Property and Belongingness: Rethinking Gender-Biased Disinheritance

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Texas Journal of Women and the LawVolume 21

PROPERTY AND BELONGINGNESS: RETHINKINGGENDER-BIASED DISINHERITANCE

Shelly Kreiczer Levy* & Ivleital Pinto**

INTRODUCTION 120I. DISINHERITANCE OF DAUGHTERS: THE PHENOMENON 123II. INHERITANCE LAW: STRUCTURE AND VALUES 125m. THE MEANING OF INHERITANCE 129IV. THE LIMITS OF TESTAMENTARY FREEDOM 136V. GENDER-BL\SED DISINHERITANCE AND PUBLIC POLICY,... 140

A. Equality, Respect, and Public Policy 140B. Religion, Culture, and Public Policy 146

VI. CONCLUDING REMARK: PROPERTY, FAMILY, ANDEQUALITY 152

Abstract

For centuries, women have been disinherited from family wealthbecause of cultural traditions and religious rules that suggest their socialrole does not require an inheritance. Religious or traditionalist testatorsstill adhere to this belief and exercise their testamentary freedom to cutwomen out of their estates. Moreover, American law respects the testator'swishes whether they are petty, vindictive or discriminatory. We make thenovel argument that the law should not protect gender-biased bequests, asthey are contrary to public policy. Our argument centers on areconfiguration of inheritance in a way that includes its symbolic effect ondisinherited relatives, redefining the social, relational and familial role ofthe institution of inheritance. We claim that, in our society today.

Assistant Professor, The Academic Center of Law & Business, LLB, PhD Tel AvivUniversity.

Assistant Professor, Carmel Academic Center, LLM, SJD University of Toronto. We areextremely grateñil for reeeiving comments and advice fi-om Ori Aronson, Daphna Hacker,Boaz Miller, Re'em Segev, and Florence Wagman Roisman. We have also benefited fromcomments on a previous version of the argument from participants of the Hebrew UniversityPrivate Law workshop.

119

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120 Texas Journal of Women and the Law Vol. 21:1

inheritance functions as the communication of statements about a child'sbelongingness to the parent and, more generally, to the family. It is closelyconnected to the child's need for roots and continuity. Inheritance islocated at the intersection of an individual's vision of continuity and socialideals. The parties ' interests in continuity are broader than a particularrelationship between a daughter and her father: they are embedded in aproject that has a social and cultural meaning. Therefore, within thedoctrine of public policy, we craft a balance between conflicting interests.We stress the values of dignity, self-respect, autonomy, and participation inthe family property and continuity of the family name. These values arebalanced against the freedom of religion and culture.

INTRODUCTION

Mrs. Singh, a widow, had five children. She loved and cherished allof them equally. Her children were all reasonably settled in life, andmaintained good relationships with their mother. Yet only two of thesechildren were men, and consequently entitled to an inheritanee according toMrs. Singh's Indo-Fijian tradition. Her three loving, supportive daughtersreceived only token amounts aeeording to the will, while the bulk of theestate was left to her two sons. ' The disappointed daughters turned to courtin British Columbia, Canada, which altered the provisions of the will. Theeourt explained that the will simply did not meet the moral norms inCanadian society.^ Had Mrs. Singh lived in the United States, herdaughters would have received no legal relief They would have just had tolive with the painful message that their mother communicated in her finaltestament: that they do not deserve to participate in the family propertybeeause they are women.

For the most part, American law respects the donor's testamentaryfreedom.•* His motives are not scrutinized." Generally, he can be petty.

1. Prakash v. Singh, [2006] BCSC 1545. This case was discussed as part of acomparative analysis of gender-biased disinheritance in various legal systems in ShellyKreiezer-Levy, Religiously Inspired Gender-Bias Disinheritance—What's Law Got to Dowith It?, 43 CREIGHTON L. REV. 669 (2010). Our article develops the argument, expands onits eonsequences in the American legal system, and considers the context ofmulticultural ism, equality, and freedom.

2. The court explained, "[I]n modern Canada, where the rights of the individual andequality are proteeted by law, the norm is for daughters to have the same expectations assons when it comes to sharing in their parents' estates. That the daughters in this case wouldhave this expeetation should not come as a surprise. They [the parents] have lived most oftheir lives, and their children have lived all of their lives, in Canada." Prakash v. Singh,[2006] BCSC 1545, para. 58.

3. Fischer v. Heckerman, 772 S.W.2d 642, 645 (Ky. Ct. App. 1989); RESTATEMENT(THIRD) OF PROP.: WILLS AND OTHER DONATIVE TRANSFERS §10.1 cmt. a (2003). The

elective share is the only declared limitation on testamentary freedom. See infra note 8.

2011 Property and Belongingness 121

capricious, and vindictive, and his estate plan is still regarded as perfectlyvalid under the law. With this starting point in mind, we set out to explorethe limits of testamentary freedom with regard to equality in belongingnessto the family. We ask whether the law should protect the donor'sdiscriminatory plan as a matter of public policy, considering the values ofdignity, self-respect, autonomy, and participation in the family propertyand eontinuity of the family name.

This is mostly uncharted territory. Seholars often foeus ondiseriminatory restraints in bequests or tmsts. Such restraints may includerequiring the beneficiary to marry within her faith,^ as was the case in therecently famous In re Estate of Feinberg decision,* or, to take a verydifferent example, forming charitable tmsts for the enjoyment of aparticular group or race.^ These important works foeus on testamentaryprovisions that seek to ehange the state of affairs in the world. They eithereneourage a beneficiary to act discriminately, or found an institution withdiscriminatory goals or purposes. By contrast, we focus on the motives thatinspire the distribution of the estate. There is little discussion in currentscholarship on the issue of discriminatory motives that result indisinheritance, mostly beeause lawyers assume that the reasons that lead atestator to disinherit children or other relatives are out of the law's reach.We suggest that some discriminatory bequest motives violate public policyas they infringe the dignity, self-respeet, and familial belongingness ofpotential recipients.

We enter this unmarked territory with a specific focus on gender bias^motivations. This focus includes analyzing the eonstruction of familialrelations and daughters' participation in the family property. Nonetheless,we find the comparison to other forms of diserimination quite useful. For

4. We use male pronouns when discussing the donor in order to illuminate the gender-biased disinheritance of women. The phenomenon is more common in the case of maletestators. See generally Daphna Hacker, The Gendered Dimension of Inheritance: EmpiricalFood for Legal Thought, 1 J. EMPIRICAL LEGAL STUD. 322 (2010).

5. Jason N. Summerfleld, Disinheritance in New York State: Legacies We Do and DoNot Leave, 43 CREIGHTON L. REV. 785 (2010); Jeremy Macklin, The Puzzling Case of MaxFeinberg: An Analysis of Conditions in Partial Restraint of Marriage, 43 J. MARSHALL L.REV. 265 (2009).

6. 9l9N.E.2d 888 (111. 2009).7. Florence Wagman Roisman, The Impact of the Civil Rights Act of 1866 on Racially

Discriminatory Donative Transfers, 53 ALA. L. REV. 463 (2002); A. S. Klein, Annotation,Validity and Effect of Gift for Charitable Purposes which Excludes Otherwise QualifiedBeneficiaries Because of their Race or Religion, 25 A.L.R.3d 736 (1969).

8. We bracket the gender-biased disinheritance of wives from this discussion andfocus on daughters. Unlike daughters, wives are protected fl-om disinheritance in theAmeriean legal system. For the eleetive share, see John H. Langbein & Lawrence W.Waggoner, Redesigning the Spouse's Forced Share, 22 REAL PROP. PROB. & TR. J. 303(1987). See also Lawrence Waggoner, The Uniform Probate Code's Elective Share: Timefor a Reassessment, 37 U. MICH L.J. REEORM 1 (2004).

122 Texas Joumal of Women and the Law Vol. 21:1

example, we compare gender-biased disinheritance to race-biaseddisinheritance, where a grandparent decides to disinherit one of hisgrandchildren, because of his or her race.

Our argument centers on a reconfiguration of inheritance in a way thatincludes its symbolic effect on disinherited relatives. Following thispremise, we argue that discriminatory gender bias motives shouldinvalidate an estate plan. This conclusion includes redefining the social,relational, and familial role of the institution of inheritance. We claim thatin our society today, inheritance functions as a communication ofstatements about the child's belongingness to the parent and, moregenerally, to the family. Disinheritance of a child reflects, in many cases, arejection of the child from the family. We then argue, following Hellman,'that disinheriting a daughter because she is a woman demeans her and is,therefore, a violation of a public policy. We thus employ the concept ofdiscrimination as humiliation and implement it in the unique attributes ofdonative transfers.

Of course, gender-biased disinheritance of the estate has significanteconomic consequences. The systematic exclusion of daughters fromfamily property would result in economic disparities between men andwomen. A society eommitted to gender equality and equal opportunityshould beware of such bequest pattems. Both dimensions—the values ofbelongingness and dignity as well as economic inequality—work togetheras strong arguments against gender-biased disinheritance. In this article wefocus on the former dimension, thus contributing to a new understanding ofthe institution of inheritance.

The main thrust of this artiele, then, is not to reinvent the familiartension between liberal values and cultural or religious norms. Instead, ourpurpose is to explore the intersection of property, family and equality. Weput the spotlight on inheritance, and its unique characteristics are thefoundation for our argument.

The argument is developed as follows: the first three parts of thisartiele define the problem, while the following two parts discuss thepossible legal solution. Part II discusses the phenomenon of disinheritanceof daughters because of their gender. Part III is eoncemed with thestructure and values of inheritance. Part IV goes on to explain the effect ofdisinheritance on family members, espeeially children, with a particularfocus on the legal, relational, and sociological attributes of inheritance. Itintroduces the concept of inheritance as an expression of belongingness andfamilial eontinuity, and as being closely connected to notions of dignity,respect, and roots. Part V examines the limits of testamentary freedom,commenting on the interrelation between testamentary freedom and

9. DEBORAH HELLMAN, WHEN IS DISCRIMINATION WRONG? (2008).


equality. Part VI looks into the doctrine of public policy, arguing thatgender-biased disinheritance violates its principles. This Part balancesvalues of equality and dignity on the one hand, and freedom of religion andculture on the other. Finally, we eonclude with some thoughts on property,family and equality.

I. DISINHERITANCE OF DAUGHTERS: THE PHENOMENON

Several religions and customary laws stipulate an unequal distributionof assets at death and distinguish between men and women as heirs.'" Thesocial impact of such inheritance pattems varies among different societies,aecording to the position these religious or customary mies occupy in aparticular legal and social framework. To evaluate this phenomenon andgive a basic sense of its roots, we offer some brief examples.

One example of such a religious predicament can be found in Jewishlaw, which orders that the decedent's sons be the first to receive land. Onlyif the owner has no sons or other male descendants does a daughterinherit." In addition, wills that circumvent these succession rules aregenerally frowned upon in Jewish law, as the mies of inheritance are setforth in the Torah.'^ This means that religiously observant owners feelcompelled to leave their assets to their sons and disinherit their daughters.Even when intestate mies are egalitarian. Orthodox owners can be expeetedto write wills that follow the Torah's suecession laws.

