Sperms and Estates: An Unadulterated Functionally Based Approach to Parent-Child Property Succession
University of Florida - Levin College of Law
January 1, 2009
Southern Methodist University Law Review, Vol. 62, No. 1, 2009
The Article argues that the sanguinary nexus test, the dominant standard for determining whether an individual has a right to inherit property when another dies, has become an increasingly frustrating, and arguably arcane, legal tool in light of the diversity of family relationships extant in modern American life. The sanguinary nexus test determines child status based upon ties of “blood.” Considering the evolving notions of family structures and advances in reproductive technologies involving cloning, surrogacy and egg/sperm donation, serious questions arise about whether the existing sanguinary nexus test can produce results consistent with the fundamental principle of testamentary freedom underlying all of estates law. Surveying a variety of parental support cases involving novel family situations, this Article deploys a normative and pragmatic critique of estates law’s current reliance upon family law principles to determine relevant family relationships. From a normative standpoint, a close examination of parental support cases reveals how reliance upon family law principles and its child-centered jurisprudence undermines the integrity of testamentary freedom. Perhaps paradoxically, that potential attack on testamentary freedom has rather serious deleterious implications for effective family planning in modern society. From a pragmatic standpoint, the work demonstrates the growing impracticability of attending adequately to inheritance rights that arise from continued reliance on family law principles. To bring estates law back into step with modern family realities, this Article articulates and defends a new “unadulterated functional-based approach” to determine child status that would completely break genetic links for inheritance purposes. In the end, this Article concludes that paying greater fidelity to a functional parent-child relationship, rather than reliance upon blood relationships or family law jurisprudence, would help rehabilitate the core value of testamentary freedom in estates law.
Number of Pages in PDF File: 64
Keywords: wills, estates, succession law, intestacy, inheritance, testamentary freedom, freedom of testation, reproductive technology, family, posthumously conceived children, parent, child, default rules
Date posted: June 9, 2010 ; Last revised: October 3, 2013