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Why Marriage is Still the Best Default in Estate Planning Conflicts

37 Pages Posted: 9 May 2013  

Lynne Marie Kohm

Regent University - School of Law

Date Written: April 2, 2013


By analyzing a Tennessee bigamy case, a New York same-sex marriage case, and the growing cultural trend toward cohabitation over marriage, this article discusses how and why marriage is the best estate plan to protect vulnerable parties as they age. The article examines how marriage assists vulnerable parties in avoiding potential conflicts in estate planning and distribution, particularly when those parties have entered into alternative relationships. By focusing on the cases of Witherspoon, in which John Witherspoon entered into a bigamous second marriage, and Windsor, in which Edie Windsor is suing the U.S. government over the lack of federal tax recognition afforded her Canadian same-sex marriage, this article reveals how marriage expansion does not necessarily incentivize marriage, nor does it provide the benefits and protections often sought by those who enter into those marriage-like relationships. By contrasting the protection marriage affords to a vulnerable party in estate distribution and the dilemmas presented by marriage expansion (as illustrated in Witherspoon and Windsor) with the cultural disquiet over the importance of the nature and meaning of marriage, this article illuminates estate distribution conflicts in the context of the paradox of contemporary American socio-legal marriage culture. Despite the pop culture confusion over marriage, this article demonstrates why it is still the best default for estate planning conflicts.

Keywords: marriage, cohabitation, same-sex marriage, estate planning, marriage-like relationships, polygamy

JEL Classification: K10, K11, K12, K00, K39

Suggested Citation

Kohm, Lynne Marie, Why Marriage is Still the Best Default in Estate Planning Conflicts (April 2, 2013). Penn State Law Review, Vol. 117, No. 1219, 2013. Available at SSRN:

Lynne Marie Kohm (Contact Author)

Regent University - School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States


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