JURISDICTION

Comparative study of other Jurisdiction

Comparative study of other Jurisdiction

The laws of inheritance and succession govern the distribution of property after death and are some of the most widely applicable laws in any society. Although everyone must die, decedents can, within public policy limits, decide how to distribute their property at death by opting into the broad laws of testamentary succession through the drafting of a legal document known as a will or testament. Failure to do so, however, invokes a set of default rules set up by the state and known as laws of intestate succession.

Intestate Succession

Empirical evidence suggests that most people die intestate, that is, without a valid will. The rules of intestacy are derived not from the common law but from Roman civil law principles and the English Statute of Distribution. Intestate laws distribute property to a class of individuals, termed heirs, who ordinarily maintain some blood, adoptive, or marital tie to the deceased. The ranking of heirs is premised on different and sometimes competing rationales. The predominant rationale for the rules of intestacy is to model the presumed will of the decedent and thus to prescribe a system of distribution that the decedent would have chosen had the person made a will. The second rationale, rather than tracking the presumed will of a decedent, seeks to express and impose society's view of how an individual's property ought to be distributed. Thus, for example, the rules of intestacy rank in a primary position certain favored relations to whom a decedent has an obligation of support. Those relations less favored are relegated to secondary or even tertiary positions in the intestacy scheme. Relationships deemed disfavored, such as same-sex partners, are frequently excluded from the intestacy scheme altogether, oftentimes despite evidence of contrary preferences.

Surviving Spouse

Under either rationale, however, the surviving spouse ordinarily occupies a place of primacy in the intestacy scheme. Most jurisdictions limit an individual's ability to claim rights as a surviving spouse to an individual of the opposite sex who is legally married to the decedent at the time of death. A minority of states, however, have expanded the definition of a surviving spouse to include relationships outside the ordinary regime of marriage. For example, Massachusetts has judicially enlarged the traditional definition of marriage by allowing same-sex couples to marry. Although other states have not followed Massachusetts's lead, some have allowed same-sex partners to achieve the inheritance rights of a surviving spouse by other arrangements, such as civil unions, reciprocal beneficiary arrangements, and domestic partner registration.

In nine states, a system of community property exists whereby all property acquired during the existence of a marriage is jointly owned by both spouses. The rationale of this approach is that marriage is a partnership (at least in part economic), and therefore, all property acquired by either of the partners belongs to the partnership as a unit, irrespective of whose name the property is titled in. At the death of one spouse, the community terminates, and the property is divided, half to ...