic material were still available for afterdeath conceptions. In such a scenario, there would be no certainty that the interests of all of the testator’s children would vest (if at all) within twenty-one years from some life in being at the time of the testator’s death. Because the testator’s genetic material could theoretically be used to conceive a child a thousand years following his or her death, the expanded version of RAP would cause the entire gift to fail. In other words, the law would strike the will provision and the property would pass by another means to individuals who might or might not be the two existing children.38 There are various solutions to the RAP problem. The most stringent but simplest solution is for the law to conclude that an individual conceived posthumously is not the legal child or heir of the deceased genetic contributor. Under this approach, most current property and probate rules like RAP need no amendment, except perhaps to make explicit that the individual conceived posthumously is not the legal child of that deceased genetic contributor. This is neither an uncaring

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nor an unfair solution to the question of parentage of a child conceived posthumously. First, at least one living person must decide to conceive the child, and therefore at least one parent is responsible for the child and provides the child with a potential line for inheritance purposes. Second, in some instances a survivor may use the deceased individual’s genetic material even though the decedent did not anticipate or would not have agreed to such use. As previously discussed, it is improper to impose legal, financial, and “parental” obligations upon the estate of a decedent who was not a willing participant in the creation of the child. Third, a default rule providing that there is no parent-child relationship between the genetic contributor and the child does not prevent the genetic contributor from providing for the child by will, trust, or otherwise (subject to any applicable perpetuities limitations). Fourth, it is unfair to the surviving relatives to leave the decedent’s estate in limbo simply because the possibility of a child conceived posthumously exists. Both the state’s interest in prompt and orderly estate administration and the more general interest of society against unreasonable property restraints outweigh the personal desire of a testator to preserve property for a child to be created, if at all, at some unknown moment long after his death. The 2000 UPA takes this simple, straightforward, exclusionary position concerning posthumous conception unless the decedent consented in a record to be a parent of the child conceived after his death.39 Probate law could recognize the individual conceived posthumously as the child of his or her predeceased genetic contributor in limited circumstances. States are increasingly adopting the Uniform Statutory Rule Against Perpetuities (USRAP), which provides a more userfriendly, “let’s wait and see what happens” alternative to the commonlaw RAP. Under USRAP, an interest valid under the common-law RAP remains valid, but other interests that vest within ninety years from the date of their creation are also valid. Using the USRAP alternative, a gift to children created posthumously or to a class of children, some of whom may be created posthumously, could be valid, so long as it vested within ninety years following the creation of the interest.40 Borrowing the ninety-year wait-and-see USRAP approach for determining heirs could still leave estates tied up for an unreasonable num-

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ber of years. Assume that Bob dies leaving a frozen sperm deposit that, pursuant to his contract with the sperm bank, goes to his girlfriend Cathy at his death. Bob dies intestate, survived only by a first cousin, Dan. Under intestacy statutes Dan is Bob’s sole heir because no closer relative exists at Bob’s death. Dan thus initially appears to be entitled to everything other than Bob’s sperm. Yet if Cathy chooses to conceive shortly after Bob’s death using the sperm she received by contract, and she successfully gives birth, then under the ninety-year approach the child becomes Bob’s sole heir and Dan winds up with nothing. Of course, because Cathy may choose not to use the sperm immediately, Dan could have to wait years—perhaps even beyond his lifetime— before a final determination is made concerning ultimate ownership of Bob’s estate. In fact, Cathy might choose not to use the sperm at all, but instead leave it to her granddaughter. It is possible that just before the ninetieth anniversary of Bob’s death, Cathy’s granddaughter will conceive his child. Poor first cousin Dan and poor society in general— neither should have to wait so long for an estate to be settled because of the possibility of a posthumous conception. Under another approach, probate law could include some children conceived posthumously and yet avoid the undue delay problem by placing a relatively short time limit within which the child must be conceived or born following the progenitor’s death to inherit from the progenitor’s estate. The Massachusetts high court opted for this approach in 2002 when it concluded that, in some circumstances, a child conceived posthumously could be the heir of her predeceased father. The court expressly included a requirement that the claim be brought within a proper time. Probate statutes could specify that a child conceived posthumously shall not be an heir of her deceased parent unless born within x number of months following that parent’s death. What should x be? Twelve months, twenty-four, thirty-six? There is no easy answer to this question. The commentary to the Restatement (Third) of Property: Wills and Other Donative Transfers (1998) suggests that a child of assisted reproductive technology should be treated as an heir if she is born within a reasonable time after her parent’s death. Any decision concerning the time limitation will necessarily be somewhat arbitrary. Yet, like the Massachusetts court, a legislature might find this moderate

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approach more palatable than complete exclusion of all children conceived posthumously.41 If a legislature decides to include children conceived posthumously as heirs of the deceased parent, it must also address the heirship rights of other relatives of the decedent conceived posthumously. Assume that Fred outlived his two children, Debbie and Seth. Debbie died two months ago, survived by her son George (Fred’s grandson). Seth died three years ago, leaving no children but leaving a sperm deposit to his girlfriend. When Fred dies, his heir appears to be his grandson George. But if, shortly after Fred’s death, Seth’s girlfriend successfully uses Seth’s sperm to conceive Grace, should Grace be entitled to share the estate with George? We start the analysis over and once again find the simplest solution is to maintain the traditional time-of-death test for determining heirship. Frozen Embryos and the Child Implanted Posthumously In the preceding discussion, we examined inheritance problems when a child is conceived after the death of her genetic parent—typically through the use of the deceased father’s sperm. Suppose, however, that the conception occurs in a laboratory while both genetic parents (who are also the intended parents, let us assume) are living. The resulting embryo is ultimately frozen for future use. Before implantation, however, either the mother or father dies. Subsequently the survivor has the embryo implanted and a child is born. This posthumous implantation scenario presents inheritance questions almost as thorny as those resulting from a posthumous conception.42 Nor is the matter merely of speculative concern. In 1998 New York’s highest court noted that each year tens of thousands of frozen embryos are routinely stored in liquid nitrogen canisters. Some of these frozen embryos have existed in that state for more than ten years without instruction for their disposal or use. Again, the initial question is the inheritability of the embryo itself. At least one court has treated frozen embryos as a kind of personal property subject to the law of bailments. Even people who believe that a man owns his sperm and a woman owns her eggs may object to the use of property law once the sperm and egg have combined. Most commentators have concluded that

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embryos are neither property nor human beings but lie somewhere in between. And most people agree that embryos, as potential human beings, deserve special respect.43 In our example, the sperm and egg donors for the frozen embryo were the intended parents. In that scenario, absent an agreement to the contrary, it appears that the surviving genetic donor will control the fate of the embryo. Thus, if the mother survives and bears a child from the embryo implanted after the father’s death, the mother should be the child’s legal parent. The difficult question is whether the child should be the heir of the genetic father. This child is not conceived after the death of a parent, and thus his situation is somewhat similar to that of the traditional “afterborn” child—that is, the child conceived by sexual intercourse but born after the death of her father. Because all states treat the traditionally conceived but afterborn child as a potential heir of her father, one can argue that the child implanted posthumously should receive similar treatment. In other respects, however, the circumstances surrounding the birth of the child implanted posthumously are substantially different from those surrounding the afterborn child. Most important, the mother of the afterborn child born posthumously can give birth to that child no more than nine months and a few days after the father’s death. This means that no inordinate delay in estate administration will be necessary to determine the decedent’s heirs or the child’s membership in a class for gift purposes. In contrast, when a frozen embryo is inherited by one of its two intended parents, the surviving parent may delay implantation for an indefinite period of time. (If it is the father who survives, at least some delay is likely to occur while he searches for a surrogate who will agree to gestate the embryo.) Yet again, the simplest solution is to conclude that the only legal parent-child relationship is that between the surviving parent and the child. Under this solution, the child who existed only as an unimplanted embryo at the death of one of the intended parents has no claim of heirship against the estate of the parent who died before implantation. As it does for posthumous conception, the 2000 UPA takes this simple approach as its default position. The UPA generally provides that the spouse who dies before placement of an embryo “is not a parent of the

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resulting child.” Once again, however, the UPA provides a loophole to accommodate exceptional cases: the statute does treat the deceased spouse as the child’s parent if that spouse consented in a record to serve as parent through the use of posthumous assisted reproductive techniques.44 Legislatures could develop alternative solutions. A statute could provide that the child who existed only as a frozen embryo at the death of one of her parents should nonetheless be the heir of that deceased parent so long as the child is born within x number of months following that parent’s death. Again the question becomes how long x can be without unduly disrupting the lives of the decedent’s known heirs and will beneficiaries. The surviving intended parent is likely to be grieving the death of the other intended parent, and to require the survivor to arrange for immediate implantation or surrogacy could be unreasonable.45 Perhaps the most difficult scenario to address in terms of the initial question of inheritability of genetic material is what to do with the frozen embryo when both of its intended parents have died prior to implantation. If the intended parents have endured the difficulties and expense required to create an embryo through reproductive technology, one might expect that they will also include directives concerning disposition at their deaths. Unfortunately, they do not always do so. When intended parents die intestate leaving no binding provisions concerning the embryos, should the heirs of the intended parents inherit the embryos? Such a solution again leads back to the circular argument that if a child is born from the embryo, the child would be an heir who should have had a right to determine whether she would be born. Moreover, even assuming that the intended parents have “devised” or entered into a contract to leave the frozen embryos to others, should such a devise or agreement be upheld? Should we allow the wouldbe parents to devise would-be children? These are extremely difficult questions with profound moral and ethical ramifications. In sum, if the law ultimately deems an embryo to be an asset or “asset-like,” then it will also probably be inheritable and devisible. If the inherited embryo is implanted and a child is born, the simplest

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solution for inheritance purposes is to deny the child’s claim to be an heir of the genetic parent who is dead at the time of implantation. Foreclosing such a claim seems particularly appropriate when we recognize that the child will have other potential lines of parental inheritance. More specifically, the child resulting from the embryo implanted posthumously will be the potential heir of her legal parent or parents.46

Cloning Cloning raises new ethical and legal issues about parent-child relationships and, more basically, about the creation of life and what it means to be a human being. Since the birth of Dolly the cloned sheep in 1996, scientists have replicated an increasing parade of animals. Right or wrong, the technology will almost certainly result in the cloning of a human being. If we have learned anything in the area of reproductive technology, it is that technology and its use will not wait on moral consensus and legislation. That commentators are now seriously debating the propriety of human cloning is unlikely to prevent the procedure from occurring during that debate—soon someone, somewhere, will have cloned a human being. And this is probably true regardless of governmental efforts to ban or even criminalize the practice. Although claims of successful human cloning have thus far proved unfounded, experts testifying before Congress indicate that the birth of a human clone is imminent.47 Until the advent of cloning, conception—the combination of male and female genetic material—was the only way to create a human being. (Even surrogacy and test tube pregnancies require conception.) Unlike other children, the clone will not be a combined genetic product of a mother and father. If the process is successful, the clone is the neargenetic equivalent of some other human being. The clone is somewhat like the identical twin of another person, though that person may be substantially older or even dead when the clone is born.48 Beginning with Chapter 3, we have examined the inheritance rights springing from the parent-child relationship. But who is the legal parent of a clone? Even the 2000 UPA does not touch that question.

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In the somewhat related area of assisted reproduction, commentators have asserted at least three bases for determining parenthood (particularly motherhood): the biological link, the genetic link, and the intentions of the parties before conception. Relying on the biological link, a woman gestating an egg fertilized with a clone might argue that she is the clone’s legal mother. Her biological contribution to the clone’s life is undeniable, and supporters of her claim could argue that to deny her claim is to reduce women to the status of mere incubators. Biology and genetic links could also be important in other contexts. One can imagine all sorts of scenarios in which someone steals DNA from a particularly desirable donor to produce a clone. If an individual has the right to bodily autonomy, then she may have the right to claim clones produced from her stolen genes. If Alice misappropriates Barbra’s DNA to produce the clone Cindy, perhaps Barbra should have the right to assert legal parentage of that clone (and she almost certainly will have various claims for damages against Alice). No one would argue that Barbra could choose to destroy Cindy after Cindy is born—whatever our view of cloning, Cindy will be a human being. Yet the scenario could be more difficult. Suppose Barbra does not learn about Cindy’s existence until Cindy is sixteen, and during those sixteen years Alice (the DNA thief) has reared Cindy as her own. Can Barbra successfully assert parentage in this scenario? In fact, the actual sources of the clone’s genetic material—that is, the paternal and maternal genetic contributors—are the genetic parents of the human being who is cloned. Thus, in the previous example, Cindy’s genetic parents are Barbra’s genetic parents. (This is obvious if we view Cindy as Barbra’s later-created identical twin.) But if Barbra’s parents played no role in the decision to create or produce Cindy, it is inconceivable that a legislature or court would force Barbra’s parents to serve as Cindy’s legal parents and impose parental financial responsibilities upon them. In other words, a cut-and-dried rule equating genetic parentage with legal parentage of a clone in all cases is clearly unworkable. While biology and genetics are important, ultimately the pre-cloning intent of the parties seems to be the most promising basis for imposing

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parental or parent-like obligations, at least so long as no fraud or deceit is present. Thus, if a married couple decides to parent a child cloned from one of them, the law should consider the child to be the legal child of the couple. If, however, one spouse objects but the other spouse creates the clone anyway, then the clone will have only one legal parent. Similarly, a single man or woman who wishes to be cloned will be the single parent of that clone. Some people may object to laws that allow or encourage an individual knowingly to create a clone who will have only one legal parent at birth, but similar laws for children of assisted reproduction already exist—again, one has only to look to statutes providing that a single mother undergoing AID is the sole legal parent of the resulting child. Ready or not, we will see clones among the children of our future. As it does for other infants, the state has an interest in ensuring that cloned children are provided with a legal parent or parents. That legal parentchild relationship should include the same inheritance rights that attach to parents and their noncloned children. To help protect cloned children, states will need to empower courts to approve cloning arrangements and to encourage parties to obtain such approval before engaging in the cloning process. In this way, legal parentage—and the rights that spring from the parent-child relationship—can be determined in advance. Since cloning, like other forms of ART, is going to happen, it is best to regulate rather than ignore it. Whether or not we approve of the technology employed by their parents, our laws should protect the interests of the resulting children.

Conclusion This chapter has only scratched the surface of the inheritance problems that can stem from the use of assisted reproduction. The initial problem in most of these cases is determining the child’s parentage, regardless of whether the reproductive technology involves AID, surrogacy, borrowed genetic matter, or cloning. Until legislatures are willing to address these technologies more fully, courts will continue to determine many parentage questions on an ad hoc basis.

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Even when we can identify the legal parent or parents of the child, probate law may permit the child to inherit from other adults who played a parent-like role or participated in the creation of the child. Several important policy concerns regarding the inheritance rights of children of assisted reproduction are similar to those of adopted children and of nonmarital children conceived by traditional means. Should the law permit the child to be a potential heir of three or more living parents or parent-like figures? If the law does recognize the child of assisted reproduction as the potential heir of three or more parent-like figures simultaneously, has the law unfairly favored the child of assisted reproduction over the child in the traditional family? What statutory limitations on the timing of the child’s claim are proper when the parent-child relationship has not been legally established during the parent’s life? How should the state balance its interest in the orderly and efficient administration of probate estates with the state interest in protecting minor children and ensuring their support? There are no easy or completely convincing answers to these questions. Not surprisingly, legislators have often dodged the politically controversial topic of assisted reproduction. True, there are serious ethical concerns about misuse of reproductive technology. At the same time, it is wrong for legislators to put their heads in the sand and ignore the growing number of children who are born from the use (or misuse) of reproductive technology. Moreover, the drafters of the 2000 UPA have given state legislatures a valuable tool to deal comprehensively with the concerns of most of these children. It is not a perfect set of laws, but it is a remarkable, valiant start. And it is only when we determine the parentage of these children that we can truly begin to sort out their inheritance rights.

Final Thoughts Where from Here?

T

he family is at the core of most of our lives. We are born into a family whose members we do not choose, under circumstances over which we have no control. In these particulars, some of us are lucky, some are not. We become adults and create families of our own. Most of us couple and marry and, like our parents, create children who have no say in the matter. Our children grow up and create families of their own. Along the journey, unexpected twists and turns arise. Today our families often fracture or blend with others, and we may have several different families during a lifetime. Variations in family form have always existed, whether we define family in the older way by blood and marriage or in the modern way by love and commitment. Considering the multiple cultures, races, and religions in America, variation in family structure was and is inevitable. Moreover, many of our “new” family structures have roots in the past. Across the spectrum of history, mothers have often served as the sole providers and nurturers of their children. Divorce and nonmarital birth may have been unusual before the late twentieth century, but they did occur long before that time. Unmarried cohabitation may also be more common today, but it is not a new phenomenon.

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When family structures change markedly, inheritance laws must follow. In the twentieth century probate laws looked beyond blood relationships to include adopted children and beyond marital relationships to include nonmarital children. Today family forms are evolving more rapidly than ever. Sex equality, gay rights, and reproductive technology have all contributed to this evolution. If probate laws are to fulfill the decedent’s expectations and satisfy the needs of the family in the twenty-first century, they must continue to reflect our changing family structures. The final pages of this book review some of the principal challenges that states must address in the coming years to develop fair and efficient probate laws for all of our families.

Couples: Married and Unmarried Although many Americans now commonly view marriage as a partnership, many separate-property states still base their spousal probate laws on the older support model that views the husband as provider for the family. Only community-property states treat the spouses as equal partners throughout the marital endeavor. In those states the surviving spouse owns a one-half interest in the community property during the marriage. Because the death of a spouse does not affect the surviving spouse’s interest, the survivor needs no special protections from disinheritance by the deceased spouse. In separate-property states, asset ownership during marriage depends upon title. The separate-property system often disadvantages the spouse who serves as primary caretaker for the couple’s children. This disadvantaged spouse is typically the wife. Put bluntly, by placing her children before her career, many a wife has gotten the short end of the economic stick while her husband is earning and placing property in his name. Most separate-property states have elective-share laws that allow the survivor to receive a forced portion of the deceased spouse’s estate if she chooses. Unfortunately, traditional elective shares are totally arbitrary: they ignore the survivor’s contribution to the marriage, the survivor’s need, and the length of the marriage. The 1990 UPC elective-share provisions offer a substantially improved elective share. The UPC provisions recharacterize the couple’s

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combined wealth when the first spouse dies and then provide the survivor with an award potentially reaching 50 percent of that total combined wealth. The provisions even include special protection for some needy surviving spouses. Nonetheless, because elective shares apply only when one spouse dies, they can do nothing to recharacterize the couple’s ownership of property during the marriage. Unfortunately, most separate-property states have given little indication that they will switch to community-property principles in the near future. Some married couples do not rely on the default rules of inheritance law. Rather, they enter into contractual arrangements with each other or with third parties to ensure financial security when the other spouse dies. Because self-protective measures, most notably the prenuptial agreement, are generally available to all spouses, some commentators suggest that separate-property states do not need to provide elective shares. Most married couples do not enter into prenuptial or postnuptial agreements, however, and a state cannot realistically expect them to do so. Thus, while the elective share is an ill-fitting Band-aid for the flaws inherent in a separate-property regime, the protection it affords is probably better than none at all. Perhaps the best we can hope for in the near future is that more separate-property states will adopt the 1990 UPC elective-share provisions. While few states are likely to change their inheritance treatment of spouses markedly, increasing numbers of states are likely to reconsider their inheritance treatment of unmarried couples in committed relationships. Predictions here are risky, but developments at the end of the twentieth century suggest that states will gradually extend spousal inheritance laws to afford coverage to at least some unmarried couples— particularly those who are gay or lesbian. Hawaii’s reciprocal beneficiary laws present one approach that may take hold elsewhere. The simplicity of the approach—a registration system for gay and other couples who cannot marry—makes it easy for a probate court to identify the survivor as a member of the decedent’s family. California’s domestic partnership laws are another model that give homosexual committed partners broad inheritance rights upon registration. Vermont’s civil union laws, providing marriage-like recognition to the homosexual couple, demonstrate an even more far-reaching approach.

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Despite these developments, no state has enacted legislation that extends spouse-like inheritance benefits unqualifiedly to all oppositesex couples who could marry but choose not to do so. California’s domestic partnership laws do include a tiny sliver of that group—those couples in which at least one partner is sixty-two years old—and some scholars argue that states should include all surviving committed partners in inheritance schemes. So far, however, state legislatures seem unconvinced. Promotion and protection of marriage remains a fundamental policy of American law, and legislators apparently believe that extending spouse-like inheritance benefits to those couples who could marry would give them one less reason to tie the knot. One argument for the inclusion of unmarried heterosexual cohabitants in probate laws is the detrimental effect that exclusion can have on young children of the cohabiting heterosexual relationship. Yet states can more properly address this problem with laws recognizing the right of young children to continued support from a deceased parent’s estate.

Parentage Determinations Who are a child’s legal parents in the nontraditional family setting? How many simultaneously existing parental lines can a child have for inheritance purposes? If legal parentage has not been established during the putative parent’s lifetime, can the child bring a posthumous claim and, if so, are there limitations on the timing of that claim? These are among the important parentage questions that now arise frequently in probate proceedings. Paradoxically, just when we can finally test genetic parentage in an almost foolproof manner, the law more and more provides that genetic links do not control determinations of legal parentage. Courts and legislatures may disagree on the factors that control parentage determinations in nontraditional family settings, but they remain wedded to the notion that a child can have no more than two legal parents at one time. Despite this, there are several instances in probate law in which a child in the nontraditional family setting can inherit from more than two parental lines.

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Paternity remains a major source of litigation in divorce and childsupport proceedings and continues to pose problems in probate matters. Lawyers can no longer count on smooth sailing when administering the estate of a man who initially appears to be survived only by his wife and their children. Children of an extramarital affair now often appear seemingly out of nowhere to claim their share of dad’s estate. This may even occur when the child is presumed to be that of another man (typically the mother’s husband) and even when the child has inherited from that presumed father. Thus the child can potentially inherit as the heir of the mother, the presumed father, and the genetic father with whom he had no relationship. Should a child have three parental lines of inheritance in these circumstances? If the child is an adult who has known about his genetic link to the “third” parent, should we allow him to sit by and wait until that parent’s death to bring the paternity/inheritance claim? Reasonable observers disagree on the answers to these questions. In many states adopted children can inherit from three or more parental lines. The UPC permits the child to inherit from three or more parental lines if the child is adopted by a stepparent. A few states go further and permit the child who is adopted into a completely new family to inherit both from the adoptive parents and the birth parents. Does such treatment make sense, particularly if the parental rights of the birth parents were legally severed days after the child’s birth? Are blood ties so important that inheritance rights should remain unaffected by the infant’s adoption into a new family? The growing use of assisted reproductive technology creates many parentage issues, including, for the first time, questions of maternity. The child born of assisted reproductive technology may have several potential claimants as mothers and fathers. The 2000 UPA addresses many of these questions. Yet, judging from the way states avoided previous model laws concerning some forms of ART, it is no sure bet that large numbers of states will adopt the UPA provisions concerning reproductive technology. Many state legislatures have been reluctant to deal with controversial topics like surrogacy, but even so people will continue to enter into surrogacy agreements. The UPA’s provisions for

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obtaining prior judicial approval would help to avoid parentage battles after the child’s birth. Although the UPA does not address cloning, a similar approach, incorporating provisions for judicial approval before the cloning process begins, could also resolve the difficult parentage questions that will otherwise arise when scientists begin to clone human beings. States could perhaps streamline the probate process by limiting or even prohibiting parentage claims brought by a child after the death of a putative parent; however, in some cases, such as those involving minor nonmarital children, such a stringent approach seems unfair. For the immediate future, it appears that most states will continue to allow posthumous determinations of parentage. As the number of nonmarital children swells during the coming decades and increasing numbers of children are born of ART, questions of parentage are likely to become more and more common in estate administration.

Children The saddest story in American inheritance law is the way vulnerable young children can fall through its cracks. Except in Louisiana, an American parent is generally free to disinherit even those children whom he would be obligated to support during his lifetime. Commentators suggest two main defenses of the American system. First, most parents are not inclined to disinherit their young children. Second, probate awards to young children often require the probate court to appoint a guardian to administer the child’s award. (In other words, inheritance awards to young children can be inconvenient and can cost money to manage.) Considered separately or together, neither of these responses provides an adequate reason for the state to ignore those young children who are disinherited and left otherwise unprovided for by their parents. As courts have noted, some parents do disinherit their young children and more parents are likely to do so as family structures change. A noncustodial parent is a particularly likely candidate to disinherit his young children if he has few emotional ties to his children or, even worse, if he can take one last slap at the child’s other parent by leaving her with the entire support burden.

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Because the act of parenting involves choice, we require parents during their lifetime to support their young children. In a rough analogy, children are thus creditors of the parents. How strange that, under current American law, the parent’s support obligation to his young children ceases at death, while his estate remains liable to his other creditors. Even if a sense of moral obligation were not enough to convince legislators to protect these children, a sense of fairness should be sufficient to do so. Unlike true creditors, who deal with the decedent at arm’s length, young children are completely at the mercy of a parent who would disinherit them. Moreover, we give protection to the surviving spouse, even though she can protect herself from disinheritance through contractual and property arrangements. To the extent that a parent’s estate is sufficient to provide support for the parent’s minor child, the state should require it to do so if the parent has not otherwise provided for the child. A continuing obligation of support upon the parent’s estate is far different from the two principal probate alternatives for child protection— the forced share and the claim for maintenance—that other countries use. Those alternatives apply to any child regardless of age; they are not limited to young or vulnerable children. In contrast, the support award proposed here is substantially more limited, thus preserving the decedent’s testamentary freedom as much as possible while yet ensuring provision for the decedent’s young children. Moreover, judges can objectively determine a support award from child-support tables. Some observers might quibble that because the award is tied to support, it is not really an “inheritance” and more properly should be included in a state’s family and child support laws. Whether the award is part of a state’s probate or family law really matters not—the point is that the state should protect the child. In fact, a support award in probate is no breathtaking departure from existing law: while the parent is living, a court decree or contract can bind the parent’s estate to provide support for the child. At the parent’s death, the court can commute the amount owed to a lump sum to facilitate closing of the estate. The proposal here simply suggests that state law should provide that the support obligation exists even when the parent had no duty under a formal contract or court decree. To protect our

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young children, the posthumous duty of support should extend to the estate of any parent obligated to support his children at the time of his death if he has not adequately provided for them otherwise.

Guiding Principles The task of developing inheritance laws that accurately reflect modern family life is formidable. Some guiding principles can assist us in determining both who is a surviving family member and what, if any, default protection the survivor should receive at the decedent’s death. The following principles are by no means exhaustive. Rather, they are points of departure to help in our quest for fairer and more inclusive probate rules. Probate law should continue to presume that the principal objects of the decedent’s bounty are the members of the family that he or she created. This presumption has been the driving force behind centuries of inheritance law, and there is no reason to discard it today. The ways in which a decedent may create a family are increasing, but the typical decedent’s desire to acknowledge, protect, and provide for the surviving members remains constant. Recognizing this, the expansion of probate law to cover families created in nontraditional ways is simply another development along a continuum, not a dramatic break with the past. The decedent’s marriage vows place the surviving spouse in the protected group, and the decedent’s actions typically place his children in the group as well. In addition, when ample objective evidence shows that the decedent considered some other person to be part of his created family, that evidence should place the survivor in the preferred category. The presumption thus continues to recognize the importance of the blood ties between parent and child and marital ties between husband and wife; but it also permits legislatures to recognize families created in other ways. As states begin to permit couples to register as reciprocal beneficiaries or domestic partners, or to enter into civil unions, the recorded documents evidencing these arrangements should afford the surviving partner the same probate protections the state affords to surviving spouses. As in the past, only after the state probate laws pro-

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vide for the decedent’s created family should they provide for the decedent’s birth family—parents, siblings, and so forth. In carrying out this presumption favoring the created family, state legislators must remember that probate laws are a special form of property laws. Intestate shares are a quasi-gift of property—a gift we presume the typical decedent would have made had he executed a will. Because probate laws govern the distribution of the decedent’s property, it should make little difference that some people dislike the decedent’s family structure. If the state can objectively identify the survivors in the decedent’s created family, then it should include them within the default rules of inheritance law. If the decedent could have transferred his property to those family members during his lifetime, there is no reason for the state to deny him that opportunity at death, except when public policy very clearly dictates otherwise. Probate laws should protect the state and its people from shouldering financial responsibility for survivors who should be provided for by the decedent. Under current probate law the most notable example of this principle is the elective share that most separate-property states afford to the surviving spouse. Although the elective share may in part reflect state recognition of the survivor’s partnership interest in the marriage, the share also functions as a protective provision for the state. Virtually all Americans believe that parents should support their minor children, regardless of whether the children were born of a marriage. Yet with rare exception, current probate laws make no effort to protect young children from parents who would disinherit them. In a similar vein, most Americans—even those opposing gay marriage— now believe that the state should treat the surviving long-term partner of a gay or lesbian decedent as an heir, yet as of September 2003 only three states include gay or lesbian couples in their basic intestacy or forced-share statutes. Unmarried heterosexual partners fare even worse. When a decedent has created a family whose members are dependent upon him, why should the state allow him casually to toss that obligation aside through disinheritance provisions in his will? It shouldn’t, of course, and one of the state’s goals in the twenty-first century should be to protect these surviving family members in some

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way while maintaining due respect for the decedent’s testamentary freedom and the institution of marriage. Probate laws should provide a prompt, fair, orderly, and efficient scheme of distribution. A recurring theme of American probate law is its commitment to fixed patterns of distribution based on objective determinations of family membership. The application of objective rules is predictable and consistent, helping to foster public confidence that the state treats similarly situated people similarly. Our modern reliance on an objective, legislatively defined approach to probate distribution is partly historical: American probate laws are simply continuing a centuries-old approach. In a world of unlimited resources and uniformly wise judges, an individualized approach would be more likely to distribute the estate in a way that satisfies the particular decedent’s intent and the needs of his or her surviving family. But resources and judicial wisdom vary substantially across the United States and even within various parts of individual states. The potential benefits of using an inheritance approach in which the judge possesses broad discretionary power are more than offset by the drawbacks of such a system. These drawbacks include increased litigation, as disgruntled survivors hope to persuade a sympathetic judge that they deserve to inherit; public intrusion into intimate details of the decedent’s life that could forever sully his or her memory; the danger of one-sided presentations favoring the claimant, since the decedent’s lips are sealed by death and he or she may have been the only person who could counter the claimant’s argument; and, of course, the wide disparity of results for similar claims brought before different probate courts, making outcomes appear unprincipled and largely a matter of chance. A true discretionary system also diminishes the incentive for a man or woman to execute a will, since the system permits the judge to deviate from a will when the judge thinks it proper to do so. Moreover, the discretionary system maximizes the possibility that the judge’s prejudices—particularly those against traditionally disfavored groups such as unmarried cohabitants, homosexuals, and nonmarital children—will taint the outcome.

