June 2006 Vol. 104 No. 7 THE REVIEW

Free Will to Will? A Case for the Recognition of Intestacy Rights for Survivors to a Same-Sex Marriage or Civil Union

Christine A. Hammerle

Intestacy is an area in which same-sex couples receive little legal protection of their relationships. For a surviving same-sex spouse, this can result in complete disinheritance and defeat the intentions of the couple.

Intestacy occurs when an individual dies without a valid will. In the absence of a valid will, certain default rules apply to the distribution of the decedent’s property. Intestacy statutes in most jurisdictions provide that the surviving spouse takes all or most of the decedent’s estate. But intestacy laws protect only the rights of lawfully married survivors, and in states that do not recognize same-sex marriages or civil unions, the estate will be distributed to distant relatives, or even escheat to the state, rather than benefit the surviving partner to the marriage or union.

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