Inheritance Law and the Marital Presumption After Obergefell

This article focuses on the question—of the role of the marital presumption in inheritance law after Obergefell. It describes several illustrative cases that have arisen in the family law context, reviews the courts’ analysis, and suggests that a conclusive marital presumption be extended to all nonbirth/nongenetic spouses for purposes of inheritance law. Since our system of inheritance law is status-based, establishing the parent-child relationship is the key to determining whether someone inherits through intestacy or when there is a class gift in a governing instrument like a will or trust. This article takes the position that Obergefell mandates extension of the current presumption to same-sex, nonbirth/nongenetic spouses in both family law and inheritance law.