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Nor should we compare judicial discretion in probate to judicial discretion in divorce proceedings. Unlike the distribution of property between one man and one woman in the divorce scenario, a probate distribution usually involves many parties, and the principal player—the decedent—cannot participate. The probate judge is not dealing with the breakdown of a spousal relationship but with the natural termination of a relationship between the decedent and his or her entire family. Determining who is in that family is necessary for determining how much a surviving family member takes. Yet most judges have no special expertise in evaluating love and commitment and so, like the rest of us, may be guided by their life experiences, including subconscious prejudices and biases. Considering the differing views of family held by cultures, races, and religions in the United States, judges empowered with distributive discretion are unlikely to provide consistently good results in a speedy and efficient fashion. In fact, legislators and the general public are not the only ones unlikely to favor too much judicial discretion in probate matters; most probate judges themselves would probably prefer not to play God with the decedent’s estate. Perhaps one day a blended system incorporating judicial discretion tempered by legislatively defined objective guidelines will provide a happier solution than either the purely objective or purely subjective system. Until someone devises such a system, however, Americans will probably continue to prefer the objective system to a purely discretionary one. * * * The actual differences between “traditional” and “nontraditional” families are more superficial than substantial. Yet our inheritance laws treat the two differently in many important ways. Probate law has long used weddings and biological links as an objective shorthand for acknowledging that the most important family ties—love, responsibility, and commitment—historically occurred most frequently in relationships based on marriage and blood. It is the ties themselves, however, and not the shorthand, that are important. Today the ties of love, responsibility, and commitment that characterize a true family continue, but

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among a much wider spectrum of relationships. Marriage certificates and bloodlines remain a helpful shorthand in the probate process, but states must develop other objective tools to identify the growing number of families that no longer fall neatly into the historical mold. Viewed in the most flattering light, the shortcomings of existing inheritance law are not the result of hypocrisy or animus but of legislative inertia or oversight. Nonetheless, inertia and oversight do not justify laws that refuse to recognize marriage as a true partnership, that allow parents to shirk their moral duties to support their young, and that ignore objectively identifiable family relationships between couples who cannot marry each other. We can do better than this, but it is unrealistic to think that a perfect set of probate laws is on the horizon. No statutory scheme for probate distribution will work equally well for every decedent and every surviving family. But acknowledging this limitation does not relieve the state from its responsibility to establish fairer, more inclusive probate rules. The inheritance laws a society fashions are particularly revealing about the society itself, for they reflect a final balancing of individual rights and family interests. The family was, is, and will probably remain the fundamental building block of society. As families evolve, probate law must evolve with them to give them the recognition and protection they deserve.

Notes

Introduction 1. Trimble v. Gordon, 430 U.S. 762 (1977). 2. Jason Fields, Current Population Reports 2000: America’s Families and Living Arrangements 3, U.S. CENSUS BUREAU (June 2001); see also Valerie Kincaid Oppenheimer et al., United States of America, in THE NEW ROLE OF WOMEN 150 (HansPeter Blossfeld ed., 1995); Craig W. Christensen, Legal Ordering of Family Values: The Case of Gay and Lesbian Families, 18 CARDOZO L. REV. 1299, 1307–16 (1997). 3. Fields, supra note 2; see also Expected Life Span in U.S. Rises to 76.9, COMM. APPEAL (MEMPHIS), Sept. 13, 2002, at A4 (discussing 9/12/2002 release by National Center for Health Statistics). 4. See, e.g., Richard V. Wellman, Georgia Lawyers Revise Their Probate Code, 13 GA. ST. U. L. REV. 783 (1997) (discussing lawyer control over enactment and revision of probate codes). 5. See Troxel v. Granville, 120 S. Ct. 2054, 2059 (2000); see also Jennifer Wriggens, Marriage Law and Family Law: Antonomy, Interdependence, and Couples of the Same Gender, 41 B.C. L. REV. 265, 269 (2000). Some commentators note that the idealized “nuclear family” was not the historical norm it is often assumed to be. See, e.g., Frank F. Furstenberg Jr., Child Care After Divorce and Remarriage, in SINGLE PARENTING IN IMPACT OF DIVORCE, SINGLE PARENTING, AND STEPPARENTING ON CHILDREN 245–46 (E. Mavis Hetherington & Josephine D. Arasteh eds., 1988). 6. See Susan N. Gary, Adapting Intestacy Laws to Changing Families, 18 LAW & INEQ. 1, 13–18 (2000); Lawrence W. Waggoner, Marital Property Rights in Transition, 59 Mo. L. Rev. 21, 29–34 (1994); EUGENE F. SCOLES & EDWARD C. HALBACH JR., PROBLEMS AND MATERIALS ON DECEDENTS’ ESTATES AND TRUSTS 14 (5th ed. 1993). But cf. LAWRENCE W. WAGGONER ET AL., FAMILY PROPERTY LAW 29–31 (2d ed. 1997); Mary Louise Fellows et al., Public Attitudes About Property Distribution at Death and Intestate Succession Laws in the United States, 1978 AM. B. FOUND. RES. J. 319, 336–39. For a psychiatrist’s views concerning why some people avoid making wills, see John Astrachan, Why People Don’t Make Wills, TRUSTS & ESTATES, April 1979, at 45, 45–50 (1979).

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7. Heirs are ascertained when the decedent dies; they are the people who take the decedent’s intestate estate. The testator may exclude them by will. Note that heirs can enter into settlement agreements that deviate from the statutory distribution. See generally M. L. Cross, Annot., Family Settlement of Intestate Estate, 29 A.L.R.3D 174 (1970 & Supp. 2000). 8. See, e.g., Lawrence H. Averill Jr., An Eclectic History and Analysis of the 1990 Uniform Probate Code, 55 ALB. L. REV. 891, 911–15 (1992); Mary Louise Fellows et al., Committed Partners and Inheritance: An Empirical Study, 16 LAW & INEQ. 1, 7 (1998); John T. Gaubatz, Notes Toward a Truly Modern Wills Act, 31 U. MIAMI L. REV. 497, 534–35 (1977); Frances H. Foster, The Family Paradigm of Inheritance Law, 80 N.C. L. REV. 199 (2001). Cf. John H. Langbein, The Nonprobate Revolution and the Future of the Law of Succession, 97 HARV. L. REV. 1108, 1118 (1984). Chapter One 1. See In re Estate of Jenkins, 8 S.W.3d 277, 278 (Tenn. Ct. App. 1999), appeal after remand, 2002 WL 970424 (2002). At the time of Twitty’s death, Tennessee provided the surviving spouse with one-third of the estate after the payment of certain debts. In the late 1990s Tennessee abandoned the fixed-fractional conventional elective share and adopted an accrual method, under which the elective-share amount depends upon the length of the marriage. 2. Neiderhiser Estate, 2 Pa. D. & C.3d 302 (1977). 3. In re Shiflett, 490 S.E.2d 902 (W.V. 1997). 4. See In re Estate of Peck, 497 N.W.2d 889 (Iowa 1993) (paraphrasing John Greenleaf Whittier, Maud Miller); see also Hamilton v. Hamilton, 879 S.W.2d 416 (Ark. 1994) (citing similar cases concerning effect of divorce or estrangement). 5. Maynard v. Hill, 125 U.S. 190, 205 (1888); see also Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Patricia A. Cain, Imagine There’s No Marriage, 16 QUINNIPIAC L.R. 27 (1996). 6. See Milton C. Regan Jr., Marriage at the Millennium, 33 FAM. L.Q. 647, 660 (1990); Nancy D. Polikoff, Why Lesbians and Gay Men Should Read Martha Fineman, 8 AM. U.J. GENDER SOC. POL’Y & L. 167, 173 & n.29 (1999). But cf. Leslie Joan Harris, Reconsidering the Criteria for Legal Fatherhood, 1996 UTAH L. REV. 461, 478–79. 7. See generally George L. Haskins, Estates Arising from the Marriage Relationship and Their Characteristics, in 1 AMERICAN LAW OF PROPERTY §§ 5.1–5.74 (A. James Casner ed., 1952); 2 FREDERICK POLLOCK & FREDERIC W. MAITLAND, THE HISTORY OF ENGLISH LAW 399–436 (2d ed. 1923); 3 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 185–97 (5th ed. 1942); Lawrence W. Waggoner, Marital Property Rights in Transition, 59 MO. L. REV. 21, 34–35 (1994). Cf. Pilone v. Blanda, 544 A.2d 439, 440 (N.J. Super. Ct. Ch. Div. 1988); In re Estate of Riefberg, 446 N.E.2d 424, 427 (N.Y. 1983). The one-third dower interest seems to have become fixed at least by the early fifteenth century. Notably, the same one-third interest carried over to many of the conventional elective shares of the twentieth century and was even incorporated into the spousal protection provisions of the 1969 UPC. Cf. Ronald Chester, Disin-

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heritance and the American Child: An Alternative from British Columbia, 1998 Utah L. Rev. 1, 4 & n.17 (1998) (discussing spousal fixed-fractional share). 8. See generally Marylynn Salmon, WOMEN AND THE LAW OF PROPERTY IN EARLY AMERICA 141–84 (1986); Richard H. Chused, Married Women’s Property Law: 1800–1850, 71 GEO. L.J. 1359, 1393–95 (1983); George L. Haskins, Curtesy in the United States, 100 U. PA. L. REV. 197–98 (1951). For state dower provisions, see ARK. CODE ANN. §§ 28-11-101 to 404 (Michie 1987 & Supp. 1999); KY. REV. STAT. ANN. §§ 392.010–.040 (Michie 1999); MICH. COMP. LAW ANN. § 700.2202 (West Supp. 2000) (providing facially that dower option is available only to widows); OHIO REV. CODE ANN. §§ 3103.01–.08 (Anderson 1996 & Supp. 1999); see also Shaw v. Shaw, 989 S.W.2d 919 (Ark. 1999); Lawrence H. Averill Jr. & Ellen B. Brantley, A Comparison of Arkansas’s Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. ARK. LITTLE ROCK L.J. 63, 641–451 (1995); Robert L. Stenger, Provision for the Surviving Spouse Under Kentucky Law, 25 N. KY. L. REV. 429, 429–30, 442 (1998). 9. See WILLIAM D. MACDONALD, FRAUD ON THE WIDOW’S SHARE (1960). For an example of an intent-based statute, see TENN. CODE ANN. § 31-1-105 (1984). For a discussion of illusory transfers, see O’Neill v. DeLaney, 415 N.E.2d 1260 (Ill. App. Ct. 1980). For a collection of numerous cases involving assertions of fraud on the wife or widow, see generally E. LeFevre, Gift or Other Voluntary Transfer by Husband as Fraud on Wife, 49 A.L.R. 2D 521 (1956 & Supp. 2000). 10. See 1969 UNIF. PROB. CODE §§ 2-201, 2-202, 2-207(a); 8 U.L.A. PART I 293, 297–98, 315 (1998). 11. 1990 UNIF. PROB. CODE § 2-202(a), 8 U.L.A. PART I 102 (1998). See Waggoner, supra note 7, at 50–54 (discussing approaches considered by Joint Editorial Board for implementing the partnership theory of marriage into elective-share law). The board considered an equitable distribution approach, a deferred-community-property approach, and a mechanical accrual-type approach. The board ruled out the equitable distribution approach because of its discretionary nature and unpredictability of results. The deferred-community-property system was rejected because of the difficulties of post-death reclassification of couple’s assets—particularly since in a separate-property state the couple would be unlikely to have preserved adequate records to permit tracing the asset in question to its source. Id. The accrual-type approach ultimately chosen did represent a dramatic new development in probate law. Unlike the two alternatives that were rejected, however, the accrual-type approach preserves the traditional objectivity and ease of application characteristic of probate laws governing the division of the decedent’s estate. 12. 1990 UNIF. PROB. CODE § 2-202(b), 8 U.L.A. PART I 102 (1998); see also Waggoner, supra note 7, at 56. 13. See Lawrence W. Waggoner, The Multiple-Marriage Society and Spousal Rights Under the Revised Uniform Probate Code, 76 IOWA L. REV. 223, 255–56 (1991) (noting that UPC is not presented as the “right” answer, but rather as a reasonable, wellthought-out package that addresses concerns in a multiple-marriage society). 14. See Waggoner, supra note 13, at 245–47 (discussing difficulties with community-property system). For criticism of the UPC’s treatment of the marital

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partnership, see Alan Newman, Incorporating the Partnership Theory of Marriage into Elective-Share Law: The Approximation System of the Uniform Probate Code and the Deferred-Community-Property Alternative, 49 EMORY L.J. 487 (2000). 15. See Ira Mark Ellman, Divorce Rates, Marriage Rates, and the Problematic Persistence of Traditional Marital Roles, 34 FAM. L.Q. 1, 39 (2000). 16. See UNIF. MARITAL PROP. ACT, 9A U.L.A. PART I 103 (1998) (listing Wisconsin as only adopting jurisdiction); Patrick N. Parkinson, Who Needs the Uniform Marital Property Act? 55 U. CIN. L. REV. 677 (1987). 17. See Joseph Dainow, Limitations on Testamentary Freedom in England, 25 CORNELL L.Q. 337, 356 (1940). 18. See INHERITANCE (PROVISION FOR FAMILY AND DEPENDENTS) ACT 1975, c. 63, § 1, 17 Halsbury’s Statutes of England and Wales 388 (1993), as amended by LAW REFORM (SUCCESSION) ACT 1995, c. 41, § 2 (hereinafter INHERITANCE ACT); see also Ralph C. Brashier, Disinheritance and the Modern Family, 45 CASE W. RES. L.R. 83, 121–33 (1994). The provision for cohabitants is a relatively new development, added by amendments in the mid-1990s that apply to decedents dying after Jan. 1, 1996. To be eligible as a cohabitant, the survivor must have lived in the same household with the decedent “as the husband or wife” for at least two years preceding his death. INHERITANCE ACT 1975 § 1 (1A). The treatment of unmarried cohabitants in American inheritance law is discussed in Chapter 2. 19. In re Sutton, 2 N.Z.L.R. 50 (C.A. 1980). 20. See JESSE DUKEMINIER & STANLEY M. JOHANSON, WILLS, TRUSTS & ESTATES 478 (6th ed. 2000) (noting American opposition to the English system that gives probate judges vast discretion); Richard V. Wellman, Georgia Lawyers Revise Their Probate Code, 13 GA. ST. U. L. REV. 783 (1997) (noting that probate judges in most counties in Georgia are not lawyers). 21. See, e.g., Malone v. Harrison, 1 W.L.R. 1353 (Fam. Div’l Ct. 1979) (determining reasonable financial provision for one of testator’s mistresses and reducing legacy to testator’s brother). 22. See, e.g., John T. Gaubatz, Notes Toward a Truly Modern Wills Act, 31 U. MIAMI L. REV. 497, 526 (1977) (observing the paltriness of homestead and similar protections under American probate laws). 23. See GA. CODE ANN. § 53-4-1 (1998). 24. FENTON BRESLER, SECOND-BEST BED: A DIVERSION ON WILLS 12 (London 1983) (discussing disinheritance clauses). In fact, the banker in question also disinherited his son, stating, “To my son I leave the pleasure of earning a living. For twenty-five years he thought the pleasure was mine, but he was mistaken.” Id. at 12–13. The title of the book is taken from the will of Shakespeare, who left his wife Anne Hathaway nothing but his “second-best” bed. Id. at 12. 25. See DUKEMINIER & JOHANSON, supra note 20, at 492 (noting that surviving spouse is typically entitled to an elective share even if she abandoned the decedent); Robin L. Preble, Family Violence and Family Property: A Proposal for Reform, 13 LAW & INEQ. 401, 429 (1995). For examples of statutes that disqualify the abandoning or deserting spouse, see KY. REV. STAT. ANN. §§ 392.010–.140 (Michie 1999 & Supp. 2000); IND. CODE §§ 29-1-2–14 (1979); N.J. REV. STAT. § 3B:8-1 (2000); N.Y. EST. POWERS & TRUSTS §§ 5-1.2(a)(5)–(6) (McKinney 1999); 20 PA. CONS.

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STAT. § 2106(a)(1975 & Supp. 2000); see also Anne-Marie E. Rhodes, Abandoning Parents Under Intestacy: Where We Are, Where We Need to Go, 27 IND. L. REV. 517, 530 (1994). See generally E. L. Strobin, Abandonment, Desertion, or Refusal to Support on Part of Surviving Spouse as Affecting Marital Rights in Deceased Spouse’s Estate, 13 A.L.R.3D 446 (1967 & Supp. 2000). 26. See, e.g., NAT’L L.J., Jan. 8, 1996, at A6, col. 2; Darryl Van Duch, Suspicions Prove Costly, NAT’L L.J. Jan 1, 1996. The husband’s lover was tried and acquitted of the murder. See http://www.pub.umich.edu/daily/1995/12-08-95/news/blood.html (AP) (noting husband’s statement that his daughters were hoping to prevent him from inheriting so that they would be wealthier). The UPC’s slayer’s statute is found at 1990 UNIF. PROB. CODE § 2-803(b), (c), 8 U.L.A. PART I 20 (Supp. 2000). 27. Moore v. State Farm Life Ins. Co., 878 S.W.2d 946 (Tenn. 1994). 28. Concerning actual rates of spousal disinheritance, see MARVIN B. SUSSMAN ET AL., THE FAMILY AND INHERITANCE 86–95 (1970); Olin L. Browder Jr., Recent Patterns of Testate Succession in the United States and England, 67 MICH. L. REV. 1303, 1307 (1969); Allison Dunham, The Method, Process and Frequency of Wealth Transmission at Death, 30 U. CHI. L. REV. 241, 252–53 (1963). See also Sheldon J. Plager, The Spouse’s Nonbarrable Share: A Solution in Search of a Problem, 33 U. CHI. L. REV. 681, 715 (1966). A word of warning is appropriate here, however. These studies were made before serial polygamy and the parenting of children by numerous partners became common. Also, any investigation into patterns of will distribution is of limited helpfulness. Why? Because a spousal disinheritance provision tells us nothing about the provisions the testator made for the surviving spouse outside probate. 29. See, e.g., Lasche v. George W. Lasche Basic Profit Sharing Plan, 111 F.3d 863 (11th Cir. 1997). 30. See LAWRENCE A. FROLIK & ALISON P. BARNES, ELDERLAW 25 (1992) (stating that 85 percent of surviving spouses are women). 31. Cf. Martha M. Ertman, Commercializing Marriage: A Proposal for Valuing Women’s Work Through Premarital Security Agreements, 77 TEX. L. REV. 17 (1998); James Herbie Difonzo, Customized Marriage, 75 IND. L.J. 875 (2000); Laura P. Graham, Comment, The Uniform Premarital Agreement Act and Modern Social Policy: The Enforceability of Premarital Agreements Regulating the Ongoing Marriage, 28 WAKE FOREST L. REV. 1037 (1993); Eric Rasmusen & Jeffrey Evans Stake, Lifting the Veil of Ignorance: Personalizing the Marriage Contract, 73 IND. L.J. 453 (1998); MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW 139 (1989). 32. See Susan N. Gary, Adapting Intestacy Laws to Changing Families, 18 LAW & INEQ. 1, 29–31 (2000). Chapter Two 1. In re Estate of Alexander, 445 So. 2d 836 (Miss. 1984). 2. See Lawrence W. Waggoner, Marital Property Rights in Transition, 59 MO. L. REV. 21, 61–62 (1994); RESTATEMENT (THIRD) OF PROPERTY § 2.2 Reporter’s Note 4, 5 (1999) (presenting theories of recovery available to cohabitants in some states). 3. Jason Fields, Current Population Reports 2000: America’s Families and Living Arrangements 3, U.S. CENSUS BUREAU (June 2001).

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4. See Jennifer K. Robbennolt & Monica Kirkpatrick Johnson, Legal Planning for Unmarried Committed Partners: Empirical Lessons for Preventive and Therapeutic Approach, 41 ARIZ. L. REV. 417 (1999); Fields, supra note 3, at 13. 5. See Elizabeth S. Scott & Robert E. Scott, Marriage as Relational Contract, 84 VA. L. REV. 1225, 1254–63 (1998); Milton C. Regan Jr., Marriage at the Millennium, 33 FAM. L.Q. 647, 658 (1999); see also MICHAEL GROSSBERG, GOVERNING THE HEARTH 86–101 (1985). 6. Almost a third of cohabitants are likely to be same-sex couples. See Mary Louise Fellows et al., Committed Partners and Inheritance: An Empirical Study, 16 LAW & INEQ. 1, 3 (1998). 7. See, e.g., In re Estate of Soeder, 220 N.E.2d 547 (Ohio Ct. App. 1966); Sorensen v. Sorensen, 100 N.W.2d 930 (Neb. 1904), on rehearing, 103 N.W. 455 (Neb. 1905). For commentary on common-law marriage, see Ariela R. Dubler, Note, Governing Through Contract: Common Law Marriage in the Nineteenth Century, YALE L.J. 1885 (1998); David S. Caudill, Legal Recognition of Unmarried Cohabitation: A Proposal to Update and Reconsider Common Law Marriage, 49 TENN. L. REV. 537 (1982); Nancy Rebecca Shaw, Note, Common Law Marriage and Unmarried Cohabitators: An Old Solution to a New Problem, 39 U. PITT. L. REV. (1978). 8. Texas still permits a heterosexual couple to enter into a common-law marriage. See TEX. FAM. CODE ANN. § 2.401(b) (West 1998). On the decline of the common-law marriage, see Kelley v. Kelley, 9 P.3d 171, 182–83 (Utah Ct. App. 2000) (Jackson, J., dissenting); Ram v. Ramharack, 571 N.Y.S.2d 190, 191 (Sup. Ct. 1991). See also LESLIE J. HARRIS, FAMILY LAW 150 (1996). For discussions of the validity of a common-law marriage entered into in a foreign jurisdiction, see Allen v. Storer, 600 N.E.2d 1263, 1266 (Ill. App. Ct. 1992); Ram v. Ramharack, 571 N.Y.S.2d 190, 191 (Sup. Ct. 1991); In re Estate of Bivians, 652 P.2d 744, 748 (N.M. Ct. App. 1982); Johnson v. Lincoln Square Properties, Inc., 571 So. 2d 541 (Fla. Dist. Ct. App. 1990). See generally Sol Lovas, When Is a Family Not a Family? Inheritance and the Taxation of Inheritance Within the Non-Traditional Family, 24 IDAHO L. REV. 353, 356–57 (1987–88). Most courts have indicated that they will not recognize common-law marriages consummated while residents temporarily leave the state if the law of the domiciliary state has a strong policy against common-law marriages. See, e.g., Metropolitan Life Ins. Co. v. Chase, 294 F.2d 500, 503 (3 Cir. 1961) (applying New Jersey law); Peirce v. Peirce, 39 N.E.2d 990 (Ill. 1942). 9. See generally Lovas, supra note 8, at 353; LAWRENCE W. WAGGONER ET AL., FAMILY PROPERTY LAW 83–85 (1997); Fellows et al., supra note 6, at 16–18 (noting also the unusual approach in New Hampshire based on statutory common-law marriage recognized only at death). 10. But see John B. Crawley, Is the Honeymoon Over for Common-Law Marriage: A Consideration of the Continued Viability of the Common-Law Marriage Doctrine, 29 CUMB. L. REV. 399, 424–25 (1998–99). 11. See, e.g., In re Estate of Johnston, 1979 WL 1142 (Minn. Tax 1979); Williams v. Fireman’s Fund Insurance Co., 670 P.2d 453, 455 (Colo. Ct. App. 1983); UNIF. MARRIAGE AND DIVORCE ACT § 209, 9A U.L.A. 192 (1998). See generally Christopher L. Blakesley, The Putative Marriage Doctrine, 60 TUL. L. REV. 1 (1985); Gregory G. Sarno, Annot., Estoppel or Laches Precluding Lawful Spouse from Asserting

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Rights in Decedent’s Estate as Against Putative Spouse, 81 A.L.R.3d 110 (1977 & Supp. 2000). Cf. In re Estate of Hall, 707 N.E.2d 201, 205 (Ill. App. Ct. 1998). 12. Some states recognize other marital-substitute doctrines in addition to or in lieu of common-law marriage or the putative spouse doctrine. See, e.g., Martin v. Coleman, 19 S.W.3d 757 (Tenn. 2000); Lovas, supra note 8, at 362; RESTATEMENT (THIRD) OF PROPERTY § 2.2 Reporter’s Note 4, 5 (1999) (presenting theories of recovery available to cohabitants in some states, including Washington’s “meretricious relationship” approach and New Hampshire’s statutory treatment of certain cohabitants as spouses when one dies). 13. See, e.g., Poe v. Estate of Levy, 411 So. 2d 253 (Fla. Dist. Ct. App. 1982); Posik v. Layton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997); In re Estate of Palmen, 588 N.W.2d 493 (Minn. 1999). See generally Robbennolt & Johnson, supra note 4; WAGGONER ET AL., supra note 9, at 91–92; Robert C. Casad, Unmarried Couples and Unjust Enrichment: From Status to Contract and Back Again? 77 MICH. L. REV. 47 (1978); Craig W. Christensen, Legal Ordering of Family Values: The Case of Gay and Lesbian Families, 18 CARDOZO L. REV. 1299, 1338–48 (1997). 14. See Jones v. Daly, 176 Cal. Rptr. 130 (Ct. App. 1981); Sharmila Roy Grossman, Comment, The Illusory Rights of Marvin v. Marvin for the Same-Sex Couple Versus the Preferable Canadian Alternative—M.V.H., 38 CAL. W. L. REV. 547 (2002). Cf. Beth Barrett, Defining Queer: Lesbian and Gay Visibility in the Courtroom, 12 YALE J.L. & FEMINISM 143 (2000); Todd Brower, “A Stranger to Its Laws”: Homosexuality, Schemas, and the Lesson and Limits of Reasoning by Analogy, 38 SANTA CLARA L. REV. 65, 67 (1997). 15. See, e.g., Lynch v. Rogers, 10 A.2d 619, 624 (Md. 1940); cf. 1990 UNIF. PROB. CODE § 2-514, 8 U.L.A. 159–60 (1998). 16. See, e.g., In re Estate of Erickson, 337 N.W.2d 671 (Minn. 1983). 17. Fellows et al., supra note 6, at 31–32, 89. See generally Ira Mark Ellman, Divorce Rates, Marriage Rates, and the Problematic Persistence of Traditional Marital Roles, 34 FAM. L.Q. 1, 40–41 (2000); ANDREW J. CHERLIN, MARRIAGE, DIVORCE, REMARRIAGE 12 (1992); Barbara Foley Wilson, The Marry-Go Round, AM. DEMOGRAPHICS, Oct. 1991, at 52; JILL CURTIS, MAKING AND BREAKING FAMILIES 159 (1998). 18. See generally E. Gary Spitko, The Expressive Function of Succession Law and the Merits of Nonmarital Inclusion, 41 ARIZ. L. REV. 1063, 1090 (1999); David L. Chambers, What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 MICH. L. REV. 447, 460 (1996). 19. See Fellows et al., supra note 6, at 3 (noting that 1994 data indicated about 1.7 million “unmarried” households were probably headed by same-sex couples). For cases discussing and rejecting the possibility of homosexual marriage, see Jones v. Hallahan , 501 S.W.2d 588 (Ky. Ct. App. 1973); Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972); Storrs v. Holcomb, 645 N.Y.S.2d 286 (Sup. Ct. 1996), appeal dismissed, 666 N.Y.S.2d 835 (App. Div. 1997); De Santo v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App.), review denied, 84 Wash. 2d 1008 (1974). See generally Linda S. Eckols, The Marriage Mirage: The Personal and Social Identity Implications of SameGender Matrimony, 5 MICH. J. GENDER & L. 353, 383–93 (1999); Mark Strasser,

