Over at We Win, They Lose, Brent argues that Amendment 3 opponents are being disingenuous to suggest that the amendment could have a negative effect on unmarried couples. Brent suggests that this is not the case, writing that “I can draft a will leaving property to whomever I like. . . . Furthermore, the Amendment only prohibits government recognition of non-marital relationships (marriage being limited to one man and one woman) by the government, not by private employers or citizens. Thus, what opponents are saying is patently false.” Brent’s position is understandable. However, my impression on reading the proposed amendment is that, while it might not have a harmful effect on unmarried couples, it is probably impossible to conclusively tell (until the language is interpreted) that it won’t have such an effect.
The amendment language in question reads: “No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.”
There are important questions of who is doing the recognizing, who is “giv[ing] . . .substantially equivalent legal effect” and what exactly that term means. Because these are not clear, I think there are instances where this phrase could go against private wishes. And because, in general, Constitutional provisions will trump private wishes, I don’t find Brent’s reasoning (that any problems can be avoided through simple contracting) persuasive.
Imagine the scenario where I live with my girlfriend Mary. I draft a will that says “all of my property to Mary upon my death.” I then die.
My sister wishes to contest the will. And so she goes to court, claiming that my will granting all property to Mary on my death was an unconstitutional attempt to create a “substantially equivalent legal effect” as marriage. Unless I’m married to Mary, she argues, I can’t enact a will that would create the “substantially equivalent legal effect.” It’s an argument that her attorney would probably make — it’s an argument that, as her advocate, he should make.
And is a grant of all property on death a “substantially equivalent legal effect” as marriage? Well, the spouse normally receives all property, right? So a colorable argument can be made that it is a substantially equivalent legal effect. And if it is, then it is unconstitutional. Will my sister win her case? That’s not certain, that’s for sure. But it’s definitely not outside of the realm of possibility, either.
And in such a case, it’s not clear that simple private drafting can always get around this. After all, in general, one cannot designate property in unconstitutional ways. (Thus, a gift of land “to be used as a school, so long as it is only attended by Whites” will be disallowed.)
The bottom line is that constitutional provisions with vague language must be looked at carefully (remember the church position on the ERA?), and that such provisions can have broad-ranging effects that may or may not be what their drafters originally intended. The second part of Amendment 3 has the kind of vague language which could plausibly be read in ways that would affect non-married couples of all kinds. And given the existence of potentially dangerous ambiguity, I don’t see that Brent’s claim — “what opponents are saying is patently false” — is necessarily the case.
Now, I may be completely wrong on this. I’m no expert on Utah Trusts & Estates laws. If I’m misreading this, please let me know. (And let me also say that this is an off-the-cuff musing on this issue in its abstract form. This is not legal advice for any particular person. I don’t give legal advice on blogs — heavens, no — and so don’t take this as such).
One last important side note: This is a legal-ish discussion of particular wording in the Amendment. Please, please don’t turn this into a general discussion of same-sex marriage. We have enough of those and to spare.
If you wrote a will that left all your property to your sister instead of to Mary, would that be substantially equivalent to marrying your sister? Of course not. It’s plainly a ridiculous argument, and only a lawyer could think otherwise.
Just to be clear, I should have included ;-) next to the comment about lawyers.
— EJS, non-practicing lawyer
Now…that is a more interesting issue Kaimi. Why is it that lawyers can’t offer legal advice on a blog? And if the answer is the pat answer “the state bar association,” then perhaps we should discuss how/why a state-based non-governmental association is allowed to regulate the natural right of the individual to provide for themselves and/or exercise their free speech rights. and then again…maybe not. :)
Eric,
You wrote:
“If you wrote a will that left all your property to your sister instead of to Mary, would that be substantially equivalent to marrying your sister?”
The question isn’t whether it would be substantially equiavalent, but rather whether it would have a substantially equivalent legal effect.
One legal effect of marriage is to sever the default passage of property to a blood relative, and replace it with a default passage of property to a non-blood-relative party. To the extent that a will gave all property to Mary, it would have exactly that effect. (While a will that left all property to my sister would not have that effect).
I realize that it is possible to parse the legal-effect-of-marriage language in the amendment in many different ways, not all of which would have a negative effect on unmarried couples’ ability to contractually pass property. But some readings would have precisely that effect.
(And I can confirm that there are at least two lawyers who participate in this blog who would rather be writing sci-fi novels than praciticing law :) ).
Kaimi:
Go to EPTL. Go directly to EPTL. Do not pass GO. And, needless to say, do not collect $200.
