Ruth Bader Ginsburg’s impact on estate planning.

by | Sep 29, 2020 | Blog, Estate Planning | 0 comments

What does Ruth Bader Ginsburg have to do with estate planning? Well, a lot as it turns out! Her ground-breaking work through the ACLU’s Women’s Rights Project made it possible for women to serve as personal representatives of estates.

RGB represented Sally Reed in the ground-breaking Supreme Court case of Reed v. Reed. In that case, Sally Reed and Cecil Reed’s son died and both parents petitioned the court to become executor of his estate. Idaho law at the time stated that if two applicants to become the executor were equally entitled to serve as executor (here, two parents) males were given preference over females.

By the way, this happened in 1967!

And so, Mr. Reed was appointed executor – not because of his skills or knowledge, but because he was a man.

First, Mrs. Reed challenged the statute and won at the lower level, but then Mr. Reed brought the case to the Idaho Supreme Court and he won. The Idaho Supreme Court basically said the statute was in place to avoid a hearing to determine who should be personal representative when there are competing petitions and one is male and one is female. The statute simply allows the probate court to automatically name the male – even if he is much less qualified than the competing woman – because it’s easy and avoids a hearing (something Courts do every. single. day.). The Idaho Supreme Court went on to say that the legislature in enacting this law clearly believed that men are superior to woman, and while that might not be true all the time, the classification is not so “irrational and arbitrary that it violates the constitution.” Reed v. Reed, 465 P.2d 635 (Idaho 1970).

*insert head exploding emoji*

Anyway, RBG – along with a team of other lawyers – took the case all the way to the Supreme Court of the United States (SCOTUS).

Mrs. Reed argued that the Idaho law preferring males over females violated the Fourteenth Amendment to the Constitution. Section 1 of the Fourteenth Amendment states:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Mrs. Reed was asking the Court to take women seriously and to force local, state, and federal governments to treat women like equal citizens:

In very recent years, a new appreciation of women’s place has been generated in the United States. Activated by feminists of both sexes, courts and legislatures have begun to recognize the claim of women to full membership in the class “persons” entitled to due process guarantees of life and liberty and the equal protection of the laws. But the distance to equal opportunity for women – in the face of the pervasive social, cultural and legal roots of sex-based discrimination – remains considerable. In the absence of a firm constitutional foundation for equal treatment of men and women by the law, women seeking to be judged on their individual merits will continue to encounter law-sanctioned obstacles.

Reed v. Reed, 404 U.S. 71 (1971), Brief of the Appellant, p. 10.

In this case, the all-white, all male Supreme Court unanimously sided with women and against the (presumably all male) Idaho legislature and Supreme Court:

Clearly the objective of reducing the workload on probate courts by eliminating one class of contests is not without some legitimacy. The crucial question, however, is whether [the Idaho statute] advances that objective in a manner consistent with the command of the Equal Protection Clause [of the Fourteenth Amendment]. We hold that it does not. To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.

Reed. v. Reed, 404 U.S. 71, 76-77 (1971).

We have cases like this one – and attorneys like Ruth Bader Ginsburg – to thank for the fact that women attend state-funded schools, open a bank account or get a mortgage, be executor, and do various other mundane, everyday things that we take for granted.








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