Inheritance Rights for Domestic Partners

Abstract

This Article emerges from the aftermath of the terrorist attacks on September 11. The loss of nearly three thousand lives prompted understandable calls for compensation to be paid to each victim's surviving family. Yet who would count as "family"? The administrator of the federal government's compensation fund, Kenneth R. Feinberg, announced in December 2001 that he would look to state inheritance law to answer this question. It was at this point that many lawyers and lawmakers realized what specialists in probate had long known: state inheritance laws provide strong protection for a decedent's surviving spouse but little or none for a decedent's surviving same- or opposite-sex domestic partner.

The American Bar Association's Section on Individual Rights and Responsibilities asked the ABA's Section on Real Property, Probate and Trust Law to examine whether and how inheritance rights might be extended to domestic partners. In turn, the Real Property, Probate and Trust Law section referred the question to the Joint Editorial Board for Uniform Trust and Estate Acts (JEB). In December 2002, the JEB appointed me as a special reporter to prepare a study including, if possible, a model statute. The study and statute were prepared and, at the JEB's November 2003 and February 2004 meetings, discussed. A concern was raised about whether the JEB would have the authority to approve statutory language or even to circulate such language for broader consideration; put conversely, whether the JEB would be acting ultra vires. At the February 2004 meeting, it was concluded that such activity would be beyond the JEB's authority. However, there was substantial agreement that, with issues of domestic partnership much in the news, state legislatures and legal scholars would be keen to see and could benefit from the study and model statute that had been prepared. I am therefore publishing the study in a law review. I wish to emphasize that I am acting purely in my individual capacity, not as a special reporter to the JEB.

This Article is divided into four parts. Part I provides social and demographic background on domestic partnerships within the United States. Part II examines the extent to which state inheritance law currently provides protections for domestic partners. Part III discusses the recent decision by the American Law Institute to provide rights for domestic partners in situations akin to divorce. Part IV contains a proposal for inheritance-law reform, including a model statute and accompanying commentary.

The draft being circulated on LSN contains the Introduction, Part IV, and the Conclusion. It is on Part IV that I particularly welcome feedback.