You said: And is a grant of all property on death a “substantially equivalent legal effect� as marriage? Well, the spouse normally receives all property, right?
Wrong.
The spouse (in New York, and I suspect other jurisdictions have similar schemes) does not receive all the property, if there are any issue. In New York, she gets $50,000 and half the balance. The remainder goes to the issue. The amount left to the paramour cannot therefore be the basis for the determination whether a “substantial eqivalence” exists. If we were to look at the amount of the estate given to a certain devisee, then any gift to whatever person or institution could be considered to establish the forbidden “substantial equivalence.”
The other hole in the argument (which, by the way is imaginative–and what good is a lawyer if he’s not imaginative?) is that the line of “substantially equivalent legal effect” must be drawn on the side of intestate distribution. The laws of intestate distribution operate on relationships recognized by law (and biology) husband-wife, parent-child, brother-sister. Thus, to give substantially equivalent legal effect to a non-marital relationship, the law would have to provide that the existence of that relationship, not a will drafted by one of the parties to it, is the basis upon which distribution would be made. And it is such a law, not a private decision about who should be the beneficiary of one’s estate, that the “substantially equivalent legal effect” language would ban.
I think the cursed Stone does make a good critique of your explicit analysis, Kaimi. You appear to be arguing in effect that no one can make a contract that would do something that marriage would automatically do. So, for instance, I couldn’t leave my money to you if marriage laws would automatically pass it to my wife. That’s silly and ignores the language about ‘domestic unions.’
Your implicit argument is that unmarried cohabitants in a sexual relationship constitute a ‘domestic union.’ That’s arguable, although I think a more likely interpretation is that in the absence of some legally conferred status, there is no such thing as a domestic union. In other words, the language you quote is pretty clearly aimed at Marriages In All But Name.
But I think that the real problem with your hypothetical is, even if for some reason the courts consider unmarried cohabitatants in a sexual relationship to constitute a ‘domestic union,’ it still isn’t the union that’s being given a legal effect. It’s the contract.
I, on the other hand, am able to give out plenty of free advice.
Pardon, that should be “the Cursed Stone.” I forgot the first capital.
These are all fair critiques. I still think that the amendment language, as drafted, may be broad enough to strike down some private contractual arrangements.
For instance, on the “domestic union” front, if my will says,
“I have lived with Mary for the past 30 years, we have cherished each other, blah blah blah etc, [thus making clear the impression of a “domestic union” — whatever that is] . . . because of our longstanding relationship, I give her all of my property upon death, provided that we are still together in this relationship at that time.”
That looks an awful lot like giving a “domestic union” a potential “substantially equivalent legal effect.”
How about making it even more clear?
“Because of my longstanding personal and intimate relationship with Mary, I hereby convey through this will all legal benefits that she would receive if we were married under the law.”
Is that (privately contracted) provision upheld?
Mark,
I should have been more clear with my unstated assumption of no issue.
“Because of my longstanding personal and intimate relationship with Mary, I hereby convey through this will all legal benefits that she would receive if we were married under the law.�
Well, Kaimi, I still think your interpretation is probably wrong. But you’ve come up with a great hypo. I have to say that if a client came to me with that language I would urge them to redraft it, unless Utah has lots better state court judges than they probably do. I’d feel a lot more comfortable trying to distinguish between giving legal effect to a will and giving legal effect to a relationship if the will weren’t trying to conflate the two.
“Because of my longstanding personal and intimate relationship with Mary, I hereby convey through this will all legal benefits that she would receive if we were married under the law.”
Does that create a domestic union that is given substantially equivalent legal effect to marriage?
First of all, consider the fact that there are many legal benefits of being married under the law that apply only while living. For example, if Mary were your wife, she would have control over your medical treatment. You can’t give her that right through a will, because after you’re dead you don’t need medical treatment.
But even if we only talk about death benefits, you can’t transfer in a will what you don’t control.
If you and Mary were married under the law, she might be entitled to some benefits from a third party, such as Social Security Survivor Benefits. You don’t have control over such benefits in your will.
Since your will only goes into effect after you die, by crafting this will you are not creating a domestic union with substantially equivalent legal benefits as marriage. If you were married, you would have to go through a divorce proceeding, in which Mary would be a party with rights. However, you can change your will to not leave Mary a penny, and you don’t have to consult her.
