Course Synopses/Outlines:

Public Attitudes Toward Inheritance in Nontraditional Families*
Mary Louise Fellows

  1. PURPOSE OF THE EMPIRICAL STUDY: The purpose of an empirical study that I, along with a sociologist and a group of law students, conducted was to assess public attitudes about including surviving committed partners as heirs under states 1 inheritance statutes.1 The idea to do this empirical study arose out of an inheritance proposal made by Professor Lawrence Waggoner of the University of Michigan.
  2. WHAT CAN BE GAINED FROM STUDYING HEIRSHIP? An inquiry into public attitudes about inheritance, which entails consideration of financial and family obligations, provides the opportunity to study how committed partners understand the nature of their relationship relative to other family members and how that relationship is viewed by others.
  3. SCOPE OF THE EMPIRICAL STUDY: The study included consideration of both same-sex and opposite-sex committed couples, recognizing that heirship for each type of couple raises different issues with different implications.
    1. It consisted of a telephone survey of a sample of the general public and three samples of persons in unmarried committed relationships: persons with opposite-sex committed partners, women with women partners, and men with men partners.
    2. All of the respondents were presented a series of scenarios in which they were asked to divide the property of the decedent among survivors identified by their familial-type relationship with the decedent. All of the scenarios involved a committed partnership that terminated as a result of the death of a partner.
    3. For respondents in opposite- or same-sex committed relationships, additional information was gathered regarding their personal relationships, wealth accumulation, and children.
  4. THE LAW OF INHERITANCE: The function of heirship laws is to accomplish a decedent’s donative intent in the absence of a will, and they do that in a way that reflects society’s view of fairness and its commitment to promote familial-type ties.
    1. Both Hawaii and Vermont have enacted legislation extending inheritance rights to same-sex committed partners. Under prevailing statutory law in other states, however, a surviving committed partner does not share in the decedent’s estate at death.
      1. The property of the partner who dies passes to that partner’s children.
      2. If there are no children, the property passes to that partner’s parents or, if both parents are dead, to that partner’s siblings.
      3. If the couple had been married, the surviving partner as legal spouse would inherit all or nearly all of the decedent’s estate, regardless of whether the decedent was survived by children, parents, or siblings.
    2. This study is based on the premise that heirship laws accomplish their function if they conform to the notion of family as it evolves sociologically and not if they are tied exclusively to a definition of family determined through legally recognized marriages.
      1. Over the last few hundred years, the inheritance laws have continually changed to reflect and support societal changes.
        1. The Enlightenment idea of the rational man unconnected to a bloodline or community was a cornerstone of liberalism and became the basis for eliminating, for example, primogeniture.
        2. More recently, changes in the twentieth century have delinked bloodline from the definition of family. Specifically the law has expanded the inheritance rights of adopted children and legal spouses.
        3. In the last half of the twentieth century, the law has also expanded the inheritance rights of nonmarital children. This reform marks the moment that the law made a distinction between moral beliefs and fairness.
      2. The changes suggest that the law’s treatment of spouses, adopted children, and nonmarital children sets the stage for us to imagine the question of committed partners as heirs.
      3. Arguing that a change to the inheritance law can be defended independently from marriage because it would serve the primary functions of the inheritance law is not an argument that such change would not have implications beyond the fact that it accomplishes a transfer of property. At the same time that heirship statutes reflect social norms and values, they also shape the norms and values by recognizing and legitimating relationships.
        1. For opposite-sex couples, the recognition not only may accomplish donative intent and fairness, but it also has the benefit of providing, through legal recognition, a validation of the relationship. It also carries the risk, however, of assimilation into a marriage model that at least some opposite-sex couples have rejected. Validation is in tension with the risk of assimilation.
        2. For same-sex couples, donative intent, fairness, and validation of familial ties are also at stake. Beyond that, however, statutory reform of the inheritance laws also would validate a person’s sexual identity. The double bind for same-sex couples is that public acknowledgment of their familial relationships and their sexual identity comes with the risk of reinforcing the heterosexual model.
  5. FINDINGS: There are three major findings of the study.
    1. A substantial majority of the respondents in each sample group consistently preferred the partner to take a share of the decedent’s estate. Respondents with same-sex partners, however, were consistently more generous to partners than were respondents from the general public sample or the respondents with opposite-sex partners.
      1. See Table 1, having to do with the hypothetical in which the decedent is survived by a partner and parent.
        1. For the respondents with opposite-sex partners, over three-quarters gave the surviving partner half or more.
        2. Nearly all the respondents with same-sex partners gave the surviving partner half or more, with the most prevalent distribution being that the partner receive the entire estate (64.7%)
        3. For the respondents from the general public sample, a somewhat greater percentage of the respondents gave half or less of the estate to the partner than gave half or more, with less than 28% providing that the surviving partner receive no share of the estate.
      2. See Table 2, having to do with the hypothetical in which the decedent is survived by a partner and a child from a prior relationship.
        1. For the respondents with opposite-sex partners, two-thirds gave the surviving partner a share that is half or less of the estate, with only about 30% providing that the surviving partner receive no share of the estate.
        2. For the respondents with same-sex partners, the majority divided the estate evenly between the partner and the decedent’s child (57.3%).
        3. For the respondents from the general public sample, a majority gave the surviving partner a share that is half or less of the estate, with only about 37% providing that the surviving partner receive no share of the estate.
      3. Further evidence of the likely intent of the respondents with same-sex partners is found in their reporting of their current estate plans. Over 58% of respondents who had parents surviving, but not children, and who had wills or life insurance designated their partners as their sole beneficiary in their wills or life insurance policies.
    2. Notwithstanding the differences in preferences between same-sex and opposite-sex partners, the respondents in each sample group, including respondents in the general public sample, consistently preferred same-sex and opposite-sex committed partners to be treated the same under the inheritance laws.
    3. Committed relationships for purposes of an inheritance law can be identified through easily observable attributes and those attributes are shown to be associated with a preference for having a partner share in a decedent’s estate. See Tables 3 and 4.
      1. The overall pattern of findings indicate considerable differences between the respondents with same-sex committed partners and the respondents with opposite-sex partners. The disparities pertain both to the prevalence of the relationship indicators examined and the capacity of the indicators to predict the respondents’ distributive preferences regarding the committed partner.
      2. The dissimilarities in indicators raise questions about how we should use the indicators for identifying a committed relationship. They also bolster the need for further research to assess whether same-sex committed relationships can or should be treated the same as opposite-sex committed relationships under heirship laws.
      3. The indicators developed in this study are based on the respondents’ self-defining characteristics, as well as the researchers’ own preconceived characteristics of a committed relationship. This technique provides a partial response to the concerns that are likely to arise concerning assimilation and having marriage be used as the standard for defining commitment.
      4. The alternative to identifying indicators to define committed relationships is to rely on self-identification through a registration regime.
        1. A registration regime has the advantage of keeping the state from invading the privacy of committed couples in the process of determining whether sufficient evidence exists to conclude a claimant was a committed partner of a decedent.
        2. A registration regime has the disadvantage of leaving those who for whatever reason fail to sign a declaration of reciprocal beneficiary relationship unprotected by an heirship statute.
    4. CONCLUSION: Changing the heirship laws to allow a committed partner to share in the decedent’s estate could potentially have substantial legal, social, and political effects. Recognition within heirship laws has consistently had the effect of shaping, as well as reflecting, societal norms and values and the definition of family itself. Allowing a committed partner to inherit would not only have an effect on how others view family units headed by committed partners, but it would likely have an effect on how members of the family unit view themselves. Just as legal invisibility currently shapes the internal dynamics of the family unit, recognition inevitably will shape the relations of the partners to themselves.
Table 1 Distribution Patterns for Scenario A: Decedent Survived by Partner and Parents
  General Public Sample Respondents with Opposite-Sex Partners Respondents with Same-Sex Partners
Percent Distribution to:
Partner Parents (%) (%) (%)
100 0 14.0 30.3 64.7
51-99 1-49 8.1 6.1 24.1
50 50 45.3 42.4 10.5
1-49 51-99 4.7 3.0 0.8
0 100 27.9 18.2 0.0
Total N 86 33 133

