The Expressive Function of Succession Law and the Merits of Non-Marital Inclusion

47 Pages Posted: 31 May 2015 Last revised: 6 Jun 2015

See all articles by E. Gary Spitko

E. Gary Spitko

Santa Clara University - School of Law

Date Written: 1999


Intestacy statutes seek to further donative freedom by effectuating the attributed intent of those who fail to execute a valid estate plan during life. One might reasonably hypothesize that gay men and lesbians, on the whole, differ from the non-gay majority with respect to their donative intent. The fundamental difference in romantic and affectional preferences between gay people and non-gay people is likely to produce such a disparate donative intent. Much anecdotal evidence and recent empirical evidence strongly support this hypothesis.

Article II of the Uniform Probate Code presently ignores the existence of gay men and lesbians, despite the drafters' expressed effort to recognize the changing nature of the American family. Article II would better implement its principal goal of promoting donative freedom, however, if its intestacy provisions were redrafted to implement the attributed intent of gay men and lesbians. Such inclusion could be implemented consistent with the 1990 Code's desire for simplicity and certainty in succession law by utilizing a registration system for qualification of committed partners, a multi-factor approach that limits judicial discretion through objective requirements and clearly delineated factors for qualification or a combination of these two systems.

Succession reform to include same-sex committed partners also would remove the badge of inferiority that Article II presently places on gay men and lesbians and their relationships. By failing to recognize the fundamental difference between gay people and non-gay people with respect to donative preferences, Article II implies that gay and lesbian relationships are insignificant or unsuitable for recognition. This implicit expression is made all the more pronounced in light of the lack of any justification for same-sex exclusion deriving from the principles of succession law on which the drafters grounded the 1990 Code.

Suggested Citation

Spitko, E. Gary, The Expressive Function of Succession Law and the Merits of Non-Marital Inclusion (1999). 41 Arizona Law Review 1063-1107 (1999). Available at SSRN:

E. Gary Spitko (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408-551-1771 (Phone)


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