Two Ways to End a Marriage: Divorce or Death
65 Pages Posted: 5 Oct 2005 Last revised: 22 Sep 2015
Date Written: August 3, 2011
Default rules governing property distribution at divorce and death are often identified as one of the primary benefits of marriage. This Article examines these default rules in all fifty states, exposing the ways property distribution differs depending on whether the marriage ends by divorce or death. The result is often counter-intuitive: in most states, a spouse is likely to receive more property if her marriage ends by divorce than if the marriage lasts until "death do us part." This difference can be explained in part by the choices of feminist activists over the past thirty-five years: feminists played a large role in the reform of divorce law but have largely ignored inheritance law. This Article begins to fill the void by exploring what current inheritance laws reflect about the states' conceptions of marriage and the roles of spouses within marriage. In doing so, the Article questions whether inheritance law should be reformed to conform with divorce law or whether women would benefit more from a re-examination of the partnership theory of marriage that informs current divorce law.
Keywords: Partnership theory of marriage, divorce, death, equitable distribution, inheritance, intestacy, elective share statutes, feminist legal theory
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