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Baker and Some Recipes for Disaster: On DOMA, Covenant Marriages, and Full Faith and Credit Jurisprudence, 64 BROOK. L. REV. 307, 341–42 (1998). Cf. Braschi v. Stahl Associates Co., 543 N.E.2d 49, 53 (N.Y. 1989) (interpreting housing regulations to protect surviving homosexual partner of deceased tenant); In re Cooper, 592 N.Y.S.2d 797 (App. Div. 1993); In re Petri, 211 N.Y.L.J. 29 (Surr. Ct. 1994). 20. See Mark Strasser, Sex, Law, and the Sacred Precincts of the Marital Bedroom: On State and Federal Right to Privacy Jurisprudence, 14 NOTRE DAME J.L. ETHICS & PUB. POL’Y 753, 772 (2000); Patricia A. Cain, Imagine There’s No Marriage, 16 QUINNIPIAC L.R. 27 (1996); Jennifer Wriggins, Marriage Law and Family: Autonomy, Interdependence, and Couples of the Same Gender, 41 B.C. L. REV. 265, 293 (2000); William N. Eskridge Jr., Multivocal Prejudices and Homo Equity, 74 IND. L.J. 1085, 1119 (1999); William N. Eskridge Jr., A History of Same-Sex Marriage, 79 VA. L. REV. 1419, 1433 (1993). See generally ANDREW SULLIVAN, LOVE UNDETECTABLE 134 (1998); Jay Michaelson, Essay, On Listening to the Kulturkampf, or, How America Overruled Bowers v. Hardwick, Even Though Romer v. Evans Didn’t, 49 DUKE L.J. 1559, 1612–18 (2000); William N. Eskridge, No Promo Homo: The Sedimentation of Antigay Discourse and the Channeling Effect of Judicial Review, 75 N.Y.U. L. REV. 1327, 1366–69 (2000); Laura A. Gans, Inverts, Perverts, and Converts: Sexual Orientation Conversion Therapy and Liability, 8 B.U. PUB. INT. L.J. 219, 227 (1999); Eckols, supra note 19, at 355, 358–69 (1999). Cf. Julie A. Greeberg, When Is a Man a Man, and When Is a Woman a Woman? 52 FLA. L. REV. 745, 760–68 (2000). 21. Although the precise number of children being reared by homosexual couples is unknown, there can be no doubt that the figure is sizable. See Fellows et al., supra note 6, at 3; Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 GEO. L.J. 459, 461 n.2 (1990); ABA Annual Meeting Provides Forum for Family Law Experts, 13 FAM. L. REP. 1512, 1513 (1987); William A. Henry III, Gay Parents: Under Fire and on the Rise, TIME, Sept. 20, 1993, at 66; Tsippi Wray, Lesbian Relationships and Parenthood: Models for Legal Recognition of Nontraditional Families, 21 HAMLINE L. REV. 127, 131 (1997); In re Alison D. v. Virginia M., 572 N.E.2d 27, 30) (N.Y. 1991) (noting estimates). See generally Kathryn Kendell, The Custody Challenge: Debunking Myths About Lesbian and Gay Parents and Their Children, 20 FAM. ADVOC. 21 (summer 1997); William B. Rubenstein, We Are Family: A Reflection on the Search for Legal Recognition of Lesbian and Gay Relationships, 8 J.L. & POL. 89 (1991). For concerns about homosexual parenting, see Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. ILL. L. REV. 833, 841–52. But see Carlos A. Ball & Janice Farrell Pea, Warring with Wardle: Morality, Social Science, and Gay and Lesbian Parents, 1998 U. ILL. L. REV. 254; Eskridge, Multivocal Prejudices and Homo Equity, supra note 20, at 1098. On the plight of gay youth, see generally Elvia R. Arriola, The Penalties for Puppy Love: Institutionalized Violence Against Lesbian, Gay, Bisexual and Transgendered Youth, 1 J. GENDER RACE & JUST. 429, 450 (1998). 22. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993); Baehr v. Miike, 950 P.2d 1234 (Haw. 1997); Raymond C. O’Brien, Domestic Partnership: Recognition and Responsibility, 32 SAN DIEGO L. REV. 163, 194–203 (1995). Hawaii’s legislative solution to the problem—the reciprocal beneficiary status—is discussed later in this chapter.

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On gay marriage, see ANDREW SULLIVAN, VIRTUALLY NORMAL 179 (1995); Eskridge, A History of Same-Sex Marriage, supra note 20, at 1503; Mark Strasser, Marital Acts, Morality, and the Right to Privacy, 30 N.M. L. REV. 43, 66–67 (2000); David L. Chambers & Nancy D. Polikoff, Family Law and Gay and Lesbian Family Issues in the Twentieth Century, 33 FAM. L.Q. 523, 524–29 (1999); Maura I. Strassberg, Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage, 75 N.C.L. REV. 1501, 1602 (1997). For arguments against same-sex marriage, see Rev. Raymond C. O’Brien, Single-Gender Marriage: A Religious Perspective, 7 TEMP. POL. & CIV. RTS. L. REV. 429 (1998). Moreover, not all gays and lesbians want the right to marry. See Mary C. Dunlap, The Lesbian and Gay Marriage Debate: A Microcosm of Our Hopes and Troubles in the Nineties, 1 J.L. & SEXUALITY 63 (1991). 23. See Vt. Stat. Ann. §§ 1201–1207 (2002). 24. See Burns v. Burns, 650 S.E.2d 47 (Ga. App. 2002), cert. denied, July 15, 2002. See generally Matthew Schuerman, Only in Vermont, THE ADVOCATE, March 5, 2002, at 13; Strasser, supra note 19. 25. William Eskridge has noted the view of some pragmatists that, while samesex marriage is neither immoral nor historically forbidden, it nonetheless is inappropriate at this time because it would upset too many people. Eskridge, A History of Same-Sex Marriage, supra note 20, at 1430–31, 1502–4. Cf. Stephen A. Newman, Human Cloning and the Substantive Due Process Riddle, 8 S. CAL. INTERDISCIPLINARY L.J. 153, 153–61 (1998); Wriggins, supra note 20, at 313; Garry Willis, Baptist Moralities, N.Y. POST, June 21, 1999, at 27. In Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000), Justice Stevens’s dissenting opinion notes the tendency to conflate rationality and history. He observes the “ancient roots” of unfavorable opinions about homosexuals and notes that, despite recent changes in attitudes, “prejudices are still prevalent and . . . have caused serious and tangible harm to countless [homosexuals].” Id. See generally E. Gary Spitko, A Biologic Argument for Gay Essentialism-Determinism: Implications for Equal Protection and Substantive Due Process, 18 U. HAW. L. REV. 571, 589–97 (1996). 26. For discussions of public attitudes, see Andrew McLeod & Isaiah Crawford, The Postmodern Family: An Examination of the Psychosocial and Legal Perspectives of Gay and Lesbian Parenting, in STIGMA AND SEXUAL ORIENTATION: UNDERSTANDING PREJUDICE AGAINST LESBIANS, GAY MEN, AND BISEXUALS 211, 215–16 (Gregory M. Herek ed., 1998); Robbennolt & Johnson, supra note 4, at 417. 27. Lawrence v. Texas, 123 S. Ct. 2472, 2484 (2003), overruling Bowers v. Hardwick, 478 U.S. 186 (1986). 28. Whether a trait is immutable can be important in determining whether a state law discriminating against a group should be treated as a suspect classification deserving heightened scrutiny by a federal court. On the proper interpretation of immutability as an element of a suspect classification, see Eskridge, Multivocal Prejudices and Homo Equity, supra note 20 (quoting Watkins v. United States Army, 847 F.2d 1329, 1347 (9th Cir. 1988)). Gary Spitko has noted that immutability of a trait is not required and is not alone sufficient for heightened scrutiny of a classification. See Spitko, supra note 25, at 598–621 (concluding that more important is whether homosexuals have suffered a history of discrimination and whether sexual orientation affects the ability of homosexuals to contribute to society).

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29. The Supreme Court cases indicate that state classifications subject to “intermediate scrutiny”—such as those for nonmarital children—must serve important governmental objectives and be substantially related to the achievement of those objectives. See O’Brien, Domestic Partnership: Recognition and Responsibility, supra note 22, at 199–200. On the exclusion of homosexuals from that classification, see Price, supra note 27, at 882; Eskridge, Multivocal Prejudices and Homo Equity, supra note 20, at 1102. 30. For an example of a Supreme Court opinion favorable to homosexuals under the less exacting rational-basis standard, see Romer v. Evans, 517 U.S. 620 (1996). See also Eskridge, Multivocal Prejudices and Homo Equity, supra note 20 (discussing the possible meanings of Evans). Unlike the state constitutional amendment to exclude gays from discrimination protection in Romer, however, state probate laws do not single out homosexuals for exclusion and therefore do not represent a clear animus against homosexuals. 31. See Robbennolt & Johnson, supra note 4; JESSE DUKEMINIER & STANLEY M. JOHANSON, WILLS, TRUSTS, AND ESTATES 71 (6th ed. 2000); EUGENE F. SCOLES & EDWARD C. HALBACH JR., PROBLEMS AND MATERIALS ON DECEDENTS’ ESTATES AND TRUSTS 14 (5th ed. 1993). 32. See Rhonda Smith, Lambda Legal Represents 21 Gays Who Lost Partners Sept. 11, at http://www.nyblade.com/national/020426c.htm. 33. See, e.g., Katz v. Harris, 457 S.E.2d 239 (Ga. Ct. App. 1995). In Katz, the decedent died intestate survived by his same-sex cohabitant of nine years. The administrator of Katz’s estate sued Harris for monies alleged to be part of Katz’s estate. The administrator also claimed that Harris had failed to account for various items of personalty. The court noted that although the items largely appeared to be of sentimental value, the record supported the claim to some degree. Id. If Katz and Harris had been married, Harris would most probably have been entitled to the personalty either through intestacy statutes or personal property exemptions under state law. 34. See generally Lawrence A. Frolik, What’s Love Got to Do With It?, 57 U. PITT. L. REV. 841 (1996); Melanie B. Leslie, The Myth of Testamentary Freedom, 38 ARIZ. L. REV. 235, 243–58 (1996); Jeffrey G. Sherman, Undue Influence and the Homosexual Testator, 42 U. PITT. L. REV. 225 (1981); E. Gary Spitko, Gone But Not Conforming: Protecting the Abhorrent Testator from Majoritarian Cultural Norms Through MinorityCulture Arbitration, 49 CASE W. RES. L. REV. 275, 286 (1999); McLeod & Crawford, supra note 26, at 218. On the question of prejudice in the courtroom against homosexuals generally, see Drury Sherrod & Peter M. Nardi, Homophobia in the Courtroom: An Assessment of Biases Against Gay Men and Lesbians in a Multiethnic Sample of Potential Jurors, in STIGMA AND SEXUAL ORIENTATION: UNDERSTANDING PREJUDICE AGAINST LESBIANS, GAY MEN, AND BISEXUALS 24, 35 (Gregory M. Herek ed., 1998); Todd Brower, Of Courts and Closets: A Doctrinal and Empirical Analysis of Lesbian and Gay Identity in the Courts, 38 SAN DIEGO L. REV. 565, 600, 611 (2001). Even when the gay decedent’s will is upheld, the surviving life partner may face numerous other hassles from the decedent’s “blood” family. See, e.g., Tanya K. Hernandez, The Property of Death, 50 U. PITT. L. REV. 971, 984 (1999). On the use of jury trials in will contests, see generally Josef Athanas, Comment, The Pros and Cons of Jury Trials in Will Contests, 1990 U. CHI. LEGAL F. 529.

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35. See, e.g., Spitko, supra note 18, at 1075. 36. See, e.g., Eskridge, A History of Same-Sex Marriage, supra note 20, at 1501–2 (quoting from minister’s letter describing such action by decedent’s family who refused to allow surviving partner even small mementos of the couple’s joint life). 37. See Dee Ann Habegger, Living in Sin and the Law: Benefits for Unmarried Couples Dependent upon Sexual Orientation? 33 IND. L. REV. 991, 1006 (2000). 38. The draft intestacy statute has been published or discussed in various places. See, e.g., RESTATEMENT (THIRD) OF PROPERTY § 2.2 Reporter’s Note 5 (1999) (providing domestic partner draft intestacy statute); WAGGONER ET AL., supra note 9, at 108–9; Fellows et al., supra note 6, at 92–94. An earlier version of the draft appeared in Waggoner, supra note 2, at 21, 81, 87. Professor Waggoner’s importance in fashioning Article II of the 1990 UPC is clear. See, e.g., Lawrence H. Averill Jr., An Eclectic History and Analysis of the 1990 Uniform Probate Code, 55 ALB. L. REV. 891, 898 (1992) (stating that 1990 UPC without doubt reveals the “pervasive influence and draftsmanship” of Professors Lawrence Waggoner and John Langbein). Professor Waggoner is also the Reporter for the Restatement (Third) of Property: Wills and Other Donative Transfers. 39. LAWRENCE W. WAGGONER, INTESTATE SHARE OF COMMITTED PARTNER (b)(i), (b)(ii) (working draft) (hereinafter COMMITTED PARTNER INTESTATE SHARE) (listing requirements to be a committed partner), printed in WAGGONER ET AL., supra note 9, at 108–9. 40. Id. at (b)(iii). Cf. Principles of the Law of Family Dissolution: Analysis and Recommendations §§ 6.01–.06 (Tentative Draft No. 4, 2000); RESTATEMENT (THIRD) OF PROP.: WILLS AND OTHER DONATIVE TRANSFERS § 2.2 comment g (1999); American Law Institute Debates Domestic Partnership Agreements, 26 FAM. L. REP. (BNA) No. 28, at 1352, 1353 (May 23, 2000). 41. COMMITTED PARTNER INTESTATE SHARE (c). 42. Id. 43. See Waggoner, supra note 2, at 81. 44. COMMITTED PARTNER INTESTATE SHARE (d). Some commentators have warned that requiring public symbols to evidence a committed partnership is dangerous, particularly when such public symbols subject same-sex partners to discrimination and even danger. See, e.g., Fellows et al., supra note 6 (also noting that religious and social considerations may inhibit public declarations of a couple’s same-sex relationship). 45. See COMMITTED PARTNER INTESTATE SHARE (e), (f). 46. See id. at (a). Professor Waggoner was the Chief Reporter for the 1990 Article II revisions to the UPC, so the structural similarity of the amount provisions of the UPC intestacy statute and the draft provision for the surviving committed partner is not surprising. The draft provision, if enacted, would amend the intestacy provision of the UPC. See Fellows et al., supra note 6, at 24–26. See generally Waggoner, supra note 2, at 80. 47. Professor Waggoner has not ruled out an elective share for the surviving committed partner. See Fellows et al., supra note 6, at 23. 48. Cf. Fellows et al., supra note 6, at 28–29 (concluding that proposal uses objective factors that reduce evidentiary controversies).

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49. See, e.g., Dee Ann Habegger, supra note 37, at 1008–13. Habegger notes that the two principal arguments for exclusion of heterosexuals are that heterosexuals can always choose marriage and that legitimizing the heterosexual cohabiting relationship would discourage marriage. She posits the following arguments for inclusion: all families deserve state support and recognition; all couples have a fundamental right not to marry; a homosexuals-only “pseudo-marriage” scheme relegates gay and lesbian couples forever to second-class status. 50. The Alabama opinion, Ex parte H.H., can be found at 2002 WL 227956 (Ala. 2002). Anyone who doubts the antipathy that many state and federal legislators feel toward gay and lesbian couples should examine the federal and state reactions when it appeared in the 1990s that Hawaii might permit same-sex marriage. See, e.g., Chambers & Polikoff, supra note 22, at 527–28. Older inheritance laws may treat a homosexual surviving partner far worse than a surviving heterosexual cohabitant. See, e.g., Vasquez v. Hawthorne, 994 P.2d 240 (Wash. Ct. App. 2000) (holding that while under state case law heterosexual cohabitant in “meretricious” relationship with partner can receive part of assets titled in partner’s name at termination of relationship, the same is not true of homosexual cohabitant). 51. Hawaii’s reciprocal beneficiary provisions are found in various parts of the state code. The principal inheritance provisions are found beginning at HA. CODE ANN. § 560:2–201 (1999). The reciprocal beneficiary statute makes it clear that the legislature does not equate the reciprocal beneficiary relationship with marriage, and gays and lesbians are not specifically referred to in the statute. See also HA. CODE ANN. § 572C-2 (1999). Baehr v. Lewin—the Hawaii court battle that ultimately led to the enactment of the reciprocal beneficiary law—was one of the most celebrated judicial decisions of the decade for gay and lesbians. See 852 P.2d 44 (Haw. 1993); Baehr v. Miike, 950 P.2d 1234 (Haw. 1997). 52. See HA. CODE ANN. § 572C-6 (1999). The Hawaii statutes treat the reciprocal beneficiary who adopts his partner’s child as a stepparent under the Uniform Probate Code. HA. CODE ANN. § 560:2–114 (1999). Thus far, a significant number of registrants are not gay. See Teresa Stanton Collett, Recognizing Same-Sex Marriage: Asking for the Impossible, 47 CATH. U.L. REV. 1245, 1265–68 (1998). 53. But cf. Fellows et al., supra note 6, at 30. The authors of the article believe that inclusion of biological and adoptive relatives among the class of individuals eligible for reciprocal beneficiary registration in Hawaii “undermines the recognition of same-sex committed relationships as uniquely intimate, emotional attachments and therefore supports rather than disrupts subordination based on sexual orientation.” It seems, however, that the primary goal of expanded default probate rules should be to better reflect the makeup of various forms of modern American families, and not to serve as a second-best way of validating gay and lesbian relationships. The Hawaii statute does allow various forms of families—those that cannot be centered upon marriage—to self-identify to obtain the default privileges of probate. (Married couples self-identify by participating in a marriage ceremony.) 54. But cf. Fellows et al., supra note 6, at 29–30 (1998) (asserting that Hawaii’s approach is underinclusive because it excludes committed couples that fail to sign

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a declaration). The authors further suggest that the self-identification requirement may work to the detriment of the socially and economically less powerful partner. The authors suggest that one potential solution is to use a dual system that provides inheritance rights to the surviving partner either because of registration (like the Hawaii approach) or an individualized determination (like the Waggoner proposal). The authors warn, however, that it is possible that a dual system could perpetuate the disadvantages of each. Id. at 64. 55. Cf. Eckols, supra note 19, at 405 (expressing concern that legalization of gay marriage opposed by society could expose homosexual spouses to increased hate acts and discrimination). A registration system such as that of Hawaii poses somewhat less risk, because two registrants of the same sex may or may not be gay or lesbian. Nonetheless, it is plausible that some gay and lesbian couples might fail to comply with a formal registration scheme for fear of the backlash that could follow their self-identification. 56. The Common Benefits Clause is found at VT. CONST. ch. 1, art. 7 (Common Benefits Clause). The landmark case is Baker v. State, 744 A.2d 864, 886 (Vt. 1999). For a criticism of the court’s analysis, see Recent Case, Same-Sex Marriage—Vermont Supreme Court Holds State Must Extend Same-Sex Couples the Same Benefits as Married Opposite-Sex Couples—Baker v. State, 113 HARV. L. REV. 1882 (2000) (arguing that Baker court improperly applied an expansive standard of review without specifying a fundamental constitutional interest). 57. See VT. H.B. 847 (SN), § 1(7) (April 26, 2000) (noting state interest in families); VT. H.B. 847 (SN), § 1(10) (April 26, 2000) (distinguishing civil marriage). 58. See 15 VT. STAT. ANN. §§ 1202, 1203 (2000); 18 VT. STAT. ANN. § 5163(a)(1) (2000); 15 VT. STAT. ANN. §§ 1204(a), 1204(b) (2000); 18 VT. STAT. ANN. §§ 5160–5169 (2000). The statutes prohibit a man from entering into a civil union with his father, grandfather, son, grandson, brother, brother’s son, sister’s son, father’s brother, or mother’s brother. Similar provisions apply to females. 59. 15 VT. STAT. ANN. §§ 1204(e)(3), 1204(e)(1), 1205, 1206 (2000). 60. DOMA provides that states can refuse to recognize gay and lesbian marriages from another state. It also denies such unions recognition under federal law. 28 U.S.C.A. § 1738C (West 1994 & Supp. 2000). See Melanie D. Price, The Privacy Paradox: The Divergent Paths of the United States Supreme Court and State Courts on Issues of Sexuality, 33 IND. L. REV. 863, 890 (2000) (noting since federal enactment of DOMA, thirty-four states have passed laws refusing to recognize same-sex marriage regardless of where the marriage was performed). It appears that many gay and lesbian couples from across the country will travel to Vermont and enter into a civil union there. The validity of the civil union under the laws of the couple’s home state remains questionable, however. See, e.g., Raphael Lewis, Vermont’s the Vegas of Civil Union Ceremonies, COMM. APPEAL (MEMPHIS), July 16, 2000, at A20. The Georgia case refusing to recognize the Vermont civil union is Burns v. Burns, 560 S.E.2d 47 (Ga. App. 2002), cert. denied, July 15, 2002. See also Schuerman, supra note 24, at 13. VT. H.B. 847 (SN) § 40 (April 26, 2000); Seth F. Kreimer, Territoriality and Moral Dissensus: Thoughts on Abortion, Slavery, Gay Marriage and Family Values, 16 QUINNIPIAC L. REV. 161 (1996).

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The problem of dissolving a Vermont civil union outside Vermont has also begun to appear. See Liz Halloran, Dissolving a Gay Union: Man Asks Connecticut to Put Asunder What Vermont Joined, HARTFORD COURANT, Aug. 9, 2002, at A1 (noting that two lower courts in Connecticut had ruled they had no jurisdiction to dissolve the civil union of a Connecticut resident who had entered into a Vermont civil union; also noting that resident’s purpose for seeking dissolution was to protect the inheritance rights of his children). 61. 15 VT. STAT. ANN. §§ 1301–6 (2000). 62. See Post 9/11: Has Gay Life Changed? at http://abclocal.go.com/kgo/news/ assignment7/092602_assign7_gay911.html; Demian, Surviving Terrorism: How Surviving Same-Sex Partners Are Faring in the Aftermath of September 11, 2001, at http://buddybuddy/com/survive.html; Surviving Sept. 11 Partners Regret Not Having Wills, at http://www.nyblade.com/national/020329a.htm; Smith, supra note 32; see also Siobhan Morrissey, The New Neighbors: Domestic Relations Law Struggles to Catch Up with Changes in Family Life, 88 A.B.A. J. 36 (March 2002). 63. See CAL. PROBATE CODE § 6401(c) (2002) (effective July 1, 2003); California DP Bill Signed in Remembrance of 9/11, at http://www.advocate.com/new_news.asp? id=6186&sd=09/11/02; Greg Lucas & Lynda Gledhill, 9/11 Aid Bill Contains Giant Bonus for Trial Lawyers, S.F. CHRONICLE, Sept. 11, 2002, at A17; Evan Halper, Gay Activists Split Despite Successes, L.A. TIMES, Sept. 16, 2002, Cal. Metro Section, Part 2, at 5; 2003 Cal. Legis. Serv. Ch. 421 (A.B. 205) (West). 64. See CAL. FAM. CODE § 297 (2002). 65. See id. Chapter Three 1. See CHRISTINA CRAWFORD, MOMMIE DEAREST (1978). Christina’s best-seller was made into a movie starring Faye Dunaway as Joan Crawford. Incidentally, Christina was adopted. The inheritance rights of adopted children are discussed in detail in Chapter 5. 2. The forms of child inheritance protection encountered most frequently are based on either the civil-law concept of a fixed, fractional forced inheritance (such as the legitime) or the discretionary judicial award of maintenance. The latter approach is a twentieth-century development now often found in commonwealth countries. For the English laws, see INHERITANCE (PROVISION FOR FAMILY AND DEPENDENTS) ACT 1975, c. 63, § 1, 17 Halsbury’s Statutes of England and Wales 388 (1993), as amended by LAW REFORM (SUCCESSION) ACT 1995, c. 41, § 2. In addition to its use in England, this discretionary approach—often referred to as testator’s family maintenance—is used in Malaysia, New Zealand, Singapore, commonwealth colonies, parts of Australia, and parts of Canada. See generally MARTINDALE-HUBBELL INTERNATIONAL LAW DIGEST (2000). Among the countries or their political subunits that provide children with protection from parental disinheritance through the civil-law forced share (or something akin to it) are Argentina, Austria, Belgium, Bolivia, Brazil, Bulgaria, Chile, Colombia, Costa Rica, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Finland, France, Germany, Greece, Guatemala, Honduras, Hungary, India, Ireland, Italy, Japan,

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Republic of Korea, Lebanon, Liechtenstein, Malta, Mexico, Mongolia, Netherlands, Nicaragua, Norway, Panama, Peru, Poland, Portugal, Russian Federation, Scotland, Spain, Sweden, Switzerland, Turkey, Ukraine, Uruguay, and Venezuela. See generally id. Some modern American probate scholars share the view underlying the civillaw forced share for children. See, e.g., Ronald Chester, Should American Children Be Protected Against Disinheritance? 32 REAL PROP. PROB. & TR. J. 405, 434 (1997). Earlier scholars also wrote favorably of the child’s forced share. See, e.g., JEREMY BENTHAM, THE THEORY OF LEGISLATION 113 (Upendra Baxi ed. 1975) (noting Bentham’s favorable comments on France’s system of protecting children from disinheritance). 3. See, e.g., Herbert D. Laube, The Right of a Testator to Pauperize His Helpless Dependents, 13 CORNELL L.Q. 559 (1928); Edward N. Cahn, Restraints on Disinheritance, 85 U. PA. L. REV. 139, 147 (1936); LEWIS M. SIMES, PUBLIC POLICY AND THE DEAD HAND 24, 29–30 (1955); W. D. MACDONALD, FRAUD ON THE WIDOW’S SHARE 35–36, 307–8 (1960); Paul G. Haskell, The Power of Disinheritance: Proposal for Reform, 52 GEO. L.J. 499, 519–20 (1964); Paul G. Haskell, Restraints upon the Disinheritance of Family Members, in DEATH, TAXES AND FAMILY PROPERTY 105, 114–15 (Edward C. Halbach Jr. ed., 1977); Jan E. Rein, A More Rational System for the Protection of Family Members Against Disinheritance: A Critique of Washington’s Pretermitted Child Statute and Other Matters, 15 GONZ. L. REV. 11, 44–56 (1979); HARRY D. KRAUSE, CHILD SUPPORT IN AMERICA: THE LEGAL PERSPECTIVE 38–44 (1981); Deborah A. Batts, I Didn’t Ask to Be Born: The American Law of Disinheritance and a Proposal for Change to a System of Protected Inheritance, 41 HASTINGS L.J. 1197, 1253–69 (1990); Ralph C. Brashier, Disinheritance and the Modern Family, 45 CASE W. RES. L. REV. 83, 163–80 (1994); Ralph C. Brashier, Protecting the Child from Disinheritance: Must Louisiana Stand Alone?, 57 LA. L. REV. 1 (1996); Chester, Should American Children Be Protected?, supra note 2, at 434; Ronald Chester, Disinheritance and the American Child: An Alternative from British Columbia, 1998 UTAH L. REV. 1, 2; J. Thomas Oldham, What Does the U.S. System Regarding Inheritance Rights of Children Reveal About American Families? 33 FAM. L.Q. 265, 272 (1999). 4. See Donald J. Hernandez, Demographic Trends and the Living Arrangements of Children, in IMPACT OF DIVORCE, SINGLE PARENTING, AND STEPPARENTING ON CHILDREN 3, 19 (E. Mavis Hetherington & Josephine D. Arasteh eds., 1988) (noting projections that between 40 and 70 percent of white children born around 1980 will spend some part of their childhood in a single-parent family, and about 90 percent of black children will spend some part of their childhood in a single-parent family); SARA MCLANAHAN & GARY SANDEFUR, GROWING UP WITH A SINGLE PARENT: WHAT HURTS, WHAT HELPS 1–2 (1994) (noting that economics plays a substantial role in the risk level for children in single-parent homes). McLanahan and Sandefur note that children being reared by widowed mothers are less at risk, at least in part because widowed mothers typically have more resources available to them than nevermarried single mothers. Id. at 77–78. See also RONALD L. SIMONS & ASSOCIATES, UNDERSTANDING DIFFERENCES BETWEEN DIVORCED AND INTACT FAMILIES (1996) (noting that single-parent families are about five times more likely to be poor than two-parent families; concluding that while the incidence of divorce probably cannot

