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Same Sex Couples and Probate

Written by on Jan 12, 2009| Posted in: Estate Litigation

How to Overcome the Disparate Impact of Succession Statutes, Inheritance Laws, and the Uniform Probate Code

Laymen and probate practitioners may debate issues concerning same sex marriages. However, what is not debatable is that same-gender couples lack true donative freedom under current probate law. Brian Edwards explores the problems facing same sex couples in the enaction and enforcement of their testamentary plans in his recent and well written article, True Donative Freedom: Using Mediation to Resolve the Disparate Impact current Succession Law Has on Committed Same-Gender Loving Couples, 23 OHIO ST.J. ON DISP. RES. 715 (2008). Edwards suggests that mediation can be used to create a plan for same sex couples for enforcement of their donative intentions. He also argues that mediation can be used to solve problems and address other issues that typically arise between the surviving blood relatives and the surviving partner in a committed same sex relationship.

Edwards correctly points out that the current probate laws do little to protect the donative intent of of same sex couples. For example, the Uniform Probate Code fails to explicitly reference same-gender couples. Subsequently, the donative intent of these particular couples may not be afforded the same level of protection as their heterosexual counterparts.

Mr. Edwards argues that current probate law actually has a negative and disparate impact on same sex couples. For example under existing probate law, after a will or trust instrument has been declared invalid due to undue influence or mental incompetency, the decedent’s property passes and is distributed according to the laws of intestacy. These intestacy laws favor blood relations and exclude the surviving same gender partner:

“[The Uniform Probate Code’s] negative impact on committed same-gender loving couples is not surprising when one considers that the development of succession law focused on the traditional nuclear family. Yet, in the wake of the sexual revolution the traditional nuclear family is no longer the norm; succession law has failed to keep pace with the changing nature of the American family. By failing to include a surviving same-gender loving partner in the intestate succession hierarchy, the UPC ignores an important distinction between the lives of same-gender loving people and the lives of heterosexuals.” Id. at 721.

According to Edwards, this fundamental failure of the Uniform Probate Code to treat same sex couples the same as heterosexuals undermines the stated primary purpose of the Uniform Probate Code-to effectuate donative intent. Edwards suggests that the mediation process can effectively address the shortcomings of current probate law in giving effect to the testamentary desires of same sex committed couples.

I consistently discuss the mediation process and its benefits in the probate litigation context with existing and potential clients. Mr. Edwards’ article takes this idea a step farther and makes a compelling case for using the mediation process to effectuate the testamentary wishes of same sex couples after the death of one of the partners in the face of the typically disgruntled blood related family members.

Mr. Edwards makes an erudite observation concerning utilizing the mediation process while both partners are alive. Edwards suggests that pre-death mediation is a plausible solution to prevent the usurpation of committed same gender couples testamentary desires:

“When families incorporate mediation early in the estate planning process, it provides a safe forum for families to have an open discussion about what constitutes a fair distribution of a family’s wealth. This open forum makes pre- death mediation a plausible solution to preserving the donative wishes contained in the estate plans of committed same-gender loving couples. Additionally, the mediation process often leads to the formation of creative solutions that are usually broader than the solutions available through the formal litigation process.” Id. at 735.

Using a pre-death forum for communication with all interested parties allows for the same sex couple to explain the reasons why which their estate plans are predicated and also affords the opportunity to dispel any notions by family members that the estate plan is the product of fraud, undue influence, or a deficient mental capacity at the time the estate plan was formulated. Of course, Mr. Edwards points out that the fruits of the pre- mediation cannot be realized if the blood related family members are not coerced into participating in the mediation process. While I don’t believe his suggested approach would work in Florida, Mr. Edwards argues that in Ohio and elsewhere, In order to ensure participation in the pre-death mediation, “same-gender loving couples can include a provision in their wills stating that the estate plan will be subject to pre-death mediation and any person who fails to take part in the process, but nevertheless chooses to contest the will by litigating the validity of the instrument, shall forfeit a devise under the will.” Id. at 738.

As a probate litigator in Florida, I have never been an avid supporter of allowing beneficiaries to be intimidated through employment of no contest provisions like the one suggested by Mr. Edwards. However, he makes an impressionable argument for its use, especially for a class of citizens who is disparately treated under the current probate law and scheme for inheritance distribution.

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