However, in the context of Israeli society, there is an interestinginterplay between religion and the norm of equality. In Israel, a rabbinicalcourt may assume authority over estate disputes, provided all the relevantparties agree to accept its mling.'^ Surprisingly, perhaps, rabbinical eourtsin Israel make an effort to accept egalitarian values in the context ofinheritance. They recognize wills that include a bequest to daughters, and

10. Inheritance law contains many technical terms, specific verbs and nouns to identifya complex variety of transfers. Most often, there are different words for personal propertyand real property transfers. For example, "a man dying testate devises real property todevisees and bequeaths personal property to legatees." Also, some treat wills as disposingreal property and testament as disposing personal property. There is a further distinctionregarding intestacy: "Real property descends to heirs; personal property is distributed tonext of kin.'" See JESSE DuKEMiNiER ET AL., WILL, TRUSTS AND ESTATES 33 (7th ed., 2005).Following Dukeminier et al., we use these words interchangeably. Id.

11. The Torah, Num. 27:8-11. In the order of succession, sons (the eldest son taking adouble portion) and their descendants take first, then daughters and their descendants, thenthe brother of the giver and his descendants, and so on. See JOSEPH RIVLIN, INHERITANCEAND WILLS IN JEWISH LAW 18-19 (1999) (Hebrew).

12. Shalom Elbak, The Foundations of Inheritance Law and Wills in the Talmud, 1RESEARCHES IN LAW 7 (1989) (Hebrew); MICHAEL J. BROYDE, THE PURSUIT OF JUSTICE AND

JEWISH LAW: HALAKHIC PERSPECTIVES ON THE LEGAL PROFESSION 101 (1996).

13. Inheritance Law, 1965, S.H. 446 (Isr.) § 155.


occasionally employ fictions to overeóme the prescribed succession rules inorder to aeknowledge a daughter's share.'''

To take another example, aeeording to the Quran's mandatory bequestscheme, women inherit a portion of a relative's estate, but less than thedecedent's male relatives.'^ Moreover, the Quran does not recognize willsthat change its distributive scheme. Despite this ostensible allowance forwomen, in some Muslim societies women are subject to significantpressure to renounce their share of the estate in favor of their brothers.'*Social custom and Muslim law occasionally compensate them by makingsure that women are taken care of by their male relatives, such as husbands,fathers, or brothers,'^

In addition, empirical work shows that daughters are stilldiscriminated against in non-Western societies,'^ Some countries havediscriminatory succession rules," while others are dominated by gender-biased customs, despite the fact that the law of the country is otherwiseequitable,^" Inheritance patterns in such societies indeed follow thesecustoms, resulting in an unequal distribution of resources. Notably, the lawof the land might carry some symbolic meaning, yet customary lawdetermines actual distributions.

These brief examples give us a sense of the gender-biaseddisinheritance phenomenon. There are two legal backgrounds to suchpatterns. In the first case, the custom or religious predicament is part of thestate law. The governing law itself is discriminatory. This leads to afundamental constitutional question. In Western eountries, such a statutewould likely be subjeet to scrutiny and not be upheld.^' A seeond, moreeomplex, possibility is that within the egalitarian state law, individuals

14. Hacker, supra note 4, at 341.15. David S. Powers, The Islamic Inheritance System: A Socio-Historical Approach, 8

A R A B L . Q . 13(1993).16. BINA AGARWAL, A FIELD OF ONE'S OWN 282-84 (1994); Ahmad Nator, Saria and

Custom in the Bedouin Family in the Negev according to the Rulings of the Sharia Court InSeer5/ieva, 3 3 T H E N E W E A S T 9 4 , 110(1991).

17. In certain cultures or religious groups, there are mechanisms that protect women'sfinancial welfare in different ways such as obligating their brothers to provide for them. See,e.g., JOHN L. ESPOSITO, WOMEN IN MUSLIM FAMILY LAW 39-70 (1982).

18. Hacker, supra note 4, at 345.19. Hacker, supra note 4, at 339. Tamar Erez, Inheritance Law in Tanzania: The

Impoverishment of Widows and Daughters, 1 GEO. J. GENDER & L. 599 (2006). See alsoJeanmarie Fenrich & Tracy E. Higgins, Special Report: Contemporary African LegalStudies: Promises Unfulfilled: Law, Culture and Women's Inheritance Rights in Ghana, 25FORDHAM INT'L L.J. 259 (2001 ).

20. Nelson Tebbe, Inheritance and Disinheritance: African Customary Law andConstitutional Rights, 88J. RELIGION 466 (2008).

21. See Trimble v. Gordon, 430 U.S. 762 (1977) (holding that that the Illinois intestatesuccession statute was unconstitutional because it discriminately distinguished betweenlegitimate and illegitimate children).


exereise their freedom of disposition and choose to follow a custom orreligious law. This possibility is our main eoneem in this article. Howshould the law in a liberal soeiety respond to diseriminatory estate plans?

II. INHERITANCE LAW: STRUCTURE AND VALUES

An understanding of inheritanee law's strueture and an in-depthevaluation of its values is a neeessary preeursor to scrutinizing the reasonsfor disinheritance and creating limits to a testator's ability to disinheritrelatives from the estate.

Inheritance law is a distinctly private field. It deals with the transferof property after death, and is eharaeterized as a donative transfer. Theowner of property is free to execute a will that eommunicates herpreferences regarding the alloeation of her assets.^^ Indeed, upon review ofthe case law, testamentary freedom is frequently assumed^' and isconsidered a pivotal value of inheritance law. There are, however, twolimitations to this freedom. First, in certain jurisdietions, the testatorcannot disinherit his spouse.^" In these cases, the testator's intent isirrelevant and these states secure a portion of the estate in favor of thesurviving spouse. Second, the testator's power ean be limited by the publiepolicies of the governing jurisdiction. For example, the rule againstperpetuities requires the testator to vest the interests of the benefieiaries^^ atsome point.^* These limitations protect the publie from control by a dead

22. Fischer v. Heekerman, 772 S.W.2d 642, 645 (Ky. Ct. App. 1989). See alsoKymberleigh N. Korpus, Extinguishing Inheritance Rights: California Breaks New Groundin the Fight Against Elder Abuse but Fails to Build an Effective Foundation, 52 HASTINGSL.J. 537, 554 (2001); Adam J. Hirseh & William K.S. Wang, A Qualitative Theory of theDead Hand, 68 IND. L.J. 1,12-13(1992); Terry L. Tumipseed, Why Shouldn V / Be Allowedto Leave My Property to Whomever I Choose at My Death! (or How I Learned to StopWorrying and Start Loving the French), 44 BRANDÉIS L.J. 737, 751, 756-62 (2006); John H.Langbein, Substantial Compliance with the Wills Act, 88 HARV. L. REV. 489, 491 (1975). Itis quite an expansive freedom and includes the ability to make trusts and conditions. SeeRESTATEMENT (THIRD) OF PROP.: WILLS AND OTHER DONATIVE TRANSFERS §10.1 cmt. a

(2003); Judith G. McMullen, Keeping Peace in the Family While You Are Resting in Peace:Making Sense of and Presenting Will Contests, 8 MARQ. ELDER'S ADVISOR 61, 78 (2006);Joshua C. Täte, Conditional Love: Incentive Trusts and the Inflexibility Problem, 41 REALPROP. PROB. & TR. J. 445 (2006).

23. See, e.g., Shapira v. Union National Bank, 315 N.E.2d 825 (Ohio Misc. 1974);Moore v. Anderson, 109 Cal. App. 4th 1287 (Cal. Ct. App. 2003); Fischer, 111 S.W.2d at645; Williams v. Vollman 738 S.W.2d 849, 850 (Ky. Ct. App. 1987).

24. See Langbein & Waggoner, supra note 8; Waggoner, supra note 8.25. See Thomas P. Gallanis, The Future of Future Interests, 60 WASH. & LEE. L. REV.

513, 557-59 (2003) (offering a eritique of the technical distinction between vested andeontingent).

26. RESTATEMENT (THIRD) OF TRUSTS § 29 (2003).


hand."When a person does not write a will, or when the will is invalid for

some reason, the law distributes the property according to a set of defaultrules.•̂ '̂ In keeping with the value of testamentary freedom, intestacy rulesare commonly understood to track the way most people would like tobequeath their property.'̂ ^ Still, other seholars remind us of the expressivefunction of the rules. People's preferences are not exogenous to the law.Accordingly, intestacy law not only reflects soeiety's norms, but also"helps to shape and maintain them."''"

This basic division between the will and intestacy is quite important tothe law. Intestate mies are part of the state law, and therefore have toconform to consfitutional values, such as equality.^' The writing of a will,on the other hand, is a private act reflecting individual choice. It fallswithin an arena of law that contains fewer limitations and rarely includes areview of the testator's motives. A will ean reflect the vindictive, unfair,and petty desires of the testator. ̂ ^ This dichotomy may seem natural to

27. See William A. Drennan, Wills, Trusts, Schadenfreude, and the Wild, Wacky Rightof Publicity: Exploring the Enforceability of Dead-Hand Restrictions, 58 ARK. L. REV. 43,52-56 (2005); Gregory S. Alexander, The Dead Hand and the Law of Trusts in theNineteenth Century, 37 STAN. L. REV. 1189 (1985); LEWIS M . SIMES, PUBLIC POLICY ANDTHE DEAD HAND (1955).

28. RESTATEMENT (THIRD) OF PROP.: WILLS AND OTHER DONATIVE TRANSFERS § 2.1,

cmt. c (2003).29. See generally, Adam J. Hirsch, Default Rules in Inheritance Law—A Problem in

Search of Its Context, 73 FORDHAM L. REV. 1031 (2004). This approach is very eommon.Most scholars who deal with intestate succession support some version of it. See LAWRENCEW. WAGGONER ET AL.. FAMILY PROPERTY LAW: CASES AND MATERIALS ON WILLS, TRUSTS,

AND FUTURE INTERESTS § 2-1 (2006); Mary Louise Fellows et al.. Committed Partners andInheritance: An Empirical Study, 16 LAW & INEQ. 1, 11-12 (1998) (hereinafter Fellows etal.. Committed Partners), Thomas P. Gallanis, Default Rules, Mandatory Rules, and theMovement for Same-Sex Equality, 60 OHIO ST. L.J. 1513, 1523 (1999); William J. Fratcher,Toward Uniform Succession Legislation, 41 N.Y.U. L. REV. 1037, 1047 (1966); Thomas J.Mulder, Intestate Succession Under the Uniform Probate Code, 3 PROSPECTUS 301, 301,306 (1970); Daniel H. O'Connell & Richard W. Effland, Intestate Succession and Wills: AComparative Analysis of the Law of Arizona and the Uniform Probate Code, 14 ARIZ. L.REV. 205, 209(1972).

30. E. Gary Spitko, The Expressive Function of Succession Law and the Merits of NonMarital Inclusion, 41 ARIZ. L. REV. 1063 (1990); Ronald J. Scalise Jr., Honor Thy Fatherand Mother?: How Intestacy Law Goes Too Far in Protecting Parents, 37 SETON HALL L.REV. 171,173-76 (2006). For a general theory of the expressive flinction of law, see CassR. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021 (1996); accordCass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903 (1996); seeElizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A GeneralRestatement, 148 U. PA. L. REV. 1503 (2000) (offering a philosophical theory).

31. Trimble v. Gordon, 430 U.S. 762 (1977).32. See Hiler v. Cude, 455 S.W.2d 891, 899 (Ark. 1970) (noting that "[i]f one has the

capacity indicated to make a will, then he may make it as eccentric, injudicious and unjustas caprice, frivolity or revenge can dictate."); John J. Worley, Foreword, Neutralism,


trust and estate scholars, but it is actually quite surprising given theconstitutional limits on intestate distribution. The two methods ofdistribution are more alike than many would care to admit. Both methodsultimately result in the distribution of the estate to reeipients; the onlydifference may be the choice of recipients. Yet, in praetice, most wills donot diverge grossly from the state-prescribed mies." In fact, theconventional view states that intestate rules are supposed to serve thewishes of most testators.^'' Applying a very different set of standards tothese similar methods of distribution ignores signifieant eonsequences.Property is a powerful resource and inheritance distributes opportunities,^^power,'"' and symbolic affiliations."

