Inheritance on the Fringes of Marriage

Abstract

This Article explores the inheritance rights of individuals situated at the fringes of marital relationships—fiancés, spouses who are in the process of divorcing, and permanently separated spouses. The Article examines whether these categories of individuals ought to enjoy rights to forced shares of an estate comparable to those that ordinary spouses can claim by assaying the rationales for a forced share in relation to these fringe categories. The Article also considers whether lawmakers should infer that the typical decedent would wish to provide at death for individuals falling into these categories. The Article conducts the first-ever empirical study of this question by recourse to an internet survey of fiancés, spouses in the midst of divorcing, and permanently separated spouses. The Article proposes changes in intestacy law, the law of implied bequests, and implied revocation of bequests on the basis of this survey. Finally, the Article seeks to locate the issue of fringe categories of beneficiaries within the broader context of relationship theory.

Keywords: inheritance, intestacy, marriage, spouse, forced share, elective share, pretermitted spouse, omitted spouse, implied revocation, revocation by operation of law, heirs, fiance, surviving spouse, divorce, permanent separation, legal separation, divorce from bed and board, relationship, bequest

JEL Classification: K11, K19, K36, K39