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

This Note argues that courts should recognize intestacy rights for same sex couples that were validly married or civilly united in a state other than the one in which one of the partners died. Courts may validly recognize the marriage for intestacy purposes, even while refusing to recognize the marriage as against public policy. Part I details the recent provision of benefits in various states to same-sex couples. Part II argues that same-sex couples cannot necessarily rely on wills to effectuate their intent to leave their property to their spouses. Part III argues that when states refuse to recognize the marriages or civil unions of same-sex couples as being against the public policy of the state, they erroneously reject same-sex intestacy rights, creating a gap in the protection afforded to same-sex couples and defeating their likely intent. Part IV provides examples from case law permitting states to recognize intestacy rights–despite a general refusal to recognize the marriage-for surviving spouses of couples whose marriage violated the state’s public policy. Part V concludes that courts should limit this recognition of intestacy rights to same-sex couples who are validly married, or participated in a civil union or commitment ceremony, in order to avoid fraud and unnecessary litigation.