At any rate, these methods derive from the values of inheritance law,whieh primarily are eoneemed with facilitating the intent of the testator.However, these values themselves are often disputed. A eore debatecenters on the freedom of the owner versus a recognition of other interests,mainly those of family members, other strong relations, or caretakers.While American law is focused on testamentary freedom, a comparativesurvey reveals that additional interests are protected.̂ ** Many scholars

Perfectionism, and the Lawyer's Duty to Promote the Common Good, 40 S. TEX. L. REV. 1,4 (1999) (noting the story of a vindictive brother who wanted to disinherit his three sistersand also prevent the sole beneficiary, his sister, from contacting any of her sisters).

33. Jeffrey P. Rosenfeld, Disinheritance and Will Contests, in FAMILY SYSTEMS ANDINHERITANCE PATTERNS 75, 79-80 (Marvin B. Sussman and Judith Cates ed., 1982); T. P.Sehwartz, Disinheritance and Will Contests as Reciprocity and Deviance: An EmpiricalExtension of Gouldner and Rosenfeld Based on the Wills of Providence, 1985,A\ Soc. Q.265 (2000) (finding that disinheritance is infrequent but not rare). See also MARVIN B.SUSSMAN ET AL.. THE FAMILY AND INHERITANCE 4-7 (1970) (claiming that "will makersconform, by and large, to cultural prescriptions of familial responsibility over generationaltime").

34. Hirseh, supra note 29, at 1042.35. See generally the articles in UNEQUAL CHANCES—FAMILY BACKGROUND AND

ECONOMIC SUCCESS (Samuel Bowles et al. ed., 2005); cf Nigel Tomes, The Family,Inheritance, and the Intergenerational Transmission of Inequality, 89 J. POL. ECON. 928(1981). These studies often lead to the argument that inheritance should be significantlycurtailed. See D.W. Haslett, Is Inheritance Justified?, 15 PHIL. & PUB. AFF. 122 (1986);RONALD CHESTER, INHERITANCE, WEALTH AND SOCIETY 26-33 (1982); Mark L. Ascher,Curtailing Inherited Wealth, 89 MICH. L. REV. 69, 83-84 (1990).

36. Id.111. See Marlene S. Stum, Families and Inheritance Decisions: Examining Non-Titled

Property Transfers, 21 J. FAM. & EcON. ISSUES 177 (2000) (discussing the eeonomic andpsychological effects of inheritance decisions of non-title property on relatives)

38. For forced heirship systems, see Marie L. Revillard, France, in EUROPEANSUCCESSION LAWS 211, 229 (David Hayton ed., 2002); Andrea Bonomi, La VocationSuccessorale Volontaire dans Certain Droits Européens, in LE DROIT DES SUCCESSIONS ENEUROPE 31, 50-52 (2003); George A. Pelletier, Jr. & Michael Roy Sonnenreieh, AComparative Analysis of Civil Law Succession, 11 VILL. L. REV. 323 (1966). For familyprovision systems, see TYLER'S FAMILY PROVISION (R.D. Oughton & E.L.G. Tyler eds., 2ded. 1984); R.F.D BARLOW ET AL., WILLIAMS ON WILLS 971 (8th ed, 2002, vol. 1); Joseph


disagree on the subject. Proponents of testamentary freedom evoke theright to private property, claiming that the power to bequeath is part of thebundle of sticks in the right to private property.^' Other proponents suggestthat testamentary freedom is useful for achieving other purposes. Forexample, one argument suggests that testamentary freedom creates anineentive to work and save or that it promotes efficient estate planning.''" Adifferent argument is that the owner's freedom creates an incentive forreceivers to please her and accommodate her needs.'"

On the other hand, several scholars have argued that family membersare entitled to a share of the estate, either as a protection of minor ordependent ehildren,''^ or as part of a eoncept of family property.''^ Othersargue that inheritance is a final reward for an ongoing close relationshipthat is based on trust.'''' Finally, Foster posits that the best focus forinheritanee law is eare and support rather than the wishes of the owner.'"These arguments all reflect on the interrelation of inheritanee and familyties. They either elaim that certain relatives deserve a bequest because of aclose relationship or that inheritance law should emphasize not onlyprivileges but also the specific obligations of the testator.

This debate obviously influences the limits of testamentary power andthe legitimate reasons for disinheritance. Supporters of strong and fulltestamentary freedom will see nothing legally wrong with a gender-biased

Laufer, Flexible Constraints on Testamentary Freedom—A Report on Decedents ' FamilyMaintenance Legislation, 69 HARV. L. REV. 277, 282 (1955).

39. RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT

DOMAIN 304 (1985).40. See Hirsch & Wang, supra note 22, at 7-8, 12 (explaining various theories in favor

of freedom of testation, including the theories that testamentary freedom "creates anincentive to industry and saving" and "permits more intelligent estate planning"); see alsoTumipseed, supra note 22, at 756-58 (arguing that freedom of testation "provides anincentive to work" and "leads to an optimal level of wealth creation and savings").

41. Joshua C. Täte, Caregiving and the Case for Testamentary Freedom, 42 U.C. DAVISL.REV. 129, 176-80(2009).

42. Ralph C. Brashier, Disinheritance and the Modern Family, 45 CASE W. RES. L.REV. 84 (1994); Ronald Chester, Disinheritance and the American Child: An Alternative

from British Columbia, 1998 UTAH L. REV. 1,6(1998); Deborah A. Batts, / Didn't Ask to BeBorn: The American Law of Disinheritance and a Proposal for Change to a System ofProtected Inheritance, 41 HASTINGS L.J. 1197, 1197-98 (1990).

43. EDWARD C. HALBACH, An Introduction to Chapters 1-4, in DEATH, TAXES ANDFAMILY PROPERTY 3, 6 (Edward C. Halbach cd., 1979); see also EDMUND BURKE,REFLECTIONS ON THE REVOLUTION IN FRANCE 49 (1790) ("[T]he power of perpetuating ourproperty in our families is one of the most valuable and interesting circumstances belongingto it, and that whieh tends the most to the perpetuation of society itself").

44. Melanie B. Leslie, Enforcing Family Promises: Reliance, Reciprocity, andRelational Contract, 11 N.C.L REV. 551, 581-87 (1999) [hereinafter Leslie, EnforcingFamily Promises^.

45. Frances H. Foster, Linking Support and Inheritance: A New Model from China,1999WIS. L.REV. 1199(1999).


distribution. An owner is entitled to make his choices, based on his set ofbeliefs and worldviews, whether we approve or not. On the other hand,systems that protect the interests of family members would invalidate agender-biased scheme since it offends female family members' rightftilclaims. Indeed, in British Columbia, Canada, the eourt modified Mrs,Singh's will when it discriminated against her daughters in favor of hersons,'' However, one does not have to make family protection argumentsto claim that discriminatory wills are invalid. Instead, we argue, one canadopt a more moderate perspective that recognizes the impact ofdisinheritanee in the social and legal realm. This perspective, combinedwith a theory of equality, offers a new framework for defining the legallimits of such acts. The next part, then, assesses the social impact ofdisinheritanee and, more generally, the significance of receiving a bequestfor potential recipients.

III. THE MEANING OF INHERITANCE

We have seen that the owner's wishes are key elements in Amerieaninheritance law. Amerieans have the freedom to disinherit their daughter(s)if they please. We dispute this component of testamentary freedom,arguing that discriminatory motives offend the daughters' sense ofcontinuity, roots, and belongingness. The argument proposes a shift incurrent conceptions of inheritanee by highlighting its legal, social, andcultural impact.

Inheritance, we argue, promotes continuity through property.''^ It is aparticular form of continuity, based on the significance of property as animportant social and personal symbol. Property is a symbol of identity,*^and it shapes meaningful connections and ties.'" It also symbolizes aconneetion to à heritage or cultural group, and espeeially to familialcontinuity,^" For generations, property transfers in the family have

46. Prakash v. Singh, [2006] BCSC 1545.47. For an in-depth analysis of continuity and inheritanee, see SHELLY KREICZER-LEVY,

THE INTERGENERATIONAL BOND; RETHINKING INHERITANCE (PhD Dissertation, Tel Aviv

University, 2009); Shelly Kreiczer-Levy, The Riddle of Inheritance: Connecting Continuityand Property (Feb. 3, 2011) (unpublished manuscript, on file with author).

48. MARGARET JANE RADIN, REINTERPRETING PROPERTY 35 (1993).

49. See infra notes 59-65. Property also poses a risk of objectifying our identity andrelations.

50. See, e.g.. Sherry Hutt & C. Timothy MeKeon, The Control of Cultural Property asHuman Rights Law, 31 ARIZ. ST. L.J. 363, 364 (1999) ("Cultural property can be defined asan evolving, irreplaceable resource that defines the existence of a group of people in aunique manner. It provides the underpinning of group identity in a spatial and temporalcontext. Cultural property may be the tangible expression of humans interacting with theirenvironment, or the intellectual property of groups such as ceremonial songs orethnobiologieal knowledge. The preservation of cultural property rights is essential to give


structured familial roles^' and reflected the relative power, positions, andties of family members.^^ These structures usually have resulted in adependeney of women on their male relatives.^^ Family property generally,and inheritance in partieular, symbolized access not only to wealth, but alsoto participation in the continuity of the family.^" These transfers structurethe position of family members as belonging to the "eommunity" of thefamily in a unique way. It allows them to engage in a meaningful resourcefor the family's eontinuity and identity, and as a result allows them to viewthemselves as belonging to the family.

We claim that inheritance today eommunieates a message regardingthe belongingness of the child to the testator and generally to the family. Abequest reaffirms the position of the child with regard to the parent; itrepresents the child's interest in eontinuity. Disinheritanee, on the otherhand, is a message of exelusion and uprootedness. Although this claim issupported by empirieal studies, it is not a factual argument. Rather, weclaim that inheritanee is loeated at the interseetion of individuals' vision ofcontinuity and social ideals. The parties' interests in continuity are broaderthan a partieular relationship between a daughter and her father; they areembedded in a projeet that has a social and cultural meaning.^^ Socialideals of eontinuity guide the parties' understandings and the way they

meaning to human existence and as a bond against enslaving a people by diminishing thedefinition of their existence.").

51. 5ee, e.g., Toby Ditz, Ownership and Obligation: Inheritance and PatriarchalHouseholds in Connecticut, 1750-1820, 47 WM. & MARY Q. 235, 252 (1990) (describingfamilial duties of brothers to their sisters, when daughters did not receive a portion of theestate). For property transfers to the eldest son at the expense of other children, see C. RayKeim, Primogeniture and Entail in Colonial Virginia, 25 W M . & M A R Y Q . 54 (1968).

52. Cf. Marsha Garrison, Towards a Contractarian Account of Family Governance,1998 UTAH L. REV. 241 (1998) (explaining governance in the family). See also Patricia HillCollins, Gender, Black Feminism, and Black Political Economy, 568 ANNALS 41, 48-49(2000) ("Each social hierarchy relies on the work/family nexus that in turn frames particularunderstandings of property. Specifically, gender hierarchies depend on family rhetoric andpractices to shape differential male and female access to property. Historically, whetherproperty was inherited from their fathers, given to them by their husbands, or acquired viathe working-class male 'property' of the family wage, women typically gained access toproperty via their relationships with men. Families that are organized around marriedheterosexual couples form a site for intergenerational control over and transfer of racializedwealth: These same social loeations also constitute an important site for intergenerationalmale control of property. Because they lack access to eurrent male income as well as pastand present male property, families maintained by Blaek single mothers are especiallypenalized within this system.").