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be reduced, economic measures can be taken to help reduce economic stress experienced by single parents and divorced mothers); Luis M. Laosa, Ethnicity and Single Parenting in the United States, in IMPACT OF DIVORCE, SINGLE PARENTING, AND STEPPARENTING ON CHILDREN 39 (E. Mavis Hetherington & Josephine D. Arasteh eds., 1988) (noting that among the repercussions of single parenting on children, the “most palpable impact” is financial); NANCY E. DOWD, IN DEFENSE OF SINGLEPARENT FAMILIES 17 (1997) (discussing economic plight of children and noting the “stunning” fact that more than two-thirds of nonmarital children have no legally recognized father); John T. Gaubatz, Notes Toward a Truly Modern Wills Act, 31 U. MIAMI L. REV. 497, 524–28 (1977) (discussing the lack of protection afforded disinherited children under American probate law and noting that homestead and similar protections that may include disinherited children are often so small as to be virtually meaningless). 5. See 1 WILLIAM BLACKSTONE, COMMENTARIES *435; cf. Kiken v. Kiken, 694 A.2d 557 (N.J. 1997); KRAUSE, supra note 3, at 3. 6. BENTHAM, supra note 2, at 49–50. 7. Ohio v. Sullivan, 787 F. Supp. 724, 735 (N.D. Ohio 1991) (discussing congressional findings concerning the need for federal legislation on child support). 8. See, e.g., Monmouth County Div. of Soc. Services, 705 A.2d 408, 410–11 (N.J. Super. Ct. Chanc. Div. 1997). For a sampling of statutes requiring the parent to support the child or making nonsupport a crime, see ALA. CODE § 13A-13-4 (Michie 1994); ALASKA STAT. § 11.51.120 (1998); id. at § 25.20.030; ARIZ. REV. STAT. ANN. § 25-501 (2001); ARK. CODE ANN. § 5-26-401(a)(2), (3) (Michie 1997); CAL. FAM. CODE § 3900, 3901 (West 1994); COLO. REV. STAT. § 14-6-101 (1992); CONN. GEN. STAT. ANN. § 53-304 (West 1994); DEL. CODE ANN. tit. 13, § 501 (1999); FLA. STAT. ANN. § 856.04 (West 2000); GA. CODE ANN. § 19-7-2 (Michie 1999); HAW. REV. STAT. § 709-903 (1985); IDAHO CODE § 18-401 (1948 & Supp. 2000); ILL. ANN. STAT. CH. 750, para. 45/1.1 (Smith-Hurd 1999); IND. CODE ANN. §§ 35-46-1-4, -5 (Burns 1998); IOWA CODE ANN. § 726.5 (West 1993); KAN. STAT. ANN. § 213605(a)(1), (7) (1995); KY. REV. STAT. ANN. § 405.020 (Michie/Bobbs-Merrill 1999); LA. REV. STAT. ANN. § 14:74 (West 1986 & Supp. 2000); ME. REV. STAT. ANN. tit. 19-A, § 1504 (1964); MD. CODE ANN. FAM. L. § 5-203(b) (1999); MASS. GEN. LAWS ch. 273, § 1 (2000); MICH. COMP. LAWS ANN. § 750.161(1) (West 1991); MINN. STAT. ANN. § 609.375 (West 1987); MISS. CODE ANN. § 97-5-3- (1972); MO. ANN. STAT. § 568.040 (West 2001); MONT. CODE ANN. § 45-5-621 (1999); NEB. REV. STAT. § 28705 (1998); NEV. REV. STAT. ANN. § 201.015 (Michie 1996); N.H. REV. STAT. ANN. § 639:4 (1995); N.J. STAT. ANN. § 9:6-1 (West 1993); N.M. STAT. ANN. § 30-6-1 (Michie 2001); N.Y. PENAL LAW § 260.00 (McKinney 2000); N.Y. PENAL LAW § 260.05 (McKinney 2000); N.C. GEN. STAT. § 14-322(d) (1999); N.C. GEN. STAT. § 14-322.1 (1999); N.D. CENT. CODE § 14-08.1-01 (1997); OHIO REV. CODE ANN. § 2919.21(a)(2) (Anderson 1996); OKLA. STAT. ANN. tit. 21, § 852 (Westlaw 2001); OR. REV. STAT. § 163.555 (1999); 23 PA. CONS. STAT. ANN. § 4321(2) (West 1991); R.I. GEN. LAWS § 11-2-1 (1994 & Supp. 1999); S.C. CODE ANN. § 20-7-40 (Law. Co-op 1976); S.D. CODIFIED LAWS § 25-7-6.1 (Lexis 1999); TENN. CODE ANN. § 39-15101 (2000); TEX. PENAL CODE ANN. § 25.05 (West 1994 & Supp. 2000); UTAH CODE

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ANN. § 78-45-3 (1996 & Supp. 2000); VT. STAT. ANN. tit. 15, § 202 (1989); VA. CODE ANN. § 20-61 (Michie 2000); WASH. REV. CODE Ann. § 26.20.035 (West 1997); W. VA. CODE § 49-1-3(h) (1999); WISC. STAT. ANN. § 49.90 (West 1997 & Supp. 2000); WYO. STAT. ANN. § 14-2-204 (Michie 1999); see also Donna Schuele, Origins and Development of the Law of Parental Child Support, 27 J. FAM. L. 807, 840 (1988–89); J. Thomas Oldham, Lessons from the New English and Australian Child Support Systems, 29 VAND. J. TRANSNAT’L L. 691, 693 (1996); JOSEPH I. LIEBERMAN, CHILD SUPPORT IN AMERICA IX (1986); SCOTT E. FRIEDMAN, THE LAW OF PARENT-CHILD RELATIONSHIPS: A HANDBOOK 101–2 (1992); James Herbie Difonzo, Customized Marriage, 75 IND. L.J. 875 (2000); Ann Laquer Estin, Love and Obligation: Family Law and the Romance of Economics, 36 WM. & MARY L. REV. 989, 1066–81 (1995). 9. See Stephen D. Sugarman, Financial Support of Children and the End of Welfare as We Know It, 81 VA. L. REV. 2523, 2526, 2533 (1995); Laura W. Morgan, A Shift in the Ruling Paradigm: Child Support as Outside the Contours of “Family Law,” 12 DIVORCE LITIG. 77 (May 2000) (discussing the federal role in child support enforcement schemes and citing congressional materials); Amy E. Watkins, Comment, The Child Support Recovery Act of 1992: Squeezing Blood from a Stone, 6 SETON HALL CONST. L.J. 845, 845–46 (1996) (discussing case of wealthy investment advisor who owed over half a million in child support and sought to avoid that obligation by moving from state to state and even out of the country, while transferring his monies into separate bank accounts in various states and foreign countries); Paul K. Legler, The Coming Revolution in Child Support Policy: Implications of the 1996 Welfare Act, 30 FAM. L.Q. 519, 520 & nn.5–6 (1996). The Legler article provides many helpful citations of sources of information concerning child support. 10. See, e.g., Monmouth County Div. of Soc. Services, 705 A.2d 408, 415 (N.J. Super. Ct. Chanc. Div. 1997) (expressing concern for taxpayers when parents fail to pay child support). Courts in other states have expressed similar concerns. Cf. State v. Rios, 938 P.2d 1013 (Alaska 1997); Cyrus v. Mondesir, 515 A.2d 736, 738–39 (D.C. 1986); In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280, 290 (Ct. App. 1998). 11. See THOMAS A. JACOBS, CHILDREN AND THE LAW: RIGHTS AND OBLIGATIONS § 7:05 (1995) (discussing guardianships for minors). Parents are typically the natural guardians of their minor children. In some states laws distinguish between the parents’ rights over the person of the child and their rights over the child’s estate. See, e.g., In re Estate of Fisher, 503 So. 2d 962, 964 (Fla. Dist. Ct. App. 1987). Some state statutes authorize parents to receive up to a fixed sum on behalf of their minor child without formal guardianship proceedings. See, e.g., OKLA. STAT. ANN. tit. 30, § 2-116 (1991) (permitting delivery of up to $10,000 to parent without appointment of guardian); PA. STAT. ANN. tit. 20, § 5101 (West 1975) (covering estate with a net value of $25,000 or less). 12. See JACOBS, supra note 11, at § 7:27 (1995) (discussing duties of guardian who manages property of minor ward). The guardian’s duties are likely to include the filing of an inventory and a periodic accounting. The guardian can face criminal liability for misuse of the ward’s funds—for example, in instances of embezzlement. Id. at § 7.38. The guardian may also be held liable for losses due to her negligence in managing the estate. Costs may be imposed upon the guardian for failing to perform

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required duties. Id. Most states require a reasonable compensation award to the guardian. At least some states may provide that the guardian receive no compensation unless the will bequeathing property to the minor provides for compensation to the guardian. See id. § 7:31 (1995) (discussing guardian’s compensation). 13. Under the UPC, the child in the nonnuclear family is always a potential recipient of the intestate parent’s estate; however, the child may not actually receive an award since the surviving spouse takes the first cut of the decedent’s estate. For example, the drafters of the UPC currently recommend that the surviving spouse receive at a minimum the first $100,000 of the estate. Obviously, if the estate is not greater than $100,000, the children will not receive anything, even though the decedent died without a nuclear family. See 1990 UNIF. PROB. CODE § 2-102, 8 U.L.A. (PART I) 73, 81 (1998). 14. Historically, the child’s forced share was not limited to civil-law systems. Into the fourteenth century, English law distributed a forced portion of the testator’s chattels to his children. This right of children to be protected against disinheritance is even mentioned in the Magna Carta. Nonetheless, the right disappeared over the course of time. Some legal historians believe that the disappearance may have been a historical accident. If this is so, then reviving the child’s forced inheritance could be viewed as a long overdue corrective measure. Considering the change in modern family structures, some sort of correction is needed at least to protect those minor children particularly at risk of being disinherited. For a discussion of the child’s forced portion and its disappearance under English law, see generally Brashier, Disinheritance and the Modern Family, supra note 3, at 113–14. 15. See LA. CIV. CODE ART. 1493(A) (1992 & West Supp. 2001); id. at 1494, 1495. 16. See LA. CIV. CODE art 1621 (2002). Cf. Katherine Shaw Spaht, The Remnant of Forced Heirship: The Interrelationship of Undue Influence, What’s Become of Disinherison, and the Unfinished Business of the Stepparent Usufruct, 60 LA. L. REV. 637 (2000) (discussing disinherison and its inadvertent repeal in the late 1990s). Cf. AnneMarie E. Rhodes, Abandoning Parents Under Intestacy: Where We Are, Where We Need to Go, 27 IND. L. REV. 517, 530 (1994). 17. See, e.g., Haskell, The Power of Disinheritance, supra note 3, at 525; Chester, Disinheritance and the American Child, supra note 3, at 21. 18. In this book, the discussion of adult children assumes that such children do not have a disability. 19. Deborah A. Batts incorporated the child’s lack of choice into the title of her important article about American probate laws permitting child disinheritance. See Batts, supra note 3. 20. See Thomas Jefferson, Bill to Enable Tenants in Fee Tail to Convey Their Lands in Fee Simple, in 1 THE PAPERS OF THOMAS JEFFERSON 560 (J. Boyd ed., 1950), quoted in Jeffrey G. Sherman, Posthumous Meddling: An Instrumentalist Theory of Testamentary Restraints on Conjugal and Religious Choices, 99 U. ILL. L. REV. 1273, 1286 (1999); WILLS OF THE RICH & FAMOUS 54 (E. Nass ed., 1991). 21. It seems quite likely that the problem of child disinheritance has increased substantially since the beginning of the sexual revolution of the late 1960s, which led to our multiple-marriage society and the dramatic increase in nonmarital child-

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births. Prior to that time, some authors had suggested that child disinheritance was not a problem worth addressing. See, e.g., Olin L. Browder Jr., Recent Patterns of Testate Succession in the United States and England, 67 MICH. L. REV. 1303, 1307 (1969) (finding that there had been little inclination to provide children with disinheritance protection because parents rarely disinherit children and then typically do so only when cause exists); Allison Dunham, The Method, Process and Frequency of Wealth Transmission at Death, 30 U. CHI. L. REV. 241, 256–57 (1963) (concluding that disinheritance of minor children is a problem that “does not really exist in modern society given the longevity of the average adult together with the early marriage and the early time of having children”). Dunham’s observation that parents typically die after their children have reached majority remains valid. Nonetheless, at least some parents who have disinherited their child will die during the child’s minority. Moreover, for those who believe that all children should be protected against disinheritance, Dunham’s point carries little weight. 22. Kujawinski v. Kujawinski, 376 N.E.2d 1382 (Ill. 1978). 23. See ANDREW J. CHERLIN, MARRIAGE, DIVORCE, REMARRIAGE 80–83 (1992); Margaret F. Brinig, The Family Franchise: Elderly Parents and Adult Siblings, 1996 UTAH L. REV. 393, 426–27 (noting a belief that men are prone to “view attachment to children in terms of their current relationship”); Kim A. Feigenbaum, Note, The Changing Family Structure: Challenging Stepchildren’s Lack of Inheritance Rights, 66 BROOK. L. REV. 167, 177 (2000) (noting evidence that stepfathers treat their stepchildren nearly as well as biological fathers treat their biological children); cf. In re Estate of Brown, 597 P.2d 23, 24 (Idaho 1979) (noting that while testator acknowledged infant from a prior marriage, he devised his entire estate to his second wife and their four children). 24. See Greer Litton Fox, Children’s Well-Being: Clues and Caveats from Social Research, 39 SANTA CLARA L. REV. 1075, 1083 (1999); Sam Fulwood III & Mary Powers, Census Finds Surge in Births Out of Wedlock, COMM. APPEAL (MEMPHIS), July 14, 1993, at A1; LIEBERMAN, supra note 8 (discussing disgraceful state of child support in which the majority of American fathers ordered to pay child support disobey those orders). 25. In re Estate of Brown, 597 P.2d 23, 24 (Idaho 1979) (noting that while testator acknowledged infant from a prior marriage, he devised his entire estate to his second wife and their four children). 26. Hill v. Matthews, 416 P.2d 144, 144 (N.M. 1966). 27. Herring v. Moore, 561 S.W.2d 95, 96–97 (Ky. Ct. App. 1977). 28. See also L.W.K. v. E.R.C., 735 N.E.2d 359, 362 (Mass. 2000) (discussing child-support obligation of father who disinherited his minor, nonmarital daughter after leaving her the sum of one dollar, stating in the will that she “shall not be considered as an heir-at-law of mine” nor “a child or mine or issue of mine for any purpose under this will”). 29. For a discussion of inheritance patterns prior to the mid-twentieth century, see MARVIN B. SUSSMAN ET AL., THE FAMILY AND INHERITANCE 86–95 (1970); Olin L. Browder, Recent Patterns of Testate Succession in the United States and England, 67 MICH. L. REV. 1303, 1307 (1969); Allison Dunham, The Method, Process and Frequency

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of Wealth Transmission at Death, 30 U. CHI. L. REV. 241, 252–53 (1963). The studies are of limited use today, for there has been pervasive and marked change in family structures since they were undertaken. 30. See 1990 UNIF. PROB. CODE § 2-114(c), 8 U.L.A. (Part I) 91 (1998) (limiting inheritance rights of parent and his kindred if he failed to support child); Patricia G. Roberts, Adopted and Nonmarital Children—Exploring the 1990 Uniform Probate Code’s Intestacy and Class Gift Provisions, 32 REAL PROP. PROB. & TR. J. 539, 543–44, 569 (1998) (noting that most non-UPC jurisdictions have not enacted a similar provision); Rhodes, supra note 16, at 520; Paula A. Monopoli, “Deadbeat Dads”: Should Support and Inheritance Be Linked? 49 U. MIAMI L. REV. 257, 260 & n.13, 295–97 (1994) (discussing Rhode Island case). 31. For the English laws, see INHERITANCE (PROVISION FOR FAMILY AND DEPENDENTS) ACT 1975, c. 63, § 1, 17 Halsbury’s Statutes of England and Wales 388 (1993), as amended by LAW REFORM (SUCCESSION) ACT 1995, c. 41, § 2. See Joseph Dainow, Limitations on Testamentary Freedom in England, 25 CORNELL L.Q. 337, 355–56 (1940); Richard R. Schaul-Yoder, Note, British Inheritance Legislation: Discretionary Distribution at Death, 8 B.C. INT’L & COMP. L. REV. 205, 220 n.182 (1985). 32. For views in favor of judicial discretion, see Chester, Disinheritance and the American Child, supra note 3, at 18; Gaubatz, supra note 4, at 558–59. 33. L.W.K. v. E.R.C., 735 N.E.2d 359 (Mass. 2000) (discussing “prevailing contemporary legal authority” and concluding that child-support order against father creates obligation binding upon his estate even though order does not specifically provide for its survival). The L.W.K. court also cites the Uniform Marriage and Divorce Act § 316(c), which provides that “Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child but not by the death of a parent obligated to support the child.” UNIF. MARRIAGE & DIVORCE ACT § 316(c), 9A U.L.A. 102 (1998). 34. See Marsha Garrison, Law Making for Baby Making: An Interpretive Approach to the Determination of Legal Parentage, 113 HARV. L. REV. 835, 911–12 (2000) (noting that in 1991 almost three-fourths of never-married mothers indicated they had not obtained support award from the fathers of their children); Oldham, supra note 8, at 731 (noting that in 1986 only slightly more than half of ever-married custodial parents with children had a child-support award; less than one-fifth of never-married custodial parents had a child-support award); Marsha Garrison, An Evaluation of Two Models of Parental Obligation, 86 CALIF. L. REV. 41, 43 (1998) (noting that in late 1970s only three-fifths of women eligible for child-support payments had obtained support orders). Regarding child-support collection, see CHILDREN’S DEFENSE FUND, THE STATE OF AMERICA’S CHILDREN 1992, 71–121 (listing percentages of child support collected in each state in 1990, ranging from a high of 32.6 percent in Vermont to a low of 5.6 percent in Arizona). 35. See Oldham, supra note 3. Cf. Brashier, Protecting the Child from Disinheritance, supra note 3, at 7, 13, 15, 17, 22 (rejecting as unconvincing a list of excuses that might be given in support of the parent’s right to disinherit a young child). 36. See Frances F. Marcus, Disinheritance Law Kindles Passion in Louisiana, N.Y. TIMES, Dec. 1, 1989, at B7 (quoting statement by legislator to former staff attorney in the state attorney general’s office).

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37. A proposal to impose a support obligation upon the estate of a parent of a minor child can be viewed in different ways. For example, it can be viewed as a benevolent, liberal effort to provide for the child’s best interests. At the same time, as a pure financial matter it can be viewed as a conservative effort to place the responsibility where it rightfully belongs, so that others can concentrate their wealth on their own families. Cf. Katharine T. Bartlett, Feminism and Family Law, 33 FAM. L.Q. 475, 480–81 (2000) (noting that late-twentieth century child-support reform was probably based on conservative impulse, but could also be seen as a matter of gender equity). 38. See Oldham, supra note 8, at 731 (noting costs of attempts to collect child support). 39. Child-support guidelines generally provide fixed rules for calculating the award. They are, therefore, an exception to the general preference in family law for judicial discretion. Because child-support guidelines rely primarily on fixed rules, they can be used in probate proceedings without implicating probate law’s general disdain for judicial discretion. See Jane C. Murphy, Eroding the Myth of Discretionary Justice in Family Law: The Child Support Experiment, 70 N.C. L. REV. 209, 226, 241 (1991); but cf. Oldham, supra note 8, at 717. For a brief overview of the evolution of modern child-support guidelines and a discussion of the possibility of national child-support guidelines, see Morgan, supra note 9. For a discussion of the propriety of emerging federal control of child support enforcement, see Ann Laquer Estin, Federalism and Child Support, 5 VA. J. SOC. POL’Y & L. 541 (1998). 40. See 11 U.S.C. § 523(a)(5) (1993 & Supp. 2002); see generally 4 COLLIER ON BANKRUPTCY ¶ 523.11 (Alan N. Resnick & Henry J. Sommer eds., 2002). 41. A trust is a flexible management tool that at least has the potential to protect the child’s interest. Moreover, because the minor child cannot manage the support award himself, some form of management is required on his behalf. Thus the use of a statutory trust for a minor child’s support/inheritance award is far less objectionable than a statutory trust with a life interest for the surviving spouse. The principal question regarding the use of such trust would be whether the size of the award justified the costs associated with the use of a trust. Cf. Lawrence W. Waggoner, The Multiple-Marriage Society and Spousal Rights Under the Revised Uniform Probate Code, 76 IOWA L. REV. 223, 234–35 (1991) (noting the possibility that a statutory trust could provide a fairer outcome than current “crude” divisions made under revised UPC intestacy provisions, but concluding that trust would be offensive to many surviving spouses and impractical in many small estates). Chapter Four 1. See Marsha Garrison, The Technological Family: What’s New and What’s Not, 33 FAM. L.Q. 691, 700 (1999); see also Michael H. v. Gerald D., 491 U.S. 110, 118 (1989) (plurality opinion); N.A.H. v. S.L.S., 9 P.3d 354, 357, 360 (Colo. 2000); In re Marriage of K.E.V., 883 P.2d 1246, 1254 (Mont. 1994) (Turnage, C. J., dissenting in part); In re Angel Lace M., 516 N.W.2d 678 (Wis. 1994); see also Gilbert A. Holmes, The Tie That Binds: The Constitutional Right of Children to Maintain Relationships with Parent-like Individuals, 53 MD. L. REV. 358, 385–411 (1994); Katharine T. Bartlett,

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Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 VA. L. REV. 879, 881–83 (1984); Janet L. Richards, Redefining Parenthood: Parental Rights Versus Child Rights, 40 WAYNE L. REV. 1227, 1270–71 (1994); Walter J. Wadlington, Baby M: Catalyst for Family Law Reform? 5 J. CONTEMP. HEALTH L. & POL’Y 1, 9–10 (1989); Kim C. Stanger, Note, J.W.F. v. Schoolcraft: The Husband’s Rights to His Wife’s Illegitimate Child Under Utah Law, 1989 B.Y.U. L. REV. 955, 970; Rubano v. DiCenzo, 759 A.2d 959, 974–76 (R.I. 2000). 2. See 1 WILLIAM BLACKSTONE, COMMENTARIES *459 (“[A] bastard . . . can inherit nothing, being looked upon as the son of nobody”); Powers v. Wilkinson, 506 N.E.2d 842, 846 (Mass. 1987) (quoting Cooley v. Dewey, 4 Pick. 93, 94 (Mass. 1827)); Lawrence P. Hampton, Background on Actions Involving Disputed Paternity: Definitions, Status and Rights of the Parties Generally, and Threshold Evidentiary and Procedural Questions, in 1 DISPUTED PATERNITY PROCEEDINGS § 1.02 (Sidney B. Schatkin ed., 4th ed. rev., 1995); SAMUEL M. DAVIS & MORTIMER D. SCHWARTZ, CHILDREN’S RIGHTS AND THE LAW 8 (1987) (quoting HERODUTUS, THE HISTORIES 303 (A. Selincourt trans., 1955)). 3. See Lalli v. Lalli, 439 U.S. 259, 266 (1978) (plurality opinion); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972); Harry D. Krause, Equal Protection for the Illegitimate, 65 MICH. L. REV. 477, 499 (1967). 4. See N.Y. EST. POWERS & TRUSTS LAW § 4-1.2 supp. practice commentaries (McKinney Supp. 1995) (noting evolution of statutory language); cf. Richard D. Lamm, Why We Must Restigmatize the Institution of Illegitimacy, THE HUMANIST 35 (Mar. 13, 1997). Courts note that many women today choose to bear and rear their children alone. See, e.g., Richard B. v. Sandra B. B., 615 N.Y.S.2d 955, 957 (Sup. Ct. 1994). For a breakdown of unmarried motherhood by age and ethnicity, see S. J. Ventura et al., U.S. DEP’T OF HEALTH & HUM. SERVS., Trends in Pregnancies and Pregnancy Rates by Outcome: Estimates for the United States, 1976–96, Nat’l Center for Health Statistics Series 21, Nat’l Vital Statistics System No. 56 (2000). The birth rate of unmarried women increased by 49 percent from 1980 to 1990 and then remained constant during the first part of the 1990s. Id. at 8. Most of the increase in births to unmarried women between the early 1980s and early 1990s was in births to unmarried but cohabiting women. Id. at 18. Fewer unmarried women are choosing abortion. Id. at 12; see also Elizabeth Mehren, American Family Steadily Eroding, Researchers Find, L.A. TIMES, July 20, 1988, at 1 (citing second edition of RICHARD S. BELOUS ET AL., WHAT’S HAPPENING TO THE AMERICAN FAMILY? TENSIONS, HOPES AND REALITIES; noting that nonmarital birth rate increased from 5 percent in 1960 to 23 percent by 1986); Garrison, supra note 1, at 694; Steven M. Prye, Estates in Brave New World of Fatherhood, ST. LOUIS POST-DISPATCH, Oct. 5, 1992, at 16 (discussing the importance of the nonmarital birthrate for probate). Congress believes the government has an important interest in preventing nonmarital pregnancy and reducing nonmarital births. See Ann Laquer Estin, Federalism and Child Support, 5 VA. J. SOC. POL’Y & L. 541 (1998) (quoting Personal Responsibility and Work Opportunity Reconciliation Act of 1996 § 101(10), Pub. L. No. 104-193, 110 Stat. 2105 (1996)). 5. The textual discussion centers upon the nonmarital child’s inheritance from the intestate estate of the child’s father. Yet other important inheritance questions

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can arise. One difficult problem occurs in the area of class gifts—for example, when a third party bequeaths interests in a trust to the putative father’s “children” or “issue.” Courts faced with this kind of testamentary disposition typically recognize that in such instances the intention of the testator must be the guiding principle. Thus the initial question should be whether the testator intended to include nonmarital children by the use of the term “issue” or “children.” When the testator’s intent cannot be gleaned and no statutory guidance exists, some modern courts are inclined to include the nonmarital children within the class, while others may presume that the use of the word “children” in a will includes only marital children. See generally Hampton, supra note 2, at § 1.03[4] (contrasting Massachusetts case “rejecting the notion that morality can be enforced by a rule of construction regarding trusts whereby nonmarital children were excluded from the meaning of ‘issue’” with District of Columbia case noting claimants would have to overcome presumption that “children” as used in will means only legitimate children). For a discussion of Supreme Court cases between 1968 and 1989 that involved unwed parents and their children generally, see Laurence C. Nolan, “Unwed Children” and Their Parents Before the United States Supreme Court from Levy to Michael H.: Unlikely Participants in Constitutional Jurisprudence, 28 CAP. U. L. REV. 1 (1999). 6. 430 U.S. 762 (1977) (5-4 decision). 7. 439 U.S. 259 (1978) (plurality opinion). 8. Id. at 268; cf. id. at 279 (Brennan, J., dissenting) (discussing procedural aspects of nonmarital child’s claim). 9. 476 U.S. 852, 853–55 (1986). 10. See 1969 UNIF. PROB. CODE § 2-109 (alternative 2), 8 U.L.A. (PART I) 284 (1998). Subsection (ii) further provides that paternity established under the subsection is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his and has not refused to support the child. Some states have adopted provisions substantially similar to UPC § 2-109(2) (alt. 2). See, e.g., ALA. CODE § 43-8-48(2) (1991); ME. REV. STAT. ANN. tit. 18, § 2-109(2) (2000); MO. ANN. STAT. § 474.060(2) (Vernon 1992); NEB. REV. STAT. § 30-2309(2) (1989). Other states use related but modified versions. See, e.g., DEL. CODE ANN. tit. 12, § 508(2) (1987); S.C. CODE ANN. § 62-2-109(2) (Law. Coop. Supp. 1999); TENN. CODE ANN. § 31-2-105(2) (Supp. 1998); VA. CODE ANN. § 64.1-5.1 (Michie 1995). In recent years state courts have disagreed over the constitutionality of intestacy statutes that restrict the inheritance rights of fathers but not mothers, seeking to inherit from the nonmarital child. See, e.g., Rainey v. Chever, 510 S.E.2d 823 (Ga. 1999), cert. denied, 527 U.S. 1044 (1999); In re Estate of Hicks, 675 N.E.2d 89 (Ill. 1996); Scheller v. Pessetto, 783 P.2d 70 (Utah Ct. App. 1989); Ganim v. Roberts, 529 A.2d 194 (Conn. 1987); King v. Commonwealth, 269 S.E.2d 793 (Va. 1980). In contrast to subsection (ii) of § 2-109 of the 1969 UPC, the 1990 UPC takes a gender-neutral approach under which the natural parent and his or her kindred are precluded from inheriting from the child unless that natural parent has openly treated the child as his or her own and has not refused to support the child. See 1990 UNIF. PROB. CODE § 2-114(c), 8 U.L.A. (PART I) 91 (1998); see also Patricia G. Roberts, Adopted and Nonmarital Children—Exploring the 1990 Uniform Probate

