Religiously Inspired Gender-Bias Disinheritance
A religion that orders a certain distribution of the estate based on, among other things, a preference of male relatives poses a problem to modern legal systems. This problem combines religion and world-views, family ties, and property distribution. There are several ways to address the problem, depending upon the system’s conception of inheritance. I have suggested three examples of inheritance law systems. This analysis has enabled me to discuss the values of inheritance and, in particular, the position of children.
We have seen that in certain European systems, the property becomes family property at death. Children are understood as having rightful claims to the estate. Therefore, the inheritance is at least [*692] partly out of the testator’s hands. The solution in these systems is easy and clear cut. A more complex solution is the family provision model. In these systems, the law limits the testator’s discretion and he is required to meet a standard of social expectations regarding the distribution of the estate. This standard incorporates the child’s interests as well as the parents. In addition, it introduces the value of inheritance as reaffirming the child’s position in the family. The parties’ understanding of inheritance as communicating a message regarding their familial bond is based upon the relevant social and cultural conception of inheritance. That is, inheritance ties together the parties’ preferences with society’s perspectives.
Next, the Article moved to testamentary freedom systems and surfaced a new legal issue. It asked the reader to consider interference with the testator’s will in case his will demeans his daughters. In other words, it asked us to entertain the argument that a discriminatory will should not be respected by law. I have briefly sketched this argument here and have also pointed out some difficulties with this direction.
Finally, the three systems paint a rich picture of inheritance, combining the testator, his children, and society. Family provision and forced heirship have offered a different angle to reviewing the dilemma, positioning inheritance as a strong form of connectedness. Testamentary freedom systems do not incorporate this value as part of their conception of inheritance. Yet an argument of equality is possible, provided we accept the impact disinheritance has on the child.
Since cultural views and religious convictions are protected through freedom of religion or cultural freedom, the Article does not end with bottom lines. It suggests, however, that we rethink this dilemma, and offers two potential directions: an equality based argument and an argument internal to inheritance. It thus teaches us about the values of inheritance and the possible conflicts within this complex legal arena.