Free will to will? A case for the recognition of intestacy rights for survivors to a same-sex marriage or civil union.

• Author: Hammerle, Christine A.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND: THE RISE OF BENEFITS TO SAME-SEX COUPLES II. PROBLEMS WITH RELYING ON WILLS TO REFLECT ACTUAL DONATIVE INTENT A. Challenge of a Validly Executed Will B. Home-Drawn Wills and Defects in Execution Leading to Invalidity C. Failure to Execute a Will III. MANY STATES REFUSE TO RECOGNIZE THE MARRIAGES AND CIVIL UNIONS OF SAME-SEX COUPLES IV. STATES CAN RECOGNIZE SAME-SEX MARRIAGE OR CIVIL UNIONS FOR PURPOSES OF INTESTACY DESPITE REFUSAL TO RECOGNIZE THE ARRANGEMENT DUE TO OFFENSE TO NOTIONS OF PUBLIC POLICY A. Purposes of Intestacy: Likely Donative Intent B. Recognition of "Incidents of Marriage" without Full Recognition of Continued Validity of the Marriage C. Weighing Competing Public Policies Allows States to Recognize Same-Sex Marriage or Civil Unions despite Intestacy Statutes that Fail to Provide for Same-Sex Inheritance D. A Solution in Contract Law V. REQUIREMENT OF CIVIL UNION, COMMITMENT CEREMONY, OR SAME-SEX MARRIAGE STATUS CONCLUSION INTRODUCTION

Intestacy is an area in which same-sex couples receive little legal protection of their relationships. For a surviving same-sex spouse, this can result in complete disinheritance and defeat the intentions of the couple.

Intestacy occurs when an individual dies without a valid will. In the absence of a valid will, certain default rules apply to the distribution of the decedent's property. (1) Intestacy statutes in most jurisdictions provide that the surviving spouse takes all or most of the decedent's estate. (2) But intestacy laws protect only the rights of lawfully married survivors, (3) and in states that do not recognize same-sex marriages or civil unions, the estate will be distributed to distant relatives, or even escheat to the state, rather than benefit the surviving partner to the marriage or union. (4)

Establishing domicile in the jurisdiction where the same-sex marriage or civil union occurred protects surviving same-sex partners because a state's recognition of same-sex marriage means that its intestacy laws likely recognize same-sex marriage as well. (5) If the decedent later dies in another jurisdiction, however, many states will not consider the surviving partner a "spouse" for the purposes of intestacy, and as a result, the survivor of the same-sex union is disinherited of the wealth that was likely jointly generated. (6) Courts in these states cite the public policy exception to the Full Faith and Credit Clause of the Constitution as the rationale for refusing to honor the marriage for the purposes of intestacy. (7) The Defense of Marriage Act (DOMA) interpreted the Full Faith and Credit Clause as containing an exception to the requirement of recognition for marriages that contravene the public policy of the state, (8) Because several states have recently provided benefits to same-sex couples, this is only the beginning of debate over same-sex relationships. (9)

This Note argues that courts should recognize intestacy rights for same-sex couples that were validly married or civilly united in a state other than the one in which one of the partners died. Courts may validly recognize the marriage for intestacy purposes, even while refusing to recognize the marriage as against public policy. Part I details the recent provision of benefits in various states to same-sex couples. Part II argues that same-sex couples cannot necessarily rely on wills to effectuate their intent to leave their property to their spouses. Part III argues that when states refuse to recognize the marriages or civil unions of same-sex couples as being against the public policy of the state, they erroneously reject same-sex intestacy rights, creating a gap in the protection afforded to same-sex couples and defeating their likely intent. Part IV provides examples from case law permitting states to recognize intestacy rights--despite a general refusal to recognize the marriage--for surviving spouses of couples whose marriage violated the state's public policy. Part V concludes that courts should limit this recognition of intestacy rights to same-sex couples who are validly married, or participated in a civil union or commitment ceremony, in order to avoid fraud and unnecessary litigation.

1. BACKGROUND: THE RISE OF BENEFITS TO SAME-SEX COUPLES

   The provision of benefits to same-sex couples is incredibly disparate across different states. The few states and municipalities that extend rights to same-sex couples are in stark contrast to the lack of protections afforded at the federal level, where the government has sought to deny the protections of opposite-sex marriage to same-sex couples through DOMA. (10) This Part briefly describes of some of the rights recently gained by same-sex couples in the United States.

