Article by T.P. Gallanis
This Article emerges from the aftermath of the terrorist attacks on September 11, 2001. The loss of nearly 3000 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 differently, 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 might be keen to see the study and model statute that had been prepared. I was therefore encouraged to publish the study and model statute in a law review. I am doing so here, and 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 main parts. Part II provides social and demographic background on domestic partnerships within the United States. Part III examines the extent to which state inheritance law currently provides protections for domestic partners. Part IV discusses the recent decision by the American Law Institute to provide rights for domestic partners in situations akin to divorce. Part V contains a proposal for inheritance law reform, including a model statute and accompanying commentary.
About the Author
T.P. Gallanis. Professor of Law and Professor of History, Washington and Lee University.
Citation
79 Tul. L. Rev. 55 (2004)