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Intestacy and Same Sex Couples: Probate Needs Progressive Help from Legislatures

Written by on Mar 30, 2009| Posted in: Probate Litigation

The laws of intestacy exist in every state and take effect whenever a person dies without a Last Will and Testament or where a Last Will and Testament is judicially voided. The purpose of the intestacy laws, which distribute inherited wealth according to the table of consanguinity (closest biological heirs), is to protect the family of the deceased. The law presumes that the deceased relative intends to distribute his or her wealth to his or her loved ones.

Many legal observers have criticized the probate laws of the states, including Florida, for failing to adapt to our changing society and the nuclear family. For many, the intestate system is flawed because it fails to consider the effect upon people who cannot get married: those persons in same sex partnerships.

Today, only a few states in the country permit two people of the same sex to enter into legal unions. For example, California, Hawaii, Massachusetts and Vermont provide for same-sex marriage or a parallel system. See Haw. Rev. Stat. § 572C (2006); Cal. Fam. Code §§ 297-299.6 (West 2004); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003); Baker v. State, 744 A.2d 864 (Vt. 1999). New Jersey invalidated the state’s limitation of marriage to opposite-sex individuals in Lewis v. Harris, 908 A.2d 196 (N.J. 2006), and its civil union system took effect Feb. 19, 2007. See Civil Union Act, 2006 N.J. Laws 103 (providing for system of civil unions).

In other states, the judiciary has actively and overtly enacted barriers to same sex partners from being afforded protections under their state’s probate codes: In re Petri, 211 N.Y.L.J. 29 (2004) (holding that same-sex partner was not a “surviving spouse” for intestate succession). See also In re Cooper, 592 N.Y.S.2d 797, 799 (1993) (holding that the term “surviving spouse” could not include a homosexual life partner for purposes of elective share statute).

To many it seems patently unfair that two persons who want to get married, but cannot because their state doesn’t recognize their marriage, cannot avail themselves of the same probate protections under the intestacy statutes that heterosexual partners possess.

What is the purpose of the intestacy laws?

The principal purpose of intestacy laws is to put into place what a person would have done if they had left a valid Will. Intestacy laws also serve to
• Produce a pattern of distribution that the recipients believe is fair
• Protecting the financially dependent family
• Promoting and encouraging the nuclear family

A recent law review article I reviewed makes a very strong argument that to the extent current intestacy law provides an outcome inconsistent with the above objectives, that law should be amended to bring it in line with these expectations. See, Thy Will Be Done: Why States Should Amend Their Probate Codes to Allow an Intestate Share for Unmarried Homosexual Couples, 7 Conn.Pub.Int.L.J. 289 (2008). This article proposes the following as a new intestacy statute that takes into account persons in a same sex marriage:

(a) Amount. The surviving life partner of an unmarried adult decedent who dies without leaving a valid will shall be entitled to take the following portion of the decedent’s intestate estate: [Table omitted].
If, however, there is no other heir as provided by state law, and if the duration of the relationship between the surviving life partner and decedent exceeded five years, the surviving life partner shall be able to claim the remainder of the estate from the state escheat fund if six years have elapsed since payment into the escheat fund.

(b) Requirements of Life Partner. In order to be considered the life partner of the decedent, an individual must (i) be an unmarried adult, (ii) be prohibited by state law from being married to the decedent by reason of being of the same gender, (iii) not be otherwise prohibited from marrying the decedent by reason of blood relationship, (iv) have been living in a marriage-like relationship with the decedent at the time of death, (v) have been cohabiting with the decedent, and (vi) not be considered the life partner of another person.

(c) Definition of “Living in a Marriage-Like Relationship.” For the purposes of subsection (b), the following factors shall be employed in determining if a person is living in a marriage-like relationship with the decedent:

(1) the intermingling of finances between the parties;
(2) the raising of children by the parties;
(3) whether or not a public or private commitment ceremony was performed;
(4) the exchange of symbols of the relationship (e.g. a ring);
(5) the reputation of the parties in the community in which they resided;
(6) the existence and content of written statements by the parties pertaining to their relationship; and
(7) any other factor which the court finds pertinent and relevant to the determination.

(d) Presumption of Marriage-Like Relationship. For the purposes of subsection (b), a marriage-like relationship shall be presumed to exist if any of the following conditions are met:

(1) the parties were registered with the state as domestic partners;
(2) one of the parties received employee benefits from the other that were contingent on the parties being found to be domestic partners; or
(3) the parties qualify as domestic partners under any other applicable state law or local ordinance.

(e) Force of Presumption. If a presumption arises under subsection (d) due to satisfaction of one factor, the presumption may be rebutted by preponderance of the evidence. If a presumption under subsection (d) arises due to satisfaction of multiple factors, the presumption may be rebutted by clear and convincing evidence.

(f) Limitation of Intestate Share. The amount of the intestate share under subsection (a) shall not exceed the amount that the life partner would be entitled to if the decedent and life partner were legally married under the applicable state law.

(g) Non-Creation of Marital Union. Nothing in this section shall be construed to create any marital union or to entitle the life partner to any other benefit or privilege otherwise restricted to persons in a marital union.

This interesting article concludes by observing “there are some states that already have full intestacy rights for same-sex partners. Hawaii, for example, has a reciprocal beneficiary system that confers equivalent intestacy rights on those who register as such with the state. To lawmakers in states which have already provided inheritance rights for unmarried homosexual couples, I would urge them to ignore this proposal. This statute is intended for states that do not have any such protection. To lawmakers in those states, this proposal is not about same-sex marriages; it is about protecting the families of people in same-sex relationships. I would urge all states without other provisions to separate family law from inheritance law, consider this statute on its merits, and adopt legislation based on this proposal.”

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