   In Baehr v. Lewin, the Hawaii Supreme Court held that restriction of marriage to opposite-sex couples violated the Hawaii Constitution's Equal Protection Clause. (11) The court remanded to the trial court for a determination of whether a compelling state interest justified the restriction. (12) The trial court in Baehr v. Miike determined that the state did not meet this burden. (13) In response to these judicial rulings that gave same-sex and opposite-sex Hawaiian couples some of the benefits of marriage upon registration of their relationship, the Hawaii state legislature passed the Reciprocal Beneficiaries Act. (14) Subsequently, however, Hawaii amended the state constitution to allow the legislature to define marriage as a union between a man and a woman. (15)

   Similar to the court in Hawaii, the Vermont Supreme Court determined that denial of marital rights to same-sex couples violated the Vermont State Constitution. (16) In response to the decision, the legislature created a union that parallels marriage for same-sex couples. (17) The Civil Union Law gives all of the benefits of marriage to same-sex participants. (18)

   California has had a mixed history with respect to rights for same-sex couples. On the one hand, California has created a registry with the Secretary of State through which certain same-sex couples may register their partnership for the purpose of receiving benefits similar to those accorded by marriage, including death and survivorship benefits. (19) Additionally, on February 12, 2004, San Francisco Mayor Gavin Newsom ordered city clerks to begin issuing marriage licenses to same-sex couples. (20) The California Supreme Court, however, eventually voided all of the marriages performed in 2004 in San Francisco and elsewhere, leaving in their wake lawsuits challenging restrictions on same-sex marriage. (21) On September 6, 2005, California lawmakers became the first in the country that voted to legalize same-sex marriage, with the State Assembly narrowly approving a bill that defines marriage as between "two persons" instead of between a man and a woman. (22) In another setback to same-sex couples, though, and consistent with his public pronouncements on the subject, Governor Schwarzenegger vetoed the bill. (23) The ultimate outcome of these movements, and therefore the status of same-sex relationships, is likely far from over. As a result, it is unclear how a California court would respond to a claim by a surviving same-sex partner for intestacy rights.

   Same-sex couples in Massachusetts were given the right to marry (24) in Goodridge v. Department of Public Health. (25) The Massachusetts Supreme Judicial Court determined that the exclusion of same-sex couples from marriage violates the Massachusetts Constitution, and the court redefined the common law meaning of marriage to include "the voluntary union of two persons as spouses, to the exclusion of all others." (26)

   New York provides an impressive example of inclusivity for same-sex couples through statutory interpretation and policy-making. The New York Court of Appeals recognized the rights of a same-sex couple in the landmark case of Braschi v. Stahl Associates Co. by defining family to include same-sex partners. (27) The landlord in Braschi sought to evict the same-sex partner of a tenant who died in a rent-controlled apartment building. (28) The court extended the non-eviction protection of New York City's rent-control regulation to the surviving partner by defining family to include same-sex partners, thereby preventing his eviction. (29) Additionally, in 1998, the city extended its protection of the rights of same-sex couples by passing its Domestic Partnership Law. (30) The New York City Council further extended its protections by automatically recognizing couples as domestic partners if they were parties to civil unions or same-sex marriages, or they had registered as domestic partners in other jurisdictions. (31)

   In addition to recognition of rights at the state level, certain employers and municipalities have granted rights and benefits to same-sex couples. (32) Many private employers have extended benefits to same-sex partners of employees that were previously available only to spouses. (33)

   With the exception of these limited protections, same-sex couples face severe disadvantages compared to the rights afforded heterosexual married couples. In particular, parties to a civil union or same-sex marriage are denied an intestate share if they are domiciled in a state that refuses to recognize their relationship and applies its intestacy laws to the decedent's estate. (34) As shown in the next Part, same-sex couples cannot necessarily rely on wills to achieve the desired distribution of their estates.

2. PROBLEMS WITH RELYING ON WILLS TO REFLECT ACTUAL DONATIVE INTENT

   Testamentary planning is at best an incomplete substitute for the broader legal recognition of intestacy rights for same-sex relationships. Although effective testamentary planning would obviate the need for recognition of same-sex intestacy rights, it has some possible shortcomings. Relying on wills to accurately reflect a decedent's intent is problematic for three reasons...