No U.S. state affords intestate inheritance rights to the unmarried and unregistered committed partner of a decedent. This omission has become more and more problematic in recent years as cohabitation rates in the United States have risen and marriage rates have declined. Indeed, the phenomenon of increasing cohabitation rates and declining marriage rates is observed across the developed world. Unlike in the United States, however, a significant number of foreign jurisdictions have reformed their law to afford intestate inheritance rights to a decedent’s surviving unmarried committed partner.
This Article looks to Scottish law to inform consideration of how U.S. states might best reform their intestacy statutes so as to provide intestate inheritance rights to a surviving unmarried committed partner. Examination of Scottish law should prove especially fruitful for U.S. law reformers. The relevant Scottish statutory provisions have been in effect since 2006 and have been extensively critiqued by Scottish courts, academics, and practitioners. Indeed, the Scottish Law Commission (SLC), whose recommendations led to adoption of the current scheme, has called for repeal of these intestacy provisions, and has offered a replacement scheme. Moreover, Scottish succession law and U.S. succession law share significant norms valuing certainty and preferring fixed entitlements and limited judicial discretion.
The Article evaluates the Scottish statute with respect to three major issues of principle that should be at the center of U.S. reform discussions: fulfillment of purpose, implications for certainty and administrative convenience, and implications for marriage. The Article similarly evaluates the SLC’s proposal to replace the current statute. Finally, the Article reflects upon the Scottish statute and SLC proposal in considering which elements of Scottish law a U.S. state might profitably borrow or should reject in an effort to craft a more inclusive approach to the intestate inheritance rights of U.S. unmarried committed partners consistent with the principles of U.S. succession law. The jumping off point for this discussion is this author’s previously published proposal for a model statute that implements an accrual/multi-factor approach to intestate inheritance rights for unmarried committed partners. After describing the significant features of this proposal, the Article considers how one might evolve the proposed accrual/multi-factor approach to incorporate the lessons learned from the Scottish experience.
103 Iowa L. Rev. 2175