53. Collins, .si/pra note 52.54. See, e.g., Ralph E. Giesey, Rules of Inheritance and Strategies of Mobility in

Prerevotutionary France, 82 AM. HIST. REV. 271 (1977) (describing inheritanee patterns innorthern France prior to the French revolution and the communal effort of consecutivegenerations in securing continuity of the family wealth).

55. See KREICZER-LEVY, supra note 47.


shape the project of continuity. At the same time, the owner does notsimply conform to social norms—he evaluates the norms and applies themto his personal circumstances by making individual assessments ofrelationships.

We unfold the argument one step at a time, in several layers. Webegin with an account of the importance of eontinuity and roots. Weeontinue with an explanation of the symbolie nature of property and atheory of gift-giving to stress the context of property transfers after death.We then move on to discuss certain sociological works, and review somelegal examples that reinforce our eonelusion. Finally, we address thecultural backgrounds of such disinheritance deeisions.

The need for roots, as part of the general interest in continuity, is afact of human life. Weil explains: "A human being has roots by virtue ofhis real, aefive, and natural participafion in the life of a community, whichpreserves in living shape certain particular treasures of the past and eertainparticular expectations for the futtire."'* Others have stressed the need fortradition and guidance, and the importanee of roots for the ereation of anidentity and participation in the world of culture." There is a strongconnection between a person's sense of identity, connectedness, and roots,and her relations with significant others, such as family members. AsTaylor elucidates, we define our identity always in dialogue with what"significant others" see in us. Even after these people leave our lives anddie, we continue to converse with them and define ourselves through thisconversafion.'^ Inheritance is part of this dialogue. It communicates amessage from the owner of property, now deeeased, to his potenfial heirs.

The meaning of this message derives weight from the partieularattributes of inheritance in most countries. It is a gratuitous transfer thattakes plaee after death. To explain its characteristies, let us consider theample scholarship on gift-giving theory. The study of gifts is quiteexpansive, in both the social studies^^ and legal scholarship.*" These

56. SIMONE WEIL, THE NEED FOR ROOTS—PRELUDE TO A DECLARATION OF DUTIES

TOWARDS MANKIND 41 (Arthur Wills trans., 1952).57. MICHAEL OAKESHOTT, THE VOICE OF LIBERAL LEARNING 28 (Timothy Fuller ed.,

1989); CHARLES TAYLOR, MULTICULTURALISM: EXAMINING THE POLITICS OP RECOGNITION

32-33 (1994); HANNAH ARENDT, BETWEEN PAST AND FUTURE 91-92 (1968); Anthony T.Kronman, Precedent and Tradition, 99 YALE L.J. 1029, 1066 (1999).

58. TAYLOR, supra note 54, at 32-33.59. The starting point for most of these studies is the work of the French anthropologist

Marcel Mauss. See MARCEL MAUSS, THE GIFT; THE FORM AND REASON FOR EXCHANGE IN

ARCHAIC SOCIETIES (Ian Cunnison trans., 1974). Mauss used studies of different societies,both archaic and simple, and concluded that the gift is an extremely central soeialinstitution. In the studied societies, groups exchange not only goods but also "courtesies,entertainments, ritual, military assistance, women, children, dances, and feasts." Id. at 3.Gift exchanges consdtute "total social phenomena, [in which] all kinds of institutions flndsimultaneous expression: religious, legal, moral, and economic." Id. at 1.


studies often suggest that gifts create and cement social bonds.''' Certaingifts, ones that carry special meaning for the giver, remain part of thegiver's personhood when it is transmitted to the recipient and thus theybecome connected through the possession of it.''̂ When an owner gives agift, she considers the receiver's needs and character, and shecommunicates her views of her.̂ ^ Moreover, people "tend to confirm theirown identity by presenting it to others in objectifled form."^'' The identityis reflected not only in the object but also in whom the owner chooses togive a gift to.*'

In addition, a gift makes valuable statements about the relationship ofthe owner and her reeipients. A gift can either begin a relationship*'*' orreaffirm the strength of an existing one.''^ A decision to give a giftcommunicates a message regarding the giver's preferences and taste, andregarding her opinion of the recipient.*'̂ Since a gift creates feelings oftmst, it acts as a bridge between the recipient and the giver. ̂ ' When aperson receives a gift, it shows what the giver has thought of her, of herability to use the property and succeed, and of what she likes and needs.When the recipient accepts the gift, she concurs with the position the giverconferred upon her.''"

The message that the giver communicates to the recipient isparticularly powerful when it is a bequest and not simply a gift. In theparadigmatic case, the giver gives the gift only when she is no longerliving. Moreover, she has to dispose of her property since she can no

60. For legal writing concerning gifts, see Jane B. Baron, Gifts, Bargains and Form, 64IND. L.J. 155 (1989); Carol M. Rose, Giving, Trading, Thieving and Trusting: How and WhyGifts Become Exchanges and (More Importantly) Vice Versa, 44 FLA. L. REV 295 (1992);Jane B. Baron, Do We Believe in Generosity?: Reflections on the Relationship BetweenGifts and Exchange, AA FLA. L. REV 355 (1992); Robert H. Frank, The Differences BetweenGifts and Exchange: Comment on Carol Rose, 44 FLA. L. REV 319 (1992); Melvin AronEisenberg, The World of Contract and the World of Gift, 85 CALIF. L. REV. 821 (1997); EricA. Posner, Altruism, Status, and Trust in the Law of Gifts and Gratuitous Promises, 1997Wis. L. REV. 567 (1997); Mary Louise Fellows, His to Give; His to Receive; Hers to Trust:A Response to Carol M. Rose, 44 FLA. L. REV 329, 334-36 (1992); Roy Kreitner, The GiflBeyond the Grave: Revisiting the Question of Consideration, 101 COLUM. L. REV 1876,1944-47(2001).

6 1 . ROSALYN DIPROSE, THE BODIES OF WOMEN: ETHICS, EMBODIMENT AND SEXUAL

DIFFERENCE 67 (1994).62. Id.63. Barry Schwartz, The Social Psychology of the Gift, 73 AM.}. Soc. 1 (1967).64. Id.65. For example, giving money to charity says something about the giver. See

Schwartz, supra note 63, at 2.66. Alvin W. Goulander, The Norm of Reciprocity, 25 AM. SOC. REV. 161, 176 (1960).67. ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS 151(1995).

68. Schwartz, supra note 64, at 1.69. Id.70. Id at 3.

2011 Property and Belongingness 13 3

longer keep it. This means that people, especially family members, expectthe property to be distributed. Moreover, they expect it to be distributed ina certain way, a way that refleets the values, opinions and judgments of thedeeedent.

We think of inheritance as communicating a message ofbelongingness or exclusion. This message is intricate, and works bothinwards and outwards. It affects the individual relationship of the partiesinvolved (a specific testator and a legatee or disinherited relative). At thesame time, it is evaluated by soeial expectations. Certain people expect abequest, based not only on their relationship with the property owner, butalso because it is the norm. Disinheriting a child, in Westem society,carries a stronger message than disinheriting a nephew. A disinheritedchild, as opposed to a disinherited nephew, would be much more offendedbecause children in Westem society are understood to belong to theirparents and to eontinue their legacy.^'

There are several relevant empirical findings that support this claim.First, most people refrain from disinheritanee of children. Hacker explainsthat equal distribution among children is the norm, and only rarely doparents deviate from it.^^ Täte, on the other hand, diseusses eeonomicstudies and claims that wills compensate devoted ehildren for providingcare.^^ While these studies point in seemingly opposite directions, bothconfirm that people understand will-making as reflecting a judgment onpotential heirs. This judgment is about their relationship with the testator,but even more than that, it is about their role in the family; their role aschildren. Testators ean either signal that they love all their childrenequally,''' or show a ehild that they value her exceptional behavior, whichsurpassed that of the other children.^'

Sussman et al. conclude that "will makers conform, by and large, toeultural prescriptions of familial responsibility over generational time."^''Note that it is ä familial responsibility they have to assume as testators.They make statements not only about their own vision or taste, but also

71. SeeJACOB JOSHUA Ross, THE VIRTUE OF THE FAMILY 157-58 (1994) ( "Throughouttheir whole lifetimes, however, parents and ehildren correetly speak of themselves asbelonging to each other."). For more about the parent-child relationship, ^ee RICHARD DIENWiNFiELD, THE JUST FAMILY 137-45, 148-53 (1998); Anne L. Alstott, Property, Taxationand Distributive Justice: What Does a Fair Society Owe Children—and Their Parents?, 11FORDHAM L. REV. 1941 (2004).

72. Hacker, supra note 14, at 337-38.73. Täte, supra note 41.74. B. Douglas Bemheim & Sergei Severinov, Bequests as Signals: An Explanation for

the Equal Division Puzzle, 111(4) J. POL. ECON. 733 (2003) (explaining equal division as asignal of equal affection).

75. Täte, supra note 41.76. SUSSMAN ET AL., supra note 33.


about their family, supported by their familial roles. Therefore, for mostdisinheritance cases there is a culturally acceptable reason.''^ Furthermore,not all inheritance patterns are socially approved. Rosenfeld claims thatvindictive disinheritance is deviant from social norms.^^ In a more recentwork he contends that all disinheritance acts (and will contests) constitutean aet of deviation. Benefactors who disinherit their son or daughter havedeviated from the norm of intergenerational continuity.^'

Wills, then, involve normative assessments of potential heirs.Children (or other potential recipients) ean thus feel offended by an estatedistribution,**" as it defies their expeetations. A New Zealand courtdeeision eloquently makes this point: "A child's path through life issupported not simply by finaneial provision to meet economic needs andcontingencies but also by reeognition of belonging to the family and ofhaving been an important part of the overall life of the deceased."

Testators are aware of these expectations and often feel as though theyare under eertain obligations. Although they have the final say in thedistribution of their estate, they, family members and society at largeunderstand that some distributions communicate a harsh message, and theywill try to avoid it, unless they have a normatively acceptable reason fordisinheriting the child.

These conclusions are not just findings of sociological research, butthe law also seems to incorporate some of these insights. Courts, especiallyjuries,**^ seem to engage in normative judgments of wills.**' Thus, Leslieclaims that courts evaluate whether a will conforms to a norm of

77. For example, disinheritance of a child in favor of a spouse that is also the parent ofthe child is considered reasonable. Cf. RESTATEMENT (THIRD) OF PROP.: WILLS AND OTHERDONATIVE TRANSFERS §2.2, reporter's note 2 (2003) (discussing the conduit theory).

78. Rosenfeld, Disinheritance and Will Contests, in FAMILY SYSTEMS AND INHERITANCEPATTERNS, supra note 33, at 75, 77 (defining such disinheritance acts as "when people actvindictively toward offspring or kin and behave in such a way that they intentionally violatethe norms of reciprocity that ordinarily structure relationships among them"); cf. M.J.Farrelly, State Creation of Old Age Distress in England: An Aspect of Old Age Pensions, 4INT'L J. ETHICS 188 (1894) (noting that "[t]he vindictive, the vainglorious, the superstitioustestator was enabled to defy justice by a posthumous robbery of those who naturallydepended on his succession").

