Intestate Inheritance Rights for Unmarried Committed Partners: Lessons for U.S. Law Reform from the Scottish Experience

• Author: E. Gary Spitko
• Position: Presidential Professor of Ethics and the Common Good and Professor of Law, Santa Clara University
• Pages: 2175-2203

2175

Intestate Inheritance Rights for

Unmarried Committed Partners:

Lessons for U.S. Law Reform from the

Scottish Experience

E. Gary Spitko*

ABSTRACT: No U.S. state affords intestate inheritance rights to the

unmarried and unregistered committed partner of a decedent. This omission

has become more and more problematic in recent years as cohabitation rates

in the United States have risen and marriage rates have declined. Indeed, the

phenomenon of increasing cohabitation rates and declining marriage rates is

observed across the developed world. Unlike in the United States, however, a

significant number of foreign jurisdictions have reformed their law to afford

intestate inheritance rights to a decedent’s surviving unmarried committed

partner.

This Article looks to Scottish law to inform consideration of how U.S. states

might best reform their intestacy statutes so as to provide intestate inheritance

rights to a surviving unmarried committed partner. Examination of Scottish

law should prove especially fruitful for U.S. law reformers. The relevant

Scottish statutory provisions have been in effect since 2006 and have been

extensively critiqued by Scottish courts, academics, and practitioners. Indeed,

the Scottish Law Commission (“SLC”), whose recommendations led to

adoption of the current scheme, has called for repeal of these intestacy

provisions, and has offered a replacement scheme. Moreover, Scottish

succession law and U.S. succession law share significant norms valuing

certainty and preferring fixed entitlements and limited judicial discretion.

The Article evaluates the Scottish statute with respect to three major issues of

principle that should be at the center of U.S. reform discussions: fulfillment

of purpose, implications for certainty and administrative convenience, and

implications for marriage. The Article similarly evaluates the SLC’s proposal

* Presidential Professor of Ethics and the Common Good and Professor of Law, Santa

Clara University. The author is grateful to Thomas P. Gallanis, Elaine Sutherland, Lawrence W.

Waggoner, and participants at the Iowa Law Review ACTEC Foundation Sympos ium on Wealth

Transfer Law in Comparative and International Perspective for their thoughtful comments on

earlier drafts of this Article and to Thomas R. DeGuzman for his research assistance.

2176 IOWA LAW REVIEW [Vol. 103:2175

to replace the current statute. Finally, the Article reflects upon the Scottish

statute and SLC proposal in considering which elements of Scottish law a

U.S. state might profitably borrow or should reject in an effort to craft a more

inclusive approach to the intestate inheritance rights of U.S. unmarried

committed partners consistent with the principles of U.S. succession law. The

jumping off point for this discussion is this author’s previously published

proposal for a model statute that implements an accrual/multi-factor

approach to intestate inheritance rights for unmarried committed partners.

After describing the significant features of this proposal, the Article considers

how one might evolve the proposed accrual/multi-factor approach to

incorporate the lessons learned from the Scottish experience.

I. BACKGROUND AND OVERVIEW .................................................... 2177

II. INTESTATE INHERITANCE RIGHTS FOR UNMARRIED

COMMITTED PARTNERS IN SCOTLAND ........................................ 2179

A. STRUCTURE ........................................................................... 2179

1. Definition of Cohabitant ............................................ 2180

2. Rights of Cohabitants .................................................. 2181

B. EVALUATION ......................................................................... 2182

1. Fulfillment of Purpose ................................................ 2183

2. Implications for Certainty and Administrative

Convenience ................................................................ 2187

i. Section 25 ............................................................... 2187

ii. Section 29 ............................................................... 2189

3. Implications for Marriage ........................................... 2191

C. THE SCOTTISH LAW COMMISSION REFORM PROPOSAL ............ 2192

III. LESSONS LEARNED FROM THE SCOTTISH EXPERIENCE:

SUGGESTIONS FOR U.S. INTESTACY LAW REFORM ....................... 2195

A. LESSONS LEARNED ................................................................. 2196

B. A REVISED ACCRUAL/MULTI-FACTOR APPROACH ................... 2197

1. Fulfillment of Purpose ................................................ 2197

2. Implications for Certainty and Administrative

Convenience ................................................................ 2198

3. Implications for Marriage ........................................... 2201

IV. CONCLUSION .............................................................................. 2203