The Intestate Share of Half-Bloods

Ralph Brashier, the Cecil C. Humphreys Professor of Law at the University of Memphis, has recently published an insightful article addressing Consanguinity, Sibling Relationships, and the Default Rules of Inheritance Law: Reshaping Half-Blood Statutes to Reflect the Evolving Family, 58 SMU L. Rev. 137 (2005).

Here is an excerpt from the article’s conclusion:

Recent inquiries into the default rules of American intestacy law have explored ways to expand those rules to family members who fall outside the norms upon which traditional probate laws are based. Concentrating particularly on spouse-like relationships and parent-child relationships, we have neglected the changing relationships among other family members. Moreover, by focusing on the ways in which traditional default rules are too narrow to encompass evolving spouse-like and parent-child relationships, we have ignored an important corollary concern: the ways in which the traditional rules have become too expansive in their continued assumption that consanguinity is a reliable gauge for ascertaining family membership. The half-blood relationship is a unique and important area in which most modern probate laws use an overbroad, unduly optimistic default rule to define membership in the modern family.

Today, adults commonly parent children by or with different partners, increasing the numbers of half-blood relationships in society. Many half-blood relatives play no role in each other’s lives and may die unaware of their common bond. This is so even among half-blood siblings – the closest biologically of any half-blood relations. Now more than ever, a consanguineous connection through one ancestor alone is an inadequate criterion for determining whether a half-blood survivor is an object of the decedent’s bounty. Yet in most states the DNA shared through only one parent or ancestor can make the survivor a laughing heir even when no semblance of a true family relationship exists between the decedent and the survivor.

Now that the strength of family ties among half-blood relatives increasingly runs the gamut, how should state legislatures fashion default rules for half-blood survivors? If there is no typical half-blood relationship today, is it time to abandon the rigidity of a one-size-fits-all approach?

A flexible solution could provide probate courts with generous discretion in distributing the intestate estate to or among half-blood survivors.  * * * 

Alternatively, states could base inclusion primarily on objective factors concerning the relationship between the intestate decedent and his half-blood survivors.  * * *

For now, states appear unlikely to adopt either of the preceding approaches. States will continue to assert that laws to effectuate the decedent’s intent must be tempered by the economic benefits that result from pure objective rules that are simple to apply and that render predictable results. * * *