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Code’s Intestacy and Class Gift Provisions, 32 REAL PROP. PROB. & TR. J. 539, 548–51 (1998); see also Katheleen Guzman, Essay: What Price Paternity? 53 OKLA. L. REV. 77 (2000). The 2000 Uniform Parentage Act is found at 2000 UNIF. PARENTAGE ACT, 9B U.L.A. 299 (2001). For historical background on the Uniform Parentage Act, see generally Harry D. Krause, The Uniform Parentage Act, 8 FAM. L.Q. 1, 16 (1974); John J. Sampson & Harry L. Tindall, The Uniform Parentage Act: A Complete Revision Proposed, 17 DEL. LAW. 6 (summer 1999). The 1973 Uniform Parentage Act is found at 1973 UNIF. PARENTAGE ACT, 9B U.L.A. 377 (2001) (indicating its adoption in Alabama, California, Colorado, Delaware, Hawaii, Illinois, Kansas, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Rhode Island, Washington, and Wyoming). 11. See 1990 UNIF. PROB. CODE § 2-114(a), 8 U.L.A. (PART I) 91 (1998); 1990 UNIF. PROB. CODE § 2-114(c), 8 U.L.A. (PART I) 91 (1998); 2000 UNIF. PARENTAGE ACT, 9B U.L.A. 299 (2001); 1973 UNIF. PARENTAGE ACT, 9B U.L.A. 377 (2001). 12. See generally John H. Langbein & Lawrence W. Waggoner, Reforming the Law of Gratuitous Transfers: The New Uniform Probate Code, 55 ALB. L. REV. 871, 878 (1992); J.P.C. v. O.C.B., 2000 WL 1364400 (Ala. Ct. Civ. App. 2000) (Crawley, J., dissenting) (noting that Alabama’s deviation from the uniform provisions are “illogical and unfair”). 13. See Janet L. Dolgin, Choice, Tradition, and the New Genetics: The Fragmentation of the Ideology of Family, 32 CONN. L. REV. 523, 527–41 (2000); Janet L. Dolgin, Just a Gene: Judicial Assumptions About Parenthood, 40 UCLA L. REV. 637, 648, 661, 669–70 (1993) (discussing modern judicial notions of parenthood); Anne B. Poulin, Illegitimacy and Family Privacy: A Note on Maternal Cooperation in Paternity Suits, 70 NW. U. L. REV. 910, 919 (1976); JUDITH A. BAER, WOMEN IN AMERICAN LAW 39–44 (1991); Michael L. Jackson, Fatherhood and the Law: Reproductive Rights and Responsibilities of Men, 9 TEX. J. WOMEN & L. 53, 55 (1999); Angela R. Arkin, Evidentiary and Related Issues in Paternity Proceedings, in 1 DISPUTED PATERNITY PROCEEDINGS, supra note 2, at app. 3A; id. app. 3B. See also Crago v. Kinzie, 733 N.E.2d 1219 (Ohio Ct. Common Pleas 2000); Reed v. Boozer, 693 A.2d 233 (Pa. Super. Ct. 1997). 14. See, e.g., 1973 UNIF. PARENTAGE ACT § 4(a)(1), 9B U.L.A. 377, 394 (2001); 2000 UNIF. PARENTAGE ACT § 204(a), 9B U.L.A. 299, 311 (2001). See generally Donald M. Zupanec, Annot., Who May Dispute Presumption of Legitimacy of Child Conceived or Born During Wedlock, 90 A.L.R.3D 1032 (1979 & Supp. 2000); Arkin, supra note 13, at §§ 3.14 to .15; Lori B. Andrews, Alternative Reproduction, in 2 DISPUTED PATERNITY PROCEEDINGS, supra note 2, at § 30.02; 2 FREDERICK POLLOCK & FREDERIC W. MAITLAND, THE HISTORY OF ENGLISH LAW 398 (2d ed. 1968). For case discussion of the presumption of legitimacy, see Hanley v. Flanigan, 428 N.Y.S.2d 865, 867 (Fam. Ct. 1980); Denbow v. Harris, 583 A.2d 205, 206–7 (Me. 1990); Department of Social Servs. ex rel. Lancaster v. Franzel, 516 N.W.2d 495, 497 n.1 (Mich. Ct. App.), appeal denied, 525 N.W.2d 456 (Mich. 1994); In re Marriage of K.E.V., 883 P.2d 1246, 1251 (Mont. 1994); Henderson v. Wietzikoski, 841 S.W.2d 101, 104 (Tex. Ct. App. 1992); State ex rel. J.W.F., 799 P.2d 710, 713–14 (Utah 1990); Clark v. State, 118 A.2d 366, 368 (Md. 1955); Hackley v. Hackley, 395 N.W.2d 906, 908 (Mich. 1986); Miscovich v. Miscovich, 688 A.2d 726 (Pa. Super. Ct. 1997), aff’d, 720 A.2d 764 (Pa.

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1998), cert. denied, 119 S. Ct. 1757 (1999); In re J.W.T., 872 S.W.2d 189, 192–93 (Tex. 1994). On the standard of proof, compare 1973 UNIF. PARENTAGE ACT § 4(b), 9B U.L.A. 377, 394 (2001); 2000 UNIF. PARENTAGE ACT § 204(b), 9B U.L.A. 299, 311 (2001); MONT. CODE ANN. § 40-6-105(3) (1993); In re Estate of Ludwig, 657 N.Y.S.2d 35 (App. Div. 1997); Freedman v. McCandless, 654 A.2d 529, 532 (Pa. 1995). See also William C. Smith, Daddy No More, A.B.A. JOURNAL, July 1999, at 30. For case discussions of “nonmarital” children born during the mother’s marriage, see Smith v. Bumgarner, 443 S.E.2d 744, 745 (N.C. Ct. App. 1994); Lewis v. Schneider, 890 P.2d 148, 149–50 (Colo. Ct. App. 1994); Estey v. Mawdsley, 217 A.2d 493, 494 (Conn. Cir. Ct. 1966); Wilkins v. Georgia Dep’t of Human Res., 337 S.E.2d 20, 22 (Ga. 1985); Johnson v. Studley-Preston, 812 P.2d 1216, 1219 (Idaho 1991); Smith v. Robbins, 283 N.W.2d 725, 729 (Mich. Ct. App. 1979); In re Locklear, 334 S.E.2d 46, 50–51 (N.C. 1985); State v. Coliton, 17 N.W.2d 546, 549–51 (N.D. 1945); Department of Social Servs. v. Carter, 506 N.W.2d 603, 604–5 (Mich. Ct. App. 1993); Afshar v. Zamarron, 530 N.W.2d 490, 492–93 (Mich. Ct. App. 1995). 15. See 2000 UNIF. PARENTAGE ACT § 204(a), 9B U.L.A. 299, 311 (2001); 1973 UNIF. PARENTAGE ACT § 4(a), 9B U.L.A. 377, 393–94 (2001). 16. See 1973 UNIF. PARENTAGE ACT §§ 4(a)(4), (5), 9B U.L.A. 377, 394 (2001); 2000 UNIF. PARENTAGE ACT § 204(a)(5) & comm. (amended 2002). 17. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 117–18, 129–30 (1989) (plurality opinion); cf. Spielmaker v. Lee, 517 N.W.2d 558, 559–62 (Mich. Ct. App. 1994). 18. See Hampton, supra note 2, at § 1.05[3](b); id. § 1.06; Sidney B. Schatkin, The Standard of Proof, id. § 4.01 to .10; Nadine E. Roddy, The Preclusive Effect of Paternity Findings in Divorce Decrees, DIVORCE LITIG. 169 (Sept. 1998). 19. See, e.g., W. v. W., 728 A.2d 1076, 1079 (Conn. 1999); Florida Dep’t of Revenue v. Edden, 761 So. 2d 436 (Fla. Dist. Ct. App. 2000); Pietros v. Pietros, 638 A.2d 545, 548 (R.I. 1994); K. B. v. D. B., 639 N.E.2d 725, 727 (Mass. App. Ct. 1994) (quoting Symonds v. Symonds, 432 N.E.2d 700, 703 (Mass. 1982)); T.P.D. v. A.C.D., 981 P.2d 116 (Alaska 1999). 20. See K. B. v. D. B., 639 N.E.2d 725, 731 (Mass. App. Ct. 1994). Cf. Commonwealth ex rel. Gonzalez v. Andreas, 369 A.2d 416, 419 (Pa. Super. Ct. 1976); A. R. v. C. R., 583 N.E.2d 840, 843–44 (Mass. 1992); C.C.A. v. J.M.A., 744 So. 2d 515 (Fla. Dist. Ct. App. 1999). See also Nicholas Zill, Behavior, Achievement, and Health Problems Among Children in Stepfamilies: Findings from a National Survey of Child Health, in IMPACT OF DIVORCE, SINGLE PARENTING, AND STEPPARENTING ON CHILDREN 325, 327 (E. Mavis Hetherington & Josephine D. Arasteh eds., 1988); K.A.T. v. C.A.B., 645 A.2d 570, 572 (D.C. 1994). 21. See Commonwealth ex rel. Gonzalez v. Andreas, 369 A.2d 416, 419 (Pa. Super. Ct. 1976); In re Marriage of Adams, 701 N.E.2d 1131 (Ill. App. Ct. 1998); see also John C. Fletcher, Where in the World Are We Going with the New Genetics?, 5 J. CONTEMP. HEALTH L. & POL’Y 33, 37 (1989); Richard B. v. Sandra B. B., 615 N.Y.S.2d 955, 957 (Sup. Ct. 1994); A. R. v. C. R., 583 N.E.2d 840, 844 (Mass. 1992); St. Hilaire v. DeBlois, 721 A.2d 133 (Vt. 1998). 22. In re Estate of Simmons, Carton, 644 A.2d 791 (Pa. Super. Ct. 1994). See also In re Marriage of K.E.V., 883 P.2d 1246, 1250–51 (Mont. 1994); In re Worcester, 1997

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WL 307381, 245 Ariz. Adv. Rep. 15 (Ariz. Ct. App. 1997); In re Marriage of Sleeper, 982 P.2d 1126 (Ore. 1999); Dews v. Dews, 632 A.2d 1160 (D.C. 1993). 23. Richard B. v. Sandra B. B., 615 N.Y.S.2d 955 (Sup. Ct. 1994). See generally David B. Sweet, Annot., Stepparent’s Postdivorce Duty to Support Stepchild, 44 A.L.R.4TH 520, 526–28 (1986). 24. See State v. Michael George K., 531 S.E.2d 669 (W. Va. 2000); Campbell v. Campbell, 540 N.Y.S.2d 556 (App. Div. 1989); DeVaux v. DeVaux, 514 N.W.2d 640, 645 (Neb. 1994); Hackley v. Hackley, 395 N.W.2d 906, 914 (Mich. 1986); Langston v. Riffe, 754 A.2d 389, 393, 397–98 (Md. Ct. App. 2000). But see Ex Parte State ex rel. A.T., 695 So. 2d 624 (Ala. 1997); Alexander v. Morgan, 452 S.E.2d 370, 372 (Va. Ct. App. 1995); Cleo A. E. v. Rickie Gene E., 438 S.E.2d 886, 888 (W. Va. 1993); In re Marriage of M. E., 622 N.E.2d 578, 583 (Ind. Ct. App. 1993). See generally Donald M. Zupanec, Annot., Effect, in Subsequent Proceedings, of Paternity Findings or Implications in Divorce or Annulment Decree or in Support or Custody Order Made Incidental Thereto, 78 A.L.R.3D 846 (1977 & Supp. 2000). 25. See Roddy, supra note 18. 26. See 1973 UNIF. PARENTAGE ACT § 6(a)(2), 9B U.L.A. 377, 411 (2001); 1973 UNIF. PARENTAGE ACT § 6 cmt., 9B U.L.A. 377, 411 (2001). 27. 2000 UNIF. PARENTAGE ACT § 607, 9B U.L.A. 299, 341 (2001). 28. See, e.g., Willerton v. Bassham, 889 P.2d 823 (Nev. 1995); Mower County Human Services v. Graves, 611 N.W.2d 386 (Minn. Ct. App. 2000); Hall v. Lalli, 977 P.2d 776 (Ariz. 1999); In re Paternity of Chad M. G., 535 N.W.2d 97, 99–100 (Wis. Ct. App. 1995); Arsenault v. Carrier, 390 A.2d 1048, 1050–51 (Me. 1978); Johnson v. Hunter, 447 N.W.2d 871, 874 (Minn. 1989); In re Griesmeyer, 707 N.E.2d 72 (Ill. App. Ct. 1998); J. C. v. E. M., 632 N.E.2d 429 (Mass. App. Ct. 1994); In re M. C., 895 P.2d 1098 (Colo. Ct. App. 1994), aff’d sub nom., S.O.V. v. People ex rel. M. C., 914 P.2d 355 (Colo. 1996); Snow v. Armstrong, 508 So. 2d 266, 267 (Ala. 1987); Settle ex rel. Sullivan v. Beasley, 308 S.E.2d 288, 290–92 (N.C. 1983); Burley v. Johnson, 658 P.2d 8, 15 (Wash. Ct. App.), review denied, 676 P.2d 419 (Wash. 1983); State ex rel. Div. of Human Servs. v. Benjamin P. B., 395 S.E.2d 220, 225 (W. Va. 1990); Bill ex rel. Bill v. Gossett, 647 P.2d 649, 652–55 (Ariz. Ct. App. 1982; State ex rel. Casas v. Fellmer, 521 N.W.2d 738 (Iowa 1994). 29. See Hall v. Lalli, 977 P.2d 776, 782 (Ariz. 1999); Roddy, supra note 18. 30. See, e.g., C. C. v. A. B., 550 N.E.2d 365, 367–69 (Mass. 1990); Girard v. Wagenmaker, 470 N.W.2d 372, 373 (Mich. 1991); Henderson v. Wietzikoski, 841 S.W.2d 101, 102–3 (Tex. Ct. App. 1992); C.A.S. v. M.C.S., 468 N.W.2d 719, 721 (Wis. 1991); D.B.S. v. M. S., 888 P.2d 875 (Kan. Ct. App.), aff’d, 903 P.2d 1345 (Kan. 1995). See generally Zupanec, supra note 14. 31. See, e.g., McDaniels v. Carlson, 738 P.2d 254 (Wash. 1987); John M. v. Paula T., 571 A.2d 1380, 1388 (Pa.) (Nix, J., concurring), cert. denied, 498 U.S. 850 (1990); C.T.D. v. N.E.E., 653 A.2d 28 (Pa. Super. Ct. 1995); Weidenbacher v. Duclos, 661 A.2d 988, 999 (Conn. 1995); Sider v. Sider, 639 A.2d 1076, 1084 (Md. 1994). 32. See Michael H. v. Gerald D., 491 U.S. 110, 117–18 (1989) (plurality opinion). Although the “existing family” in the Michael H. case included the mother, the child, and the mother’s husband, the Court indicated that the family unit entitled to respect also includes unmarried parents and their children. Id. at 124 n.3. See also

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Weidenbacher v. Duclos, 661 A.2d 988, 999–1000 (Conn. 1995); Alicia R. v. Timothy M., 34 Cal. Rptr. 2d 868, 869 n.2 (Ct. App. 1994); Comino v. Kelley, 30 Cal. Rptr. 2d 728 (Ct. App. 1994). See generally Jackson, supra note 13, at 77. In Spielmaker v. Lee, 517 N.W.2d 558, 561 (Mich. Ct. App. 1994), the Michigan Court of Appeals questioned the constitutionality of an irrebuttable presumption that works against the putative father but not the child or the mother. 33. The limitations upon paternity claims asserted after the putative father’s death vary significantly among the jurisdictions. Compare ARK. CODE ANN. § 28-9209(d) (Michie 1987) with GA. CODE ANN. § 53-4-4(c) (1997). See also In re A.S.L., 923 S.W.2d 814 (Tex. Ct. App. 1996); In re Estate of Simmons-Carton, 644 A.2d 791 (Pa. Super. Ct. 1994); Estate of Owen S. Hoffman, 466 A.2d 1087, 1089 (Pa. Super. Ct. 1983). 34. See Lewis v. Schneider, 890 P.2d 148, 149 (Colo. Ct. App. 1994), cert. denied, No. 93CA1334 (Colo. Mar. 6, 1995); Batcheldor v. Boyd, 423 S.E.2d 810, 813 (N.C. Ct. App. 1992), review denied, 426 S.E.2d 700 (N.C. 1993); Estate of Cornelious, 674 P.2d 245, 249 (Cal. 1984). 35. See, e.g., Boatman v. Dawkins, 743 S.W.2d 800 (Ark. 1988). 36. In re Estate of Grubbs, 753 So. 2d 1043 (Miss. 2000). Note that Mississippi takes the unusual stance that adoption by a new family does not affect the adopted child’s right of inheritance from its biological parents. Thus even if the twins had been fully supported by their adoptive parents and were potential heirs from and through their adoptive parents, they also remained potential heirs of their biological parents. This minority approach is discussed in Chapter 5. 37. For exhumation cases, see Lach v. Welch, 1997 WL 536330 (Conn. Super. Ct. 1997); In re Estate of Chambers, 711 So. 2d 878, 882 (Miss. 1998); Batcheldor v. Boyd, 423 S.E.2d 810, 814 (N.C. Ct. App. 1992), review denied, 426 S.E.2d 700 (N.C. 1993); Alexander v. Alexander, 537 N.E.2d 1310, 1311, 1314 (Ohio P. Ct. 1988); Wawrykow v. Simonich, 652 A.2d 843, 846 (Pa. Super. Ct. 1994). But cf. In re Estate of Janis, 620 N.Y.S.2d 342, 343 (App. Div. 1994) (mem.); N.Y. EST. POWERS & TRUSTS LAW § 4-1.2(a)(2)(D) (McKinney 1998); In re Estate of Geller, 980 P.2d 665 (Okla. Ct. Civ. App.), cert. denied, 528 U.S. 868 (1999). The 2000 Uniform Parentage Act provides that “[f]or good cause shown, the court may order genetic testing of a deceased individual.” 2000 UNIF. PARENTAGE ACT (2000) § 509, 9B U.L.A. 295, 335 (2001). On the testing of the decedent’s blood relatives, see Lach v. Welch, 1997 WL 536330 (Conn. Super. Ct. 1997); Sudwischer v. Estate of Hoffpauir, 589 So. 2d 474, 476 (La. 1991), cert. denied, 504 U.S. 909 (1992); In re Estate of Rogers, 583 A.2d 782, 784–85 (N.J. Super. Ct. App. Div. 1990); In re Estate of Sandler, 612 N.Y.S.2d 756, 757 (Sur. Ct. 1994). Cf. 2000 UNIF. PARENTAGE ACT § 508, 9B U.L.A. 295, 334–35 (2001) (allowing court to order genetic testing of relatives of putative father “for good cause and under circumstances the court considers to be just,” after finding that the “need for genetic testing outweighs the legitimate interests of the individual sought to be tested”). See generally J. E. Cullens Jr., Should the Legitimate Child Be Forced to Pay for the Sins of Her Father? Sudwischer v. Estate of Hoffpauir, 53 LA. L. REV. 1675 (1993); Charles N. Le Ray, Note, Implications of DNA Technology on Posthumous Paternity

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Determination: Deciding the Facts When Daddy Can’t Give His Opinion, 35 B.C. L. REV. 747 passim (1994). 38. See Griffin v. Succession of Branch, 479 So. 2d 324 (La. 1985); Sudwischer v. Estate of Hoffpauir, 589 So. 2d 474 (La. 1991). But see In re Estate of Schneider, 441 N.W.2d 335, 337 n.1 (Wis. Ct. App. 1989); Estate of Cornelious, 674 P.2d 245, 247–49 (Cal. 1984), appeal dismissed sub nom. Hall v. Taylor, 466 U.S. 967 (1984). 39. See, e.g., In re Geller, 980 P.2d 665 (Okla. Ct. Civ. App. 1999). 40. Lalli is reported at 439 U.S. 239 (1978) (plurality opinion). New York’s current statute remains more restrictive than that of many other states. See, e.g., In re Estate of Wilkins, 707 N.Y.S.2d 774, 776, 778 (Surr. Ct. 2000). Some courts note a distinction between a claim of paternity for support purposes and a claim for inheritance purposes. See Carr v. Osborn, 757 So. 2d 1205 (Ala. Civ. App. 2000); see also In re A.S.L., 923 S.W.2d 814, 817–19 (Tex. Ct. App. 1996). 41. For an example of an intermediate approach, see IND. CODE § 29-1-2-7(b) (Michie 2000). Some states may in essence use an intermediate approach if their probate courts rely on claims limitations found in parentage statutes. In other states, however, courts have held that the limitations periods under parentage statutes apply to support claims only, not inheritance claims. Federal legislation concerning appropriations for the benefit of dependent children requires that states establish procedures that permit paternity to be established at any time before the child attains the age of eighteen. 42 U.S.C.A. § 666(a)(5)(A)(i) (West 1991 & Supp. 2000). 42. A statute making posthumous paternity claims available to minor but not adult nonmarital children—i.e., a statute distinguishing among classes of nonmarital children based on their age—should survive an equal protection attack because of the state’s interest in the support of its minor children. One might also anticipate an equal protection challenge by adult nonmarital children who claim a denial of equal protection based on their different treatment from adult legitimate children or adult children who have proven paternity during the father’s lifetime. To this claim, one notes that Lalli allows a state to ban all posthumous claims by nonmarital children; thus, a statute permitting claims by minor nonmarital children to further the valid state interests in assuring their support would hardly seem a violation of equal protection principles. Chapter Five 1. In re Adoption of Berston, 206 N.W.2d 28 (Minn. 1973) (upholding adoption). 2. See generally KATARINA WEGAR, ADOPTION, IDENTITY, AND KINSHIP 23 (1997); Emilio S. Binavince, Adoption and the Law of Descent and Distribution: A Comparative Study and a Proposal for Model Legislation, 51 CORNELL L.Q. 152, 155 n.11 (1966); Walter J. Wadlington III, Minimum Age Difference as a Requisite for Adoption, 1966 DUKE L.J. 392, 400–404; Leo A. Huard, The Law of Adoption: Ancient and Modern, 9 VAND. L. REV. 743, 747 (1956); Joseph Ben-Or, The Law of Adoption in the United States: Its Massachusetts Origins and the Statute of 1851, reprinted in UNITED STATES CONSTITUTIONAL AND LEGAL HISTORY: LAW, SOCIETY, AND DOMESTIC RELATIONS 90 passim (1987); Yasuhide Kawashima, Adoption in Early America, 20 J. FAM. L. 677

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passim (1981–82); Stephen B. Presser, The Historical Background of the American Law of Adoption, 11 J. FAM. L. 443 passim (1971–72); Naomi Cahn & Jana Singer, Adoption, Identity, and the Constitution, 2 U. PA. J. CONST. L. 150, 154–57 (1999). 3. See generally Gail McKnight Beckman, Changes Highlight Need for Making Special Provisions for Adopted or Illegitimate Children, 12 EST. PLAN. 352–55 (1985); Jan E. Rein, Relatives by Blood, Adoption, and Association: Who Should Get What and Why, 37 VAND. L. REV. 711, 718–31 (1984); Lawrence P. Hampton, The Aftermath of Adoption: The Economic Consequences—Support, Inheritances and Taxes, in 2 ADOPTION LAW & PRACTICE §§ 12.01 to .09 (1994). For some interesting twists in adoption law, see Jahnke v. Jahnke, 526 N.W.2d 159, 161 (Iowa 1994); Green v. Sollenberger, 656 A.2d 773, 777–79 (Md. 1995). 4. WEGAR, supra note 2 (citing A. ABERNATHY, AN ADOPTEE’S RIGHT TO KNOW 441 (1981)). Cf. 1994 BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 65 (114th ed. 1994) 5. National Adoption Information Clearinghouse, at http://www.calib.com/naic/ pubs/s-number.htm; see also Kathy S. Stolley, Statistics on Adoption in the United States, available at http://www.futureofchildren.org/adp/index.htm. 6. See Anjani Chandra et al., U.S. DEP’T OF HEALTH & HUM. SERVS., Advance Data, Adoption, Adoption Seeking, and Relinquishment for Adoption in the United States, Nat’l Center for Health Statistics No. 306 (May 11, 1999) at 1. 7. See id. at 9; see also WEGAR, supra note 2, at 21. 8. See 1990 UNIF. PROB. CODE § 2-114(b), 8 U.L.A. (PART I) 91 (1998); see also 1994 UNIF. ADOPTION ACT §§ 1–104, 9 U.L.A. (PART IA) 23 (1999); id. § 1-105; 1969 UNIF. ADOPTION ACT § 14(a), 9 U.L.A. (PART IA) 198–99 (1999). Among the provisions making the adopted child the potential heir of the adoptive parents, see ALA. CODE § 43-8-91(1) (1991); ALASKA STAT. § 13.11.045(1) (2000); ARIZ. REV. STAT. ANN. § 14-2114(B) (1995 & Supp. 2000–2001); ARK. CODE ANN. § 9-9-215(a)(2) (Michie 1998); CAL. PROB. CODE § 6450 (West Supp. 1995 & 2001 Electronic Update); COLO. REV. STAT. ANN. § 15-11-114(2) (West Supp. 1996); CONN. GEN. STAT. § 45a-731(2) (West 1993 & Supp. 2000); DEL. CODE ANN. tit. 12, § 508(1) (1999); D.C. CODE ANN. § 16-312(a) (1997 & Supp. 2000); FLA. STAT. ANN. § 732.108(1) (West 1995); GA. CODE ANN. § 19-8-19(a)(2) (1999); HAW. REV. STAT. § 560:2-109(a)(1) (1985 & Supp. 1992); IDAHO CODE § 15-2-109(a) (1979); 755 ILL. COMP. STAT. ANN. 5/2-4(a) (Smith-Hurd 1992 & Supp. 2000); IND. CODE ANN. § 29-1-2-8 (Burns 2000); IOWA CODE ANN. § 633.223 (West Supp. 1992 & Supp. 2000); KAN. STAT. ANN. § 59-2118(b) (1994); KY. REV. STAT. ANN. § 199.520(2) (Michie/ Bobbs-Merrill Supp. 1999 & Supp. 2000); LA. CIV. CODE ANN. art. 214 (West 1993); ME. REV. STAT. ANN. tit. 18-A, § 2-109(1) (West 1998); MD. CODE ANN., EST. & TRUSTS § 1-207(a) (1991); MASS. GEN. LAWS ANN. ch. 210, § 7 (West 1998); MICH. COMP. LAWS ANN. § 700.110(3) (West 1995); MINN. STAT. ANN. § 524.2-114(1) (West 1975 & Supp. 2001); MISS. CODE ANN. § 93-17-13 (1994 & Supp. 2000); MO. ANN. STAT. § 474.060 (Vernon 1992); MONT. CODE ANN. § 72-2-124(2) (1999); NEB. REV. STAT. § 30-2309 (1989); NEV. REV. STAT. ANN. § 127.160 (Michie 1998); N.H. REV. STAT. ANN. § 170-B:20(IV) (1994 & Supp. 2000); N.J. STAT. ANN. § 9:3-50(b) (West 1993 & Supp. 2000); N.M. STAT. ANN. § 45-2-114(B) (Michie 1995); N.Y. DOM. REL. LAW § 117(1)(c) (McKinney 1999); N.C. GEN. STAT. § 29-17(a) (Lexis 1999); N.D.

