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The U.S. Supreme Court decision in Obergefell v. Hodge1 changed the legal understanding of marriage in the United States. By making same-sex marriage legal in all 50 states and Washington, D.C. and requiring all states and Washington, D.C. to recognize same-sex marriages from other states, the Supreme Court in Obergefell recognized evolving social attitudes toward same-sex marriage and expanded the legal definition of “marriage” to include spouses of the same sex. In so doing, the Supreme Court necessarily altered the implication of terms like “spouse,” “husband” and “wife.” Post-Obergefell, courts will need to construe these words—found in succession statutes and estate-planning instruments—to acknowledge an evolving understanding of marriage because recognition of the marital relationship can govern dispositions for both testacy and intestacy purposes.
Rules of Construction
Construction is the process of determining the meaning that should be given to a testator’s will or trust. As one court noted, testamentary document construction is governed by “two overriding rules: . . . to avoid doing any violence to the words employed in the instrument . . . [and] to effectuate the testator’s intent.”2 Rules of construction, as well as constructional preferences, set out the process by which the meaning of terms and provisions in testamentary documents are to be resolved. While the rules of construction offer “particular results for particular recurring situations,”3 constructional preferences are more general principles on which the specific rules are based.4 Courts and U.S. law want to give as much effect as possible to a testator’s intent, but it can be hard to determine intent under certain situations. Courts attempt to implement the testator’s probable intent (and modern courts are increasingly using extrinsic evidence to make these determinations).Problems arise, however, when courts must construe a donor’s intent during a period of conceptual and legal transition—when critical terms may be inherently ambiguous because their legal and social definitions aren’t yet aligned.
Transitional Period
Evolution is never instantaneous. In periods of transition, prevailing cultural norms highlight the dual nature of normative constructs. These constructs embody both descriptive and prescriptive elements, which are usually inextricably intertwined. In social stasis, the general understanding of how things are and the understanding of how things should be exist in approximate symmetry. When a descriptive norm shifts, however, and the understanding of what’s familiar evolves, the prescriptive norm also shifts—the understanding of how things should be changes. In a very basic sense, the law offers one manifestation of society’s prescriptive norms. Thus, as the understanding of family structure and critical familiar relationships expands to encompass new notions of family—of children, of descendants, of spouses—the law must adjust to accommodate this descriptive definition. It’s in this period of transition, between the acceptance and legal recognition of a “new normal” and as-yet unaddressed ramifications of change, that ambiguity arises. Thus, courts struggle to resolve the ambiguity that exists in the period when the same word may be intended to convey either its traditional social and legal meaning or its evolved social and legal meaning. Definitive clarity—symmetry between a word’s connotation and its denotation—is particularly important in estates law, where courts regularly rely on a donor’s words to determine what meaning should be attributed to a donative document.
Adopted Children
Fortunately, the redefinition of the marital relationship isn’t the first legal adjustment to the U.S. understanding of family structure and succession law. Possibly, the best way to approach construction issues concerning same-sex marriage in a post-Obergefell world is to look at the evolution of succession law pertaining to adopted children.
Until the late 19th century, law and public policy considered adopted children—much like same-sex spouses, until very recently—artificial relatives created by “unnatural” relationships.5 Even when formal adoption was legalized in the mid-19th century,6 blood relationships were favored over adopted ones under succession law, and the courts curtailed adoption’s legal and economic implications under the so-called “stranger-to-the-adoption doctrine.” This doctrine, based on social aversion, presumed that an individual not directly involved in the adoption itself (a stranger to the adoption), who didn’t explicitly include an adoptee in a class gift, didn’t indicate intent for the adoptee to take by using language like “child,” “issue” or “descendant.”7 Simply, the doctrine prohibited an adopted child from receiving a portion of a class gift given by a third-party donor, even if the donor was a relative of the adoptive parents. Courts reasoned that, like a pre-Obergefell testator in a state that didn’t recognize same-sex marriage, this stranger to the adoption used a particular word to signal its traditional meaning, not its expanded legal definition.
As social acceptance of adoption increased, though, courts that failed to recognize adopted children as “children” under class gifts ran the risk of defeating donors’ intent. To reconcile the gap between society’s increasingly inclusionary definition of the parent-child relationship and inheritance law’s presumptively exclusionary treatment of adopted children, courts used several construction approaches to ascertain and effectuate donative intent in a period of definitional transition when words with once-plain meanings were inherently ambiguous. In an attempt to reflect increasing social acceptance of adoption, several courts created exceptions to the stranger-to-the-adoption doctrine under which adopted children might be treated as “natural” children in certain circumstances. Three such exceptions surfaced: (1) when adoption occurred before the testator’s death; (2) when a document included differentiation of terms; and (3) in the case of an infertile parent. Ultimately, these exceptions became superfluous when the stranger-to-the-adoption doctrine generally was abolished,8 but until the parent-child relationship was both legally and socially understood to encompass the relationship between adoptive parents and adopted children, those exceptions allowed courts to navigate the ambiguity inherent in definitional change.
