‘Inheritance Families of Choice’? Lawyers' Reflections on Gay and Lesbian Wills

DOIhttp://doi.org/10.1111/j.1467-6478.2016.00748.x
Date01 June 2016
Published date01 June 2016
JOURNAL OF LAW AND SOCIETY
VOLUME 43, NUMBER 2, JUNE 2016
ISSN: 0263-323X, pp. 167±94
`Inheritance Families of Choice'? Lawyers' Reflections on
Gay and Lesbian Wills
Daniel Monk*
This article presents the findings of research about the will-writing
practices of gays and lesbians. It develops a conversation between
sociological literature about `families of choice', which is silent about
inheritance, and socio-legal research about `inheritance families',
which is relatively silent about sexuality. It demonstrates how research
with lawyers can contribute to thinking about inheritance and comple-
ment historical archives about personal life and sexuality. Focusing on
funeral rites, partners, ex-lovers, friendships, children and god-
children, and birth families, the findings reveal how gay men and
lesbians have used wills to communicate kinship practices in ways that
both converge with and differ from conventional testamentary prac-
tices. Examining the findings through the concepts of generationality,
family display, connectedness, and ordinariness, and locating them
within the recent history of social and legal changes, it complicates
and troubles both anti-normative and individualistic readings of the
choices gay and lesbians make in constructing their `inheritance
families'.
INTRODUCTION
In the first United Kingdom socio-legal study of inheritance, Finch et al. made
a compelling case for viewing wills as a site for exploring shifting
understandings of family and kinship. One of their conclusions was that `a
more radical testamentary freedom' might seem `a real possibility' for those
outside of ascriptive relationships (those not based on genealogical position
167
*School of Law, Birkbeck, University of London, Malet Street, London
WC1E 7HX, England
d.monk@bbk.ac.uk
I am grateful to the Socio-Legal Studies Association for funding the research and to the
interviewees for their time and interest. I also wish to thank Helen Reece and Antu
Sorainen and the anonymous referees for their constructive comments.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
and spousal relationships).
1
Their research did not refer to sexual orientation.
But the possibility of gays and lesbians disproportionately occupying this
`outsider' position ± developing kinship practices contra to `the family' ± has
been a key issue in scholarship about sexuality.
2
Indeed, gays and lesbians have
been identified more widely as exemplars for claims about `individualized'
self-reflexive identities.
3
A key text is the groundbreaking study by Weston
that coined the subsequently much cited expression, `families of choice'.
4
Yet
despite the possibility of choice provided by testamentary freedom and despite
the fact that `negotiating . .. the demands of death'
5
is a critical site of kinship
practice, none of this literature refers to wills or inheritance.
Explanations for this silence warrant further thought. They might include
the fact that the focus in recent years on relationship recognition strategically
played down the pre-existing ability to protect partners by wills,
6
and the fact
that testamentary freedom and practices do not give rise to any obvious
`equal rights' claims in law. Moreover, the silence might also be explained
by the fact that the subject matter of inheritance as such is perceived as
incompatible with wider progressive agendas; the queer theorist Halberstam,
for example, describes wills as a key tool of `middle class logic' and con-
sequently inimical with `queer time'.
7
More broadly, the silence resonates
with the popular thesis, albeit contested, that it is death and not sex that is the
dominant taboo of modern society.
8
Socio-legal scholarship about inheritance is also limited.
9
But in recent
years the groundbreaking work by Finch et al. has been invigorated by
research associated with the Law Commission's 2009 review of the intestacy
rules.
10
This review, premised on the recognition of social changes in
`family structure', looked primarily at the legal position of surviving spouses
and cohabitees. The approach to gays and lesbians in the review, and most of
the associated research, has been to assert and assume an uncomplicated
168
1 J. Finch, L. Hayes, J. Masson, J. Mason, and L. Wallis, Wills, Inheritance and
Families (1996) 181.
2 J. Weeks, B. Heaphy, and C. Donovan, Same Sex Intimacies: Families of Choice
and Other Life Experiments (2001); S. Roseneil and S. Budgeon, `Cultures of
Intimacy and Care Beyond ``the Family'': Personal Life and Social Change in the
Early 21st Century' (2004) 52 Current Sociology 135.
3 A. Giddens, The Transformation of Intimacy (1992).
4 K. Weston, Families We Choose (1997).
5 J. Butler, `Is Kinship Always Already Heterosexual?' (2002) 13 differences 14, at
15.
6 D. Monk, `Sexuality and Succession Law: Beyond Formal Equality' (2011) 19
Feminist Legal Studies 231.
7 J. Halberstam, In a Queer Time and Place (2005) 5.
8 T. Walter, `Modern Death: Taboo or not Taboo?' (1991) 25 Sociology 293.
9 But beyond the United Kingdom, see L. Friedman, Dead Hands (2009); J. Beckert,
Inherited Wealth (2004); R. Madoff, Immorality and the Law (2010).
10 Law Commission, Intestacy and Family Provision Claims on Death (2011). This
resulted in the enactment of the Inheritance and Trustees' Powers Act 2014.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School

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