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CENT. CODE § 30.1.-04-09 (1996); OHIO REV. CODE ANN. § 3107.15(A)(2) (Anderson 1989); OKLA. STAT. ANN. tit. 10, § 7505-6.5(A) (West 1998 & Supp. 2001); OR. REV. STAT. § 112.175(1) (1993); 20 PA. CONS. STAT. ANN. § 2108 (1975 & Supp. 2000); R.I. GEN. LAWS § 15-7-16 (1994); S.C. CODE ANN. § 62-2-109(1) (Law. Co-op. 1987 & Supp. 2000); S.D. CODIFIED LAWS ANN. § 29A-2-114(b) (Michie 1997); TENN. CODE ANN. § 31-2-105(1) (1984 & Supp. 2000); id. § 36-1-126(b); TEX. PROB. CODE ANN. § 40 (West 1980 & Supp. 2001); UTAH CODE ANN. § 75-2-109(1) (1993); VT. STAT. ANN. tit. 15, § 448 (1998); VA. CODE ANN. § 64.1-5.1(1) (Michie 1995); WASH. REV. CODE ANN. § 26.33.260 (West 1997); W. VA. CODE § 48-4-11(b) (Michie 1999); WIS. STAT. ANN. § 851.51(1) (West 1991 & Supp. 1994); WYO. STAT. ANNOT. § 2-4107 (1999). For provisions ending the potential heirship rights of the adopted child and its pre-adoption parents, see ALA. CODE § 43-8-48 (1991); ALASKA STAT. § 13.11.045(1) (1985 & Supp. 1995); A RIZ . REV. STAT. ANN . § 14-2114(B) (1995 & Supp. 2000–2001); ARK. CODE ANN. § 9-9-215(a)(1) (Michie 1998); CAL. PROB. CODE § 6451(a) (West Supp. 1995 & 2001 Electronic Update); CONN. GEN. STAT. § 45a731(6) (West 1993 & Supp. 2000); DEL. CODE ANN. tit. 12, § 508(1) (1999); D.C. CODE ANN. § 16-312(a) (1997 & Supp. 2000); FLA. STAT. ANN. § 732.108(1) (West 1995) (excepting adoption by close relative); GA. CODE ANN. § 19-8-19-(a)(1) (1999); HAW. REV. STAT. § 560:2-109(a)(1) (1985 & Supp. 1992); IDAHO CODE § 15-2-109(a) (1979); IND. CODE ANN. § 29-1-2-8 (Burns 2000) (excepting adoption by relatives within sixth degree); IOWA CODE ANN. § 633.223 (West 1992 & Supp. 2000); KY. REV. STAT. ANN. § 199.520(2) (Michie/Bobbs-Merrill Supp. 1999 & Supp. 2000); ME. REV. STAT. ANN. tit. 18-A, § 2-109(1) (West 1998) (unless adoption decree provides otherwise); MD. CODE ANN., EST. & TRUSTS § 1-207(a) (1991); MASS. ANN. LAWS ch. 210, § 7 (Law Co-op. 1994); MICH. COMP. LAWS ANN. § 700.110(3) (West 1995); MINN. STAT. ANN. § 524.2-114(1) (West 1975 & Supp. 2001); MO. ANN. STAT. § 474.060.1 (Vernon 1992); MONT. CODE ANN. § 72-2-124(2) (1999); NEB. REV. STAT. § 30-2309(1) (1989); NEV. REV. STAT. ANN. § 127.160 (Michie 1998); N.H. REV. STAT. ANN. § 170-B:20(III) (1994 & Supp. 2000); N.J. STAT. ANN. § 9:3-50(c)(2) (West 1993 & Supp. 2000); N.M. STAT. ANN. § 45-2-114(c) (Michie 1995) (unless natural parent has treated child as own); N.Y. DOM. REL. LAW § 117(1)(b) (McKinney 1999); N.C. GEN. STAT. § 29-17(b) (Lexis 1999); N.D. CENT. CODE § 30.104-09(1) (1996); OHIO REV. CODE ANN. § 3107.15(A) (Anderson 1989); OR. REV. STAT. § 112.175(2) (1993); 20 PA. CONS. STAT. ANN. § 2108 (1975 & Supp. 2000) (excepting estates of natural kin other than natural parents who have maintained family relationship with adopted person); S.C. CODE ANN. § 62-2-109(1) (Law. Coop. 1987 & Supp. 2000); S.D. CODIFIED LAWS ANN. § 29A-2-114(b) (Michie 1997) (excepting adoption by birth grandparent or descendant of birth grandparent); TENN. CODE ANN. § 31-2-105(1) (1984 & Supp. 2000); UTAH CODE ANN. § 75-2109(1) (1993); VA. CODE ANN. § 64.1-5.1(1) (Michie 1995); WASH. REV. CODE ANN. § 26.33.260 (West 1997); W. VA. CODE § 48-4-11(b) (Michie 1999); WIS. STAT. ANN. § 851.51(2) (West 1991 & Supp. 1994). 9. See Alack v. Phelps, 230 So. 2d 789, 793 (Miss. 1970); OKLA. STAT. ANN. tit. 10, § 7505-6.5(B) (West 1998 & Supp. 2000); In re Estate of Marriott, 515 P.2d 571, 574 (Okla. 1973). Cf. COLO. REV. STAT. ANN. § 15-11-103(6) (West 1995); In re Estate

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of Cregar, 333 N.E.2d 540, 542–43 (Ill. App. Ct. 1975); KAN. STAT. ANN. § 592118(b) (1994); LA. CIV. CODE ANN. art. 214 (West 1993); ME. REV. STAT. ANN. tit. 18-A, § 2-109(1) (West 1998); N.Y. DOM. REL. LAW § 117(1)(e) (McKinney 1999); 20 PA. CONS. STAT. ANN. § 2108 (1975 & Supp. 2000); R.I. GEN. LAWS § 15-7-17 (1994); S.D. CODIFIED LAWS ANN. § 29A-2-114(b)(2) (Michie 1997); TEX. PROB. CODE ANN. § 40 (West 1980 & Supp. 2001); VT. STAT. ANN. tit. 15, § 448 (1998); WYO. STAT. § 2-4-107(a)(i) (1999). 10. On whether birth records can or should be unsealed, see Does v. Oregon, 993 P.2d 822 (Or. Ct. App. 1999); In re Adoption of Baby S., 705 A.2d 822 (N.J. Super. Ct. 1997); Aimone v. Finley, 447 N.E.2d 868, 869–70 (Ill. App. Ct. 1983); Atwell v. Sacred Heart Hosp., 520 So. 2d 30, 30–32 (Fla. 1988); UNIF. ADOPTION ACT §§ 6-101 to -105, 9 U.L.A. (PART IA) 119–21 (1999). See generally Cahn & Singer, supra note 2; Amy Shelf, A Need to Know Basis: Record Keeping, Information Access, and Uniform Status of Children of Assisted Conception Act, 51 HASTINGS L.J. 1047, 1068 (2000). 11. See, e.g., 1990 UNIF. PROB. CODE § 2-114(b), 8 U.L.A. (PART I) 91 (1998); id. § 2-114(c). 12. Stepparent adoptions are sometimes referred to as “family realignment” adoptions, as distinguished from “new family” adoptions in which the child to be adopted has no blood or marital tie to the adoptive parents. For discussions of stepparent adoptions, see Chandra et al., supra note 6, at 9–10; Lawrence H. Averill Jr. & Ellen B. Brantley, A Comparison of Arkansas’s Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. ARK. LITTLE ROCK L. REV. 631, 651–53 (1995); In re Adoption of J.A.B., 997 P.2d 98, 102 (Kan. Ct. App. 2000); In re Huskins, 692 N.E.2d 1105 (Ohio Ct. Common Pleas 1997). 13. On the issue of parental consent to adoption, see G. T. v. Adoption of A.E.T., 725 So. 2d 404 (Fla. Dist. Ct. App. 1999); Walker v. Campbell, 711 N.E.2d 42 (Ind. Ct. App. 1999); In re Adoption of R.W.B. & C.R.B., 2000 WL 572457 (Kan. Ct. App. 2000); In re Baby Girl W.D., 674 N.Y.S.2d 714 (App. Div. 1998); In re James Q, 658 N.Y.S.2d 535 (App. Div. 1997); Hall v. Coleman, 2000 WL 232636 (Ga. Ct. App. 2000); In re Luckey, 291 N.W.2d 235 (Neb. 1980). 14. See 1990 UNIF. PROBATE CODE § 2-114(b)(ii), 8 U.L.A. (PART I) 91 (1998); 1994 UNIF. ADOPTION ACT § 4-103(b)(3), 9 U.L.A. (PART IA) 106 (1999); see also ALA. CODE § 43-8-48(1) (1991); ALASKA STAT. § 13.11.045(1) (Supp. 1995); ARIZ. REV. STAT. ANN. § 14-2114(B) (1995 & Supp. 2000–2001); In re Estate of Ryan, 928 P.2d 735, 737 (Ariz. Ct. App. 1996); 755 ILL. COMP. STAT. ANN. 5/2-4(a) (Smith-Hurd 1992 & Supp. 2000); MONT. CODE ANN. § 72-2-124(2) (1999); N.M. STAT. ANN. § 45-2114(B)(2) (Michie 1995); N.Y. DOM. REL. LAW § 117(1)(e)(2) (McKinney 1999); N.D. CENT. CODE § 30.1.-04-09(1) (1996); S.D. CODIFIED LAWS ANN. § 29A-2114(b)(1) (Michie 1997); VA. CODE ANN. § 64.1-5.1(1) (Michie 1995); 1969 UNIF. PROBATE CODE § 2-109(1), 8 U.L.A. (Part I) 284 (1998). See generally Patricia G. Roberts, Adopted and Nonmarital Children—Exploring the 1990 Uniform Probate Code’s Intestacy and Class Gift Provisions, 32 REAL PROP. PROB. & TR. J. 539, 543 (1998). 15. See CONN. GEN. STAT. § 45a-731(8) (West 1993 & Supp. 2000); FLA. STAT. ANN. § 732.108(1)(b) (West 1995 & Supp. 2000); GA. CODE ANN. § 19-8-19(b) (1999); IDAHO CODE § 15-2-109(a) (1979); IOWA CODE ANN. § 633.223(3) (West

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1992 & Supp. 2000); MASS. GEN. ANN. LAWS ch. 210, § 7 (West 1998); MINN. STAT. ANN. § 524.2-114(1) (West 1975 & Supp. 2001); N.J. STAT. ANN. § 9:3-50(c)(2) (West 1993 & Supp. 2000); OHIO REV. CODE ANN. § 3107.15(B) (Anderson 1989); OR. REV. STAT. § 112.175(2)(b) (1993); WIS. STAT. ANN. § 851.51(2)(a) (West 1991 & Supp. 994). 16. See CAL. PROB. CODE § 6454 (West 1991 & 2001 Electronic Update); Susan N. Gary, Adapting Intestacy Laws to Changing Families, 18 LAW & INEQ. 1, 57–65; Margaret M. Mahoney, Stepfamilies in the Law of Intestate Succession and Wills, 22 U.C. DAVIS L. REV. 917, 930–31 (1989). 17. For the proposal, see Mahoney, supra note 16, at 928–40. 18. See 1994 BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 56 (114th ed. 1994). 19. See, e.g., In re M.M.D. & B.H.M., 662 A.2d 837, 862 (D.C. 1995); In re Jacob, 660 N.E.2d 397 (N.Y. 1995). 20. See Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 GEO. L.J. 459, 461 n.2, 462 n.3, 464–65 (1990); RICHARD A. POSNER, SEX AND REASON 147 (1992); JUDITH A. BAER, WOMEN IN AMERICAN LAW 147–48 (1991); Debra Carrasquillo Hedges, Note, The Forgotten Children: Same-Sex Partners, Their Children and Unequal Treatment, 41 B.C. L. REV. 883, 885 (2000). For a discussion of some of the reproductive choices likely to be available in the future, see LEE M. SILVER, REMAKING EDEN 176–90 (1997) (discussing human chimeras as a means for gay or lesbian couples to pass their combined genes on to a single child). On gay and lesbian parenting generally, see Andrew McLeod & Isiaah Crawford, The Postmodern Family: An Examination of the Psychosocial and Legal Perspectives of Gay and Lesbian Parenting, in STIGMA AND SEXUAL ORIENTATION: UNDERSTANDING PREJUDICE AGAINST LESBIANS, GAY MEN, AND BISEXUALS 211, 214 (Gregory M. Herek ed., 1998); FIONA L. TASKER & SUSAN GOLOMBOK, GROWING UP IN A LESBIAN FAMILY (1997); Marc E. Elovitz, Adoption by Lesbian and Gay People: The Use and Misuse of Social Science Research, 2 DUKE J. GENDER L. & POL’Y 207, 210 (1995). 21. See generally Suzanne Bryant, Second Parent Adoption: A Model Brief, 2 DUKE J. GENDER L. & POL’Y 233, 233–41 (1995); Laura M. Padilla, Flesh of My Flesh But Not My Heir: Unintended Disinheritance, 36 BRANDEIS J. FAM. L. 219, 219 (1997–98); David L. Chambers & Nancy D. Polikoff, Family Law and Gay and Lesbian Family Issues in the Twentieth Century, 33 FAM. L.Q. 523, 540–41 (1999). Early cases involving second-parent adoptions in lesbian relationships include the following: Adoptions of B.L.V.B. & E.L.V.B., 628 A.2d 1271, 1274–76 (Vt. 1993); Adoption of Tammy, 619 N.E.2d 315, 321 (Mass. 1993); In re Jacob, 660 N.E.2d 397, 398 (N.Y. 1995); In re Adoption of Child by J.M.G., 632 A.2d 550 (N.J. Super. Ct. Ch. Div. 1993); In re Adoption Petition of K. H. & R. Z., 21 Fam. L. Rep. (BNA) 1535, 1536 (Colo. Dist. Ct. July 26, 1995); In re Petition of K. M. & D. M., 653 N.E.2d 888, 898 (Ill. App. Ct. 1995); In re Adoption of Two Children by H.N.R., 666 A.2d 535, 536 (N.J. Super. Ct. App. Div. 1995). In some cases, the lesbian couple has jointly adopted the child in question. See, e.g., In re Adoption of Minor Child, 21 Fam. L. Rep. (BNA) 1332, 1333 (D.C. Super. Ct. May 4, 1995). Some gay male couples have also been successful in their attempts to adopt children. See In re M.M.D. & B.H.M.,

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662 A.2d 837, 862 (D.C. 1995). For an overview of second-parent adoptions by state, see Hedges, supra note 20, at 890–98 & n.80. For cases refusing to permit second-parent adoptions, see In re Angel Lace M., 516 N.W.2d 678, 686 (Wis. 1994); In re Adoption of Baby Z, 724 A.2d 1035 (Conn. 1999); In re Adoption of T.K.J., 931 P.2d 488, 494 (Colo. Ct. App. 1996). 22. A few states statutorily prohibit adoption by a gay or lesbian, or are designed primarily to prevent adoption by a gay or lesbian couple. See FLA. STAT. ANN. § 63.042(3) (West 1997). Cf. MISS. CODE ANN. § 93-17-3(2) (2000); UTAH CODE ANN. § 78-30-1(3)(b) (2000); see also Pat Wingert & Barbara Kantrowitz, Two Kids and Two Moms, NEWSWEEK, Mar. 20, 2000, at 50–51 (discussing homosexual adoption and Florida ban); Lydia A. Nayo, In Nobody’s Best Interests: A Consideration of Absolute Bans on Sexual Minority Adoption from the Perspective of the Unadopted Child, 35 J. FAM. L. 25 (1996–97). 23. Most states permit some form of adult adoption. For a sampling of different approaches, see, e.g., KY. REV. STAT. ANN. § 405.390 (Michie/Bobbs-Merrill 1999); NEB. REV. STAT. § 43-101 (1998); NEV. REV. STAT. ANN. § 127.190 (Michie 1998); S.C. CODE ANN. § 20-7-1825 (Law. Co-op. Supp. 1994); VA. CODE ANN. § 63.1222(iv) (Michie 1995); 1994 UNIF. ADOPTION ACT § 5-101(a), 9 U.L.A. (PART IA) 113 (1999). See also Walter Wadlington, Adoption of Adults: A Family Law Anomaly, 54 CORNELL L. REV. 566, 570 (1969); Wadlington, supra note 2, at 393 n.6; Note, Adult Adoption, 1972 WASH. U. L.Q. 253, 253 n.1 (1972). 24. Davis v. Neilson, 871 S.W.2d 35, 38 (Mo. Ct. App. 1993). The court concluded that Missouri would make its decision based on an inquiry into the particular circumstances when the adult adoptees have no apparent familial tie to the testator’s family. Id. at 38–39. The court remanded to the trial court, suggesting the lower court consider whether Neilson assumed responsibility for the adoptees; whether the adoptees took Neilson’s surname; whether the adoptees became a part of Neilson’s home and, if so, at what age; the length of time Neilson and the adoptees lived together; and the nature and extent of Neilson’s and the adoptees’ parent-child relationship. Id. 25. See, e.g., In re Estate of Fortney, 611 P.2d 599, 604–5 (Kan. Ct. App. 1980); Evans v. McCoy, 436 A.2d 436, 442–47 (Md. 1981); Delaney v. First Nat’l Bank, 386 P.2d 711, 715 (N.M. 1963); In re Chem. Bank, 395 N.Y.S.2d 917, 921 (Sup. Ct. 1977); In re Estate of Nicol, 377 A.2d 1201, 1207–8 (N.J. Super. Ct. App. Div. 1977); In re Estate of Tafel, 296 A.2d 797, 802–3 (Pa. 1972); Estate of Pittman, 163 Cal. Rptr. 527, 531 (Ct. App. 1980); Chichester v. Wilmington Trust Co., 377 A.2d 11, 14–15 (Del. 1977); First Nat’l Bank v. Mackey, 338 N.W.2d 361, 363, 365 (Iowa 1983); In re Nowels Estate, 339 N.W.2d 861, 866 (Mich. Ct. App. 1983); 1994 UNIF. ADOPTION ACT § 5-102, 9 U.L.A. (PART IA) 114 (1999). 26. See, e.g., Estate of Pittman, 163 Cal. Rptr. 527, 531 (Ct. App. 1980); cf. 1994 UNIF. ADOPTION ACT § 5-102, 9 U.L.A. (PART IA) 114 (1999). 27. The Kentucky case is Bedinger v. Graybill’s Ex’r & Tr., 302 S.W.2d 594, 600 (Ky. 1957). Adoptive and adopting spouses parties had less success with their inheritance claims in later Kentucky cases. See, e.g., Minary v. Citizens Fid. Bank & Trust Co., 419 S.W.2d 340, 344 (Ky. 1967); Pennington v. Citizens Fid. Bank & Trust Co., 390 S.W.2d 671, 672 (Ky. 1965). But cf. Harper v. Martin, 552 S.W.2d 690, 692 (Ky.

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Ct. App. 1977). The 1994 Uniform Adoption Act expressly prohibits the adoption of one spouse by the other. 1994 UNIF. ADOPTION ACT § 5-101(a)(1), 9 U.L.A. (PART IA) 113 (1999). Cf. Successions of Plummer, 577 So. 2d 751 (La. Ct. App.), writ denied, 580 So. 2d 676 (La. 1991); In re Trust Created by Belgard, 829 P.2d 457 (Colo. Ct. App. 1991). 28. The 1990 Uniform Probate Code, for example, provides that a person related to the decedent through two lines takes only one share based on the line that entitles him or her to the larger portion. 1990 UNIF. PROB. CODE § 2-113, 8 U.L.A. (PART I) 91 (1998). Cf. Binavince, supra note 2, at 186. 29. For a discussion of the inheritance rights typically afforded to the surviving spouse, see Chapter 1. For a discussion of the inheritance rights of gay and lesbian couples, see Chapter 2. For cases involving adoption of a gay partner, see In re Adoption of Robert Paul P., 471 N.E.2d 424, 425 (N.Y. 1984); Cross v. Cross, 532 N.E.2d 486, 488–89 (Ill. App. Ct. 1988). See also Todd Murphy, $2 Million Battle; Relatives Say Son’s Adoption of Older Man Timed to Get Money, COURIER-JOURNAL (Louisville), Apr. 12, 1994, at 1A (discussing Kentucky case); Susan Gervasi, The Bottom Line on Adult Adoptions, WASH. POST, Apr. 22, 1994; Donna J. Hitchens et al., Family Law, in SEXUAL ORIENTATION AND THE LAW § 1.05, at 1-86 to 1-92.8 (Roberta Achtenberg ed., 1994); Peter N. Fowler, Comment, Adult Adoption: A “New” Legal Tool for Lesbians and Gay Men, 14 GOLDEN GATE U. L. REV. 667, 707–8 (1984). 30. See Lankford v. Wright, 498 S.E.2d 604, 607 (N.C. 1997) (observing that “an overwhelming majority of states that have addressed the question have recognized and applied the doctrine”). For commentary on equitable adoption, see J.C.J. Jr., Note, Equitable Adoption: They Took Him into Their Home and Called Him Fred, 58 VA. L. REV. 727, 727 & n.7 (1972); Rebecca C. Bell, Comment, Virtual Adoption: The Difficulty of Creating an Exception to the Statutory Scheme, 29 STETSON L. REV. 415, 441–45 (1999); Edward W. Bailey, Adoption “by Estoppel,” 36 TEX. L. REV. 30 passim (1957); James R. Robinson, Comment, Untangling the “Loose Threads”: Equitable Adoption, Equitable Legitimation, and Inheritance in Extralegal Family Arrangements, 48 EMORY L.J. 943, 954–62 (1999). See generally George A. Locke, Annot., Modern Status of Law as to Equitable Adoption or Adoption by Estoppel, 97 A.L.R.3D 347 (1980 & Supp. 2000). 31. See, e.g., In re Hodge, 470 So. 2d 740, 741 (Fla. Ct. App. 1985); Williams v. Estate of Pender, 738 So. 2d 453 (Fla. Dist. Ct. App. 1999); Williams v. Dorrell, 714 So. 2d 574 (Fla. Dist. Ct. App. 1998); Samek v. Sanders, 2000 WL 1716944 (Ala. 2000); Franklin v. Gilchrist, 491 S.E.2d 361 (Ga. 1997); Willis v. Kennedy, 476 S.E.2d 246 (Ga. 1996); Lankford v. Wright, 498 S.E.2d 604 (N.C. 1997); Otero v. City of Albuquerque, 965 P.2d 354 (N.M. Ct. App. 1998); Spiers v. Maples, 970 S.W.2d 166 (Tex. Ct. App. 1998) Goldberg v. Robertson, 615 S.W.2d 59, 62 (Mo. 1981) (en banc) (per curiam); Weidner v. American Family Mut. Ins. Co., 928 S.W.2d 401, 404 (Mo. Ct. App. 1996). For an opinion rejecting the contract approach, see Wheeling Dollar Sav. & Trust Co. v. Singer, 250 S.E.2d 369 (W. Va. 1978); cf. Welch v. Wilson, 516 S.E.2d 35 (W. Va. 1999). 32. Board of Educ. v. Browning, 635 A.2d 373 (Md. 1994). See also McGarvey v. State, 533 A.2d 690, 693 (Md. 1987); In re Estate of Olson, 70 N.W.2d 107, 110

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(Minn. 1955); Menees v. Cowgill, 223 S.W.2d 412, 418 (Mo. 1949), cert. denied, 338 U.S. 949 (1950); Pouncy v. Garner, 626 S.W.2d 337, 341–42 (Tex. Ct. App. 1981). 33. For the proposition that the “natural” parents of the equitably adoptive parent remain her potential heirs, see Curry v. Williman, 834 S.W.2d 443, 444–45 (Tex. Ct. App. 1992). See also In re Estate of Edwards, 435 N.E.2d 1379, 1382 (Ill. App. Ct. 1982); Halterman v. Halterman, 867 S.W.2d 559 (Mo. Ct. App. 1993); Gardner v. Hancock, 924 S.W.2d 857 (Mo. Ct. App. 1996). 34. For an example sure to frighten many loving stepparents and step-relations, see Welch v. Wilson, 516 S.E.2d 35 (W. Va. 1999), in which the court held that a child reared by his step-grandfather was an equitably adopted child even though the stepgrandfather had not sought formal adoption and even though records not admitted into evidence tended to indicate that the step-grandfather would not have viewed the child as his heir. Chapter Six 1. See, e.g., Lori Andrews, Genetics, Reproduction, and the Law, 35 TRIAL 20, 31 (July 1999); Gloria J. Banks, Traditional Concepts and Nontraditional Conceptions: Social Security Survivor’s Benefits for Posthumously Conceived Children, 32 LOY. L.A. L. REV. 251, 268 (1999); ROBERT BLANK & JANNA C. MERRICK, HUMAN REPRODUCTION, EMERGING TECHNOLOGIES, AND CONFLICTING RIGHTS 8 (1995); Michelle L. Brenwald & Kay Redeker, Note, A Primer on Posthumous Conception and Related Issues of Reproduction, 38 WASHBURN L.J. 599, 612–17 (1999); Alexander M. Capron, Alternative Birth Technologies: Legal Challenges, 20 U.C. DAVIS L. REV. 679, 687–89 (1987); Marsha Garrison, Law Making for Baby Making: An Interpretive Approach to the Determination of Legal Parentage, 113 HARV. L. REV. 835, 903–10 (2000); Fred Norton, Note, Assisted Reproduction and the Frustration of Genetic Affinity: Interest, Injury, and Damages, 74 N.Y.U. L. REV. 793, 793 (1999); Jane O. Ross, A Legal Analysis of Parenthood by Choice, Not Chance, 9 TEX. J. WOMEN & L. 29, 30 (1999); Anne R. Schiff, Frustrated Intentions and Binding Biology: Seeking AID in the Law, 44 DUKE L.J. 524, 534–38 (1994); Marjorie M. Shultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality, 1990 WIS. L. REV. 297, 301; LEE M. SILVER, REMAKING EDEN 69 (1997); Julia J. Tate, Artificial Insemination and Legal Reality, 1992 A.B.A. SEC. FAM. L. MONOGRAPH 2; Bruce L. Wilder, Defining the Legal Parent-Child Relationship in Alternative Reproductive Technology, 1991 A.B.A. SEC. FAM. L. MONOGRAPH 25–26. For an example of the difficult questions courts now face, see In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Cal. Ct. App. 1998), review denied, June 10, 1998. See also Jonathan B. Pitt, Fragmenting Procreation, 108 YALE L.J. 1893 (1999). 2. See WILFRED J. FINEGOLD, ARTIFICIAL INSEMINATION 5 (2d ed. 1976). 3. See id. at 6, 7; see also E. Donald Shapiro & Benedene Sonnenblick, The Widow and the Sperm: The Law of Post-Mortem Insemination, 1 J.L. & HEALTH 229, 234–36 (1986–87). 4. See FINEGOLD, supra note 2, at 6–7, 29–30, 101. 5. Jhordan C. v. Mary K., 224 Cal. Rptr. 530, 532 n.1 (Ct. App. 1986) (citing Note, Reproductive Technology and the Procreation Rights of the Unmarried, 98 HARV. L. REV.

