Inheritance Law and the Marital Presumption after Obergefell

8 Estate Planning & Community Property Law Journal 437 (2016)

24 Pages Posted: 30 Aug 2016 Last revised: 6 Oct 2016

See all articles by Paula A. Monopoli

Paula A. Monopoli

University of Maryland Francis King Carey School of Law

Date Written: August 25, 2016


In the summer of 2015, the country saw a sea change in the rights of same-sex couples to marry. With Obergefell v. Hodges, the United States Supreme Court made clear that states could not prohibit same-sex marriage.

From an inheritance law perspective, Obergefell raises questions about the current nature of the marital presumption. That doctrine — that a child born during an intact marriage is presumed to be the child of the husband — does significant work in inheritance law. The marital presumption provides an efficient resolution of the central question for probate courts in estate administration — is there a parent-child relationship between the decedent and a person claiming a share of the decedent’s estate? Every state has a version of the marital presumption and, although it is no longer irrebuttable in the vast majority of states, it is still a powerful presumption that resolves the question in the majority of cases.

This article focuses on the role of the marital presumption in inheritance law after Obergefell and takes the position that Obergefell mandates extension of the current presumption to same-sex, nonbirth/nongenetic spouses in both family law and inheritance law.

The goals of inheritance law in determining parentage include ensuring a child has two parents from whom to inherit if possible, an efficient and fair distribution of assets, and the prevention of fraudulent claims. These goals are not completely aligned with the goal of family law, which is to select the adult best suited to raise the child for a number of years. While this article makes the case for the retention of the presumption, it also makes the case for reconceptualizing the presumption from a doctrine that is a surrogate for discovering a biological connection between fathers and children, to a doctrine based upon the presumed consent of the nonbirth/nongenetic spouse to be the parent of any child born during the marriage. In so doing, it argues that this result can be reconciled with the second and third goals of the original intent of the presumption, legitimizing children and protecting the intact, marital family from intrusion. Those original goals are completely consistent with Justice Kennedy’s focus in Obergefell on reducing the stigma of children of same-sex couples.

Keywords: constitutional law, single-sex marriage, marital presumption, inheritance law, marital privilege, nonbirth parent, probate, Obergefell

Suggested Citation

Monopoli, Paula A., Inheritance Law and the Marital Presumption after Obergefell (August 25, 2016). 8 Estate Planning & Community Property Law Journal 437 (2016), Available at SSRN:

Paula A. Monopoli (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States
410-706-4485 (Phone)


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