79. Jeffery P. Rosenfeld, Will Contests—Legacies of Aging and Social Change, inINHERITANCE AND WEALTH IN AMERICA 171, 173 (Robert K. Miller & Stephan J. McNameeeds., 1998).

80. See Bemheim & Severinov, supra note 74.81. Williams v. Aucutt, 2000 NZLR 479, para 52 (emphasis added).82. MELANIE B . LESLIE & STEWART E. STERK, TRUSTS AND ESTATES 98, 102 (2006);

Jeffrey A. Schoenblum, Will Conte.sts: an Empirical Study, 22 REAL. PROP. PROB. & TRUSTJ. 607,655(1987).

83. Melanie B. Leslie, The Myth of Testamentary Freedom, 38 ARIZ. L. REV. 235(1996); Leslie, Enforcing Family Promises, supra note 44.


reciprocity in long-term relationships.^"The theoretical analysis together with empirical findings shows that

inheritanee is a unique eultural institution, combining a personal messageand soeial expectations. Accordingly, disinheritanee eommunieates amessage of rejeetion. One could argue that this eonelusion is onlyeonvineing in eertain cultural backgrounds, and that women in cultures thathave a general norm of disinheriting daughters will not experience anindividual message of exelusion. We disagree. The soeial and theindividual are inseparably linked. The eultural message of rejeetion affectsthe individual. When the eommunity characterizes women's position in thefamily or in society as not being deserving of a bequest, it actually meansthat they do not participate in the family property. Women are excludedfrom a significant form of continuity that includes not only wealth, but alsoa message of belongingness. When their father joins this statement, itmeans that he is reinforeing this message of exclusion. The soeial becomesaffirmed in the individual context.

Consider, for example, a testator that decides to disinherit one of hisgrandchildren. The grandchild's mother is black and the baby has darkskin. The grandparent does not want his blaek grandchild to inherit hiswealth, and for this reason alone he disinherits him. To the grandehild, thisis definitely offensive and demeaning. He is left with a painful messagethat his grandparent rejected him because of his race. Would we come toany other conclusion simply because the grandparent belongs to a cultureor group that has racist values?^^

The differenee, one may say, is that in the latter ease the daughtersubscribes to the father's eulture. She will not be offended because sheshares his worldviews. Yet, even if the daughter aeeepts this tradition, themessage it conveys is offensive to her need for roots, eontinuity, andbelongingness to the family. The message is not only a social message,exeluding women in general; it is also a personal message, expressing thather father did not eonsider her worthy of continuing his legacy because sheis a woman. Continuity through property has a dialectical nature: it movesfrom individual relations to social norms and back again.

We might have eome to a different conclusion had inheritance notbeen a symbol of eontinuity at all in sueh eultures, but simply a teehnicalmechanism of eeonomic utility. But this is not the ease. These societies dovalue the eontinuity of the family through property, just not for women.

We are not arguing here, however, in favor of adopting legalobligations to provide a certain share for family members. Rather, we

84. Leslie, Enforcing Family Promises, supra note 45.85. On the race-gender distinction, see Gila Stopler, Countenancing the Oppression of

Women: How Liberals Tolerate Religious and Cultural Practices that Discriminate AgainstWomen, 12 COLUM. J. GENDER & L. 154 (2003).


emphasize the effect of disinheritance, arguing that certain wills can bedemeaning if they exclude women from this form of connectedness to thefamily. Naturally, some estate disputes brought to court by disappointedrelatives derive from economic, rather than symbolic or relational,ineentives. After all, property is a significant resource in the modemeconomy. The distribution of financial goods in the family setting is one ofthe reasons why women are injured by gender-biased inheritance patterns.Nonetheless, our core argument lies elsewhere and suggests, based on anumber of sociological findings and theoretical works, that inheritaneeinvolves relational messages and communicates normative judgments ofbelonging to the family.

IV. THE LIMITS OF TESTAMENTARY FREEDOM

A testator is free to make an estate distribution according to hisworldview, wishes, or eaprices. However, this freedom is not withoutlimits. Certain public interests restrain the testator's power. The lawstrikes a balance between respect for the testator's freedom and publicpolicies, including dead hand control, equality, and the rule of law. Thelegal meehanisms for restricting testamentary power can be divided intotwo groups: provisions that involve state action and the common lawdoctrine of public policy.

The doetrine of state acfion is reserved for eases where a state agencyor official is involved.^^ It is generally established that govemmentenforcement of discriminatory provisions might violate the EqualProteetion Clause. A number of cases apply the doctrine of state action todonative transfers, mostly in the context of racially discriminatorycharitable trusts.^^ For example, the Supreme Court deeided that theenforcement of a trust for the ereation and maintenance of a school for"poor white male orphans" was forbidden by the Fourteenth Amendment.****In addition, Roisman suggests that the Civil Act of 1866 is also applicablein these types of cases. According to her analysis, "section 1982 mayproteet a potential beneficiary from being rejeeted as a grantee of property,whether by inheritance or other form of transfer beeause of her race."^'

Discriminatory bequest motives eannot usually be semtinized underthe state action doctrine. When a father decides to disinherit his daughter

86. Shelley V. Kramer, 334 U.S. I (1948).87. See generally Roisman, supra note 7.88. Pennsylvania V. Bd. ofDirs., 353 U.S. 230, 231 (1957).89. Roisman, supra note 7, at 467. Section 1982 reads: "All citizens of the United

States shall have the same right, in every State and Territory, as is enjoyed by white citizensthereof to inherit, purchase, lease, sell, hold, and convey real and personal property." 42U.S.C. § 1982(2006).

2011 Property and Belongingness 13 7

because of her gender, no state action is involved. The operation of trustsoccasionally involves a trustee who is a govemmental official, or a cause ofinterest to the publie, such as parks or schools.**" Within the family,however, a state aetion claim usually has failed.'' In addition, ourargument is not simply based on equality. It takes into account the effect ofdiscrimination on the daughter's sense of worth, connection, and positionwithin the family. It builds on inheritanee as a symbol of eontinuity.

A seeond mechanism is the invalidation of provisions in donativetransfers that are contrary to public policy. When the disposition in aninstrument is directed to aehieve a purpose that is prohibited by the rule oflaw, the law will interfere with the owner's discretion.^^ The mle of law"is used in a broad sense to inelude mies and principles derived from theUnited States' Constitution, a state eonstitution, or public policy."'^

The public policy doctrine entails a balance of eonflicting values.''' Itbalanees the freedom of the owner to dispose his property against "othersocial values and the effects of deadhand control on the subsequent conductor personal freedoms of others, and also against the burdens a formerowner's unrestrained dispositions might place on courts to interpret andenforce individualized interests and conditions."'^ It allows courts toconsider a wide variety of values, including the right to marry'* or enjoyfamilial relations'^ out of respect for an individual's personal life choicesand freedom of religion.'^ For example, the law is hostile towardsconditions that are meant to dismpt family relationships of any kind,including separation and divorce." In addition, creating financial pressurein order to affect the future religious choices of a recipient will normally bedeclared invalid.'""

The Restatement,'"' case law,'"^ and scholars'"'' often mention the

90. Pennsylvania v. Bd. of Dirs., 353 U.S. at 231.91. Shapira v. Union National Bank, 315 N.E.2d 825 (Ohio Misc. 1974).92. Some states curtail this ft'eedom also with regard to the spouse's share of the estate.

For a general history and early justifieations for the elective share, see Langbein &Waggoner, supra note 8; Waggoner, supra note 8.

93. RESTATEMENT (THIRD) OF PROP.: WILLS AND OTHER DONATIVE TRANSFERS §10.1

cmt. c (2003).94. W. § 10.1 cmt. b (2003).95. RESTATEMENT (THIRD) OF TRUSTS § 29 )2003).

96. RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS § 6.2 (1983).

97. Id. at § 7.2; Estate of Romero, 847 P.2d 319 (N.M. Ct. App. 1993).98. RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS § 8.1 (1983).

99. Id. §7.1; cf Matter of Estate of Donner, 623 A.2d 307 (N.J. Super. Ct. App. Div.1993); In re Estate of Gerbing, 337 N.E.2d 29, 32-33 (III. 1975).

100. RESTATEMENT (THIRD) OF TRUSTS § 29 (2003).

101. Id.102. See, e.g.. In re Estate of Gerbing, 337 N.E.2d at 33 ("Plainly the condition in article

4.4 is capable of exerting such a disruptive influence upon an otherwise normallyharmonious marriage."); Winterland v. Winterland, 59 N.E.2d 661, 662 (111. 1945); Graves


perils of allowing the donor to control the lives of his beneficiaries. Theirconcem is the influence of the dead hand, through economic incentives, onmeaningful life choices, such as choosing a career, a spouse, or a religion.This argument actually has two components: the control of the dead overthe living, and the wellbeing and autonomy of the beneficiaries. Wesuggest that the wellbeing of the beneficiaries includes not only the abilityto make life choices,'"" but also values such as dignity, self-respeet, and theneed for roots. Defining the limits of a private act according to the intereststhat soeiety thinks are worthy of protection lies at the foundation of publicpolicy.'"' These interests should not be limited to religious praetices andthe right to marry. Rather, they should also include respect for the identityand autonomy of the beneficiary, by scrutinizing the possible effects of thewill.

In the next section we analyze gender-biased disinheritance throughthe prism of public policy. We balance testamentary freedom and freedomof religion against dignity, identity, and self-respect. This argumentrequires, however, a shift away from how the doctrine is currently appliedand analyzed. First, provisions in wills are less likely to be declared voidthan similar provisions in a trust.'"'' However, we believe that since bothare donative transfers, they ean be grouped together.'"^ Second, the publicpolicy doctrine has been understood to invalidate restraints or conditionson bequests, but not actual distributive plans. Thus, for example, if thetestator conditions a bequest on his daughter's divoree, such a provisionwill be unenforceable and void.'"** However, a will that disinherits adaughter from the estate simply beeause she is married to a person the

V. First Nat'l Bank, 138 N.W.2d 584, 588-89 (N.D. 1965); In re Will of Collura, 415N.Y.S.2d 380, 381 (NY Sup. Ct. 1979) ("It is the likely effect of the provisions of a will onthe person to be influenced rather than the personal purpose of the testator which willdetennine whether a provision is void.").

103. See generally Jeffrey G. Sherman, Posthumous Meddling: An InstrumentalistTheory of Testamentary Restraints on Conjugal and Religious Choices, 1999 U. I I I . L. REV.1273, 1304 ("[I]t should be considered offensive and unsuitable for society to bring itspower to bear when the objective is control by the dead over the personal conduct of theliving."); RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 512 (4th ed. 1992) (comparing

a restraint on a gift and on a bequest, and claiming: "As the deadline approached, the sonmight come to his father and persuade him that a diligent search had revealed nomarriageable Jewish girl who would accept him. The father might be persuaded to grant anextension or otherwise relax the condition. But if he is dead, this kind of'recontracting' isimpossible.").

