Why States Should Amend Their Probate Codes to Allow an Intestate Share for Unmarried Homosexual Couples

Charles Patrick Schwartz (J.D., Hamline University School of Law, 2008) has written an article entitled Thy Will Not Be Done: Why States Should Amend Their Probate Codes to Allow an Intestate Share for Unmarried Homosexual Couples, 7 Conn. Pub. Int. L.J. 289 (2008).

Here is a summary of the article:

… Intestate succession rights, being limited to spouses, are one of the rights of marriage, and one could attack this proposal as violating such constitutional language. … If the statute does not give the entire estate to the spouse, or if there is no spouse, then any remaining property is given to other heirs of the decedent, including children, parents, and siblings, in a proscribed order. … Judicial Attacks Against Marriage and Intestacy Statutes: A Recipe for Defeat The outcome sought to be achieved by this amendment to state intestacy laws is that intestacy law be revised to reflect the probable desires of unmarried persons with same-sex partners that their surviving partner at least share in the estate, thereby fulfilling the purpose of intestacy statutes. … Fundamental rights are those rights which are “deeply rooted in this Nation’s history and tradition” and are “implicit in the concept of ordered liberty.” … The final obstacle to rational basis review would be a determination that limitation of marriage to opposite-sex couples constitutes gender discrimination, which would require heightened scrutiny. … If Amara were to die without a will, application of intestacy law would give her entire estate to her living relatives and nothing to Michelle. … In the current political environment, marked by states enacting Defense of Marriage Acts and amending their constitutions to prohibit same-sex marriages, were I to suggest giving the surviving life partner a share equal to the spousal share and all associated rights, as Professor Gallanis proposed, the legislation would probably either be voted down or found unconstitutional.