Who is an heir? What about the transsexual "wife"?
Who is the heir? This is an age-old question. Simply, an heir is the person who inherits a decedent’s property if the decedent left no will. (If the decedent left a will, those who inherit are typically called beneficiaries, not heirs.) Throughout history the answer to who is an heir has changed many times.
Keep in mind that statute determines who the heir is. There is no “right” of inheritance. The law has long dealt with family relationships and procreation. Legislatures have passed laws to determine who inherits a decedent’s property based on what most people would want. Doctrines have evolved to cover all sorts of situations. Now, due to new medical technologies and changing mores, “times, they are a-changing.” New situations are arising.
It used to be that only the first born male inherited under English primogeniture. In the Torah, sons were the primary inheritors with the eldest receiving a double portion. In all of the United States today, children of both sexes inherit and share equally. Under the common law, any child born in wedlock (even a day after the marriage) is presumed to be legitimate. Legitimate for these purposes means entitled to the support of the father and to be an heir of the father. A child born after the death of his father was also presumed legitimate if the child was “en ventre sa mere” – in the womb of his mother – when his father died. So if birth occurred within 9 months of death, the child was deemed an heir of the father even though born posthumously.
In all of the states, without a will, all Dad’s children are his equal heirs. However, Dad’s step-children get nothing, even if Dad has raised them since infancy. By statute, adopted children came to be considered heirs of the adoptive parents. Similarly, by statute, adopted children are not considered to be heirs of the birth parents. Today, however, infertile couples don’t always adopt children to have a family. Sometimes, there are children born from donated sperm or eggs. Is the baby an heir of the sperm donor? Babies are born to surrogate mothers into whose womb a fertilized egg has been implanted. Is the baby an heir of the surrogate mother? Is the baby an heir of the woman who produced the egg? Spouses have not always been entitled to inherit any of their deceased husband or wife’s property.
In the United States today, all fifty stated consider a surviving spouse an heir, entitled to a portion of the estate. Common law marriage is a legal concept that evolved to give support and inheritance rights to men and women who live together, holding themselves out as husband and wife, but never having been legally married. (Note: Pennsylvania no longer has common law marriage.) (There are also similar doctrines for adoption where a child is taken in by a family and held out as a son or daughter even though there is no legal adoption.)
In addition, society is now looking to answer a new question: what’s a spouse? Laws are being shaped that may define spouses to include others than couple consisting of a man and a women, either legally married or in a common-law arrangement. In Kansas, as reported in the March 4, 2002, issue of Time Magazine, a son is disputing his father’s second wife’s right to half of the father’s estate. Dad’s second wife, Mrs. Gardiner, was born a man and had undergone sex re-assignment surgery and then married Dad. Is she (or he) a wife? Entitled to inherit? Or does the son get everything? Dad could have done anything he wanted in a will. But like so many, he died without a will. His heirs are determined by the Kansas intestacy statute which gives half of his property to his surviving spouse. Kansas law prohibits same-sex marriages. Is this a same-sex marriage? Or does someone who undergoes sexual reassignment surgery have a new gender? What is gender? In May, an appellate panel considering a similar case overturned a February 2000 Federal District Court ruling that sex is determined at birth and can never be changed. The panel, considering statistics that showed that 275,000 to 2.5 million people in the United States were born with a mix of chromosomes, genitalia and hormones that made them neither clearly male nor female, outlined a formula for determining sex based on a mix of psychological and physiological factors. At their core, these cases revolve around the question of what makes a man a man and a woman a woman. If you’d rather not have your estate subject to changing intestate laws, make a will. Your will, which takes precedence over the intestate laws discussed above, will assure that your property will be distributed according to your wishes.