Elective share

Abstract: First, this Article begins with history, as this forms the basis of elective share law. It is necessary to begin with the historical basis of a spouse's right to support, and then proceed to examine how and why a spouse obtained a share of the property acquired during marriage. Second, because a spouse's rights at death were often very different from those that a spouse would obtain at divorce, it is necessary to explain the various judicial and statutory models adopted by the states to provide a modicum of protection to a surviving spouse at death. There are many models and it will soon become apparent why the UPC seeks to provide some uniformity to a babel of approaches. Third, this Article examines the changes that have occurred in the law of divorce, because these changes have had an impact on deciding whether the UPC has captured the trend of spousal protection now present in state divorce courts. Finally, this Article analyzes the newly revised elective-share provision in the context of what has been discussed throughout this Article. The evolution of the UPC's revisions, the multiple state approaches mentioned, and the abundance of opinions on this important topic together prompt the conclusion that any assessment of the UPC must begin with a determination of whether the 2008 revision is reasonable in light of present circumstances. With this admonition, we begin.

Abstract: Domestic Partnership Laws in the United States: A Review and Critique* I. INTRODUCTION Arrangements providing for employment and other social benefits based on "domestic partnership" status are becoming increasingly common in both the private and the public sectors. For example, the Human Rights Campaign reports that 3,572 private companies, colleges, universities, and governments offer domestic partnership benefits to their employees.1 Recently, the state legislature of California began to offer domestic partnership benefits to partners of legislative employees.2 In 2000, an arbitrator in Connecticut ruled that the state had to offer health benefits for same-sex partners of state employees.3 A number of countries and foreign jurisdictions have also created a special status for same-sex couples. These countries include Brazil,4 Canada,5 Denmark,6 France,7 Ice land,8 Norway,9 Sweden,10 Switzerland,11 New South Wales (Australia),12 and Aragon (Spain).13 Now, Germany and Hungary are also considering creating a status for same-sex domestic partners.14 These laws are of increasing concern not only because of their frequency, but also because of their attractiveness as a substitute for recognition of same-sex "marriage." Politicians may offer domestic partnership benefits, or something similar, as a concession. This happened in Hawaii in 1997 when the state marriage amendment was being considered in the legislature.15 Similarly, the Iowa marriage recognition statute (providing that an out-of-state same-sex "marriage" would not be valid in Iowa) included a provision creating a task force to report on the issue of domestic partners.16 Most conspicuously, the Vermont Legislature created the status of "civil unions" for same-sex couples17 after a Vermont Supreme Court decision mandated the provision of marriage benefits to same-sex couples by the legislature and threatened to force recognition of same-sex "marriage" if the legislature did not comply.18 Now the American Law Institute ("ALI") has joined the fray by endorsing a domestic partnership status.19 This paper will survey the domestic partnership laws of various U.S. jurisdictions and will compare the ALI proposal with these laws. It will also discuss the litigation surrounding these provisions and briefly comment on legal and policy implications of domestic partnership statutes. II. STATE DOMESTIC PARTNERSHIP PROVISIONS Only three states-Hawaii, California, and Vermont-have domestic partnership statutes. The Hawaii law was adopted in 1997 as a tradeoff for the passage of the Marriage Amendment, which would have prevented the legalization of same-sex "marriage."20 The Hawaii law provides a number of benefits to state employees and citizens, although its effect on private employers is limited. Its provisions include funeral leave for state employees, hospital visitation rights, health insurance coverage for partners of state employees, and the ability to claim an elective share of a partner's estate.21 Hawaii's term for domestic partners is "reciprocal beneficiaries." Reciprocal beneficiaries must be eighteen years old, ineligible to marry, and unmarried. They must sign a declaration of intent,22 which is filed with the director of the state health department.23 Reciprocal beneficiary status can be ended by filing a declaration with the state health department or by marriage.24 Notably, the Hawaii statute explicitly includes relationships not involving sex or the same residence. While the law was originally intended to cover private as well as public employers, private employers filed suit. The litigation settled with an agreement that the law would only apply to a small number of private employers.25 The California law, enacted in 1999, creates a registry whereby same-sex couples and couples over age sixty-two can register for the right to hospital visitation and to appoint their partner a beneficiary on their insurance. …

Abstract: As the American population ages, the need for long-term care, already great, will become even greater. Some of this care is paid for by government programs, such as Medicaid, and by individual long-term care insurance policies. But the combination of the public fisc and private insurance are, and will continue to be, insufficient to pay for all of the care our seniors and adults with disabilities need. The provision of care in a family residence by one or more family members is an important component of our health care delivery system and must be supported and encouraged by public policy and law. As experts in the law of estate planning and health care, respectively, we address in this Article the following question: How might the American law of succession realistically recognize, support, and promote family caregiving? Our answer is a pragmatic proposal that can be adopted into the Uniform Probate Code (UPC). We propose a modified elective share for a family member who has provided the decedent with substantial uncompensated care in a family residence. (In this context, “family member” excludes the decedent’s surviving spouse, because the UPC already provides a spousal share.) Our approach contrasts with the prevailing law in the U.S., which treats personal services rendered by family members as gratuitous, hence not compensable. The scope and amount of the caregiver’s elective share can be structured by way of analogy to the surviving spouse’s elective share, though with important differences, as we discuss herein.

Abstract: This Article examines one form of property rights available to a surviving spouse, the elective share. The elective share serves as an override to a testator’s stated intent by allowing the surviving spouse to choose to take a portion of the decedent’s estate — even if the will explicitly disinherits the surviving spouse. The Article analyzes a recent five-year period of state cases raising elective share issues with the goal of determining the circumstances under which an elective share is most likely to be contested. The reported elective share disputes typically involve a subsequent spouse challenging a will that leaves property to an earlier family. The petitioners are almost invariably women. The length of the marriage ranges from a few months to decades, and some of the cases involve waiver of the share, some involve estranged spouses, and a few involve marriage fraud. Disputes over the elective share illustrate family tensions, rarely involving parents against joint children, and more frequently pitting a surviving spouse against the decedent’s earlier families. The Article provides an empirical assessment of the current rationales for the elective share and suggests revisions to existing elective share approaches that reflect both differing theories of what values marriage should represent and the changing demography of marriage and remarriage.