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Paula A. Monopoli, Inheritance Law and the Marital Presumption After Obergefell, 8 Estate Planning & Community Prop. L.J. 437 (2016).

The marital presumption always elicits a lively discussion in a Family Law or Estates & Trusts course. But marriage equality for same-sex couples raises a new question: If a child born to a married woman is presumed to be her husband’s child, must the law also presume that a child born to a woman in a same-sex marriage is her wife’s child? Professor Paula A. Monopoli answers this question in the affirmative in her article Inheritance Law and the Marital Presumption After Obergefell and specifically addresses the role of the presumption in the context of inheritance law.

Courts confronted with the claim that marriage equality requires the extension of the marital presumption to same-sex couples have reached different conclusions. Professor Monopoli first analyses the cases that have refused to extend the marital presumption to a female spouse who is not the genetic or birth mother of a child birthed by her wife during the marriage. She explains that these courts have focused on only one goal of the presumption—establishing a biological connection between a birth mother’s child and her husband. Consequently, these courts have concluded that the marital presumption only applies where there is a possibility that the birth mother’s spouse could be the child’s biological parent.

Professor Monopoli then analyses the cases that have extended the marital presumption to a female same-sex spouse. These courts have noted that same-sex spouses are entitled to the same rights and benefits of marriage as different-sex spouses and that a child born during a marriage is presumed to be the child of both spouses.  Professor Monopoli agrees with these courts and focuses on the reasons for the marital presumption—to legitimize children, to ensure that children have two parents for legal purposes, and to protect the intact marital family from intrusion by third parties. She proposes that the law move away from the marital presumption’s origins as a proxy for a biological connection between a husband and his wife’s biological child and ground the presumption in presumed consent to be a parent of a child born during the marriage.  If the marital presumption is based on presumed consent, then the reasons for the presumption apply regardless of the possibility (or impossibility) of a biological relationship between the birth parent’s spouse and the child.

Given that we can easily establish a biological connection between an adult and a child through DNA evidence, the marital presumption’s biological origins are outdated. In contrast, a marital presumption based on presumed consent to be a parent would protect children of same-sex married couples in the same way that it traditionally protected the children of different-sex spouses. Although scholars have proposed abolishing the marital presumption altogether and relying on a functional parentage test, Professor Monopoli argues that given the limited resources of the probate court, it needs bright line rules to enable it to distribute assets to beneficiaries as efficiently as possible. However, she makes a distinction between family law cases—those involving determination of parentage in a custody or child support dispute—and inheritance law cases where the birth parent’s same-sex spouse is deceased. She argues that in the family law context where a finding of parentage will likely create significant duties (and rights) to the child, a spouse who is not a genetic or biological parent should be allowed to rebut the marital presumption by showing that she never consented to be a parent of her spouse’s biological child. In contrast, she argues that in inheritance cases, the presumption should be conclusive (irrebuttable) because the goal is to determine the decedent’s eligible heirs and transfer the assets to them efficiently. In other words, the spouse’s estate would not be allowed to rebut the marital presumption by showing that the decedent never consented to be a parent of her spouse’s biological child.

I spent a lot of time thinking about this distinction.  If a decedent never consented to be a parent of her spouse’s biological child, shouldn’t her estate be able to rebut the marital presumption? Although children of same-sex marriages should have the same rights to inherit from (or through) two parents as children of different sex-marriages, the law requires the children of different-sex marriages to show consent in certain cases. For example, the law has required a posthumously conceived child seeking to inherit from a deceased parent to show that the deceased parent consented to becoming a parent. As the Massachusetts Supreme Court has held “[a]fter the donor-parent’s death, the burden rests on the surviving parent, or the posthumously-conceived child’s other legal representative, to prove the deceased genetic parent’s affirmative consent to both … posthumous reproduction and the support of any resulting child.” Woodward v. Commissioner of Social Security, 760 N.E.2d 257 (Mass. 2002); see also UPC 2-120 (2008) (recognizing inheritance rights for a posthumously conceived child only if the parent consented to posthumous conception in a signed writing or consent is otherwise proven by clear and evidence).  If the law requires consent in posthumous conception cases, should evidence of lack of consent to be a parent to a same-sex spouse’s child be sufficient to rebut the marital presumption?

I don’t have an answer to this question or other fascinating questions raised by this article. For example, the cases that have addressed the marital presumption in the context of same-sex marriages have involved female couples. Does the marital presumption also apply to a married man’s same-sex spouse?  In other words, does marriage equality require that the law presume that a married man’s biological child born during the marriage is his husband’s child? Courts have refused to extend the marital presumption to a married man’s wife, at least in the family law context. Specifically, courts have rejected the argument that when a woman consents to her husband’s insemination of another woman with his sperm, with the understanding that the child will be a child of the marriage, the wife is the child’s parent. See Baby M., 109 N.J. 396 (1988);In re T.J.S., 212 N.J. 334 (2012). These courts have focused on the biological differences between a sperm donor and a surrogate mother. Do these differences mean that post-Obergefell courts must extend the marital presumption to same-sex female spouses but not same-sex male spouses?

The best articles push us to ponder challenging questions for days or weeks.  This article does just that.

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Cite as: Solangel Maldonado, Parentage by Presumed Consent, JOTWELL (June 7, 2017) (reviewing Paula A. Monopoli, Inheritance Law and the Marital Presumption After Obergefell, 8 Estate Planning & Community Prop. L.J. 437 (2016)), https://trustest.jotwell.com/parentage-by-presumed-consent/.