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669, 669 n.1 (1985), and Carol A. Donovan, The Uniform Parentage Act and Nonmarital Motherhood-by-Choice, 11 N.Y.U. REV. L. & SOC. CHANGE 193, 195 (1982–83)); cf. Lori B. Andrews, Reproductive Technology Comes of Age, 21 WHITTIER L. REV. 375, 377 (1999); Judith F. Daar, The Future of Human Cloning: Prescient Lessons from Medical Ethics Past, 8 S. CAL. INTERDISC. L.J. 167, 170 (1998) (citing Machelle M. Seibel, Therapeutic Donor Insemination, in FAMILY BUILDING THROUGH EGG AND SPERM DONATION 34 (Machelle M. Seibel & Susan L. Crockin eds., 1996)); FINEGOLD, supra note 2, at 56 (2d ed. 1976); Marsha Garrison, The Technological Family: What’s New and What’s Not, 33 FAM. L.Q. 691, 693 (1999); Walter J. Wadlington, Baby M.: Catalyst for Family Law Reform?, 5 J. CONTEMP. HEALTH L. & POL’Y 1, 3 n.6 (1989). 6. See FINEGOLD, supra note 2, at 68–74; see also Allen D. Holloway, Artificial Insemination: An Examination of the Legal Aspects, 43 A.B.A. J. 1089, 1090 (1957); J. C. Schock, The Legal Status of the Semi-Adopted, 46 DICK. L. REV. 271, 272 (1942); Walter Wadlington, Artificial Insemination: The Dangers of a Poorly Kept Secret, 64 NW. U. L. REV. 777, 785–92 (1970). For early decisions concerning the marital status of the AID child, see Strnad v. Strnad, 78 N.Y.S.2d 390, 392 (Sup. Ct. 1948); Doornbos v. Doornbos, 23 U.S.L.W. 2308 (1955) (Ill. Super. Ct., Dec. 13, 1954), appeal dismissed on procedural grounds, 139 N.E.2d 844, 844 (Ill App. Ct. 1956); Gursky v. Gursky, 242 N.Y.S.2d 406, 411 (Sup. Ct. 1963). A landmark case is People v. Sorensen, 437 P.2d 495 (Cal. 1968). For statutes concerning AI, see ALA. CODE § 26-17-21 (1992; ALASKA STAT. § 25.20.045 (Michie 2000); ARIZ. REV. STAT. ANN. § 25-501 (West 2000); ARK. CODE ANN. §§ 9-10-201 to -202 (Michie 1998); CAL. FAM. CODE § 7613 (West 1994); COLO. REV. STAT. § 19-4-106 (1999); CONN. GEN. STAT. ANN. §§ 45a-771 to -775 (West 1993); FLA. STAT. ANN. § 742.11 (West 1997); GA. CODE ANN. § 19-7-21 (1999); IDAHO CODE § 39-5405 (1998); 750 ILL. COMP. STAT. ANN. 40/2 to 40/3 (West 1999); KAN. STAT. ANN. § 23-128 to -130 (1995), KAN. STAT. ANN. § 38-1114 (1986 & Supp. 1995); LA. CIV. CODE ANN. art. 184 (West 1993); MD. CODE ANN. EST. & TRUSTS § 1-206 (1991); MASS. GEN. LAWS ANN. ch. 46, § 4B (West 1994); MICH. COMP. LAWS ANN. § 700.2114 (West Supp. 2000); MINN. STAT. ANN. § 257.56 (West 1998); MO. ANN. STAT. § 210.824 (West 1996); MONT. CODE ANN. § 40-6-106 (1999); NEV. REV. STAT. ANN. § 126.061 (Michie 1998); N.H. REV. STAT. ANN. § 168-B:11 (1994); N.J. STAT. ANN. § 9:17-44 (West 1993); N.M. STAT. ANN. § 40-11-6 (Michie 1999); N.Y. DOM. REL. LAW § 73 (McKinney 1996); N.C. GEN. STAT. § 49A-1 (1999); N.D. CENT. CODE §§ 14-18-03 to -04 (1997); OHIO REV. CODE ANN. §§ 3111.34–.37 (Anderson 2000); OKLA. STAT. ANN. tit. 10, §§ 551–553 (West 1998); OR. REV. STAT. §§ 109.239 109.243 (1995); OR. REV. STAT. ANN. § 109.239, 109. 243 (Butterworths 1990 & Supp. 1998); TENN. CODE ANN. § 68-3-306 (1996); TEX. FAM. CODE ANN. § 151.101 (West 1996); VA. CODE ANN. § 20-158 (Michie 2000); WASH. REV. CODE ANN. § 26.26.050 (West 1997); WIS. STAT. ANN. § 891.40 (West 1997); WYO. STAT. ANN. § 14-2-103 (Michie 1999 & Supp. 2000); 2000 UNIF. PARENTAGE ACT §§ 702–705, 201(b)(5), 9B U.L.A. 299, 309 (2001); 1973 UNIF. PARENTAGE ACT § 5, 9B U.L.A. 377, 407 (2001). 7. See Michael J. Yaworsky, Annot., Rights and Obligations Resulting from Human Artificial Insemination, 83 A.L.R.4TH 295 (1991); Karen De Haan, Note, Whose Child Am I? A Look at How Consent Affects a Husband’s Obligation to Support a Child Con-

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ceived Through Heterologous Artificial Insemination, 37 BRANDEIS L.J. 809 (1998–99). For cases discussing estoppel, see State ex rel. H. v. P., 457 N.Y.S.2d 488, 491–93 (App. Div. 1982); Brooks v. Fair, 532 N.E.2d 208, 212–13 (Ohio Ct. App. 1988); People ex rel. Abajian v. Dennett, 184 N.Y.S.2d 178, 182–85 (Sup. Ct. 1958). 8. See In re Marriage of Witbeck-Wildhagen, 667 N.E.2d 122, 125–26 (Ill. Ct. App. 1996); Alexandria S. v. Pacific Fertility Med. Ctr., 64 Cal. Rptr. 2d 23, 30 (Ct. App. 1997); Shin v. Kong, 95 Cal. Rptr. 2d 304, 307 (Cal. Ct. App. 2000), review denied, July 19, 2000; Dews v. Dews, 632 A.2d 1160, 1166–67, 1169 (D.C. 1993); R. S. v. R. S., 670 P.2d 923, 928 (Kan. Ct. App. 1983). 9. For statutes specifically stating that the nonhusband donor is not the child’s parent (presumably even when the mother is not married), see 2000 UNIF. PARENTAGE ACT § 702, 9B U.L.A. 295, 355 (2001); CAL. FAM. CODE § 7613(b) (West 1994); COLO. REV. STAT. § 19-4-106(2) (Supp. 1996); 750 ILL. COMP. ANN. STAT. 40/3(b) (West 1999); OHIO REV. CODE ANN. § 3111.37(b) (Anderson 2000); WIS. STAT. ANN. § 891.40(2) (West 1997); WYO. STAT. § 14-2-103(b) (1999 & Supp. 2000). The statutory schemes of some states are silent concerning the donor’s parental responsibility when the mother is not married. See, e.g., ALA. CODE § 26-17-21(b) (1992); MINN. STAT. ANN. § 257.56(2) (West 1998); MO. ANN. STAT. § 210.824(2) (West 1996). For discussions of lesbian mothers and AID, see Katherine Arnup & Susan Boyd, Familial Disputes? Sperm Donors, Lesbian Mothers, and Legal Parenthood, in LEGAL INVERSIONS: LESBIANS, GAY MEN, AND THE POLITICS OF LAW 77 (Didi Herman & Carl Stychin eds., 1995); Fred A. Bernstein, This Child Does Have Two Mothers . . . And a Sperm Donor with Visitation, 22 N.Y.U. REV. L. & SOC. CHANGE 1 (1996); In re Thomas S. v. Robin Y., 618 N.Y.S.2d 356, 357 (App. Div. 1994), motion for stay granted, 650 N.E.2d 1328 (N.Y. 1995). 10. See Andrews, supra note 1, at 30; James v. Jacobson, 6 F.3d 233 (4th Cir. 1993); U.S. v. Jacobson, 785 F. Supp. 563 (E.D. Va. 1992); St. Paul Fire and Marine Ins. Co. v. Jacobson, 826 F. Supp. 155, 158 & n.3 (E.D. Va. 1993). 11. See, e.g., L.A.L. v. D.A.L., 714 So. 2d 595 (Fla. Dist. Ct. App. 1998). 12. 2000 UNIF. PARENTAGE ACT §§ 702–4, 9B U.L.A. 295, 355–56 (2001). 13. See Radhika Rao, Reconceiving Privacy: Relationships and Reproductive Technology, 45 UCLA. L. REV. 1077, 1079, 1117 (1998). 14. See In re Baby M, 537 A.2d 1227 (N.J. 1988) (holding Whitehead to be child’s legal mother because contract was void); George J. Annas, Crazy Making: Embryos and Gestational Mothers, 21 HASTINGS CENTER REP., Jan.–Feb. 1991, at 35, 37; JUDITH A. BAER, WOMEN IN AMERICAN LAW 178–84 (1991); Marla J. Hollandsworth, Gay Men Creating Families Through Surro-Gay Arrangements: A Paradigm for Reproductive Freedom, 3 AM. U. J. GENDER & L. 183 (1995); John D. Ingram, Surrogate Gestator: A New and Honorable Profession, 76 MARQ. L. REV. 675, 698–99 (1993); Emily McAllister, Defining the Parent-Child Relationship in an Age of Reproductive Technology: Implications for Inheritance, 29 REAL PROP. PROB. & TR. J. 55, 100–118 (1994); Alice M. Noble-Allgire, Switched at the Fertility Clinic: Determining Maternal Rights When a Child is Born from Stolen or Misdelivered Genetic Material, 64 MO. L. REV. 517, 536–39 (1999); Richard A. Posner, The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood, 5 J. CONTEMP. HEALTH L. & POL’Y 21, 25–26 (1989); Irma S. Russell, Within the Best Interests of the Child: The Factor of Parental Status in Custody

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Disputes Arising from Surrogacy Contracts, 27 J. FAM. L. 585, 671 (1988–89); JULIA J. TATE, SURROGACY: WHAT PROGRESS SINCE HAGAR, BILHAH, AND ZILPAH! 3–10 (1994); William J. Wagner, The Ethical and Legal Implications of Hired Maternity, 35 AM. J. JURIS. 187, 215 (1990); 2000 UNIF. PARENTAGE ACT ARTICLE 8 PREFATORY COMMENT, 9B U.L.A. 295, 360–61 (2001) (discussing UPA’s rejection of the term “surrogate” in favor of “gestational mother”). About half of the states have statutes regulating surrogacy. See Andrews, supra note 5, at 377; Garrison, supra note 1, at 851. 15. See Michael L. Jackson, Fatherhood and the Law: Reproductive Rights and Responsibilities of Men, 9 TEX. J. WOMEN & L. 53, 82–83 (1999); Ross, supra note 1, at 33. 16. See, e.g., Turchyn v. Cornelius, 1999 WL 689202 (Ohio Ct. App. 1999); see generally Andrews, supra note 5, at 379–80. 17. See Michael H. v. Gerald D., 491 U.S. 110, 129–30 (1989) (plurality opinion); R. R. v. M. H., 689 N.E.2d 790, 795–96 (Mass. 1998); In re Marriage of Buzzanca, 72 Cal. Rptr. 280 (Ct. App. 1998); McIntyre v. Crouch, 780 P.2d 239, 244–46 (Or. Ct. App.), review denied, 784 P.2d 1100 (Or. 1989), cert. denied, 495 U.S. 905 (1990); Syrkowski v. Appleyard, 362 N.W.2d 211, 213–14 (Mich. 1985); cf. FLA. STAT. ANN. § 742.11(1) (West 1997). 18. But see Spielmaker v. Lee, 517 N.W.2d 558, 561–62 (Mich. Ct. App. 1994) (expressing surprise that putative father barred from asserting paternity by state statute failed to raise equal protection claim). 19. See In re Andres A., 591 N.Y.S.2d 946, 948–49 (Fam. Ct. 1992); Natalie L. Clark, New Wine in Old Skins: Using Paternity-Suit Settlements to Facilitate Surrogate Motherhood, 25 J. FAM. L. 483, 499 (1986–87). 20. See Doe v. Roe, 717 A.2d 706 (Conn. 1998); Doe v. Doe, 710 A.2d 1297 (Conn. 1998); R. R. v. M. H., 689 N.E.2d 790, 796 (Mass. 1998). 21. See Anne R. Schiff, Solomonic Decisions in Egg Donation: Unscrambling the Conundrum of Legal Maternity, 80 IOWA L. REV. 265, 272–73 (1995); Janet L. Dolgin, Just a Gene: Judicial Assumptions About Parenthood, 40 UCLA L. REV. 637 (1993); Marie Ashe, Law-Language of Maternity: Discourse Holding Nature in Contempt, 22 NEW ENG. L. REV. 521, 546–47 (1988). 22. Johnson v. Calvert, 851 P.2d 776, 778 (Cal.), cert. denied, 510 U.S. 874 (1993). See also In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893 (Ct. App.), review denied, 1994 Cal. LEXIS 5623 (Oct. 13, 1994); In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280, 282, 293–94 (Cal. Ct. App. 1998). Cf. Perry-Rogers v. Fasano, 715 N.Y.S.2d 19, 24 (App. Div. 2000), order issued, 2000 WL 1594148 (Oct. 26, 2000); McDonald v. McDonald, 608 N.Y.S.2d 477 (N.Y. App. Div. 1994). 23. See John L. Hill, What Does It Mean To Be a “Parent”? The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U. L. REV. 353, 413–20 (1991); Shultz, supra note 1, at 372–95; Janet L. Dolgin, Choice, Tradition, and the New Genetics: The Fragmentation of the Ideology of Family, 32 CONN. L. REV. 523, 535 (2000); George J. Annas, Redefining Parenthood and Protecting Embryos: Why We Need New Laws, 14 HASTINGS CTR. REP. 50, 51 (Oct. 1984); Diana Brahams, The Hasty British Ban on Commercial Surrogacy, 17 HASTINGS CTR. REP. 16, 16–17 (Feb. 1987); Garrison, supra

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note 1; Marsha Garrison, Surrogate Parenting: What Should Legislatures Do? 22 FAM. L.Q. 149, 156 (1988). 24. “I’m My Own Grandpa,” by Moe Jaffe and Dwight Latham. The comic song was written around 1947. For examples involving the use of intrafamily genetic material, see Cook v. First Morris Bank, 719 A.2d 724 (N.J. Super. Ct. 1998); Belsito v. Clark, 644 N.E.2d 760, 761 (Ohio Ct. Com. Pl. 1994). 25. See 2000 UNIF. PARENTAGE ACT ART. 8 Prefatory Comment, 9B U.L.A. 295, 360–62 (2001). Among the states that have statutes pertaining to surrogacy, some refuse to enforce surrogacy contracts, other refuse to enforce such contracts only when the surrogate is to be paid under the terms of the agreement, some make enforcement dependent upon the infertility of the intended mother, some permit enforcement if the parties have obtained prior judicial approval, and some distinguish various forms of surrogacy. See Jackson, supra note 15, at 64 (noting wide disparity in treatment of surrogacy agreements among the states). Statutes pertaining to surrogacy include the following: ALA. CODE § 26-10A-34 (West 1992); ARIZ. REV. STAT. ANN. § 25-218 (West 2000); ARK. CODE ANN. § 9-10-201 (Michie 1998); D.C. CODE ANN. §§ 16-401, 402 (1997); FLA. STAT. ANN. §§ 63.212, 742.15 (West 1997); 750 ILL. COMP. STAT. 45/6 (West Supp. 2000); IND. CODE ANN. § 31-20-1-1 (Michie 1994); IOWA CODE ANN. § 710.11 (West 1993); KY. REV. STAT. ANN. § 199.590 (Michie 1999); LA. REV. STAT. ANN. § 9:2713 (West 1991); MICH. COMP. LAWS ANN. § 722.855 (West 1997); NEB. REV. STAT. § 25-21, 200 (1989); NEV. REV. STAT. ANN. §§ 126.045, 126.051 (Michie 1998); N.H. REV. STAT. ANN. § 168-B:16 (1994 & Supp. 2000); N.Y. DOM. REL. LAW § 121, 122 (McKinney 1999); N.D. CENT. CODE § 1418-05 (1997); TENN. CODE ANN. § 36-1-102 (1996 & Supp. 2000); UTAH CODE ANN. § 76-7-204 (1999); VA. CODE ANN. § 20-156 to -165 (Michie 2000); WASH. REV. CODE ANN. § 26.26.210 (West 1997); W. VA. CODE § 48-4-16 (1999); WIS. STAT. ANN. § 69.14 (West 1999); WYO. STAT. ANN. § 35-1-410 (Michie 1999). 26. See UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT, 9B U.L.A. 199 (Supp. 2000) (historical note); id. §§ 5–9 (alt. A), 9B U.L.A. 205–212 (Supp. 2000); id. § 5 (alt. B), 9B U.L.A. 212–13 (Supp. 2000); see also John J. Sampson & Harry L. Tindall, The Uniform Parentage Act: A Complete Revision Proposed, DEL. LAW. 6 (summer 1999); Mary Louise Fellows et al., Committed Partners and Inheritance: An Empirical Study, 16 LAW & INEQ. 1, 67–68 (1998). 27. 2000 UNIF. PARENTAGE ACT ARTICLE 8 PREFATORY COMMENT, 9B U.L.A. 295, 360–61 (2001); 2000 UNIF. PARENTAGE ACT §§ 801–9, 201(a)(4), 201(b)(6), 9B U.L.A. 295, 362–70, 309 (2001). Section 806 of the 2000 UPA provides for termination of the gestational agreement by the gestational mother, her husband, or either of the intended parents before the gestational mother becomes pregnant. The termination should be in writing and distributed to all of the parties. The terminating party should also file notice with the court, which will vacate the order initially approving the agreement. 2000 UNIF. PARENTAGE ACT § 806, 9B U.L.A. 295, 367 (2001). Section 807 provides that the intended parents are the child’s legal parents if the agreement is judicially validated. Id. § 807, 9B U.L.A. 295, 368 (2001). The gestational mother’s husband must be a party to the agreement before it can be judicially validated. If he is not, or if for any other reason the agreement is not

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judicially validated, then the parent-child relationship is determined under other provisions, such as Article 2 of the Uniform Parentage Act. Id. § 809, 9B U.L.A. 295, 369 (2001). 28. See 2000 UNIF. PARENTAGE ACT § 801(b), 9B U.L.A. 295, 362 (2001) (requiring intended parents to be married); id. § 809(c), 9B U.L.A. 295, 369 (2001) (discussing child support). 29. The California case is Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 488–89 (Cal. 1990). For older cases on property rights in the body, see O’Donnell v. Slack, 55 P. 906, 907 (Cal. 1899); Nichols v. Central Vt. Ry., 109 A. 905, 906 (Vt. 1919). See also Michelle B. Bray, Note, Personalizing Personalty: Toward a Property Right in Human Bodies, 69 TEX. L. REV. 209, 239–44 (1990); Roy Hardiman, Comment, Toward the Right of Commerciality: Recognizing Property Rights in the Commercial Value of Human Tissue, 34 UCLA L. REV. 207, 214–27 (1986); Capron, supra note 1, at 687–89. 30. See Hecht v. Superior Court, 20 Cal. Rptr. 2d 275 (Ct. App. 1993); Hall v. Fertility Institute of New Orleans, 647 So. 2d 1348 (La. Ct. App. 1994); see also Marcia J. Wurmbrand, Note, Frozen Embryos: Moral, Social, and Legal Implications, 59 S. CAL. L. REV. 1079, 1082, 1095–98 (1986); R. Alta Charo, Skin and Bones: Post-Mortem Markets in Human Tissue, 26 NOVA L. REV. 421, 432–36 (2002). The curious reader might also visit ronsangels.com, which advertises itself as “the only web site that provides you with the unique opportunity to bid on eggs from beautiful, healthy and intelligent women.” 31. Cf. Woman Wants 3-Year-Old as Heir to 4-Year-Dead Dad, COMM. APPEAL (Memphis), Dec. 13, 1994, at 2A; Sperm-Bank Baby Wins, NAT’L L.J., June 12, 1995, at A8; Daughter Conceived After Dad Died Wins Benefits, COMM. APPEAL (Memphis), Mar. 12, 1996, at A2; Ike Flores, Newlywed Dies in Crash, But Hopes for Children Live in Extracted Sperm, L.A. TIMES, July 3, 1994, at A10; Widow Saves Sperm from Man’s Corpse, COMM. APPEAL (Memphis), Jan. 20, 1995, at A2; Lawrence P. Hampton, Background on Actions Involving Disputed Paternity: Definitions, Status and Rights of the Parties Generally, and Threshold Evidentiary and Procedural Questions, in 1 DISPUTED PATERNITY PROCEEDINGS § 1.03[7] (Sidney B. Schatkin ed., 1995); Banks, supra note 1, at 358–79. 32. Cf. 1969 UNIF. PROB. CODE § 2-108, 8 U.L.A. Part I 283 (1998) (providing that “[r]elatives of the decedent conceived before his death but born thereafter inherit as if they had been born in the lifetime of the decedent.”) (emphasis added). 33. 753 A.2d 1257 (N.J. Super. Ct. Ch. Div. 2000). 34. The Massachusetts case is Woodward v. Commissioner of Social Security, 760 N.E.2d 257 (Mass. 2002). 35. Woodward v. Commissioner of Social Security, 760 N.E.2d 257 (Mass. 2002). 36. For a discussion of sperm harvesting from dead men, see Lori B. Andrews, The Sperminator, N.Y. TIMES MAG., Mar. 28, 1999, at 62, (noting 1997 survey indicating that fourteen clinics in eleven states had collected sperm from deceased men). Professor Andrews has described various ways in which sperm is retrieved from comatose men. For example, an instrument resembling a cattle prod can be inserted into the man’s rectum, followed by an electric shock that causes an invol-

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untary ejaculation. There are other methods of sperm collection, including the oldfashioned, manual way. See id. at 62, 64–65 (noting case in which father of twentythree-year-old son in persistent vegetative state following an accident masturbated the son to obtain sperm); see also Ronald Chester, Double Trouble: Legal Solution to the Medical Problems of Unconsented Sperm Harvesting and Drug-Induced Multiple Pregnancies, 44 ST. LOUIS U. L.J. 451 (2000). 37. Professor Gray’s famous statement of the Rule Against Perpetuities provides, “No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.” JOHN C. GRAY, THE RULE AGAINST PERPETUITIES § 201 (4th ed. 1942). See generally LEWIS M. SIMES & ALLAN F. SMITH, THE LAW OF FUTURE INTERESTS §§ 1222–1234 (2d ed. 1956 & Supp. 2000); W. Barton Leach, Perpetuities in a Nutshell, 51 HARV. L. REV. 638 passim (1938); W. Barton Leach, Perpetuities: The Nutshell Revisited, 78 HARV. L. REV. 973 passim (1965). For an early article on posthumous conception and its implications under the Rule Against Perpetuities, periods, see W. Barton Leach, Perpetuities in the Atomic Age: The Sperm Bank and the Fertile Decedent, 48 A.B.A. J. 942 (1962). See also Winthrop D. Thies, A Look to the Future: Property Rights and the Posthumously Conceived Child, 110 TR. & EST. 922, 922, 960 (1971); Janet J. Berry, Life After Death: Preservation of the Immortal Seed, 72 TUL. L. REV. 231 (1997) (discussing need for legislation to address the rights of decedent to his genetic material and of children conceived posthumously). 38. For a discussion of “lives in being” and the period of gestation under the Rule, see generally SIMES & SMITH, supra note 37, at 1223–1224. 39. 2000 UNIF. PARENTAGE ACT § 707, 9B U.L.A. 295, 358 (2001) (providing, however, that predeceased spouse can serve as parent to child if he consented to do so by record). 40. Under a wait-and-see approach, an interest that would be invalid under the common law Rule Against Perpetuities is upheld if it actually does vest within the permissible period. See UNIF. STAT. RULE AGAINST PERPETUITIES WITH 1990 AMENDMENTS § 1(a)(2), 8B U.L.A. 333 (1991 & Supp. 2000) (adopting ninety-year permissible vesting period). Of course, interests that do not violate the commonlaw Rule remain valid under the wait-and-see approach as well. For a discussion of the wait-and-see approach, see id. (prefatory note), 8B U.L.A. 323–29 (1993). The Uniform approach has been adopted by almost one-half of the states within the past few years. See id. (table), 8B U.L.A. 61 (Supp. 2000) (“Table of Jurisdictions Wherein Act Has Been Adopted”). The possibility that a child will be born to an individual after the individual’s death is disregarded for determining the validity of a nonvested interest or power of appointment. Id. § 1(d), 8B U.L.A. 334 (1993 & Supp. 2000). 41. See Woodward v. Commissioner of Social Security, 760 N.E.2d 257 (Mass. 2002); see also VA. CODE ANN. § 20-164 (Michie 2000); id. § 20-158(B); RESTATEMENT (THIRD) OF PROPERTY: WILLS AND DONATIVE TRANSFERS (1998) § 2.5, comment l. The comment indicates further that the child should only be treated as an heir if it appears that the decedent would have wanted the child to be his heir. 42. The term “frozen embryo” is used here in its popular, inclusive sense. In fact, most of the analysis refers to that stage following fertilization and preceding

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implantation in which the proper designation is “pre-embryo.” For commentary about embryos, see Henry D. Gabriel & Eunice B. Davis, Legal Ethics in Reproductive Technology, 45 LOY. L. REV. 221, 229 (1999); Lori B. Andrews, The Legal Status of the Embryo, 32 LOY. L. REV. 357, 394 (1986); Alexander M. Capron, Parenthood and Frozen Embryos: More than Property and Privacy, 22 HASTINGS CTR. REP. 32 (Sept.–Oct. 1992); George P. Smith II, Australia’s Frozen “Orphan” Embryos: A Medical, Legal and Ethical Dilemma, 24 J. FAM. L. 27, 27–28 (1985–86) John A. Robertson, Prior Agreements for Disposition of Frozen Embryos, 51 OHIO ST. L.J. 407, 414–18 (1990); Alise R. Panitch, Note, The Davis Dilemma: How to Prevent Battles over Frozen Embryos, 41 CASE W. RES. L. REV. 543, 578–79 (1991); John A. Robertson, Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reproduction, 59 S. CAL. L. REV. 942, 966–86 (1986); Deborah K. Walther, “Ownership” of the Fertilized Ovum In Vitro, 26 FAM. L.Q. 235, 239 (1992); Wurmbrand, supra note 30, at 1088–95; Carl H. Coleman, Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 MINN. L. REV. 55, 67–68 (1999). For cases, see Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), cert. denied, 507 U.S. 911 (1993); Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998); A. Z. v. B. Z., 725 N.E.2d 1051, 1057–58 (Mass. 2000); J. B. v. M. B., 751 A.2d 613 (N.J. Super. Ct. App. Div. 2000); Litowitz v. Litowitz, 10 P.3d 1086 (Wash. Ct. App. 2000); In re O.G.M., 988 S.W.2d 473 (Tex. App. 1999). 43. The New York case is Kass v. Kass, 696 N.E.2d 174, 178–79 (N.Y. 1998). See also York v. Jones, 717 F. Supp. 421, 425 (E.D. Va. 1989); Davis v. Davis, 842 S.W.2d 588, 596–97 (Tenn. 1992), cert. denied, 507 U.S. 911 (1993). 44. See 2000 UNIF. PARENTAGE ACT § 707, 9B U.L.A. 295, 358 (2001); cf. UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT § 4(b), 9B U.L.A. 204 (Supp. 2000) (now withdrawn). But see Banks, supra note 1, at 294–95. 45. RESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS (1998) § 2.5, Comment 1 (adopting “reasonable” time approach, coupled with a requirement that circumstances must exist indicating the decedent would have wanted the child to be his heir). 46. See 2000 UNIF. PARENTAGE ACT § 707, 9B U.L.A. 295, 358 (2001). Cf. FLA. STAT. ANN. § 742.11 (West 1997); TEX. FAM. CODE ANN. § 151.103(b) (West 1996). 47. See Human Clone to Be Born in ’03, Scientist Claims, COMM. APPEAL (MEMPHIS), May 16, 2002, at A7. For general commentary, see Daar, supra note 5, at 167–84; Henry T. Greely, Banning “Human Cloning”: A Study in the Difficulties of Defining Science, 8 S. CAL. INTERDISC. L.J. 131, 131 (1998); M. Cathleen Kaveny, Cloning and Positive Liberty, 13 NOTRE DAME J.L. ETHICS & PUB. POL’Y 15, 35 (1999); Stephen A. Newman, Human Cloning and the Substantive Due Process Riddle, 8 S. CAL. INTERDISC. L.J. 153, 161–66 (1998); M. A. Roberts, Cloning and Harming: Children, Future Persons, and the “Best Interest” Test, 13 NOTRE DAME J.L. ETHICS & PUB. POL’Y 37, 53 (1999); Emily Marden, The Revolution Ignored, 6 N.Y.U. ENVTL. L.J. 674 (1998); George P. Smith II, Pathways to Immortality in the New Millennium: Human Responsibility, Theological Direction, or Legal Mandate, 15 ST. LOUIS U. PUB. L. REV. 447, 456–58 (1996); Stephen A. Newman, Essay, Human Cloning and the Family: Reflections on Cloning Existing Children, 13 N.Y.L. SCH. J. HUM. RTS. 523, 528

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(1997); Daniel Mark Cohen, Cloning and the Constitution, Cloning and the Constitution, Cloning and the Constitution, Cloning and . . . , 26 NOVA L. REV. 511 (2002); John A. Robertson, Human Cloning: Should the United States Legislate Against It? No: The Potential for Good Is Too Compelling, 83 A.B.A. J. 81 (May 1997); George J. Annas, Human Cloning: Should the United States Legislate Against It? Yes: Individual Dignity Demands Nothing Less, 83 A.B.A. J. 80 (May 1997); Kenton Abel, 1997 California Legislative Service 688 (West)—Human Cloning: Biotechnology and Medical Devices, State Legislation, 13 BERKELEY TECH. L.J. 465, 474, 480 (1998); Nanette Elster, Who Is the Parent in Cloning?, 27 HOFSTRA L. REV. 533, 534 (1999); Christine Corcos et al., Double-Take: A Second Look at Cloning, Science Fiction and Law, 59 LA. L. REV. 1041 (1999); Eric A. Posner & Richard A. Posner, The Demand for Human Cloning, 27 HOFSTRA L. REV. 579, 580 (1999); Mary B. Mahowald, Genes, Clones, and Gender Equality, 3 DEPAUL J. HEALTH CARE L. 495, 517, 520 (2000); Ronald Chester, To Be, Be, Be . . . Not Just to Be: Legal and Social Implications of Cloning for Human Reproduction, 49 FLA. L. REV. 303, 324, 328 (1997). 48. Most human clones would not be genetically identical to the individual being cloned. Although the clone will have the nuclear DNA of the cloned individual, the clone would have the mitochondrial DNA of the host cell. See Greely, supra note 47, at 137–43; Sophia Kolehmainen, Essay, Human Cloning: Brave New Mistake, 27 HOFSTRA L. REV. 557, 559–60 (1999).