Left out a bit in the above. The final paragraph should read:
Since your will only goes into effect after you die, by crafting this will you are not creating a domestic union with substantially equivalent legal benefits as marriage. If you were married, you would have to go through a divorce proceeding in order to prevent Mary from inheriting from you, in which Mary would be a party with rights. However, you can change your will to not leave Mary a penny, and you don’t have to consult her.
Eric,
Yours is certainly a resonable reading. However, I think that the other reading is also reasonable. After all, my sister’s lawyer will argue that, if it honors the will, the _court_ is “giv[ing]” the “domestic union” “substantially equivalent legal effect” as marriage.
It might succeed as an argument. It might not. But it’s not really outside the realm of possibility.
Now it’s certainly possible to believe that it’s more likely than not that this effect won’t happen. But the exact statement made, which I am disagreeing with, is that the assertion that Amendment 3 will have an effect on unmarried couples is “patently false.” Now your view may differ from mine here, but I think that for a position to be “patently false” it needs to be false under any reasonable set of assumptions. So, the assertion “Amendment 3 will have a harmful effect on unmarried couples” might be characterized as “reasonably more likely than not to be false” and I would probably not challenge that characterization. It’s the broader characterization of “patently false” — implying that there is no way it could be true under any reasonable set of assumptions — which strikes me as going too far.
I see the point you are trying to make.
However, while at first glance your example might seem like a reasonable construction, I think it becomes clearly unreasonable under examination. Just because a lawyer will argue something doesn’t make it reasonable.
If an unmarried person can make a will leaving everything to Tom, Dick, Harry, or Mary, then inheriting everything or any fraction thereof under a will is not a legal effect of marriage. In fact, the legal effect of marriage that’s relevant is what the wife will inherit if there is no will. What people inherit under wills is a legal effect of wills.
The domestic union is not being given the same effect as a marriage — the will is being given the effect that a will is supposed to have. If there were a domestic union and no will, Mary gets nothing. If there were a will and no domestic union, Mary gets everything. Therefore, Marry’s inheritance cannot be reasonably assumed to be a legal effect of the domestic union. I’m sorry, but I do not see how any other rational conclusion is possible.
By the way, Eric, I hope this argument isn’t distracting you from the work at hand (finishing chapter 45). If it is, I’m going to be in hot water with my wife, who would hit me over the head with a flower pot if she thought I was delaying production. She tends to read the chapters hot off of the press, and I’m in trouble if I don’t alert her the moment I see a new one. And since it’s been a whole 48 hours since the last installment, she’s probably starting to get testy. :shock:
You’re right. A while ago I said I needed to give up commenting on religious or political issues until I finished. I guess I need resist my instinct to counter anything argument I think is wrong and go back to that policy.
If all goes well, I should finish chapter 45 tonight, so your wife can read it tomorrow.
Kaimi,
This really is a straw man argument–and it is surprising to see it coming from you.
First of all, you are confusing/conflating the concepts of testate and intestate succession. In intestate succession the estate passes by statute according to the table of consanguinity. Only in that situation will there be any difficulty arising from a constitutional amendment defining marriage. In a case in which a testator creates a will, as long as the testator has capacity (the requirements for which are less even than for getting married), then the state has no say in that testamentary gift. It truly is a straw man of grand proportions, and a slippery slope argument to boot, to suggest that language that you don’t like politically in a proposed constitutional amendment will abridge even the private rights of individuals.
Second, you wrote as part of the hypo: Because of my longstanding personal and intimate relationship with Mary, I hereby convey through this will all legal benefits that she would receive if we were married under the law. This is nonsense, of course. By this language, you are trying to invoke rules of intestate succession through someone’s will, a contradiction in terms in and of itself. But for the sake of the argument, since it is the testator expressing his will through his written will, then if it is properly executed, the court will have to follow his instructions, which includes applying the language “as if we were married” to reach the correct result according to intestate succession for a spouse. That would create unforeseen difficulties in and of itself, but not of the kind that you posit. The difficulty that you posit can’t happen, even after a constitutional amendment, because this is a case of a private person creating his own method of gifting through a private will. The language used is irrelevant and certainly doesn’t create a “substantially equivalent legal effect” to a state-recognized marriage.
I must admit I have not dissected every comment above. Thus, I will limit my comments to a defense of my original post and a critique of Kaimi’s comments. I maintain that Utah law following passage of Amendment 3 will not, indeed it cannot absent additional legislation, have the negative consequences opponents have claimed.
