Modern families

The American sitcom Modern Family ran for 11 seasons from 2009, making comedy from the trials and tribulations of different forms of families in the 21st century, including a nuclear family with an unmarried mother, a same-sex couple with a daughter adopted from Vietnam, and a blended international intergenerational family. Despite the newness of these situations, this was in many ways a warm and comfortable sitcom, illustrating how quickly radical change had been normalised by society.  

For political reasons, European legislators have been slow to keep up with these modern realities, while families have not stopped changing, developing even more innovative and complex family ties which are protected only in a piecemeal and provisional way, if recognised at all. To add to the complexity, different jurisdictions have moved at different speeds, producing a huge array of differences in the law relevant to modern families, even as the European Union has facilitated cross-border mobility and subsequently, cross-border families and property ownership.

Our main objective in this article is to look at some of the complications practitioners may encounter advising the modern family across different jurisdictions. This requires knowledge not only of the legal differences between the jurisdictions, but also of the cultural differences to be considered in the different scenarios. 

An ever-changing landscape

Marriage law has been reformed in just a few decades to an unanticipated extent. The ‘traditional’, nuclear or biological family has been joined by a growing number of ‘blended’ families. These could be where one or both spouses have children from a previous relationship, same-sex marriages, same-sex or opposite-sex registered partnerships or civil unions, cohabitants with no legal certification, single-parent families, and a wide spectrum of polyamorous relationships. In recent years, there has also been a growing recognition of the rights of transgender and non-binary individuals in family law across Europe as it affects their ability to access legal protections and benefits, such as marriage and adoption. 

Here is a survey of cross-border succession rights issues and estate planning for modern families.  

Same-sex unions

Gay marriage

As of writing, marriage between same-sex couples is legal in 34 countries worldwide. In countries where same-sex marriage is legal, same-sex spouses are typically treated the same as opposite-sex spouses under succession law. This means that if a same-sex spouse dies, their surviving spouse would have the same inheritance rights as an opposite-sex spouse.

However, in countries where same-sex marriage is not legal, such as Italy, Greece, Hungary and Japan, succession law can be more complex.  

Civil partnerships 

In some countries, registered partnerships or civil unions are recognised, and the surviving partner may have some inheritance rights. In countries that do not allow same-sex marriages, but that have introduced some form of registered partnership, a same-sex marriage abroad often provides you with the same rights as a registered partnership.

It should be noted however that the following EU countries recognise neither same-sex marriages nor registered partnerships: Bulgaria, Latvia, Lithuania, Poland, Romania and Slovakia.

Cohabiting couples

Your cohabiting partner can make a claim on your estate as a ‘de facto partner’, but this is not automatic and often involves initiating a potentially expensive court action. The rules in this area are very complex and vary substantially even within one country. In the autonomous community of Cataluña in Spain, the legal recognition applies automatically after living together for two years or having a child together. However, elsewhere in Spain and in most other countries, rules of intestacy do not provide for unmarried and unregistered cohabiting partners, meaning they would be entitled to inherit nothing. 

All in all, the main international and European courts have proven extremely reluctant to move beyond the recognition already offered by particular national jurisdictions in discovering legal recognition for same-sex or cohabiting couples, despite the inclusion of family and family life in international human rights agreements. 

Medically assisted reproduction

The field of medically assisted reproduction (MAR) represents one of the most challenging examples of the impact of new technologies on legal systems. Apart from basic issues relating to the legal status of those involved biologically and non-biologically in an assisted conception, there are the issues of the rights of a child being born or conceived after the death of one or more ‘parents’, presented by in vitro fertilisation (IVF) donor insemination and surrogacy. 

As for the international dimension, some European countries have adopted an open approach, granting access to MAR to singles and LGBT+ couples, and permitting surrogacy and gamete donation, while others are much more restrictive. It has been estimated that, at the European level, around 60% of patients seeking reproductive assistance abroad are escaping national prohibitions of various kinds, creating all kinds of legal complexity and uncertainty for their new family when they return home.  

Surrogacy 

The range of different approaches to surrogacy in different countries is a particularly interesting case of how legislators come to terms with the modern family. Legislatures that have been most accommodating to partnerships such as same-sex marriage, have sometimes been most hostile to surrogacy, at times on the same liberal principle of extending protections to the marginalised or under-privileged, for instance, to gay people on the one hand or to economically deprived women on the other.  

