Property and Belongingness: Rethinking Gender-Biased Disinheritance

INTRODUCTION 120I. DISINHERITANCE OF DAUGHTERS: THE PHENOMENON 123II. INHERITANCE LAW: STRUCTURE AND VALUES 125III. THE MEANING OF INHERITANCE 129IV. THE LIMITS OF TESTAMENTARY FREEDOM 136V. GENDER-BIASED DISINHERITANCE AND PUBLIC POLICY....140A. Equality, Respect, and Public Policy 140B. Religion, Culture, and Public Policy 146VI. CONCLUDING REMARK: PROPERTY, FAMILY, AND EQUALITY 152INTRODUCTIONMrs. Singh, a widow, had five children. She loved and cherished all of them equally. Her children were all reasonably settled in life, and maintained good relationships with their mother. Yet only two of these children were men, and consequently entitled to an inheritance according to Mrs. Singh's Indo-Fijian tradition. Her three loving, supportive daughters received only token amounts according to the will, while the bulk of the estate was left to her two sons. ' The disappointed daughters turned to court in British Columbia, Canada, which altered the provisions of the will. The court explained that the will simply did not meet the moral norms in Canadian society.2 Had Mrs. Singh lived in the United States, her daughters would have received no legal relief. They would have just had to live with the painful message that their mother communicated in her final testament: that they do not deserve to participate in the family property because they are women.For the most part, American law respects the donor's testamentary freedom.3 His motives are not scrutinized.4 Generally, he can be petty,capricious, and vindictive, and his estate plan is still regarded as perfectly valid under the law. With this starting point in mind, we set out to explore the limits of testamentary freedom with regard to equality in belongingness to the family. We ask whether the law should protect the donor's discriminatory plan as a matter of public policy, considering the values of dignity, self-respect, autonomy, and participation in the family property and continuity of the family name.This is mostly uncharted territory. Scholars often focus on discriminatory restraints in bequests or trusts. Such restraints may include requiring the beneficiary to marry within her faith,5 as was the case in the recently famous In re Estate of Feinberg decision,6 or, to take a very different example, forming charitable trusts for the enjoyment of a particular group or race.7 These important works focus on testamentary provisions that seek to change the state of affairs in the world. They either encourage a beneficiary to act discriminately, or found an institution with discriminatory goals or purposes. By contrast, we focus on the motives that inspire the distribution of the estate. There is little discussion in current scholarship on the issue of discriminatory motives that result in disinheritance, mostly because lawyers assume that the reasons that lead a testator to disinherit children or other relatives are out of the law's reach. We suggest that some discriminatory bequest motives violate public policy as they infringe the dignity, self-respect, and familial belongingness of potential recipients.We enter this unmarked territory with a specific focus on gender bias8 motivations. This focus includes analyzing the construction of familial relations and daughters' participation in the family property. Nonetheless, we find the comparison to other forms of discrimination quite useful. For example, we compare gender-biased disinheritance to race-biased disinheritance, where a grandparent decides to disinherit one of his grandchildren, because of his or her race.Our argument centers on a reconfiguration of inheritance in a way that includes its symbolic effect on disinherited relatives. Following this premise, we argue that discriminatory gender bias motives should invalidate an estate plan. This conclusion includes redefining the social, relational, and familial role of the institution of inheritance. …

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