104. For autonomy and life choices, see JOSEPH RAZ, THE MORALITY OF FREEDOM 370(1986).

105. Sherman, íí/pra note 103.106. RESTATEMENT (SECOND) OF TRUSTS § 29 (1959).

107. 5'ee generally Sherman, supra note 103.108. See In re Estate of Gerbing, 337 N.E.2d 29, 32 (111. 1975); RESTATEMENT (SECOND)

OFPROP.:DONATIVETKANSFERS§7.1 (1983).


testator dislikes is perfectly valid. '"' In addition, case law often eonsidersthe motive of the donor in drafting the condition."" This sharp distinctionbetween conditions and motives may seem odd. Would a benefieiaryprefer to get nothing than receive a conditioned bequest? Lewinsohn-Zamir argues that more is not always better than less. She explains that"Conditions attached to the transfer of property might insult or humiliatethe transferee, thereby harming her dignity and self-respeet."'" Suchconditions, even when they are successfully met, may injure thetransferee's autonomy and self-development. Lewinsohn-Zamir assumesthat when the property is not transferred at all, there is no insultingmessage."^

However, as explained in the previous section, an act of disinheritanceeommunieates a message to disappointed relatives. This does notneeessarily mean that they have a right to a portion of the estate. It doesmean that certain testamentary motives are demeaning and offensive to adaughter's sense of worth, dignity, and self-respect. In a way, such estateplans are more offensive than eonditioning a bequest on a decision todivorce, to many, or to choose a particular religion. When a ehild is denieda bequest because of her gender, because of race, or beeause of her sexualorientation, she is denied a bequest because of who she is. '" She cannotchange her gender, race, or sexual orientation. Unlike restraints onbequests, such estate plans do not depend on the child's choices, but on heridentity.

Beeause publie policy defines the limits of testamentary freedom, it isabout balancing interests. Invalidating conditions that restrain personalchoices is one way to strike a balance, but does not in itself negate thebalaneing of interests in other types of conflicts. Courts should considerwhich values are worthy of legal protection. Once we are convinced that aspecific decision is demeaning and offends the daughter's sense of dignity,roots, and identity, the law can and should draw a line.

Of course, proving motives is a tough task"'' that ean easily bemanipulated. It is similar to the ehallenging task of proving discriminationin the workplaee and elsewhere."^ Despite this difficulty, current public

109. This is an approach that prefers no property to less property; see discussion atDaphna Lewinsohn-Zamir, More is Not Always Better than Less^An Exploration inProperty Law, 92 MiNN. L. REV. 634, 713 (2008).

110. RESTATEMENT (THIRD) OF TRUSTS § 29(c), cmt. j (2003).111. Lewinsohn-Zamir, supra note 109, at 667.112. Id113. See generally HELLMAN, supra note 9.114. Cf. Daphna Lewinsohn-Zamir, Identifying Intense Preferences, 94 CORNELL L. REV.

1391 (2009) (regarding measure preferences).115. See, e.g., Charles A. Sullivan, The Phoenix from the Ash: Proving Discrimination

by Comparators, 60 ALA. L. REV. 191 (2009) (discussing the difficulties of proving


policy cases often distinguish between restraints based on the donor'smotive. For example, eourts examine whether the motive was to encouragedivorce or to supply financial assistance in the case of divorce."* Only theformer motive is considered to be against public policy. Indeed, keepingthis difficulty in mind, we would like to suggest an argument based uponthe public policy doctrine. We claim that gender-biased disinheritaneeviolates public policy and should not be enforeed.

To make this argument, we now turn to the balancing of values thatwe claim the public policy doctrine is all about. Following Hellman, weclaim that disinheriting a daughter because she is a woman demeans herand is therefore a violation of public policy. This argument is based on themeaning of an act of disinheritanee, i.e., reaffirming a child's position inthe family.

V. GENDER-BIASED DISINHERITANCE AND PUBLIC POLICY

Gender-biased disinheritanee is an intricate issue. It involves thefreedom and autonomy of the testator on the one hand, and the values ofequality, autonomy, identity, and continuity of certain family members onthe other hand. The public policy doctrine, with its innate balanee betweenconflicting values, is particularly appropriate for this analysis. In thissection, we consider the values of equality, respect and roots, and freedomof religion and eulture. We argue that gender-biased disinheritance iscontrary to public policy because it profoundly demeans the disinheritedchild and offends her need for roots, belongingness, and continuity, as wellas her dignity and self-respect.

A. Equality, Respect, and Public Policy

When parents decide to bequeath their property to their sons and todisinherit their daughters, they make a distinction between them on thebasis of gender. We assert that sueh a distinction on the basis of gender ismorally wrong. Theories of diserimination attempt to explain when adistinction between persons is morally permissible and when it is wrong.We therefore appeal to theories of diserimination in general, but only toilluminate the wrongs of gender-biased disinheritanee, rather than to arguethat the disinheritance of daughters amounts to discrimination. We drawon Hellman's theory of discrimination in particular because it allows us toexplain that gender-biased disinheritance profoundly demeans thedisinherited and is therefore contrary to public policy. Hellman thus allows

discrimination).116. RESTATEMENT (THIRD) OF TRUSTS § 29(c), cmt. j (2003).


us to forge the necessary link between equality and respect.Discrimination or unequal treatment is generally understood as

depriving someone of benefits available to others in eircumstances thatmake it unjust to do so. The aim of theories of discriminafion is to identifythese circumstances and to explain the nature of the wrong or wrongs doneto individuals when they unjustly end up with less than others."^ Someaccounts of discrimination deem stereotypes and prejudiee as unjust criteriafor the distribufion of goods between individuals. By 'prejudice' and'stereotype' we mean imposing a trait or a characterisfic on an individualonly beeause he or she belongs to a group—not beeause he or she actuallypossesses them. "^ When a trait or characteristic is imposed on a person byother people only beeause of her group affiliation, regardless of herindividual eapacities and needs, her autonomy to present herself accordingto her specific and unique individual capacities and abilities is violated.'"A paradigmatie claim against stereotypes was brought in the Brown case.'^"The segregation of blaek students from white students that was challengedin Brown was based on an irrelevant consideration, namely race asdistinguished by skin color.'^' Skin color, in this case, was used as astereotype beeause all black people were thought to have something ineommon that justified separating them from white people. In fact,however, the govemment did not show any relevant eonnection betweenskin color and education that made segregation neeessary.

In eases such as Brown, the govemment should have disregarded theirrelevant consideration of skin color. Skin color may be a person'scharacteristic, but it has nothing to do with his or her other eharacteristiessuch as educational or social capacity. The ease of disinheritance ofdaughters is, in a sense similar, but at the same time more complex. Thecriterion of gender that serves as a basis for the distribution of goodsbetween family members seems irrelevant for the purpose of inheritance.Their gender characteristie does not say anything about their capacity tocare for their parents and act as loyal and supportive ehildren. From thedaughters' perspective, their exelusion is arbitrary in the sense that it does

117. Sophia R. Moreau, The Wrongs of Unequal Treatment, 54 U. TORONTO L.J. 291,293 (2004).

118. Sujit Choudhry, Distribution vs. Recognition: The Case of Anti-DiscriminationLaws, 9 GEO. MASON L. REV. 145,148 (2000).

119. Moreau, supra note 117, at 298-303; Denise G. Réaume, Discrimination andDignity, 63 LA. L. REV. 645, 673 (2003).

120. Brown v. Bd. of Edue. of Topeka, 347 U.S. 483 (1954); Christopher Essert, Dignityand Membership, Equality and Egalitarianism: Economic Rights and Section 15, 19 CAN.J.L. & JURIS. 407,412 (2006).

121. The court implied that race is irrelevant when it stressed that the segregationbetween white and black students deprived blacks of equal educational opportunitiesbecause it was made solely on the basis of race. Brown, 347 U.S. at 493-94.


not accord with their aetual role as family members. However, theeontinuity function of inheritance is intricate and based on soeial ideals.We therefore cannot safely say that gender characteristics are irrelevant forthe parent.

Most discrimination laws do not enshrine a general prohibition ofdiscrimination as non-arbitrariness.'^^ Discrimination laws do not deemevery distinction that is based on an irrelevant stereotype to be wrongfuldiscrimination. Discrimination laws usually restrict reeognition of unfairtreatment to instances in which the relevant or irrelevant stereotype pertainsto one of the prohibited grounds of discrimination. These grounds usuallyinclude gender, raee, ethnic origin, and sexual orientation.'^'' Not only aredistinctions drawn on the basis of such traits usually forbidden bydiscrimination laws, but they also feel morally wrong. Deborah Hellmansuggests a convincing account to explicate this moral intuition. Accordingto Hellman, traits such as race and gender are attributes that define a groupthat has been mistreated in the past or is currently of lower status insociety.'^'' Classifications on the basis of these traits are more likely todemean individuals that bear them. Demeaning an individual amounts toputting him or her down, to subordinate, diminish and denigrate, to treathim or her as lesser, as not fully human or not of equal moral worth. '̂ ^

Why is classification on the basis of traits such as race and gendermore likely to be demeaning than elassifieation based on other traits?Hellman's answer is that this is because "demeaning" is a sociallyconstructed concept. History, conventions, culture, and socialunderstandings determine which actions convey a demeaning message.'^^Whether the characteristic one uses as a basis for distinction betweenindividuals has the potential to demean is determined by how thatcharacteristic has been used in the past to distinguish between individualsand the relative social status of the group defined by that characteristic

122. Choudhry, supra note 118, at 154.123. Samuel R. Bagenstos, Rational Discrimination, Accommodation, and the Politics of

(Disability) Civil Rights, 89 VA. L. REV. 825, 846-47 (2003).124. HELLMAN, supra note 9.125. Id. at 29, 35. Hellman's theory of discrimination resonates with earlier accounts that

understand discrimination in terms of demeaning and subordinating individuals who belongto vulnerable groups. See Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL.&PUB. AFF. 107, 157 (1976); Kenneth L. Karst, Why Equality Matters, 17 GA. L. REV. 245,247-48 (1983); Robin West, Progressive and Conservative Constitutionalism, 88 MICH. L.REV. 641, 694 (1990); Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410,2411 (1994); John Hasnas, Equal Opportunity, Affirmative Action, and the Anti-Discrimination Principle: The Philosophical Basis for the Legal Prohibition ofDiscrimination, 71 FORDHAM L. REV. 423, 436-37 (2002).

126. HELLMAN, supra note 9, at 35. See also Dov Fox, Racial Classification in AssistedReproduction, 118 YALE L.J. 1844, 1868-70 (2009).


today.'^^ A demeaning message is likely to be conveyed by distinetions onthe basis of race and gender because they replicate familiar forms ofdiscrimination against members of a vulnerable group that have put them ina disadvantageous position in the past.'^^ For instance, ordering blacks tosit in the back of the bus is demeaning beeause it perpetuates the history ofracial segregation in public transportation.'^' Employers who require onlyfemale employees to wear makeup demean women because, in our culture,the makeup requirement is assoeiated with a eertain understanding ofwomen's bodies as objeets for adomment and enjoyment by others in away that distinguishes it from other requirements that are not demeaningsueh as hair-length requirements.'^"

Hellman stresses that it is not enough for a classification to be basedon traits such as race and gender, which replicate past discrimination, inorder for it to be demeaning.''" In order to demean, it is necessary thatsomeone have a degree of power or status over another.'^^ That is, it isonly when the person who performs a distinction is in a position tosubordinate another that a demeaning act may take place.'^^

Hellman's theory of discrimination is well-suited to our purpose ofarguing that gender-biased disinheritance profoundly demeans thedisinherited and is therefore contrary to public policy. This is beeause ofthe special role that Hellman attributes to the history, culture, and soeialmeaning of speeifie practices. That is, applying Hellman's theory todisinheritanee practices allows us to consider disinheritanee not as apractice that involves only two persons—^the testator and his or herdaughter—that takes place in a soeial vacuum, but rather with all itsattendant social and cultural implications.

