Article on the Role of Marital Presumption in Inheritance Law After Obergefell

Paula A. Monopoli recently published an Article entitled, Inheritance Law and the Marital Presumption After Obergefell, 8 Est. Plan. & Community Prop. L.J., 437 (2016). Provided below is a summary of the Article:

In the summer of 2015, the country saw a sea change in the rights of same-sex couples to marry. With Obergefell v. Hodges, the United States Supreme Court made clear that states could not prohibit same-sex marriage. Obergefell created ripple effects in a number of doctrinal areas, including inheritance law.

From an inheritance law perspective, Obergefell raises questions about the current nature of the marital presumption. That doctrine–that a child born during an intact marriage is presumed to be the child of the husband–does significant work in inheritance law. The marital presumption provides an efficient resolution of the central question for probate courts in estate administration–is there a parent-child relationship between the decedent and a person claiming a share of the decedent’s estate? Every state has a version of the marital presumption and, although it is no longer irrebuttable in the vast majority of states, it is still a powerful presumption that resolves the question in the majority of cases.

With the advent of same sex-marriage as a right in every state, there are a number of interesting questions about the future of the marital presumption. Does Obergefell reify marriage and thus the presumption? And is that bad policy? For those who argue that the presumption privileges marital children, should they redouble their efforts to eliminate the marital presumption altogether? Should states revise statutes to reflect the fact that a woman may now be the nonbirth spouse trying to establish a parent-child relationship using a presumption built specifically for men? Should those in inheritance law separate the definition of the parent-child relationship for their purposes from its definition for family law purposes?

This article focuses on the last question–the role of the marital presumption in inheritance law after Obergefell. It describes several illustrative cases that have arisen in the family law context, reviews the courts’ analysis, and suggests that a conclusive marital presumption be extended to all nonbirth/nongenetic spouses for purposes of inheritance law. Since our system of inheritance law is status-based, establishing the parent-child relationship is the key to determining whether someone inherits through intestacy or when there is a class gift in a governing instrument like a will or trust. This article takes the position that Obergefell mandates extension of the current presumption to same-sex, nonbirth/nongenetic spouses in both family law and inheritance law.