Monthly Archives: July 2010

Dual Parenthood and Inheritance Problems

Jul 19, 2010 Joanna Grossman

The increasing complexity of family formation poses many challenges for law. When as many as five adults could be involved in the production of a single child – egg donor, sperm donor, gestational mother, intended mother and intended father, to take just the example of a complex surrogacy – we have to at least consider the possibility that some of our traditional rules are outdated.  Melanie Jacobs has written several pieces in which she considers whether the “two parent” rule is one of those outdated rules.  In this piece, she considers the financial implications of “multiple parentage,” including the implications for inheritance.  Why limit a child to two parents when additional ones may bring important financial as well as emotional resources to the table?

Courts and legislatures have, when given the opportunity, virtually all reaffirmed the rule that a child can have no more than two legal parents.  Thus, the Supreme Court ruled in Michael H. v. Gerald D. against granting legal parent status to the biological father of a child conceived in adultery.  The mother’s husband was conclusively presumed to be the child’s father under California law, and due process did not require that the biological father be given a formal role in his daughter’s life, even though he had acted as a parent for a significant period of time.  In a telling sentence, which Jacobs quotes, Justice Scalia writes that “law, like nature itself, makes no provision for dual fatherhood.”  And in numerous other cases, a third party with significant ties to a child – and, often, a significant role in planning for the child’s conception and birth – is ruled the odd man out.  Sometimes the excluded party is a lesbian partner who co-parented a child who has a legal father (and thus a second parent); sometimes it is a biological father, as in Michael H., whose rank in the parental hierarchy is trumped by another man’s claim to legal or presumed fatherhood; sometimes it is a former stepparent who engaged in substantial childrearing while married to the child’s mother or father; and sometimes it is one or more parties to a surrogacy, which, like the one described above, may entail the participation of as many as five different adults.

Although the tendency is to limit the number of parents to two, Jacobs discusses three instances in which children have been permitted to have more than two legal parents.  First, under Louisiana law, the possibility of dual paternity exists.  The state code imposes the usual presumption that a husband is the legal father of children born to his wife, but it simultaneously allows a biological father (or mother or child) to bring an action for paternity.  If paternity is proven, both the husband and the biological father can be recognized as “legal fathers” and both are obliged to support the child.  Second, a trial court in Pennsylvania ruled that a biological mother, her former same-sex partner, and their known sperm donor all had parental rights and obligations to the two children the trio produced.  Finally, Jacobs discusses the American Law Institute’s Principles of the Law of Family Dissolution, which recognize different categories of “parent” and specifically contemplate that a child could have more than two.

Who suffers for the legal limit on the number of parents a child can have?  The focus, generally, is on the loss experienced by the adults who are deprived the opportunity to parent a child they have been raising.  But, as Jacobs emphasizes in this piece, children suffer as well – they are deprived of a relationship they may have had with a particular adult, but they are also deprived of that person’s financial support.  For the most part, adults who do not qualify for legal parent status are not burdened with an obligation of child support.  Yet someone other than a child’s two primary parents may be best suited to provide such necessary support.

At the inheritance stage, children suffer as well under the two-parent regime.  Under the rules of intestate succession, children generally cannot inherit from more than two parents.  Thus, a child who has been adopted will inherit only from adoptive parents except in cases of a stepparent adoption.  But the current version of the Uniform Probate Code broadens the conception of parent-child relationships and seems to contemplate inheritance in some cases from or through more than two parents.  Jacobs advocates for greater inheritance rights for children with more than two functional parents.  Such a child, she argues “should also be able to inherit through that parent and potentially inherit from other relatives.  Any relative who wishes to foreclose such inheritance has an easy mechanism by which to opt out—a will.”  Greater recognition of multiple parentage would also open up other important sources of support like social security survivor benefits and wrongful death damages, both of which turn on state parentage law.

In the end, Jacobs argues for a framework that would potentially recognize additional parents and impose financial obligations that are “closely related to the particular nature of the custodial and/or visitation relationship.”  This, she argues, will “best protect the best interests of the child and the parents.”  She makes a strong case that the complications of recognizing multiple parents are outweighed by the benefits to children.