Hellman's theory takes into account the history and social status of theidentified group that bears the characteristic that serves as a basis fordistinction.'^" Daughters who are disinherited should be regarded not onlyas family members, but also, most importantly, as women—as members ofa group that have suffered a long history of discrimination andsubordination. Throughout history, diserimination on the basis of gender isperceived to have been almost as pervasive as diserimination on the basisof raee.'^' Like race, gender has been and still is perceived as a trait that

127.128.129.130.131.132.133.134.

HELLMAN, ibid, at 28.Id.Id.IdId.Id.IdId.

at 40at 27.at 42-43.at 36.at 35-37.

at 28.135. Serena Maycri, Note, "A Common Fate of Discrimination": Race-Gender

Analogies in Legal and Historical Perspective, 110 YALE L.J. 1045, 1056-57 (2001); Gila


makes women intellectual inferiors, confined to certain societal roles,exeluded from many fields of employment, and denied citizenship rights.'""

Following this analysis, we have to determine whether disinheriting awoman because she is a woman, in keeping with a religious belief, indeeddemeans her. Here, one might suggest that a daughter belongs to herparents' culture. She will therefore not be offended or demeaned becauseshe understands their cultural motives for disinheriting her. After all, she ismost likely to share their cultural worldviews. We disagree with this claim.Even if we assume that the daughter accepts this tradition, the message itconveys is demeaning to her need for roots, continuity, and belongingnessto the family. The message is not only demeaning because it excludes allwomen as a group, but is also a harsh personal message regarding herspecific individual worth as a family member who wishes to continue thefamily legacy. It communicates the message that her father adheres to thegeneral cultural norm that she is ill-fitted to continue his project regardingthe family property. This is beeause, as we have already stressed,continuity through property has a dialectical nature; it moves fromindividual relations to soeial norms and baek again.

To illustrate, consider the disinheritance of a black grandchild becauseof his race. Assume it is because the grandparent truly believes that familyproperty should be continued along white male lines. Let us further assumethat the grandehild accepts his grandparent's tradition and respects it.Other than that, they enjoy a good relationship. Would we still argue thatsince they share the same worldview, the message is not demeaning? Theanswer is no, we expect. Most of us would eonsider sueh a messagedemeaning because we do not think skin color is a relevant characteristicfor the continuity of family property. Neither, we argue, is gender. It istrue that gender and race receive different levels of treatment under U.S.equal protection law. "^ However, this comparison is helpful because ithighlights the attributes of inheritance as relating to one's sense of identity,continuity, and roots.

Therefore, in order to determine whether disinheriting women on thebasis of religious and eultural beliefs demeans them, we need to change ourfocus in inheritance and begin to evaluate its social impact. The studiesanalyzed in Part II and our everyday experience teaches us thatdisinheritance communicates a message of rejection to a child. It sayssomething about the relationship between the ehild and the parent, thechild's path in life, and the child's position in the family. Disinheritance -

Stopler, Note, Countenancing the. Oppression of Women: How Liberals Tolerate Religiousand Cultural Practices That Discriminate Against Women, 12 COLUM. J. GENDER & L. 154,163-67(2003).

136. Frontiero v. Richardson, 411 U.S. 677, 684-86 (1973).137. See, e.g., Stopler, supra note 135.


in many cases, though not all - implies a rejection of affeetion, ties andcommitment.

The meaning attached to disinheritance depends on the reasons for it.In our soeial realm, there are a number of understandable reasons fordisinheritanee. For example, such a reason might be that a child hasalready received her share during the owner's lifetime, or that one of theehildren is in greater need of the money than the others.'^' Another reasonmight be a goal the owner strongly believed in. There are many otherreasons why a parent might deny the ehild's status and relations throughdisinheritanee. When a parent ehooses disinheritanee because the two hada rift in their relationship, because the parent is not satisfied with a child'schoice in life, beeause he or she dislikes her husband, then the law allowshim to make his own deeision. The child may feel rejected, but she is notdemeaned.

A gender bias is very different. Women have regularly been excludedfrom inheritance to form a dynastic male line.'"" A gender bias motive isdemeaning beeause it excludes a daughter from a soeially importantmanner of belonging to the family. She is left outside the family propertybeeause she is a woman. From this larger perspective, then, one eaneonelude that gender-biased disinheritance is demeaning to women. Aeomparison to a more familiar arena, the workplace, may help elarify theargument. An employer ean decide not to hire an applieant beeause hedislikes her. The applicant may certainly feel rejected and disappointed,but the employer is free to make this decision. However, the employereannot decide not to hire her beeause she is a woman. In such a case, shewould feel demeaned. So, while the testator ean freely dispose of herproperty for a number of reasons, she should not be able to do so due to agender bias motive. One eould argue that an employer aets in a businessenvironment, which affeets publie life, whereas the father acts within thefamily, which represents the private sphere. However, like other feminists,we think that the distinction between the private and the public is usually

138. Cf. SUSSMAN ET AL, supra note 33, at 7 (explaining that "will-makers eonform, byand large, to cultural prescriptions of familial responsibility over generational time").

139. See sources and explanations supra note 7.140. See Hacker, supra note 4. See also Gérard Béaur, Land Transmission and

Inheritance Practices in France During the aneien régime.' Differences of Degree or Kind?,in FAMILY WELFARE: GENDER, PROPERTY AND INHERITANCE SINCE THE SEVENTEENTH

CENTURY 31, 33-36 (David R. Green & Alastair Owens eds., 2004) (regarding the Frenchaneien regime's equal division and describing the legal framework and dividing it into:gendered equality, optimal equality and strict equality). On women's struggle in post-revolutionary France, see Suzanne Desan, War Between Brothers and Sisters: InheritanceLaw and Gender Politics in Revolutionary France, 20 FRENCH HIST, STUDIES 597 (1997).On the struggle in colonial America, see Toby Ditz, supra note 52. See also MARSHASHAPIRO ROSE WEALTH, FAMILY WELFARE: GENDER, PROPERTY AND INHERITANCE SINCE THE

SEVENTEENTH CENTURY 121 (David R. Green & Alastair Owens eds., 2004).


not sound, as the private invades the public and vice versa.'"" In thespecific case of disinheritance of women within the family, any suehpractice does not remain eonfined within the family boundaries. When it isprevalent, people that are not part of the family beeome aware of it as well.In addition, the message conveyed by the father is detrimental to adaughter's sense of worth, respect, and identity, even more so than themessage conveyed by an employer.

This, of course, is not the end of the road. Since a gender-biasedmotive is often tangled up with religious predicaments or customary laws,we now tum to evaluating it against religious freedom and eultural rights.

B. Religion, Culture, and Public Policy

Gender-biased motives for disinheriting daughters may be perceivedas not violating publie policy and even as justified by the testator's right toreligious freedom. The right to religious freedom is commonly pereeivedin terms of the right to freedom of conscience. Some seholars perceive italso as a religious manifestation of the right to culture.'''^ We now wish toexamine the relation between freedom of religion and freedom ofeonseienee. Freedom of eonscience is perceived as the freedom to chooseone lifestyle over another and to adhere to a religious or non-religiousidentity. Conscience is taken to be a core component of our identity, whichis comprised of our moral values and beliefs.'''^ We beeome complete

141. CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW

99 (1987); CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 191

(1989); Ruth Gavison, Feminism and the Public/Private Distinction, 45 STAN. L. REV. 1, 6,13-17 (1992); Adelaide H. Villmoare, Feminist Jurisprudence and Political Vision, 24 LAW& Soc. INQUIRY 443, 445-59 (1999).

142. The latter perception is put forward most sharply in Gidon Sapir, Religion andState—A Fresh Theoretical Start, 75 NOTRE DAME L. REV. 579, 625^1 (1999). In thisarticle we concentrate on justiflcations of the right to religious freedom that stress theimportance of religion to individuals rather than to soeiety as a whole. For arguments aboutthe importance of religion to soeiety as a whole, which stress the importance of religion quareligion, see Martin E. Marty, The 1988 Overton A. Currie Lecture in Law and Religion: Ona Medial Moraine: Religious Dimensions of American Constitutionalism, 39 EMORY L.J. 9,17 (1990); Harold J. Berman, Religious Freedom and the Challenge of the Modern State, 39EMORY L.J. 149, 152 (1990); WILLIAM A. GALSTON, LIBERAL PURPOSES: GOODS, VIRTUES

AND DIVERSITY IN THE LIBERAL STATE 264-65 (Douglas MacLean ed., 1991); Timothy L.Hall, Omnibus Protections of Religious Liberty and The Establishment Clause, 21 CARDOZOL. REV. 539, 548 (1999). Like other scholars, we do not find the value of religion to soeietyas a whole persuasive. Even if religion can contribute moral values to society, it can, andsurely has, contributed controversial moral values to society with regard to women,homosexuals and other minorities. See Gidon Sapir & Daniel Statman, Why Freedom ofReligion Does Not Include Freedom from Religion, 24 LAW AND PHIL. 467, 471 (2005).

143. CHRISTIAN SMITH, MORAL, BELIEVING ANIMALS: HUMAN PERSONHOOD AND

CULTURE 57 (2003).


persons when our core beliefs are embodied in our actions.'"'' Acting onour core beliefs "is central to what makes us persons."'"' On thisunderstanding, freedom of conscience is an "expressive liberty"'"* thatstands for an integration of belief and action that is central to humanpersonhood.'"^ Under the right of freedom of conscience, every person isentitled to act in accordance with his or her deepest values and beliefs.'"^

Since different persons tend to adhere to different moral values, theiridentities are comprised of different sets of values. With respect tofreedom of conscience, then, the assumption is that not only religious oruniversal moral values and beliefs should be legally proteeted. In keepingwith this understanding, freedom of conscience applies to and proteetsconsciences of all kinds, religious and non-religious. In the ease ofreligious believers, we protect their right to act in accordance with whatthey believe their religion is telling them to do, whereas in the case of non-religious persons we protect their right to aet in accordance with their most

• . • ' 149

Sincere convictions.In the case of inheritance, a testator may argue that it is his religious

conviction that dictates the disinheritance of his daughter, and that actingdifferently would eompromise one of the core values that eonstitute hispersonality. This claim is particularly convincing when the testatordisinherits his daughter not because of a customary practice in his religiouscommunity, but because he is abiding by specific religious mies thatexplieitly exelude women from inheriting property.

Freedom of conscience may also justify the disinheritance ofdaughters not because of religious convictions, but beeause of a non-religious belief in the inferiority of women. Take a chauvinist testator whogenuinely believes that women are less valuable than men and less capableof dealing with money and protecting the family property. Sueh a testator

144. Steven D. Smith, What Does Religion Have to Do With Freedom of Conscience?,76 U. COLO. L. REV. 911, 934 (2005).

145. Id -146. William Galston defines expressive liberties as liberties that ensure the ability of

individuals and groups to lead their lives as they see fit, in accordance with their ownunderstandings of what gives life meaning and value. This freedom allows individuals andgroups to pursue their distinctive visions of what gives meaning and worth to humanexistence. William A. Galston, Expressive Liberty and Constitutional Democracy: The Caseof Freedom of Conscience, 48 AM. J. JURIS. 149, 150, 173 (2003).

147. Smith, supra note 145, at 935.148. Noah Feldman, The Intellectual Origins of the Establishment Cause, 77 N.Y.U. L.

REV. 346,424-25 (2002).149. Smith, supra note 145, at 936-37; Sapir & Statman, supra note 143, at 474-78. For

a contrary view that distinguishes between the religious and secular eonscience due to theirdifferent sources—a divine command versus an individual autonomous decision—seeMichael M. McConnell, The Origins and Historical Understanding of Free Exercise ofReligion, 103 HARV. L. REV. 1409, 1497 (1990).


may argue that he is merely following his conscience and that doingotherwise would severely compromise the core values that constitute hischauvinist personality.

