An Accrual/Multi-Factor Approach to Intestate Inheritance Rights for Unmarried Committed Partners

96 Pages Posted: 22 Jul 2002 Last revised: 11 May 2017

See all articles by E. Gary Spitko

E. Gary Spitko

Santa Clara University - School of Law

Date Written: 2002

Abstract

As cohabitation among unmarried couples becomes more common in the United States, a most pressing challenge facing inheritance law scholars, practitioners and others who concern themselves with the development of inheritance law is to craft reforms that would, if implemented, better serve non-marital families while at the same time maintain a reasonable ease of administration of estates. One area in urgent need of such reform is intestacy law. Current intestacy law generally does not reflect as well as it could the way Americans today structure their family lives. For example, the intestacy statutes of forty-seven states make no provision for the survivor of a non-marital committed partnership. This article proposes to change that.

Professor Spitko has structured an intestacy statute that looks beyond the attributed intent of the decedent in order to protect those surviving committed partners who contributed significantly to the decedent's wealth or physical well-being or who sacrificed career opportunities for the good of the partnership. To implement these reciprocity and reliance values, Professor Spitko identifies twenty-three factors (the "multi-factor" test) that a court should use to qualify a committed partner for the purposes of the intestacy statute. His proposal also sets forth an accrual schedule that determines the size of the surviving committed partner's intestate share based on the duration of the partnership. Professor Spitko further proposes to give an intestate share to the survivor of a committed partnership that fractured prior to the decedent's death if, under the circumstances, the survivor's reciprocity or reliance interests should be vindicated. And he proposes to alter the rules for standing to challenge a committed partner's will in order to minimize the uncertainty that the proposal necessarily would introduce into the probate process.

Keywords: intestacy, de facto partners, cohabitants, reciprocity, reliance, donative intent, administrative convenience

Suggested Citation

Spitko, E. Gary, An Accrual/Multi-Factor Approach to Intestate Inheritance Rights for Unmarried Committed Partners (2002). 81 Oregon Law Review 255-349 (2002). Available at SSRN: https://ssrn.com/abstract=319820

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)

HOME PAGE: http://www.scu.edu/law/FacWebPage/Spitko/

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