Table 2. Distribution Patterns for Scenario B: Decedent Survived by Own Child from a Prior Relationship and Partner
  General Public Sample Respondents with Opposite-SexPartners Respondents with Same-Sex Partners
Percent Distribution to:
Partner Person’s Child (%) (%) (%)
100 0 4.7 0.0 12.2
51-99 1-49 2.3 3.0 9.9
50 50 38.4 42.4 57.3
1-49 51-99 17.4 24.2 14.5
0 100 37.2 30.3 6.1
Total N 86 33 131

Table 3. Open-ended responses to “What is it about your relationship that makes you define it as committed?” (Percent giving the response.)
  Respondents with Opposite-Sex Partners Respondents with Same-Sex Partners
Feel committed 33.3 44.0
Deeply in love 3.3 24.8
Stated commitment publicly/commitment ceremony 0.0 21.1
Living together 36.7 35.3
Monogamy over an “extended” period of time 26.7 45.1
Financial interdependence 30.0 37.6
Plan present lives together 3.3 29.3
Plan future lives together 6.7 33.1
Have or raise children together 6.7 11.3
Have mutual wills 0.0 4.5
Have mutual life insurance policies 6.7 6.8
Other 26.7 21.5
N 30 135

Table 4. Distribution of Observable Attributes of Committed Relationships among Committed Partners. (Percent responding “yes.”)
  Respondents with Opposite-Sex Partners Respondents with Same-Sex Partners
Commitment Ceremony 6.7 26.7
Exchange a symbol (ring or other jewelry) 30.0 64.4
Arranged to be buried next to each other 6.7 5.9
Registration of partner 0.0 21.5
-where possible 0.0 36.3
Joint charitable gifts 43.3 76.3
Joint bank accounts 36.7 71.1
Joint investment 6.7 37.8
Joint ownership of car or motor vehicle 20.0 42.2
Joint ownership of home 20.0 63.0
-of home owners 35.3 73.3
Joint credit cards 20.0 46.7
Joint ownership of pet 43.3 74.1
Joint debt (other than home) 13.3 20.0
-of those with debt 28.6 37.0
Having reared or actively rearing child together 23.3 14.8
Partner is healthcare decisionmaker 26.7 71.1
Partner is a beneficiary of life insurance 33.3 69.6
-of those with life insurance 43.5 88.7
Total N 30 135

* For a complete description of the empirical study and findings, see Mary Louise Fellows et al., Committed Partners and Inheritance: An Empirical Study, 16 Law & Ineq. J.1 (1998).

1. By the term committed partners, I am referring to unmarried persons who in recognition of their affection for each other have decided to share their lives together-with living together generally involving interrelated financial and living arrangements, as well as sexual intimacy.