The Stranger-to-the-Marriage Doctrine: Judicial Construction Issues Post-Obergefell

25 Pages Posted: 11 Dec 2019 Last revised: 24 Jun 2020

See all articles by Lee-ford Tritt

Lee-ford Tritt

University of Florida Levin College of Law

Date Written: November 1, 2019


The recent Supreme Court decision in Obergefell v. Hodges changed the legal understanding of marriage in the United States. By making same-sex marriage legal in all fifty states and requiring all states to recognize same-sex marriages from other states, the Court in Obergefell recognized evolving social attitudes toward same-sex marriage and expanded the legal definition of "marriage" to include spouses of the same sex. In so doing, the Court necessarily altered the implication of terms like "spouse," "husband," and "wife" - post-Obergefell, courts will need to construe these words in a way that acknowledges an evolving understanding of marriage. Courts have faced similar construction issues before. When the notion of the American family shifted in the mid-nineteenth century to include adopted children as "natural" children, courts struggled to ascertain donative intent behind language like "child," "children," and "descendants" that had traditionally excluded adoptees. The legalization and growing popularity of adoption made presumptive exclusion of adoptees for inheritance purposes socially obsolete, but neither society nor the law can move directly from presumptive exclusion to presumptive inclusion. In the adoption context, courts used several construction approaches to ascertain and effectuate donative intent in a period of definitional transition when words with once-plain meaning were inherently ambiguous. The construction approaches used by courts to navigate social and legal change in the context of adoption provide insight by analogy into the circumstances that courts face today, as they must construe language that no longer presumptively excludes same-sex spouses.

Keywords: Wills, Trusts, Estates, Estate Planning, Construction, Interpretation, Obergefell, Marriage, LGBT, Same-Sex Marriage

Suggested Citation

Tritt, Lee-ford, The Stranger-to-the-Marriage Doctrine: Judicial Construction Issues Post-Obergefell (November 1, 2019). 2019 Wis. L. Rev. 373, University of Florida Levin College of Law Research Paper No. 20-17, Available at SSRN:

Lee-ford Tritt (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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