Inheritance Equity: Reforming the Inheritance Penalties Facing Children in Non-Traditional Families
95 Pages Posted: 3 Oct 2015 Last revised: 26 Mar 2016
Date Written: 2015
This Article examines how more than 50% of children living today may be disadvantaged by 1950s era inheritance laws that privilege and protect only those children living in nuclear families with their biological parents. Because so many children today are living in blended families — single-parent families, lesbian, gay, bisexual, transgender, or queer/questioning (LGBTQ) families, or are living with relatives — their right to inherit from the persons who function as their parents are severely limited by most state probate codes, even though they would likely be entitled to child support under the parent-child definitions of most of those states' family law codes. In the unusual case of second-parent adoptions by the partner of a biological parent, many children will be cut off from being able to inherit from their biological parent, which is a truly unanticipated consequence of the “fresh start” provision of most probate codes that delineate the rights of adopted children. This article explores the vast scope of the inheritance penalty, including the history of equitable adoption doctrines and attitudes about parenting. It includes model statutory language to resolve some of the myriad disabilities in these probate codes and a chart detailing how the adoption and inheritance laws of all fifty states interact to create the inheritance penalty.
Keywords: inheritance law, probate law, adoption, blended families, LGBTQ families, non-traditional families
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