Inheritance Law and the Evolving Family. Ralph C. Brashier

Inheritance Law and the Evolving Family. Ralph C. Brashier. Philadelphia: Temple University Press. 2004. 264 pp. ISBN 1-59213-222-7. $24.95 (paper). This timely and important book breaks new ground. Ralph C. Brashier raises urgent questions about family inheritance law in the contemporary United States. He shows that probate law frequently fails to meet people's needs. Why? The nuclear family remains the template for Grafting and executing probate law even though data show that most Americans do not live in nuclear families but in greatly various family forms. Today's families are made by multiplex alliances based on normative constructs of consanguinity (bilateral descent) and affinity (exogamous, monogamous, and heterosexual marriage) but also on many other identities. Today's Americans may be surrogate parents, single parents, or unmarried or married hetero- or homosexual parents who have no children, biological children, adopted children, stepchildren, technologically assisted children, or some combination thereof. In a "brave new world" of empirical family form, the incongruity between inheritance law and citizens' needs raises urgent practical, legal, humanistic, and intellectual questions about the institution of "family" in a world capitalist economy. What constitutes legitimate descent, marriage, or family? What legal rights and responsibilities do those persons have? What is each state's responsibility to the families that people actually have? What laws are needed to protect family members? What is good for the country? What is good for humanity? Brashier convincingly demonstrates that what family members expect and desire concerning property transmission and guardianship is often at odds with what the state prescribes. Even normative families are subject to surprising legal singularities. In Georgia, for example, a surviving spouse has no statutory recourse against disinheritance (p. 38). Louisiana, replete with legal precepts derived from Roman Law or continental code law, is the only state in the union to order that young children receive a forced share (legitime) "to protect them from parental disinheritance" (p. 118). In many respects, this book disturbs while it informs because occupationdriven, geographically mobile American families are unlikely to know how a last will and testament will be interpreted-and actualized-under different state laws. Chapter 1 establishes the "preferred position in probate law" (p. 11) of the American spouse, who "receives greater protection in inheritance schemes than any other family member" (p. 10). Spouses in states with community-property laws have "equal interest in the various assets earned by either during the marriage" (p. 38) that cannot be lost due to a disinheritance provision in the will of the first to die. In separate-property states using elective-share law, however, spousal assets are considered individually. The Uniform Probate Code (UPC) of 1969 attempted to unify elective-share law by ruling that one third of a decedent's augmented estate must be given to the surviving spouse, who is assumed by the law to be an economic dependent (p. 19). The 1990 code recognizes the need for the support component of marriage but also conceptualizes spouses as economic partners. Inheritance is thus based on an evaluation of the length of the marriage and the cumulative wealth of both spouses when the first spouse dies. …