Religiously Inspired Gender-Bias Disinheritance – What’s Law Got to Do with It?

Abstract

There are several religious groups that order a specific distribution of the estate, which includes disinheritance of daughters in favor of sons. A testator’s choice to follow this rule presents a fascinating intersection of conflicting values, world-views, and belief systems. In this Article, I examine the legal treatment of such bequests, and present different solutions from different inheritance law systems. I review three types of systems, Continental law of forced heirship, family provision jurisdictions, and testamentary freedom systems. I claim that deciding these cases is ultimately connected to a legal system’s perception of inheritance. In several systems this function includes recognizing a child’s interest in belonging to the family. If we understand inheritance as communicating a message regarding a child’s belongingness to her family, then gender bias disinheritance should be reviewed with caution. In testamentary freedom systems, the question seems to be quite simple as such a distribution is well within the testator’s prerogative. However, I suggest a more intricate analysis based on the doctrine of public policy.

Keywords: Inheritance, Gender, Religion, Property, Family, Belonging, Continuity