Inheritance and Presumptions

Jul 1, 2010 Joshua C. Tate

The problem of simultaneous death has troubled inheritance law for many centuries.  If a common accident kills both Mother and Son, and Mother’s will names Son as her primary devisee, does Mother’s property pass through Son’s estate to his heirs?  Or does it pass instead to the person next in line under Mother’s will?

American teachers of trusts and estates know where to look for the answer to this question:  a statute.  Since the mid-twentieth century, widely adopted uniform acts have attempted to solve the puzzle of simultaneous death by establishing a presumption of survivorship.  Yet this was not always the case.  In his new article, “Death by Disaster: Anglo-American Presumptions, 1766-2006,” Thomas Gallanis explores the history of the Anglo-American law of simultaneous death from the eighteenth century to the present day.  A modern lawyer may be surprised to learn that, for much of its history, the common law made no effort to establish legal presumptions to deal with the problem of simultaneous death.  In addition, the statutory presumptions that were eventually adopted in England are quite different from their contemporary American counterparts.

Gallanis begins his article by examining the history of the English common law of inheritance.  Under the common law, the problem of simultaneous death was treated as a question of fact that would be decided on a case-by-case basis.  By contrast, civil-law systems such as France adopted specific statutory presumptions that varied according to the age and sex of the decedents.  The civil-law system was eventually adopted in the state of Louisiana, which closely followed the French Code Civil.

In the twentieth century, Gallanis explains, both England and America adopted statutory presumptions.  In England, the change was effected by Parliament in 1922 in response to a suggestion by the Cardiff Law Society.  The Law of Property Act 1922, possibly inspired by the civil law, established a presumption that a younger decedent was presumed to have survived the elder.  Parliament subsequently modified the rule in 1952 for spouses, who were thereafter presumed to have survived each other for the purpose of distributing each spouse’s inheritance.

In America, change came in the form of uniform acts.  The first of these, the 1940 Uniform Simultaneous Death Act, took the position in all cases that Parliament would subsequently apply only to spouses:  each person would be deemed to have survived the other.  The wording of the 1940 Act, however, referred to cases where “there is no sufficient evidence” of survival.  This led to gruesome and undesirable results in cases like  Janus v. Tarasewicz, an estate dispute arising from the Tylenol murders in the early 1980s in which one spouse survived the other by only 2 days.  Because there was “sufficient evidence” of survival, the rule did not apply, even though that meant the property of the first spouse to die would pass through the other’s estate.  In the early 1990s, the Uniform Law Commission promulgated and amended a revised uniform act, which adopted a 120-hour rule in place of the “no sufficient evidence” standard.

Gallanis concludes his article by asking why it took Anglo-American law so long to develop a law of presumptions with regard to simultaneous death.  He suggests two plausible reasons.  First, advances in transportation increased the frequency of accidents, such as train, automobile, and plane wrecks, that would lead to simultaneous death.  Second, the common law’s tendency to delegate factual decisions to lay juries faded away as the lay jury itself declined in importance for civil disputes.  Gallanis views recent legislation in England and the United States as a positive development, by which “the presumption of survivorship was adapted for our modern age, where almost every day brings a newspaper account of another common disaster—and the consequent question whether A survived B.” (P. 200).

Gallanis’s article focuses on the history of simultaneous death in the common law, not the contemporary policies that might make some presumptions better than others.  It is worth noting, however, that advances in medical technology have allowed life to be prolonged artificially following an accident in ways that were not possible in earlier historical periods.  In light of such technology, does a rule that makes the outcome depend on survival by 120 hours adequately take into account the perverse incentives that some heirs and devisees may have?  This is a question that would seem to benefit from further consideration.  While Gallanis is almost certainly correct that the current statutory presumptions are preferable to the blurry law of the past,  that does not mean that the new presumptions are perfect.  Codification does not, and should not, mean ossification.  Inspired by first-rate scholarship like Gallanis’s article, future generations of law reformers will no doubt continue to refine the law’s solutions for the ancient problem of simultaneous death.