Although the right to freedom of religion in the understanding of it asthe right to freedom of conscience may provide a strong argument forallowing disinheritance on the basis of gender, it is not an absolute right.The freedom of the owner is demeaning to his family members andinjurious to the self-respect of his daughters. While the daughters do nothave a rightful claim to a portion of the estate, the law should recognize theinjury they stand to suffer. Freedom of conscience and autonomy havebeen and should always be balanced against other values sueh as equality,dignity and familial roots. Moreover, our argument does more than simplybalance competing values. It redefines the effect of estate division in afamilial eontext. It explains that inheritanee communicates a message toreceivers, and that this property institution has the potential to hurt the self-respeet, sense of belongingness, and self-development of daughters.

Disinheriting women may also be justified as a customary practicethat is allegedly necessary for the survival of a religious minority culture.In that case, minority members may argue that their right to religiousfreedom protects cultural practices, such as disinheriting women, which areunique to their minority culture and help to keep it alive. Here, the right toreligious freedom is perceived in terms of the right to culture. The idea isthat in some eases the right to religious freedom cannot be understood inindividualistie terms of conscience alone, and should therefore beunderstood as a eolleetive right"" that protects a participatory good—religion—which is jointly produced and enjoyed by a group of people.'"Religion is regarded in anthropological literature as the example parexeellence of an encompassing culture. It is not merely an individualisticbelief system, but more fundamentally a way of life, "^ a system of publicsymbols that is produced and enjoyed by many. "^

The understanding of religious freedom as the right to culture does notprotect religion as such. It protects the values individuals attaeh to their

150. Sapir & Statman, supra note 142, at 625-41; Barak Medina, Enhancing Freedom ofReligion through Public Provision of Religious Services: The Israeli Experience, 39 ISR. L.REV. 127, 137(2006).

151. For a definition of a participatory good that is the object of a collective right, seeDenise G. Réaume, Individuals, Groups and Rights to Public Goods, 38 U. OF T. L. J. 1, 10(1988).

152. Alvin J. Esau, 'Islands of Exclusivity': Religious Organizations and EmploymentDiscrimination, 33 U.B.C. L. REV. 719, 727 (2000); Peter G. Danchin, Stispect Symbols:Value Pluralism as A Theory of Religious Freedom in International Law, 33 YALE J. INT'LL. 1,47(2008).

153. For a detailed account, see Clifford Geertz, Religion as a Cultural System, in THEINTERPRETATION OF CULTURES 87, 125 (1973).


religion as part of their identity.'^'' Due to religious conflicts in history.Western perceptions of the right to religious freedom have emphasized theseparation of church and state, but in fact, the right to religious freedom isabout religious group identity, which is not unique from other groupidentities.'^^ In this sense, the right to freedom of religion is amanifestation of the right to culture. Like other eultural minority rights, itprotects minority members from integrating into the majority culture andallows them to keep the practices that they perceive as necessary for thesurvival of their cultural identity. Religious minorities need the legalprotection of the right to culture because majority members tend to feel thatthe cultural components of the minority's religious habits, rituals, andvalues are alien to them. Because of this alienation, minority members areprone to relinquish their cultural practices in order to blend into themajority culture and strengthen their belonging to a society that is largelydominated by that culture. The right to religious freedom providesminority members with the legal power to resist such changes and keeptheir equal membership in society without compromising their culturalpractices,'^''

A testator niay argue that disinheriting daughters is a religious eustomthat dates baek several generations in his religious group, and that ehangingit would compromise an important aspect of his minority culture. That is, atestator may argue that the right to religious eulture proteets discriminatorypractices as long as they are perceived as necessary for preserving aminority culture. However, any such argument is problematie and does noteoineide with the liberal understanding of the right to culture. If, asmentioned above, the right to eulture is perceived as a right that protects aparticipatory good that is produced and enjoyed by all minority members,this means that they should all have equal opportunity to shape the eulturalnorms, values, and praetices that they share. In other words, if inheritancepractices are perceived as part of a minority religious culture, theyconstitute a good that is protected by the right to culture only if all minoritymembers produce and enjoy it.

As explained in Part III, inheritance is understood in our soeiety as apractice that has a social impact on the role of individuals in their familiesand in soeiety in general. Disinheritance therefore eonveys a message ofexclusion, according to which an individual is denied playing an equal rolein her family and soeiety. When the disinheritance of women is acustomary practice that persists for decades, it conveys a message ofexcluding women from belonging to their family in the context of property.

154. Sapir, supra note 142, at 627.155. AMY GUTMANN, IDENTITY IN DEMOCRACY 151-53 (2003).156. Christopher L. Eisgruber & Lawrence G. Sager, Equal Regard, in LAW & RELIGION;

A CRITICAL ANTHOLOGY 200, 204 (Stephen M. Feldman ed., 2000).


and from participating in the property-related endeavors of their culture.When women do not play an equal role in producing, forming, andchanging the eultural norms and practices of the family (whieh symbolizethe culture) they belong to, these practices and norms cannot be perceivedas participatory goods that are proteeted by the right to culture. To say thatthe right to culture protects a good (a minority religious praetice) that isproduced and enjoyed by only some of the members (men) but not byothers (women), but is nevertheless required for the sake of preserving aminority culture, is to understand culture as amounting to more than theshared aims of its members. Sueh an aecount of a culture is not eompatiblewith liberalism beeause it entails that groups have aims and values over andabove the individuals of which they are comprised.'^^

At this point we would like to consider possible claims againstapplying the values of equality, self-respeet, and belonging via the publicpolicy doctrine in issues of disinheritance within religious minorities. Oneeould argue that we are basically suggesting a paternalistic view thatenforees the Western-liberal prineiple of gender equality, and that thisenforeement in itself entails the oppression and patronization of minorityeultures. Aeeording to this line of reasoning, the imposition of liberalvalues such as gender equality on minority members by outsiders amountsto "Western patriarchal feminism"''** that stereotypes and dehumanizesminority cultures.'^^ Simply put, one may accuse us of arrogance,ignorance, and insensitivity to cultural and religious norms that aredifferent from the mainstream liberal eulture to which feminists usuallybelong.'*" Such a claim, which has been leveled against the liberal scholarSusan Möller Okin,'*' belongs to a more general discourse that is often

157. To put this in other words, such an aecount is incompatible with methodologicalindividualism, namely that groups cannot be understood more than the shared aims of theirmembers. For an overview of the debate in the philosophy of social sciences aboutmethodologieal individualism versus collectivism, see Joseph Heath, MethodologicalIndividualism, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed.,2005), available at http://plato.stanford.edu/archives/spr2005/entries/methodological-individualism/. Joseph Agassi argues that assigning interests to a group that are notreducible to the interests of its individual members is unjustified both ontologically andnormatively, from a liberal point of view. Joseph Agassi, Methodological Individualism, 11BRIT. J. Soc. 244 (I960). For a discussion of this problem in the specific context of grouprights, see Green, supra note 131, at 319-20.

158. Azizah Y. Al-Hibri, Is Western Patriarchal Feminism Good for ThirdWorld/Minority Women?, in Is MULTICULTURALISM BAD FOR WOMEN? 41 (Joshua Cohen etal. eds., 1999).

159. Homi K. Bhabha, Liberalism's Sacred Cow, in Is MULTICULTURALISM BAD FORWOMEN?,/£/. at 79, 81-82.

160. SEYLA BENHABIB, THE CLAIMS OF CULTURE: EQUALITY AND DIVERSITY IN THE

GLOBALERA 101 (2002).161. The criticism of Okin is in response to her essay about gender equality and

multiculturalism. See Susan M. Okin, Is Multiculturalism Bad for Women, in Is


called "feminism versus multiculturalism."'*^Yet, consider the consequences of sueh inheritance praetices. They

work to leave women holding less property than men. These traditionsoften compensate women by requiring their male relatives, such ashusbands, fathers, or brothers, to eare for them financially.'*^ They thusprotect women from poverty, but only by offering them a path of eonstantdependence. Moreover, as we have highlighted, the impact of disinheritingwomen extends beyond the social problem of their economic inferiority.The praetice of disinheriting women because of religious or culturalmotives conveys a demeaning message towards every individual womanthat is denied her need to belong and continue her family legaey. Thesoeial harm that results from permitting testators to disinherit womengreatly outweighs the loss of alleged multiculturalism that would resultfrom prohibiting it.

Suppose that we all agree that disinheriting women because of theirgender should be limited or prohibited by law because it eonveys ademeaning message towards women and therefore violates public policy.Still, one eould argue that sueh a doctrine is impossible to implement. Thatis because, so the claim goes, it is very hard and sometimes evenimpossible to prove that the testator had a real intention to disinherit hisdaughter because of her gender. A testator can always argue that thedeeision to disinherit a female member of the family stemmed from adifferent reason, such as disloyalty to her family, or failing in herobligations to her parents or siblings.

Employment diserimination law faees similar difficulties.Diserimination is diffieult to prove.'*'' Nonetheless, since we are dealingwith the familial setting, the testator's elose family is likely to be aware ofhis belief system, worldviews, and motives. His elose friends andneighbors may also eontribute information about his mofives. Certainly, itwould be difficult to prove, but the existenee of such a mle would serve itspurpose even as a statement that the law refuses to countenancediseriminatory motives, even in the familial setting.

MULTICULTURALISM BAD FOR WOMEN?, supra note 159, at 9-24.162. Leti Volpp, Feminism versus Multiculturalism, 101 COLUM. L. REV. 1181 (2001).163. In certain cultures or religious groups, there are mechanisms that protect women's

flnancial welfare in different ways such as obligating their brothers to provide for them. See,e.g., JOHN L. ESPOSITO, WOMEN IN MUSLIM FAMILY LAW 39-70 (1982).

164. See George Rutherglen, Disparate Impact Under Title VII: An Objective Theory OfDiscrimination, 73 VA. L. REV. 1297 (1987); Laya Sleiman, A Duty To Make ReasonableEfforts And A Defense Of The Disparate Impact Doctrine In Employment DiscriminationLaw, 72 FORDHAM L. REV. 2677 (2004).


VI. CONCLUDING REMARK: PROPERTY, FAMILY, ANDEQUALITY

Belonging to a family is an elusive concept, trapped between socialpractices and intimate relations. The paths of belonging to a family rangefrom education and common values, to tradition and symbols, tomeaningful ties. Moreover, the family also distributes power and status,'^^both of which are closely linked through family property. We have arguedthat family property is a form of distributing goods, status, and symbols ofbelongingness to the family. Inheritance, a gift transferred after death,communicates a particularly powerful message about the belongingness ofrelatives. This last statement is supported by various sociologicalfindings.'*'"

The disinheritance of daughters beeause of their gender is thereforeespecially troubling. For one thing, girls are denied a significant resource,which is readily available to their male siblings, leaving them in a worsestarting point because of their gender. More importantly for our purposes,this bequest motive communicates a demeaning message to women,excluding them from the family property. A society that is committed toequality, and which extends this value to the private arena of contract,employment, and property, should also express its commitment in trust andestate law, where the effect of the diserimination can be particularly harshand offensive.

165. See generally UNEQUAL CHANCES, supra note 35; see also Samuel Bowles andHerbert Gintis, The Inheritance of Economic Status: Education, Class and Genetics (SantaFe Institute, Working Paper No. 01-01-005,2001); cf Tomes, supra note 35.

166. See section III above.

Property and Belongingness: Rethinking Gender-Biased Disinheritance

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