The following is a guest post by Camille Davidson (Wake Forest):
Going to the Chapel and We’re Gonna Get Married, With This Ring I Promise I’ll Always Love You, andThis Will be an Everlasting Love are all songs about two individuals falling in love and committing to a long-term relationship. In each of the songs, it doesn’t appear that an actual wedding ceremony has taken place, but the couple is in the planning stages for the big day—presentation of an engagement ring, and perhaps the rental and reservation of a chapel have occurred. There is no doubt that the couple is in love and plans to spend a lifetime together in a loving committed relationship. However, if one of the individuals passes away before the wedding ceremony, the surviving individual is not a surviving spouse and does not have rights associated with being surviving spouse.
In Inheritance on the Fringes of Marriage, 2018 U. Ill. L. Rev. 235, Professor Adam J. Hirsch discusses fringe relationships. Such relationships include committed relationships like the one described above where individuals are engaged but not yet married. They also include individuals who have been in long term committed relationships, but never formally married—think Ryan O’Neal and Farrah Fawcett. In each of these committed relationships, the survivor among these couples is not entitled to an intestate spousal share if the partner dies without a will, and cannot petition as a pretermitted spouse, if the partner dies with a previously executed will that omits him or her. In short, they are out of luck if their lover passes intestate, or testate. In contrast, fringe relationships also include individuals who are still legally married, but the divorce is not final. Although these individuals have decided that they no longer want to be in a loving committed relationship, if a partner passes away before the final divorce decree, the surviving partner is still the surviving spouse. This means he or she is entitled to an intestate share if there is no will and can petition for a forced share, if there is a will that does not include him or her as a beneficiary. James Brown’s estranged wife fell into this category.
For better or worse, marriage provides spouses with rights—during life and at death. But Professor Hirsch reminds us that “matrimony is a process not an event”. He recognizes that in general, lawmakers have determined that an individual’s donative intent changes with the beginning of a marriage and with the end of a marriage. However, Professor Hirsch questions whether other events should also affect donative intent such as engagement, separation, or the initiation of divorce proceedings. He conducts empirical studies with respect to each of these circumstances.
Professor Hirsch gives the background of both community property and common law jurisdictions and discusses how each one treats married couples. It’s no surprise that most individuals want to provide for a spouse at his or her death. This desire has influenced intestate succession statutes and a surviving spouse is the first to inherit under intestate succession statutes. State intestacy statutes have continuously increased amounts allocated to surviving spouses.
Professor Hirsch discusses fringe relationships in the context of the rationale of inheritance laws such as the partnership theory and how they protect married individuals and concludes that such benefits should be expanded to other relationships. He uses the firm Qualtrics to survey the testamentary intent of engaged persons, permanently separated persons, and persons amid divorcing.
Professor Hirsch’s survey of the testamentary preferences of engaged persons is a first. The results of the 334 individuals that he surveyed suggests that a most engaged individuals support an intestate share for their partners. Of the individuals surveyed, 79.5 % preferred to leave the other partner all or half of his or her estate. Announcement of the engagement helps to limit fraud. After all, if there is no ring or announcement, is there an engagement? The findings of the survey also supported a “pretermitted fiancé” statute, to provide for the partners excluded from pre-engagement wills or living trusts.
Although 49 states revoke by operation of law any bequests to spouses in wills that were executed prior to a divorce decree, Professor Hirsch reminds us that divorce is a journey. He surveyed 333 persons who were divorcing to assess their preferences at death. Not surprising, individuals typically do not want to wait for a final decree to disinherit their estranged partner. “Divorcing spouses who wished to leave the other spouse nothing or less than half of their estates outnumbered those who wished to leave the other all or half by 59.2% to 40.8%.” Interestingly, almost two-thirds (64.8 %) of women preferred to leave nothing or less than half to their spouse, while half of men wished to leave all or half to their spouse. Clearly men and women react differently to divorce. Overall, Professor Hirsch’s findings suggest that “dialing back divorce to the time of the petition would accord with majority preferences both as concerns rules governing intestate inheritance and implied revocation of bequests”
Finally, Professor Hirsch surveyed permanently separated individuals to determine how permanent separation should affect inheritance. The 333 persons were a mix of men and women, and approximately half of them had a decree of legal separation. “Among spouses separated de facto, 60.8% preferred to leave their separated spouse less than half or no part of their estates. Among spouses with a decree of legal separation, the corresponding fraction was 55.2%.” Again, the gender divide suggested that separated wives had a stronger tendency to disinherit husbands than vice versa. His findings also support the notion that a separated spouse should forfeit his or her surviving spouse status under intestate succession statues and permanent separation should operate to revoke a marital will by implication.
The article is thought provoking. I have seen marriages in name only where couples have not been in contact with each other for two or more decades but are still technically married be entitled to an inheritance. I have also seen committed fiancés who are shocked that they have no legal rights to an inheritance. Professor Hirsch has conducted important research and determined that while lines must be drawn at some point in time, and while marriage and divorce are convention, perhaps commitment (or lack thereof) is also a marker. What would draft legislation look like? Does the risk of fraud outweigh dealing with these fringe categories? I would love to see a follow-up to discuss what fractions should be allocated in these fringe relationships. Presumably less than a surviving spouse, but how much less?