75 Am. U. L. Rev. F. 1 (2025).
Introduction
In her timely and thought-provoking article, Pro-Natalism in Probate Law, Professor Diane Kemker delineates the heavy role that pro-natalism plays in the contemporary law of inheritance. In so doing, she lends her voice to—as she describes—the “larger project of unearthing ways in which ‘traditional’ mores continue to shape the law in problematic and often unseen ways.” The central takeaway from Professor Kemker’s analysis is the “systemic privileging of the connection between parents and children in the context of wills and intestate succession,” or stated differently, the “extreme favoritism shown towards the children of thetestator or intestate decedent . . . .” Professor Kemker reaches this conclusion by analyzing how (1) the laws of intestate succession tend “to place one category of heirs [i.e., children] above all others”; and (2) even those parents who seek to will their property to non-children are nonetheless subject to various legal principles that effectively undermine that ability, thus privileging issue at the expense of all others.
In response, I write here to highlight a different, but intimately related point—one that proposes that the pro-natalist principles underpinning the law of inheritance is, in fact, even more problematic than Professor Kemker’s article suggests. Specifically, inheritance law not only favors the children of the deceased, but on top of that, the laws of the various states continue to take an extremely narrow view of who even qualifies as “parent” or “child.” Thus, when Professor Kemker refers to the problems the deceased may have when attempting to transmit property to a “non- relative” or a “stranger,” many are surprised to learn that those terms are interpreted in such a way that, ironically, they often include those whom the deceased would have actually considered to be a “child.” Of course, to say that the law of inheritance is underinclusive is hardly a novel claim, with critics long calling for more functional approaches to how “family” is defined. The point I wish to discuss here, however, is that this under-inclusiveness is most troublesome as it relates to the legal definition of “parent” and “child.”
What makes this issue particularly problematic is the confluence of two separate legal phenomena: (1) the prevalence of the child as the most favored heir coupled with (2) the degree to which the law fails to recognize societal forces impacting the composition of the modern American family. As Professor Kemker has provided a compelling analysis of the former, I write briefly in response to shed more light on the latter.To begin, it is important to note the degree to which domestic relations in the United States have evolved in the last few decades. For instance, a group of researchers recently noted that “[o]ne of the most important changes in family life over the past 50 years has been the increase in family complexity, arising from higher rates of divorce, nonmarital childbearing, cohabitation, and remarriage.” As a result, “it is far less common for children to live with two married biological parents today than it was 50 years ago and far more common to live with a single mother, with stepparents, or in a multigenerational household.” At the same time, with the recognition of marriage equality in 2015, more children are being raised by same-sex couples, which likewise complicates determinations of parentage given that children of same- sex couples will only have (at most) a biological connection with one parent. Finally, advances in assisted reproduction have expanded the number of individuals who can play a role in conceiving a child, raising thorny questions concerning who among those individuals may claim parentage.
In the remainder of this Essay, I will discuss each of these evolutions in turn, noting how in each instance the degree to which the law defines “parent” and “child” has remained relatively static.
* Associate Dean for Academic Affairs and W. Allen Separk Distinguished Professor of Law, University of Tennessee Frank Winston College of Law.