Property and Belongingness: Rethinking Gender-Biased Disinheritance

Abstract

For centuries, women have been disinherited from family wealth because of cultural traditions and religious rules that suggest their social role does not require an inheritance. Religious or traditionalist testators still adhere to this belief, exercising their testamentary freedom. Moreover, American law respects the testator’s wishes whether they are petty, vindictive or discriminatory. We make the novel argument that the law should not protect gender-biased bequests, as they are contrary to public policy. Our argument centers on a reconfiguration of inheritance in a way that includes its symbolic effect on disinherited relatives, redefining the social, relational and familial role of the institution of inheritance. We claim that in our society today inheritance functions as the communication of statements about a child’s belongingness to the parent and, more generally, to the family. It is closely connected to the child’s need for roots and continuity. Inheritance is located at the intersection of an individual's vision of continuity and social ideals. The parties’ interests in continuity are broader than a particular relationship between a daughter and her father; they are embedded in a project that has a social and cultural meaning. Therefore, within the doctrine of public policy, we balance conflicting interests. We stress the values of dignity, self-respect, autonomy, and participation in the family property and continuity of the family name. These values are balanced against the freedom of religion and culture.

Keywords: Inheritance, testators, testamentary freedom, gender-biased bequests, public policy