Application to Same-Sex Marriages
These construction approaches used by courts to navigate social and legal change in the context of adoption provide insight by analogy into the circumstances that courts face today, as they must construe language that no longer presumptively excludes same-sex spouses. Just as the parent-child relationship is no longer defined solely according to the presence or presumption of a genetic link between two individuals, the marital relationship is no longer limited to marriage between one man and one woman. These developments, viewed analogously, can provide insight into emerging construction issues as states struggle to reconcile Obergefell with terms used in older estate planning instruments (executed pre-Obergefell).
Before Obergefell, when some states still banned same-sex marriage, probate courts could ostensibly bar a same-sex spouse from taking under a will9 that stated the gift was “to my children and their spouses.” Based on reasoning similar to that applied under the stranger-to-the-adoption regime, such courts could determine that when the general definition of “spouse” didn’t include same-sex spouses—in states that didn’t recognize same-sex marriage—a testator wouldn’t intend to include a same-sex spouse by using the term “spouse.” These courts would effectively deem the testator a stranger to the (same-sex) marriage.
Post-Obergefell, it’s difficult to imagine a court would rule in this way, at least if the will was executed after Obergefell.10 But, what if the will had been executed before Obergefell in a state where same-sex marriage was illegal at the time of will execution? Such a scenario implicates a retroactivity issue similar to the one triggered by the stranger-to-the-adoption doctrine’s abolition. Absent controlling language in the instrument, a court could choose to construe the will according to the law at the time the will was executed, which would bar a same-sex spouse from taking under a gift “to my children and their spouses;” such a court could presume that someone living in a state where same-sex marriage was illegal would have relied on that law when drafting the will. As some courts reasoned in the adoption context, the older the will, the more likely it is that the average testator at the time intended to reference the older meaning of a term; a much older will makes it more likely that the testator contemplated “spouse” only in terms of an opposite-sex spouse.11 However, a court could find itself unable to “formulate general rules of law for the benefit of . . . eccentrics”12 who don’t consider “spouse” to encompass spouses of the same sex, and it could instead apply the more inclusive redefinition of the term as the new normal. Like the court in Wheeling Dollar Savings & Trust Co. v. Hanes,13 a court could discount the concerns of testators who would be upset by their property going to a same-sex spouse as the concerns of adherents to an archaic, and implicitly irrelevant, way of thinking.
To avoid a presumption that a testator who executed a will pre-Obergefell intended to exclude a same-sex spouse, a court could apply exceptions similar to the stranger-to-the-adoption exceptions. In the context of same-sex marriage, a court could apply an exception if the marriage occurred before the testator’s death.14 If the same-sex marriage occurred before the execution of the will, the court could presume that the testator intended to include the spouse. If a court required evidence that the testator approved of the same-sex marriage, as some courts did under the adoption exception, the court could look to extrinsic evidence of approval, such as wedding photographs that include the testator.
If the marriage occurred before death but after the will was executed, however, courts could be split, as courts were under the adoption exception. Some courts may determine that the testator’s intent at the time the will was executed controls, in which case the fact that the same-sex couple got married before the testator died would be irrelevant because the marriage occurred after the will was executed. Those courts may even consider the testator’s failure to change the will to specifically include the same-sex spouse to be evidence of the testator’s intent to exclude the same-sex spouse. Those courts would consider the “failure to react” to be “a reflection of [the testator’s] earlier state of mind.”15 However, other courts may find it enough that the “facts essential to the exception,”16 in this case the marriage of the same-sex couple, existed when the testator died, whether or not they existed at the time the will was executed.
Additionally, a court could apply exceptions similar to the differentiation of terms and the infertile parent exceptions to the stranger-to-the-adoption doctrine. For example, under the differentiation of terms exception, “to A and A’s partner” could be treated differently than “to A and A’s spouse” or to “A and A’s husband” (but female A is actually married to another female).17 The infertile parent exception can be analogized to a LGBTQ individual’s unwillingness to marry someone of the opposite-sex. In the infertile parent context, “[t]he facts are said to support an inference that the transferor must have had the possibility of adopted children in mind.”18 Similarly, if a testator knew the relative was LGBTQ, the testator must have understood the possibility of a same-sex marriage.
Alternatively, some states could view the legalization of same-sex marriage more like the legalization of adoption in 1851. Soon after adoption was legalized, courts created the stranger-to-the-adoption doctrine. Even though adoption was legal, it was still met with hesitation under succession law. Today, we still have legal battles over wedding cakes for same-sex couples,19 and public policy concerns regarding religious liberty are percolating among many states. Unlike adoption, same-sex marriage still isn’t universally accepted by U.S. citizens, even though all states are required to accept it. States where same-sex marriage was illegal until Obergefell forced them to legalize it20 may view probate as one of the few areas in which they can still resist acceptance of same-sex marriage. These states may be unlikely to adopt legislation that would interpret “husband” or “wife” differently because a same-sex spouse would otherwise be barred from taking under the will. However, the trajectory of adoption as a social construct—where changing family structure influenced the definition of children in society and in law—suggests that states will ultimately reach a greater degree of uniformity in their approaches to handling the ramifications of same-sex marriage.
