Toward Equality: Nonmarital Children and the Uniform Probate Code

This Article traces the evolution of the Uniform Probate Code’s (UPC) broad equality framework for inheritance by nonmarital children in the context of the wider movement for legal equality for such children in society. It concludes that the UPC is to be lauded for its efforts to provide equal treatment to all nonmarital children. The UPC’s commitment to such equality serves an expressive function for state legislatures and courts to follow its lead. The UPC has fulfilled its promise that all children regardless of marital status shall be equal for purposes of inheritance from or through parents, with one exception: its adoption of an agency approach to the inclusion of such children in class gifts from nonparent transferors. The Article analyzes this one exception and evaluates the systemic costs and constitutional concerns surrounding the use of an agency theory in this context. The Article concludes that a previous default rule under the UPC was the more equitable approach and suggests a return to that rule as it existed from 1975 to 1990. This approach was recently embraced by the Massachusetts legislature in its new probate code.