Vol. 14 No. 8 (August 2004), pp.645-647

INHERITANCE LAW AND THE EVOLVING FAMILY, by Ralph C. Brashier.  Philadelphia: Temple University Press, 2004.  272pp.  Cloth $69.50.  ISBN: 1-59213-221-9.  Paper $24.95. ISBN: 1-59213-222-7.

Reviewed by Rosalie R. Young, Public Justice Department, State University of New York at Oswego.  Email:  ryoung@oswego.edu

Ralph Brashier, the Cecil C. Humphreys Professor of Law at the University of Memphis School of Law, has taught and published on inheritance law for some time.  With INHERITANCE LAW AND THE EVOLVING FAMILY, Brashier is obviously hoping to promote change in traditional inheritance law to meet the current needs of Americans.  Our laws, he demonstrates, were developed around the concept of the nuclear family which no longer dominates our culture. Much of inheritance law, he suggests, has not responded to the needs of increasing numbers of nonmarital children, single-mother and single-father families, cohabiting same sex and heterosexual couples, step parents, surrogate parents, and a range of children born through technologically assisted reproduction.  In an effort to be simple, objective, consistent, predictable, and efficient, Brashier suggests, the current laws fail to meet the needs of both survivors and decedents, especially those who die intestate.

Brashier crams a tremendous amount of well-cited material into this brief, clearly written volume.  He offers chapters focusing on the inheritance rights of spouses, unmarried cohabitants, and children, in addition to chapters on paternity, adoption, and assisted reproduction.  While one can read the volume through from beginning to end, readers can pick and choose those in which they are most interested.  Each chapter contains sufficient examples and references to stand alone.

Readers of varying backgrounds and needs will benefit from Brashier’s efforts, and his writing style makes his material clear to diverse readers.  Lawyers and scholars can gain insight into estate law and its history, while a more general audience can gain an overview of the issues which concern them. Brashier’s efforts to clarify legal terms and statutes make it possible for the non-legally educated reader to follow his text, and the use of endnotes at the back of the book leaves the pages uncluttered.  Those who wish to see Brashier’s sources, however, may become annoyed by the need to repeatedly flip to the back of the volume to read his references and commentary.

The author’s agenda comes through on each page.  He describes current law and its history, the problems with implementing law which varies markedly from state to state, and his suggestions for change.  He has attempted to reach a compromise between what traditionalists would prefer and the alterations desired by those who would like the judiciary to have the discretion to respond to each case on its own merits.  His compromises, he indicates, may leave many dissatisfied. [*646]

Brashier suggests that the traditionalists have failed to recognize that the nuclear family is no longer the American prototype.  Those who oppose change may hope that laws favoring the nuclear family will inhibit the growth of non-traditional families. Instead, he notes, the result is discrimination against non-marital partners and their children.  Moreover, giving the judiciary too much discretion, Brashier suggests, no matter how appropriate, diminishes the efficiency we expect from our legal system.  Families generally need rulings as quickly as possible.  Our current probate laws, he notes, stimulate lengthy litigation.  Too much discretion may delay decisions or destroy consistency.

The author’s desire for change and his compassion for those treated unfairly is obvious.  He is appalled by the ability of a testator to disinherit his or her children, regardless of their need.   He is angered by laws that discriminate against the inheritance rights of gay, lesbian, and non-married heterosexual couples, and he repeatedly notes that current laws are unfair and inefficient. This repetition is unnecessary, and I found his editorializing to be an irritant. Brashier’s examples speak for themselves.  In some states, children are denied a legacy because paternity was never legally established, even though the father made his feeling of responsibility clear during his lifetime.  Co-habiting partners and children are left without support by laws naming the decedent’s parents and siblings as inheritors.  Brashier’s quality research bring these points home clearly.

The laws concerning inheritance vary widely from state to state, a major problem for our increasingly mobile population.  The author describes the efforts to unify inheritance and probate statutes through the passage of the Uniform Probate Code (1969, 1990) and the Uniform Parentage Act (1973, 2000).  Most state legislatures have not responded to the need for uniformity due to social or political pressure or because they have been focused on other legislative priorities.

Brashier’s chapter on assisted reproduction points up issues that many of us may not have considered.  Frozen embryos and sperm may lead to births long after the decedent’s death.  The possibility of such births could delay the distribution of the estate for years.  While this may sound absurd, such cases do, as Brashier notes, appear in both the media and our state courts.  During earlier times, blood relationships or legal marital ties were considered to be sufficient to document our important relationships, and our probate laws reflect those views.  Currently, as Brashier clearly points out, there are many equally important relationships that are not covered by probate law.  He argues that children and parents in relationships where their parents or partners cannot or have not married must be protected. 

During the months since this book was published in May of 2004, social and political pressure has been placed upon legislatures to recognize the rights of gay and lesbian partners and their dependents.  New statutes and ad hoc marriages and partnerships have been legally proposed or established.  The interested reader will find this volume to be an effective starting point for determining rights and requirements, but one must be aware of the quickly changing legal scene. [*647]

Perhaps most importantly, Brashier has raised issues which should be addressed by both the general public, by legal counselors, and by our legislatures.  Probate law is much more complicated than it might seem to the uninitiated.  This volume provides a thorough, readable introduction for a broad audience, including individuals who want to accept responsibility for protecting their dependents.


Copyright 2004 by the author, Rosalie R. Young.