The important issue is not who is doing the recognizing or what constitues “substantially equivalent legal effect” but rather, the primary issue is what is being recognized. According to the language of the Amendment, the focus should be on what constitutes a “domestic union, however, denominated.” Such a term clearly implicates domestic unions, domestic partnerships and same-sex marriages which have legal effect elsewhere, but not in Utah. The phrase “domestic union”, I think most would recognize, is a legal term of art. It has legal meaning. I don’t see much ambiguity as it relates to what this second part does. All that it will do is prevent Utah from recognizing the union, marriage or partnership of a same-sex couple from California, New Jersey, the Netherlands, Massachussetts, Canada, etc. (boy the list just keeps on growing), or of a Utah couple who has gone to one of such places to form such a union. There will be no automatic legal rights conferred in Utah, by Utah, upon such unions. Thus, if such a couple wants to preserve what the law of such a jurisdiction grants, like visitation rights, property succession, etc., the couple will have to arrange their affairs by contract. It will require proper drafting, but it is quite a stretch to suggest that one would be unable to leave property via a will to his (or her for that matter) girlfriend because of Amendment 3. In such a case, the contract, not the alleged union comes into play. I have yet to see or read of a case where Kaimi’s sister would prevail in his hypothetical.
I will concede one point to Kaimi, however, and that is that you never know what a judge might do. Just look at what the Massachusetts SJC did in Goodridge. Therefore, the only real threat is that a judge may overreach, but one may do so absent Amendment 3.
I hesitate to call myself a trust and estates “expert,” but that is my area of expertise. Again, armed with such expertise and experience, I fail to see opponents’ claims against Amendment 3 could ever come to pass. Having listened to a number of discussions on the topic, people seem to confuse the issues. They seem to believe that current Utah law is somehow being changed. It is not. Note that no rights for unmmarried couples now exist relative to visitation, intestate succession, etc. I do think some are legitimately confused. The Don’t Amend Alliance, however, by my estimation is not. Instead such groups merely seek to confuse voters. If they want to argue against Amendment 3 based on its pro-traditional family provisions, that is fine. But to make the centerpiece of their opposition, a litany of verifiably false charges, I find that troublesome.
With any law the potential exists for unintended consequences. However, such possible consequences do not include the ones generally trotted out.
Brent, Eric, John,
Interesting comments all. I’m continuing to refine my thoughts on this. Let me ask another question (two, really):
1. What about a couple who contracts a common-law marriage in a state that recognizes these? That couple then moves to Utah. Prior to Amendment 3, if one of the couple died, the other had a potential claim based on a valid marriage in another state, coupled with full faith and credit. Right? To the extent that heterosexual common-law-married couples were relying on that effect, they would be harmed.
2. Utah currently recognizes common-law marriages. To the extent that a Utah couple is living in a common-law marriage, could amendment 3 be read in a way that would harm them? To the extent that a couple is intending to enter into common-law marriage, is amendment 3 a problem?
Utah Code Ann. 30-1-4.5(1) reads:
I’m not sure how this gets read in light of amendment 3. Does court recognition of a common law marriage constitute a form of “domestic union” being “recognized as a marriage or given the same or substantially equivalent legal effect.”? I’m not sure. It looks to me like a question that could go either way.
Your hypothetical wills were drafted by someone who wasn’t taught by Prof. John Langbein. Keep the crap out, he would say. Just the facts. Any other blather is just a hook for somebody to hang a will contest on.
Kaimi, in your new hypothetical, you answer your own question. If a hetersexual couple forms a marriage even a common law marriage, they are married. They have not formed a civil union, however denominated, but rather a marriage. Thus, they should be entitled to all of the benefits of marriage. As to the second part of your question, I do not believe Amendment 3 modifies or affects Utah’s common law marriage statute. Amendment 3 prevents the recognition of marriages between anyone other than one man and one woman. A marriage, including a common law marriage, is just that–a marriage.
Kaimi, I think that Brent gave a good explanation and I just wanted to add a couple of things.
(1) Go back to the text of the Amendment:
In light of this text, common-law marriage is a red herring. According to the statute you cited, a common-law marriage is a “legal union between a man and a woman,” as the Amendment requires, so presumably there is no problem on these grounds.
(2) As I tried to explore above, I actually wonder if this language will even prevent the Utah legislature to confer benefits on homosexuals, as long as it does so through language that doesn’t base those benefits on the applicants’ sexual activity. In other words, the legislature could enact legislation that allows anyone to contract for those rights, homosexual couples or friends or an old lady and her neighbor–whatever–but independent of reference to sexuality.