Thursday, October 25, 2012
Paula A. Monopoli (Professor of Law, University of Maryland School of Law) recently published her article entitled Toward Equality: Nonmarital Children and the Uniform Probate Code, 45 U. Mich. J.L. Reform 995 (2012). The introduction to the article is available below:
The 1960s witnessed an equality revolution that we usually associate with race and gender. But there was another, less visible, equality movement that had its roots in that era--the idea that children born out of wedlock, or “nonmarital” children, should be treated in the same way as children born to a married couple. Legal scholars began to lay the groundwork for a theory of equal treatment of nonmarital children, and the original 1969 Uniform Probate Code (UPC) reflected that scholarly embrace of equality and civil rights. The UPC has remained faithful to that original equality framework. This Article analyzes how the UPC's equality framework has evolved since 1969 to provide for the equal treatment of virtually all nonmarital children. With one small exception--class gifts from nonparent transferors--the UPC has provided nonmarital children the opportunity to inherit from and through their parents in the same manner as children born in wedlock.
Part I discusses the evolution of the law concerning nonmarital children and the development of the UPC's broad protective framework for nonmarital children. Part II examines how using an agency approach in section 2-705(e) of the UPC
to determine whether nonmarital children should be included in a class gift from a nonparent transferor deviates from the UPC's overall equality framework. Part III illustrates the costs of such an agency approach, while Part IV outlines a possible constitutional argument against the approach. Part V argues for a return to the default rule found in the version of section 2-611 of the UPC
as it existed between 1975 and 1990 and recently embraced by the Massachusetts legislature in its new probate code.