Thursday, July 31, 2008
X. Brian Edwards (J.D. 2008, Ohio State University Moritz College of Law) has recently published his Note entitled True Donative Freedom: Using Mediation to Resolve the Disparate Impact Current Succession Law has on Committed Same-Gender Loving Couples, 23 Ohio St. J. on Disp. Resol. 715 (2008).
Here is the conclusion of his article:
The law that governs the implementation and application of estate plans in the United States, on its face, does not hamper the rights of individuals to dispose of their property as they see fit upon their death. However, if one looks beneath the surface, it is clear that laws currently in place blindly cling to the notion of the American nuclear family. Thus, these laws, in essence, fail to address that a vast majority of Americans have to make personal decisions on the basis of economic, psychological, and sexual realities that cause them to reinvent the typical family structure.
The real world application of the current law exposes the inherent disparate effects committed same-gender loving couples experience. For example, it is arguable that a same-gender loving female who leaves all of her property to her partner stands on equal footing with a husband who leaves all of his property to his wife. Yet, nothing could be further from the truth because if surviving blood relations challenged either of these devises it is far more likely that the former devise would be struck down when compared to the latter. So, the idea that current probate and succession laws provide all Americans with testamentary freedom and are designed to effectuate testamentary intent is a myth. Americans only have the right to distribute and or assign their property according to a well delineated format set forth by the sexual majority. This disparate effect will continue until the current succession laws are changed, but such change is unlikely to occur in the near future being that the socio-political power and influence of the conservative right is growing exponentially in this country today. However, the concept of pre-death mediation will allow committed same-gender loving couples an opportunity to overcome the norms of the sexual majority and condition succession to their property on terms that conform to their sexual reality.