Index

Adopted children adoption of gay or lesbian partner, 162–63 adoption of spouse, 162 adult adoptions generally, 148, 160–63, 167 cohabiting couples, 158–59 England’s long refusal to recognize, 149 equitable adoption, 163–65, 167 foster children, compared to, 165 gay and lesbian couples, 56–57, 159–60, 167 history, 149 intestate succession treatment of, 5, 58, 122, 150–53, 153–54 manipulative adoptions, 148, 160–63, 167 more than two parental lines for inheritance, 150–51, 154–56 National Adoption Information Clearinghouse, 149 National Center for Health, 149 new family adoption, 150–53 nontraditional families and, 3–4, 148 sealed records, 151 second-parent adoptions, 159–60 statistics, 149–50 stepchildren, 156–58 stepparent adoptions, 153–54 surrogacy, 175, 177 Uniform Adoption Act, 153–54 Uniform Probate Code, 150, 153–54 Afterborn child statutes, 184 Alabama, supreme court justice on homosexuality, 80 Alaska, community-property opt-in approach,12 Allowance for family in probate, children, 91 entitlement to despite disinheritance, 31

255

generally, 26 Georgia, 27 unavailable to cohabitant, 50 Andrews, Lori B., 170 Antenuptial agreements benefits of use, 34 common uses, 34 family maintenance, 25 protection from disinheritance, 33–34 requirements, 34 Arizona, community property, 12 Arkansas, dower, 14 Artificial insemination Andrews, Lori B., 170 artificial insemination by donor, 170 artificial insemination by husband, 170 example under reciprocal beneficiary laws, 82 history, 169–70, 171 husband’s consent, 171 importance of marriage, 170 inherited genetic material, 182–83 Jacobsen, Cecil, Dr., 173 medical students as sperm donors, 172 parentage questions, 122 propriety of sperm donation, 174 rabbis concern over paternity, 169 simplicity of process, 170 single women, use by, 170 sperm donor claims, 172 statistics, 170 surrogacy, compared to, 174–75 Uniform Parentage Act 2000, 173–74 Artificial Insemination, Wilfred Finegold, 169 Assisted reproduction. See Children of assisted reproductive technology

256

Index

Baby M, 174, 177 Bentham, Jeremy, 93 Blackstone, William, 36, 93 Bradkowski, Keith, 87 Bresler, Fenton, Second-Best Bed, 28 Brown, Louise, first “test-tube” baby, 168 California. See also Domestic partnership laws community property, 12 domestic partnership laws, 60, 74, 87–88, 89, 201, 202 genetic fathers, 140 reaction to September 11, 2001, attacks, 87 stepchildren, 156–57 surrogacy, 178 Census statistics family households, 1–2 minor children in cohabiting households, 42 single parent households, 2 unmarried-partner households, 2, 41, 42 Children. See also Adopted children; Children conceived after parent’s death; Children of assisted reproductive technology; Disinheritance of children; Nonmarital children adult and minor children, views of, 100–101, 119 always heirs in nonnuclear family, 98 Bentham’s dim view of natural law support theory, 93 Blackstone’s natural law support theory, 93 cavalier approach of U.S., 91 child support decrees, importance of, 110–11 civil law forced share, 98–100, 101, 119 cohabiting parents, 42, 55 conduit or trickle-down benefits of elective share, 36, 91–92 deadbeat parent as a moral villain, 94 disinheritance, generally, 90–93, 204–6 disinheritance by noncustodial fathers, 90 England, 91 family law protection, 111, 119–20 family maintenance, 108–9, 119 gay and lesbian parents, lack of elective share affecting child, 74 guardianship for minor heir, problems associated with, 95–96 inheritance rights, generally, 4, 7 inheritance rights in civil law countries, 91 Jefferson, Thomas, view of, 103

limited heirship rights under 1990 Uniform Probate Code, 96 Louisiana’s limited legitime, 99 need for a forced portion, 100–101, 110 noncustodial parent’s disinheritance of, 103–5, 119 nonsupport as drain on society, 94 objects of the parent’s bounty, 99 parent’s ability to disinherit in U.S., 98–99 pretermitted, 101–2 proposal for posthumous right to support, 114–18, 119–20 right to support, 36, 93–94 state interest, 100 support award in lieu of forced inheritance, 92 support laws, 93 support statistics, 93, 94 testamentary freedom of parent, 101 Uniform Probate Code 1990, intestate succession approach toward, 96–98 Children born out of wedlock. See Nonmarital children Children conceived after parent’s death. See also Embryos; Genetic material child entitled to genetic material that created him, 187 estate administration problems, 188–92 generally, 184–92 in vitro fertilization, 185 Kolacy, In re, 185 perpetuities problems, 188–92 Restatement (Third) of Property: Wills and Other Donative Transfers (1998), 191 Social Security, entitlement to, 185 traditional test for heirship, 186 Uniform Parentage Act 2000, 190 unilateral decision by surviving parent, 186–87 Children conceived before and implanted after parent’s death. See Embryos Children of assisted reproductive technology. See also Artificial insemination; Children conceived after parent’s death; Clones; Embryos; Genetic material; Surrogacy artificial insemination, generally, 169–74 Brown, Louise, 168 cloning, 168, 195–97 in vitro fertilization, 168 parentage, 169 surrogacy, 174–81 Uniform Probate Code 2000, 169 Civil law, 98–100

Index Civil union dissolution, 85 equivalent of marriage, 60 generally, 84–86 not a civil marriage, 84 numbers, 85 requirements, 86 validity in other states, 60–61, 85–86 Vermont as first to adopt, 60 Clones. See also Children of assisted reproductive technology; Genetic material AID, compared to, 197 birth of human clone imminent, 195 parentage, 196–97 Uniform Parentage Act 2000, failure to address, 195 Cohabiting couples. See also Gay and lesbian couples; Heterosexual cohabiting couples adopted children of, 158–59 beginning of cohabitation, uncertainty as to, 52–53 cohabitation defined, 43 difficulty of gauging quality of relationship of, 6 disadvantages to children of, 42, 55 disinheritance of each other, 46 family maintenance scheme, inclusion in, 24 financial concerns, 42, 51–52, 53 implied trusts, 48–50 married couples, compared to, 42–45, 50–51 meaning of cohabitation, 50–52 palimony claims, 46–47 questions of status, 43 rejection of marriage, 54–55, 88 self-protection, 50 sexual relationships, 53 statistics concerning, 2, 41, 41–42 survey concerning, 51 survivor as creditor, 46–48 Waggoner’s draft proposal for intestate share, 75–80 will contracts, 47–48 Collman, Jeffrey, 87 Common-law marriage. See Heterosexual cohabiting couples Common-law states. See Separate property Commonwealth countries. See Family maintenance Community property elective share, compared with, 21–23 examples, 12, 21–22 need of survivor irrelevant, 21 partnership theory, 21–23

257

protection of spouse from disinheritance, 12–13 separate property, compared with, 11–12 summarized, 38 Uniform Marital Property Act, 23 Constructive trust, 49–50 Contracts. See Antenuptial agreements; Postnuptial agreements; Will contracts Conventional elective share arbitrariness of, 15, 38 examples of, 15, 15–16, 16 generally, 14–18 length of marriage irrelevant, 17 need of survivor irrelevant, 16 Crawford, Christina, disinherited child, 90 Crawford, Joan, disinheriting daughter, 90 Defense of Marriage Act, 85 Discretionary rules and particularized inquiries in inheritance law allowance for family, 26 children, 108–9 cohabiting couples, 41, 52–53, 80 disadvantages of using, generally, 6–7, 208–9 encouraging litigation, 25 family maintenance, 23–27, 108–9 limited role in proposed right of child support from parent’s estate, 115 nonmarital children, 68–69 paternity determinations, 68–69 putative spouse doctrine, 45 rendering unpredictable results, 25, 80 requiring wise and well-trained judges, 25 stepchildren, 157–58 Waggoner’s draft proposal for cohabiting partners, 75–80 Disinheritance of children. See also Children age of child as relevant, 92 child in traditional family disadvantaged, 92, 111 civil law’s forced portion for children, 98–100 county reimbursement provisions concerning, 111–12 disinheritance of spouse, compared to, 106 excuses for permitting, 112 family law solution to problem, 111, 119–20, 205–6 family maintenance, 108–9 frequency of, 105 implication that property is more important than children, 113 inability of child to protect himself, 99, 106 inadvertent disinheritance, 101–2

258

Index

Disinheritance of children (continued) indicative of weaker parent-child bonds in U.S., 113 Louisiana’s limited legitime, 99 need for legislative solutions, 92, 110 noncustodial parent’s tendency to disinherit child, 103–5, 119 parent’s creditors compared with, 105 parent’s freedom to disinherit in U.S., 98–100 pretermitted children, 101–2 proposal for right to support from parent’s estate, 114–18, 119–20 public policy not offended, 114 saddest story in American inheritance law, 204 support award in lieu of forced inheritance, 92 support decrees as protection against, 110, 119 why parents disinherit children, 103–5 will contest, 102–3 young child unable to disinherit parent, 106–7 Disinheritance of spouse. See also Spouses; Wives and widows community-property states, 12–13 disinheritance of child, compared to, 106 for cause, 28–30 infrequency of, 30 reasons for, 30–32 state protections against, 12–21 Twitty, Conway, estate of, 9, 13, 15 Divorce equitable distribution, 25 family maintenance distribution, compared with, 25 proceedings, effect in probate, 10 why perhaps preferable to elective share, 3, 17 Domestic partnership laws availability to heterosexual cohabitants unusual, 87–88 California’s reaction to September 11, 2001 attack, 87 objective approach, 87 requirements, 87 subsequent California amendment effective in 2005, 87 Dower children, protection of, 36, 37 curtesy, compared with, 14 elective share evolution, 14–15 example, 13 lingering effects in elective share, 33 modern approach, 14

Eggs. See Genetic material Elective share. See also Conventional elective share; Fraudulent conveyance; Uniform Probate Code 1969; Uniform Probate Code 1990 abolition of, 33–36 behavior of surviving spouse, 28–30 children, effect on, 36–37, 74 cohabiting couples, generally, 41 conduit or trickle-down effect of, 36, 91–92 conventional form, 14–18, 38 disincentive to marry, 35, 54 dower, as successor to, 14–15 gays and lesbians excluded from, 73–74 length of marriage, 17, 20 partnership theory underlying, 19–21, 74 paternalism, 27, 32–33, 36 protection against disinheritance, 32 second-best solution to community property, as, 22–23 spouse’s preferred position, 9–11 support theory underlying, 19 Twitty, Conway, estate of, 9, 13, 15 Uniform Probate Code 1969, 18–19 Uniform Probate Code 1990, 19–21, 38, 200–201 wealth of surviving spouse, 16 Embryos. See also Genetic material afterborn child statutes, whether covered, 193 generally, 192–95 human beings or property, 192 statistics, 192 Uniform Parentage Act 2000, 193 England. See Adopted children; Dower; Family maintenance Exempt personal property, 31, 91 Family. See also Elective share; Gay and lesbian couples; Heterosexual cohabiting couples; Intestate succession; Marriage; Nontraditional families; Spouses; Traditional families; Wives and widows central place in life, 199 created family preferred over birth family, 4–6, 95 gay and lesbian preference for created family, 62–63 never gauged solely on marriage, 57–58 Family maintenance children, 108–9 cohabitants, 24 discretion, 23 elective share, compared with, 24 examples, 24–25, 26

Index generally, 23–27 protection of children, 24 reasonable financial provision, 24 reasons not adopted in U.S., 25–26 who is included, 24 Fatherhood. See Artificial insemination; Children of assisted reproductive technology; Nonmarital children; Paternity; Surrogacy Fellows, Mary Louise, 55 Finegold, Wilfred, Artificial Insemination, 169 Fonda, Henry, disinheriting children, 103 Forced share. See Elective share Fraud on the widow’s share. See Fraudulent conveyance Fraudulent conveyance difficulty of ascertaining, 17–18 example under conventional elective share, 18–19 illusory transfer test, 17 intent test, 17 Uniform Probate Code 1969, 18, 19 Gay and lesbian couples. See also California; Civil union; Domestic partnership laws; Hawaii; Massachusetts; Reciprocal beneficiary laws; Vermont adopted children of, 159–60, 167 adoption between, 56–57 civil union, 84–86 criminal sex acts, 64–65 discretionary, individualized determinations unlikely, 68–69 domestic partnership laws, 87–88 excluded from probate law, 55 fairness in probate law, 59 future probate law inclusion, 74–88, 200–201 intestate succession, 70 marriage, 60–62 nonmarital children, status compared to, 65–67 nontraditional families, 4 number of, 55 number of children in, 59 objective evidence of relationship, 62 palimony claims, 47 prejudice against, 62 property ownership, 62–64 public opinion favoring inheritance rights, 63 reciprocal beneficiary laws, inclusion in, 80–84 second-parent adoptions, 159–60 September 11, 2001 terrorist attack, 70 sexual orientation unchangeable, 56, 57

259

social stability, 56, 57, 61–62, 84 sodomy statutes unconstitutional, 64–65 standard of judicial review for classifications involving, 67 state financial interest, 62–63 unavailability of marriage, 55 will contest, 71–72 wills, 68–70 Genetic material. See also Children conceived after parent’s death; Embryos child conceived after parent’s death, generally, 182, 183–84, 184–87 clones, 195–97 eggs, whether inheritable, 181–83 estate assets, 182–83 generally, 181–94 multiple owners, 183–84 paternity, 184 sperm, whether inheritable, 181–83 sperm harvesting as rape, 187 Georgia allowance, 27 marriages, 35 refusal to recognize civil union, 61 spousal disinheritance, unique approach to, 27–28, 38, 42, 106 testamentary freedom, 27 Gestational agreements. See Surrogacy Guiding principles for future probate laws, 206–9 Hawaii battle over gay marriage, 60 first state to include unmarried adults as partners, 80 reciprocal beneficiary laws, 60, 74, 80–84, 89, 201 Heirship. See Intestate succession Heterosexual cohabiting couples choice available, 54–55 cohabitant as spouse, 43–45 common-law marriage, 43–45 exclusion even in modern schemes, 75 financial concerns, 42, 51–52, 53–54 future probate law inclusion, 74–75, 202 intestate succession rights, 40–41 putative spouse, 45 rejection of marriage, 54–55 Waggoner’s draft proposal, 80 Homestead, 31, 91 Homosexual cohabiting couples. See Gay and lesbian couples Idaho child disinheritance case, 105 community property, 12

260

Index

Illegitimate children. See Nonmarital children Illinois common-law marriage rejected, 44 nonmarital children, 1 slayer’s statute, 29 state supreme court on child disinheritance, 103–4 Trimble v. Gordon, 1, 127–28 “I’m My Own Grandpa,” 179 Inheritance rights. See Adopted children; Artificial insemination; Children conceived after parent’s death; Children of assisted reproductive technology; Elective share; Embryos; Genetic material; Intestate succession; Nonmarital children; Spouses; Surrogacy; Uniform Probate Code 1969; Uniform Probate Code 2000; Wives and widows Intestate succession. See also Uniform Probate Code 1969; Uniform Probate Code 1990 adopted children, 58, 150–54, 166 adult adoption, 160–63, 167 basic principles of, 4–6 birth family, treatment of 4, 57 children, generally, 4, 118 cohabiting couples, 40–41 cohabiting partners, Waggoner’s proposal to include, 75–80 created family preferred to birth family, 4–6, 95 equitable adoption, 163–65, 167 gays and lesbians, 72, 162–63, 167 genetic material, 181–85 heirs, determination of, 4 importance of objective rules, 6–7 legislative role, 4–5, 50 manipulative adoption, 160–63 marriage, 4 new family adoptions, 150–53 nonmarital children, 127–31 parent’s misconduct concerning child, 107 standing, 72–73 statistics, 70 stepchildren, unadopted, 156–58 stepparent adoptions, 153–54 surviving spouse, 4, 12 traditional scheme, 4, 97–98 will as a means to avoid, 70 In vitro fertilization. See Children conceived after parent’s death; Children of assisted reproductive technology Iowa, death of spouse during divorce proceedings, 10

Jacobsen, Dr. Cecil, misrepresentations about sperm source, 173 Jefferson, Thomas, on child inheritance, 103 Jenkins, Harold. See Twitty, Conway Joint tenancy, 18–19, 31 Judges discretionary power under family maintenance, 25 inability to gauge worthiness of survivors, 29 prejudice against homosexuals, 65, 80 range of training and ability in U.S., 25, 27 Kentucky adoption of spouse, 162 child disinheritance, 105 dower, 14 Kolacy, In re, 185 Lalli v. Lalli, 128–29, 144 Lambda Legal Defense and Education Fund, 70 Lesbian. See Gay and lesbian couples Louisiana community property, 12 legislator’s comment on child disinheritance, 113 legitime (limited forced portion for child), 99, 106 unique approach in American law, 99, 118 Mahoney, Margaret M., 157 Marriage. See also Community property; Elective share; Separate property; Spouses; Wives and widows business, as, 34 cohabitation, compared to, 42–46 common-law, 43–45 Defense of Marriage Act, 85 financial concerns in, 34, 42, 51 gay and lesbian, 60–62 intestate succession, 3–4 life’s most important relationship, viewed as, 11 not threatened by reciprocal beneficiary laws, 82 oppressive effects of, 42–43 partnership theory, 19–21, 21–23 public disapproval of gay marriage, 63 putative spouse doctrine, 45 social stability, 54, 57 state interest in, 55 support theory of, 19 Maryland, equitable adoption, 164

Index Massachusetts adoption, 149 child conceived after parent’s death, 186, 187, 191 child’s right to support from parent’s estate, 110 gay and lesbian marriage, 60n nonpaternity defense, 135 Michigan, dower, 14 Minnesota manipulative adult adoption, 148 survey concerning cohabitation and inheritance, 51 Mississippi adoption, 149, 150, 151 cohabiting couples, 40 exhumation of putative father’s body, 142 Missouri, adult adoption case, 161 Motherhood. See also Surrogacy dual, 123 lesbian mother adoptions, 159–60 questions concerning legal, 123 second-parent adoptions, 159–60 surrogacy, generally, 174–81 Multifactor draft proposal for intestate share for cohabiting couples, 75–79 National Adoption Information Clearinghouse, 149 National Center for Health, adoption information, 149 National Conference of Commissioners on Uniform State Laws 18, 20, 23, 179 Nevada, community property, 12 New Jersey Baby M, 174 child support case, 94 Kolacy, In re, 185 New Mexico child disinheritance case, 105 community property, 12 New York disestablishing paternity, 136 frozen embryos, observations concerning, 192 Lalli v. Lalli, 128–29, 144 New Zealand case applying family maintenance, 24–25 first country to adopt family maintenance, 24 Nonmarital children. See also Artificial insemination; Children of assisted reproductive technology; Parentage; Paternity; Surrogacy bastard, 126 birth statistics in twentieth century, 126, 146

261

disinherited by noncustodial parent, 104–5 filius nulius, 125 historical treatment, 126–31 individualized probate decisions concerning, 68 intermediate scrutiny, 128 intestate succession treatment of, 5, 58 Lalli v. Lalli, 128–29, 144 paternity determinations after father’s death, 68–69, 140–45 paternity presumptions, 133–34 probate problems, 126–27, 143–45 Reed v. Campbell, 129–30 status compared to gays and lesbians, 65–67 stigma dissipating, 126, 136 surrogacy, 175–76 terminology, 126 Trimble v. Gordon, 1, 127–28 Uniform Probate Code 1969, 130–31 Uniform Probate Code 2000, 131 United States Supreme Court cases, 1, 58, 127–30 Nonprobate assets. See also Joint tenancy; Survivorship properties; Tenancy by the entirety generally, 18–19, 31, 35 Nontraditional families. See also Adopted children; Children; Children conceived after parent’s death; Children of assisted reproductive technology; Cohabiting couples; Embryos; Gay and lesbian couples; Heterosexual cohabiting couples; Intestate succession; Nonmarital children; Paternity children excluded from benefits of elective share, 36 defined, 3–4 noncustodial parent who disinherits child, 103–5 North Dakota, Uniform Status of Children of Assisted Conception Act, adoption, 180 Nuclear family. See Traditional families Objective rules and evidence in inheritance law adoption papers, 6 birth certificates, 6 civil union licensing and recording, 85 cohabiting couples, 41, 52–53, 89 common-law marriage, 44–45 domestic partnerships, 87 family maintenance system, contrasted with, 26

262

Index

Objective rules and evidence in inheritance law (continued) gay and lesbian couples, 59, 62 marriage certificate as indicator of family, 6, 51, 53, 68 paternity decrees, 6 reciprocal beneficiary laws, 81, 82–83 reliance on, 6–7, 208 spousal conduct, 29 Ohio child support case, 93 dower, 14 Oklahoma, adoption laws, 150 Parentage. See also Nonmarital children; Nontraditional families; Paternity; Uniform Parentage Act 1973; Uniform Parentage Act 2000; Uniform Probate Code 1969; Uniform Probate Code 2000 importance for determining heirship, 122 modern questions of, 122–23, 202–4 more than two parental lines for inheritance, 154–56, 202 only two legal parents recognized, 123 Paternity. See also Children of artificial insemination; Children of assisted reproductive technology; Nonmarital children; Surrogacy artificial insemination, 171–74 claims against father’s estate, 140–43 determinations after father’s death, 68–69, 140–45 disestablishing, 135–36 disrupting an existing family, 139–40 exhumation cases, 142–43 fraudulent claims, 137 genetic testing, 121 historical treatment of, 125–31 Lalli v. Lalli, 128–29, 144 litigation involving, 124, 127–43 multiple fathers for inheritance, 143–44 presumptions, 121, 133–34 probate efficiency, 143–45 Reed v. Campbell, 128–29 relitigating, 138–39 surrogacy, 175–76 Trimble v. Gordon, 1, 127–28 Pennsylvania disestablishing paternity, 136 who is a surviving spouse, 9 Personal property exemption, 31, 91 Posthumous conception. See Children conceived after parent’s death; Genetic material Posthumous implantation. See Embryos

Postnuptial agreements family maintenance, 25 protection from disinheritance, as, 35 Powell, Jr., Lewis F., Supreme Court Justice, 129 Prenuptial agreements. See Antenuptial agreements Pretermitted children. See Disinheritance of child Principles for future probate laws, 206–9 Probate laws. See also Elective share; Intestate succession guiding principles for future, 206–9 property laws, as subset of 63–64 state interest in, 68 Reciprocal beneficiary laws. See also Hawaii; Vermont generally, 80–84, 86 not a disincentive to marriage, 82 objective nature of, 81, 82–83 requirements in Hawaii, 80–81 requirements in Vermont, 86 Reproductive technology. See Artificial insemination; Children of assisted reproductive technology; Embryos; Genetic material; Nontraditional families; Surrogacy Restatement (Third) of Property: Wills and Other Donative Transfers (1998), 191 Resulting trust, 49–50 Rhode Island, failure to support child case, 107 Rule Against Perpetuities, 188–92 Second-Best Bed, Fenton Bresler, 28 Separate property. See also Elective share community property, compared to, 11–12, 12–13 elective share as paternalism, 32–33 elective share as protection from disinheritance, 13, 38–39 example, 11–12 Sex discrimination and inheritance laws, 2–3, 32–33, 36 Slayer’s statutes, 29–30 Social Security, 31, 42, 88, 141, 185, 186 Sodomy statutes, 64–65 Sperm. See Genetic material Spousal share. See Elective share Spouses. See also Elective share; Intestate succession; Marriage; Wives and widows behavior of, 28–30, 64–65 common-law marriage, 43–45 disinheritance of, 9, 12–21

Index elderly, 16–17 independent actors, as, 33–36 intestate succession, preferred role in, 4–5, 12 putative, 45 testate succession, preferred role in, 9–11 State, protection of, 7 Steprelations. See also Adopted children; Children of assisted reproductive technology; Intestate succession; Paternity; Uniform Probate Code 1990 claims in divorce cases, 135 conduit or trickle-down benefits flowing to, 36–37 difficulty of gauging quality of relationship between, 6 gay adoption compared to stepparent adoption, 160 Mahoney, Margaret M., 157 stepchildren, unadopted, 156–58 Support of children. See Children Surrogacy adoption, whether needed, 175, 177 artificial insemination, compared to, 174–75 Baby M, 174 defined, 174 intra-family, 178–79 lack of consensus concerning propriety, 174 maternity, 177–79 paternity, 175–76 presumption of legitimacy, 176 Uniform Parentage Act 2000, 180–81 Uniform Status of Children of Assisted Conception Act, 179–80 Survivorship properties, 18, 19, 31, 35 Tenancy by the entirety, 31, 35, 81, 85 Tennessee adoption, 151 slayer’s statute, 30 Twitty, Conway, estate of, 9, 13, 15 Texas common-law marriage, 44 community property, 12 Reed v. Campbell, 128–29 sodomy statute unconstitutional, 64–65 Traditional families. See also Elective share; Intestate succession; Marriage; Spouses; Wives and widows defined, 3 failure of inheritance laws to protect, 2–3 Trimble v. Gordon, 1, 127–28 Twitty, Conway (Harold Jenkins), disinheriting spouse, 9, 13, 15

263

Uniform Adoption Act, 154 Uniform Marital Property Act. See also Community property failure of states to adopt, 23 promulgation, 23 Wisconsin, 12 Uniform Parentage Act 1973 adoption of, 131 parent-child relationship under, 131 paternity presumptions, 133–34, 138 stepparent adoptions, 153–54 Uniform Parentage Act 2000 adoption of, 131 artificial insemination, 173–74 assisted reproductive technology, 169, 198, 203–4 cloning not addressed, 195 embryos implanted after parent’s death, 193–94 gestational agreements, 180–81 parent-child relationship under, 131 paternity presumptions, 133–34, 138 surrogacy, 180–81 Uniform Probate Code 1969 arbitrariness of, 19 augmented estate, 18 conventional elective-share, compared to, 18–19 elective share, 18–19 parent-child relationship, 130–31 survivorship properties, treatment of, 19 Uniform Probate Code 1990. See also Elective share; Fraudulent conveyance; Intestate succession; Uniform Probate Code 1969 child in traditional family, when not an heir, 96 children conceived after parent’s death, 190 community property, compared with, 22 conduct of spouse irrelevant, 28–29 difficulty of extending approach to cohabitants, 52–53 elective share, 19–21, 33, 200–201 examples, 20, 22, 96 intestate succession, 4 length of marriage, 20 more than two parental lines for inheritance, 154, 155–56 need of surviving spouse, 20–21 new family adoptions, 150 parent-child relationship, 131 partnership theory of marriage, 19–21, 38 stepparent adoptions, 153–54, 154–56, 177, 203 supplemental elective share, 20–21 wealth of surviving spouse considered, 20

264

Index

Uniform Status of Children of Assisted Conception Act (superseded) Alternative A, 179 Alternative B, 180 failure of states to adopt, 179–80 withdrawn by NCCUSL, 180 Uniform Statutory Rule Against Perpetuities, 190–91 United States Constitution child’s right to parental support, 93–94 equal protection claim of genetic fathers, 140 Full Faith and Credit, 44 gays and lesbians, treatment of, 65–67 nonmarital children, 1, 127–30 privacy, right to in exhumation cases, 142–43 sodomy statutes, 64–65 United States Supreme Court genetic fathers, rights of, 140, 176 intermediate scrutiny, 67, 128 Lalli v. Lalli, 128–29, 144 marriage, view of, 11 nonmarital children cases 1, 5, 58, 127–30 rational basis review, 67 Reed v. Campbell, 129–30 sodomy statutes, unconstitutionality of, 64–65 standard of review in nonmarital children cases, 65–67 Trimble v. Gordon, 1, 127–28 Vermont civil union laws, 43, 60, 74, 89, 159, 201 constitution, Common Benefits Clause, 84 reciprocal beneficiary laws, 86 supreme court ruling, 60, 84 validity of civil union in other jurisdictions, 60–61 Virginia misrepresentations about sperm donation, 173 Uniform Status of Children of Assisted Conception Act, adoption of, 180

Waggoner, Lawrence, 75–80 Washington, community property, 12 West Virginia, disinherited spouse case, 10 Whitehead, Mary Beth, Baby M, 174 Whittier, John Greenleaf, 10 Widow’s share. See Elective share Widows. See Wives and widows Will contests against gay and lesbian beneficiary, 71–72 by disinherited child, 92–93 jury decision affected by prejudice, 72 reaction to disinheritance, 32 Will contracts generally, 47–48 protection against disinheritance, 31 Will substitutes, 12 Wills availability to all adults, 70 burden of executing, 70 buying silence of survivors with bequest, 90 capacity requirements, 71 family maintenance as disincentive, 26 lawyer’s role, 71 necessity for gay and lesbian couples, 63, 71, 73 reasons for not executing 69–71 statistics, 70 young child’s inability to execute, 106–8 Wisconsin, adoption of community-property principles, 12 Wives and widows community property rights, 12 disinheritance of, 9, 12–21 dower, 13–14 elderly, 16–17 elective share, 14–21 failure of inheritance laws to protect, 3–4 intestate succession treatment of, 4–5, 12 partnership interest during marriage, 21–23 sex discrimination in effects of elective share, 32–33, 36