While the stranger-to-the-adoption doctrine reflected social aversion to an unfamiliar, “unnatural” parent-child relationship, the presumptive exclusion of same-sex spouses for inheritance purposes reflects social suspicion of a once-foreign form of a marital relationship—it embodies a stranger-to-the-same-sex-marriage approach. Paralleling the path of the presumption against adoptees, the presumption against same-sex spouses no longer reflects either prevailing social attitudes or the current state of the law. The law changes both to affirm the evolving understanding—that, for example, an adopted child is a child or that a same-sex marriage is a marriage—and to prescribe legal treatment of social constructs according to this new understanding, to offer a new approach to how things should be. The construct of marriage has shifted in both a descriptive and prescriptive normative sense—same-sex spouses are more familiar, usual embodiments of the marital relationship, and since Obergefell, the law prescribes treating them as such. Now, perhaps, it’s up to courts to weave the descriptive and prescriptive elements of the marital relationship back together in a new pattern—to create symmetry connotation and denotation and between what is and what should be. If an adopted child can be a child, so too can a same-sex spouse be a spouse.
— This article is a condensed version of “The Stranger-to-the-Marriage Doctrine: Judicial Construction Issues Post-Obergefell,” 2019 Wis. L. Rev. 373, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3492390. Please reference this more in-depth article for a detailed review of the evolution of adoptee acceptance within wills, intestacy and trusts and its analogous applications to same-sex marriage.
Endnotes
1. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
2. In re Estate of Cole, 621 N.W.2d 816, 818 (Minn. Ct. App. 2001).
3. Edward C. Halbach, Jr., “Stare Decisis and Rules of Construction in Wills and Trusts,” 52 Calif. L. Rev. 921, 923 (1964).
4. Restatement (Third) of Property: Wills and Other Donative Transfers Section 11.3, comment b (Am. Law Inst. 2003) states:
Rules of construction are derived from one or more constructional preferences. For example, the rule of construction embodied in the antilapse statutes is derived from the constructional preference for avoiding disinheritance of a line of descent. The rule of construction that presumes an intent to include adopted children in class gifts is derived from the constructional preferences for the construction that carries out common intention and for the construction that accords with public policy.
5. See Danaya C. Wright, “Inheritance Equity: Reforming the Inheritance Penalties Facing Children in Nontraditional Families,” 25 Cornell J.L. & Pub. Pol’y 1, 73 (2015).
6. Massachusetts enacted the first modern adoption statute in 1851. See Naomi Cahn, “Perfect Substitutes or the Real Thing?” 52 Duke L.J. 1077, 1102 (2003).
7. Supra note 5, at p. 29.
8. Today, most states have abandoned the stranger-to-the-adoption doctrine. See Ralph C. Brashier, “Children and Inheritance in the Nontraditional Family,” 1996 Utah L. Rev. 93, 154.
9. The analysis applies to trusts and other estate-planning instruments.
10. There would be no constitutional issues if a court did rule in this way, however, because probate isn’t considered state action. See George B. Fraser, Jr., “Action in Rem,” 34 Cornell L.Q. 29, 36 (1948) (stating that probate proceedings are actions in rem).
11. See, e.g., Riggs Nat’l Bank of Washington, D.C. v. Summerlin, 445 F.2d 201, 208 (D.C. Cir. 1971) (reasoning that a drafter of a will must have drafted the will with the laws at the time of drafting in mind).
12. Wheeling Dollar Sav. & Trust Co. v. Hanes, 237 S.E.2d 499, 503 (W. Va. 1977).
13. Ibid.
14. Under the stranger-to-the-adoption doctrine, there was an exception for when the adoption occurred before the testator’s death. Edward C. Halbach, Jr., “The Rights of Adopted Children Under Class Gifts,” 50 Iowa L. Rev. 971, 983 (1965).
15. Ibid., at p. 984.
26. Ibid., at p. 983.
27. Or, in the alternative, female A is married to a transgender woman (who transitioned into a woman after marriage). For a discussion of real world construction issues dealing with sexuality, gender identity and artificial reproductive technology, see Lee-ford Tritt, “Litigation Blues for Red-State Trusts: Judicial Construction Issues for Wills and Trusts,” 72 Fla. L. Rev. 841 (2000).
28. Supra note 16, at p. 984.
29. See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018).
30. Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee and Texas. Same-Sex Marriage, State by State, PEW RES. CTR. (June 26, 2015), www.pewforum.org/2015/06/26/same-sex-marriage-state-by-state/.