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

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 Symposium 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. 2175 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. S TRUCTURE ........................................................................... 2179 1. Definition of Cohabitant ............................................ 2180 2. Rights of Cohabitants .................................................. 2181 B. E VALUATION ......................................................................... 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. T HE S COTTISH L AW C OMMISSION R EFORM P ROPOSAL ............ 2192 III. LESSONS LEARNED FROM THE SCOTTISH EXPERIENCE: SUGGESTIONS FOR U.S. INTESTACY LAW REFORM ....................... 2195 A. L ESSONS L EARNED ................................................................. 2196 B. A R EVISED A CCRUAL /M ULTI -F ACTOR A PPROACH ................... 2197 1. Fulfillment of Purpose ................................................ 2197 2. Implications for Certainty and Administrative Convenience ................................................................ 2198 3. Implications for Marriage ........................................... 2201 IV. CONCLUSION .............................................................................. 2203 2018] INTESTATE INHERITANCE RIGHTS 2177 I. BACKGROUND AND OVERVIEW No U.S. state affords intestate inheritance rights to the unmarried and unregistered committed partner of a decedent. 1 In recent years, this omission has become increasingly problematic as cohabitation rates in the United States have risen and marriage rates have declined. 2 Indeed, the phenomenon of increasing cohabitation rates and declining marriage rates is observed across the developed world. 3 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. 4 This Article looks to Scottish law to inform how U.S. states might best provide intestate inheritance rights to surviving unmarried committed partners. 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”), 5 whose recommendations led to adoption of the current scheme, has called for a repeal of these intestacy provisions and has offered a replacement scheme. 6 Also, Scottish succession law and U.S. succession law share significant norms, 1. New Hampshire comes close in providing intestacy rights for unmarried “[p]ersons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them.” N.H. REV. STAT. ANN. § 457:39 (2016). See generally In re Estate of Bourassa, 949 A.2d 704 (N.H. 2008) (holding that a couple was not common law married and therefore the surviving partner was not entitled to intestacy inheritance rights). 2 . See Lawrence W. Waggoner, Marriage Is on the Decline and Cohabitation Is on the Rise: At What Point, if Ever, Should Unmarried Partners Acquire Marital Rights? , 50 FAM. L.Q. 215, 216–22 (2016) (documenting declining marriage rates and rising cohabitation rates in the United States, especially between 2000 and 2010). 3 . See Family Law (Scotland) Bill 2005, SP Bill [36], Policy Memorandum ¶ 57, http://www.scottish.parliament.uk/S2_Bills/Family%20Law%20(Scotland)%20Bill/b36s2-introdpm.pdf [hereinafter Policy Memorandum] (“The available evidence suggests that cohabitation has moved from a minority to a dominant family type in the UK.”); Elaine E. Sutherland, From ‘Bidie-in’ to ‘Cohabitant’ in Scotland: The Perils of Legislative Compromise , 27 INT’L J.L. POL’Y & FAM. 143, 146 (2013) (referencing the “dramatic increase in the incidence of cohabitation in western countries” and citing to multiple studies); Waggoner, supra note 2, at 231. 4 . See generally 2 COMPARATIVE SUCCESSION LAW: INTESTATE SUCCESSION (Kenneth G.C. Reid et al. eds., 2015) (discussing intestate succession in Europe, the United States, Quebec, Australia, New Zealand, South Africa, and Latin America). 5. The Law Commissions Act 1965 established the SLC as an independent body charged with advising the Government on ways “to simplify, modernise and improve Scots law.” Welcome to the Scottish Law Commission , SCOTTISH L. COMMISSION, https://www.scotlawcom.gov.uk (last visited Apr. 2, 2018). 6 . See infra Part II.C. 2178 IOWA LAW REVIEW [Vol. 103:2175 both valuing certainty and preferring fixed entitlements and limited judicial discretion. 7 Specifically, this Article focuses on the law of Scotland to gain insight into several issues of principle and related issues of execution that should be at the center of U.S. reform discussions. The first issue of principle relates to purpose—determining why an intestacy statute should provide rights for an unmarried committed partner. The Scottish statute is vague as to its purposes. This Article discusses the implications of this lack of expressed clarity and demonstrates how U.S. law reform efforts can avoid similar problems. 8 The second issue of principle regards certainty and administrative convenience. The desire for certainty and ease of administration with respect to decedents’ estates is a fundamental principle of American succession law, perhaps second only to the desire to promote donative freedom. 9 Yet, at the same time, extension of intestate inheritance rights to unmarried committed partners will inevitably undermine certainty and administrative convenience to some degree. 10 This objection to U.S. intestacy law reform should be at the forefront of any reform proposal discussion. Lastly, the third issue of principle concerns the institution of marriage and the extent to which provision in the intestacy statute for unmarried committed partners may negatively affect the institution of marriage and the rights of a decedent’s spouse. 11 This is another area of great concern for U.S. intestacy law reform 12 and, thus, also should be at the center of any reform discussion. This Article also focuses on two issues of execution that have been at the...