Surrogacy is legal for heterosexual couples and single women in Greece, unregulated in Poland and the Czech Republic, but illegal in Germany and Finland. The UK and the Netherlands allow only altruistic surrogacy with payments restricted to expenses. In France the criminal code prescribes a penalty of one year’s imprisonment and a fine of €15,000 for acting as an intermediary in arranging a surrogate pregnancy, while in Italy, under a new law, Italians who travel abroad for surrogacy could face fines of up to a million euros or a prison sentence of up to two years upon their return.

Surrogacy is becoming more and more popular all over the world, but the result of all these widely different and ever-changing laws has produced one of the most complex and difficult areas of law for cross-border practitioners advising families, often at a time of great personal distress and anxiety. Needless to say, MAR, with or without surrogacy, requires lawyers to engage intensely with other professionals both locally and internationally. 

Gender recognition

Few areas of change in the modern family have produced as much heat as laws on transgender rights and gender recognition. Much of this debate has centred on the implications for single-sex spaces, but serious issues are also raised for family law and succession. Some legal accommodations can be relatively straightforward in theory, if not in practice. In some countries, individuals can simply apply for a Gender Recognition Certificate, which formalises a change of gender for legal purposes so, for instance, a beneficiary who has changed their gender can still benefit from any dispositions made to them at birth.  

Other potential accommodations involve more radical changes to legal definitions of family relationships. In particular, transgender persons may become parents because:

• they maintain their reproductive capacity according to the gender they were assigned at birth,
• they have used MAR and/or surrogacy. 

Either way, long-standing legal concepts of ‘motherhood’ and ‘fatherhood’ are suddenly inadequate; someone who has given birth to a child may be legally recognised as a man, and the definition of mother as the individual that gives birth, a paramount principle of law in many jurisdictions around the world, is challenged by new laws on gender recognition. This may have serious implications in succession matters if no provisions are made, even before we start to think about the consequences for international families when the laws of different countries vary substantially, and before the law has caught up with those identifying as non-binary and/or those who may wish to change their legal gender more than once in the course of their lifetime.

Practitioners should be advised that while gender diverse individuals may currently seem to be a very small minority of potential clients, there is every indication that this is set to change rapidly and dramatically in the near future. 

Advising modern families in practice 

In the last section I would like to suggest some general implications for international private law practitioners of these changes to the modern family.  Some of these will be commonsense adjustments, others will be best practice anyway, albeit with particular emphasis. But some may involve practitioners substantially modifying the way they communicate with clients and draw up documents.

Wills, pre-partnership and cohabitation agreements

Pre-partnership / cohabitation agreements are especially crucial for couples in same-sex relationships, since marriages / civil unions or cohabitations are more often made later in life when the parties have acquired more wealth in the form of property. These agreements will also protect children from previous marriages, providing specific assets to be passed to them. A prenuptial agreement can include a provision that both parties make mirror wills and can be an important instrument to protect the financial interests of the children from previous relationships.

Likewise, even if the rules of intestacy allow for same-sex partners to inherit from each other, there are still several advantages to having a will in place.

Same-sex couples may have additional challenges in securing custody of their children if there is no legal recognition of their relationship. Similarly, a non-biological and non-adoptive parent doesn’t automatically become the guardian of their child if the other parent dies. It is therefore vital to nominate each other as a testamentary guardian.

Trusts

When drafting a trust, it is important to consider whether the settlor wants to anticipate new realities and enlarge the class of beneficiaries, for example, to expand the definition of future grandchildren to include step-grandchildren or those born posthumously through artificial reproductive technology; to avoid provisions that identify beneficiaries solely by their gender; or to introduce powers for the trustees to be able to deal with new scenarios so that they can adapt and respond to the changing needs of your beneficiaries. 

Client care 

Using inclusive language is a vital aspect of client care for private client lawyers. It involves using language that is respectful, sensitive and non-discriminatory. In the first place, make it the practice to use gender neutral terms such as spouse or partner until you have information as to the sex of said spouse. Use the correct pronouns for transgender individuals based on their gender identity, rather than their assigned gender at birth.

Drawing up documents

Inclusive language is critical when drawing up any legal documents and this becomes even more important when those documents relate to modern families and succession. 

The Office of the Parliamentary Counsel also provides useful guidance for avoiding gender-specific pronouns.