You Can’t Choose Your Parents

Carissa R Trast has published her Note, You Can’t ChooseYour Parents: Why Children Raised By Same-Sex Couples Are Entitled toInheritance Rights From Both Their Parents, in 35 Hofstra L. Rev. 857 (2006).

Here is her conclusion:

Children raised by parents of thesame sex are entitled to the same inheritance rights to which children raisedby heterosexual parents are entitled. But because these children lack the twobloodlines from which most children inherit, they cannot prove parentalrelationships with science and genetics. If there has also been no formaladoption due to illegality or neglect by the parents, the states need to findalternative ways for these children to receive the rights to which they areentitled.

Because intestacy laws are designedto reflect the intention of the decedent, a homosexual parent who has loved,reared and supported a child since the child’s conception or arrival into thefamily would presumably intend such a child to recover from his or her estate.Therefore, the states need to adapt to this changing reality by fashioningelements of proof that same-sex parents and their children can meet. Allowingstates to draft their own legislation guided by a broad set of possibilitiesleaves the power in each individual state– where it belongs–to determine thebest and most efficient way to administer distribution of estates whileprotecting the constitutional rights of the children involved.

Children of same-sex parents areanalogous to children born out-of-wedlock for equal protection purposes, andunder an intermediate scrutiny standard of review, most current statutes areunconstitutional. The statutes do not allow children of same-sex parents torecover from the estate of a parent who has not been established as a legalparent, and this leaves such children at an unfair disadvantage in terms ofboth financial and emotional support. Therefore, while the legislature providesthe most efficient and effective method of addressing the needs of thesechildren and adapting to the changes in society, if the states refuse to takeaction, then the courts must intervene and declare unconstitutional theexisting statutes.

Children have no control over theway they are raised, or who raises them. To punish them because society maydisapprove of the choices their parents have made is both ineffective andunjust. Accordingly, to meet the constitutional needs of these children, theirrights to inheritance must be both recognized and remedied. Children ofsame-sex parents are entitled to the same recovery from both parents aschildren of opposite-sex parents. Therefore, children of same-sex parentsshould receive inheritance rights from both parents, legally recognized orotherwise.