Article: Constitutional Limitations on the Enforcement of Foreign Forced Heirship Laws

January 7, 2025

Raquel Begleiter, Austin Bramwell, and Molly Schiff recently published, Constitutional Limitations on the Enforcement of Foreign Forced Heirship Laws, ACTEC Law Journal, Fall 2024. Provided below is an Abstract:

Nearly all fifty of the United States and the District of Columbia follow the common-law principle of testamentary freedom. By contrast, in countries that follow civil law or Sharia law, testamentary freedom is limited. Those countries instead have forced heirship regimes, whereby a decedent’s estate is required to be divided into shares for his or her legal heirs and distributed in proportions determined by the number of heirs living at the decedent’s death and degree of consanguinity. In some forced heirship regimes, shares are distributed on the basis of consanguinity and without regard to age, sex or legitimacy. Under other regimes, by contrast, a decedent’s sons receive shares of the estate twice as large as daughters receive. It is generally accepted that courts apply the law of a decedent’s dom–icile in matters involving decedents’ estates.

It is also generally accepted that a court may refuse to apply the law of another state or country where doing so would violate the public policy of the forum state. To date, no court in the United States appears to have had the occasion to decide whether to follow Sharia forced heirship laws applicable to the disposition of a decedent’s U.S. situs property. Similarly, it does not appear that a United States court has determined whether to recognize a foreign court’s forced heirship judgment based on Sharia law.

This article examines to what extent probate courts in the United States would refuse, on constitutional grounds, to apply the law of a decedent’s domicile or to recognize and enforce a foreign forced heirship judgment, if doing so would result in the court applying a discriminatory sex-based classification. The article proceeds as follows: Section II discusses conflicts of law and the public policy exception to the application of foreign law under conflicts-of-law principles. Section III reviews courts’ recognition and enforcement of foreign judgments under principles of comity and the exceptions thereto. Section IV addresses whether the public policy exception can be based on rights under the United States Constitution and argues that a United States court may have a basis, under the Equal Protection Clause of the Fourteenth Amendment, for refusing to apply sex-based succession law. Similarly, a court in the United States may have constitutional grounds for refusing to recognize a foreign forced heirship judgement ordering the distribution of a decedent’s estate in accordance with sex-based law. Finally, Section V provides practitioner considerations for planners whose clients may wish to ensure that a United States court will not—or will, as the case may be—apply Sharia forced heirship rules to the succession of U.S. situs property.

Posted in:

Articles and Estate Planning - Generally