Volume 85, No. 3, Spring 2013

Avoiding Backlash: The Exclusion of Domestic Partnership Language in the 2008 Amendments to the Uniform Probate Code and the Future for Same-Sex Intestacy Rights

The gay rights movement has achieved remarkable momentum in recent years, resulting in the dismantling of Don’t Ask, Don’t Tell, the passage of same-sex marriage laws in nine states and the District of Columbia, and a series of judicial decisions striking down key parts of the Defense of Marriage Act. Despite this progress, same-sex equality is far from complete. Gays and lesbians remain, in many ways, second-class citizens who are frequently denied important rights and benefits by virtue of their sexual orientation. This Comment focuses on one of these rights—inheritance—and the efforts to secure it through reform of the Uniform Probate Code (UPC).

The UPC is one of the most influential uniform laws promulgated by the Uniform Law Commission (ULC). Its purpose, like other uniform law projects, is “to make uniform the law among the various jurisdictions,” in this case the law of probate. Uniformity is accomplished “only by passage of law in fifty state legislatures.” Surprisingly, many commentators neglect to consider this somewhat self-evident requirement when making recommendations to reform the UPC, most recently in the context of same-sex inheritance rights. This Comment will address some of the arguments raised in favor of reforming the most recent version of the UPC in 2008 and examine why language recognizing same-sex relationships was properly excluded.

Section II of this Comment provides a history of the uniform law system, the evolution of the UPC, and the various proposals to reform it by providing for same-sex inheritance rights. Section III describes why the UPC is an inappropriate vehicle through which to achieve the objectives regarding same-sex inheritance rights and argues for a more state-based approach, using Hawaii’s Reciprocal Beneficiaries System as a model. Finally, Section IV concludes that while gays and lesbians rightfully deserve full intestate succession benefits, reforming the UPC is not currently the appropriate method by which to do this and would ultimately weaken the uniform law system as a whole.

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