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Together and Unequal:
Same-Sex Partners & Washington State Laws
Governing the Transmission of Wealth

by Gretchen Freeman Cappio
© 1999, Gretchen Freeman Cappio

Chris Montgomery and Pat Wilson
request the honor of your presence
at their wedding ceremony
Saturday, the thirtieth of August
Nineteen hundred and ninety-seven
at half after five o’clock
The Rose Garden at Woodland Park
Seattle, Washington

William Montgomery and Melissa Wilson
request the honor of your presence
at their wedding ceremony
Saturday, the thirtieth of August
Nineteen hundred and ninety-seven
at half after five o’clock
The Rose Garden at Woodland Park
Seattle, Washington

I. Introduction

If you were to receive the two wedding invitations above in the mail and attend the celebrations, you would witness two in-love couples committing themselves to each other spiritually and socially. You would notice the similarities in the feelings expressed between the couples, Chris and Pat and William and Melissa, and the joy of the couples’ unions shared by the guests. You would find that the couples had very similar plans for their lives: they would live together in the context of a committed, loving relationship until they died. They would share everything. (Not all couples decide to share everything, of course.)

The couples’ ceremonies are basically the same. But the way the couples are treated when the music ends and the couples depart their respective receptions is radically different. Chris and Pat are a same-sex couple. William and Melissa are an opposite-sex couple.

When Chris and Pat leave the marriage ceremony, laws in their home state of Washington, or anywhere in the country for that matter, will often treat them as strangers. They must draft wills leaving their estates to each other; intestacy statutes will not apply to their situation. They must update their wills, should their relationship dissolve. They must carry with them documents proclaiming that they have given each other durable powers of attorney, in case one should become incapacitated. The list goes on and on for Chris and Pat. On the other hand, William and Melissa can go on their honeymoon; the laws are written with them in mind.

This paper addresses the fact that marriage is the way otherwise unrelated adults create familial relationships. It examines the variety of contexts in which laws governing the transmission of wealth treat same-sex and opposite-sex couples differently. At the core of this unequal treatment lies the basic fact, contested in this paper, that same-sex couples cannot legally marry.

First this paper addresses the mechanics of how marriage works in Washington. Then it discusses the prohibition on same-sex marriage. The paper next presents arguments for same-sex marriage. After that, the paper uses transmission of wealth laws in Washington to reveal the different and unfair treatment of same-sex couples who cannot choose to marry each other and of opposite-sex couples who can. Examples of burdens placed on married couples are also shown.

The paper presents the following reasons why same-sex marriage should be allowed in Washington:

  1. Marriage is the way society recognizes individuals’ most intimate relationships.
  2. Marriage is not necessarily formed for procreation.
  3. Marital “traditions” have been struck by the Court in the past.
  4. The Equal Rights Amendment of the state constitution protects Washington residents from this kind of discrimination.
  5. There is a fundamental right to marry.
  6. We have separation of church and state in this country.

The paper emphasizes that treating same and opposite-sex couples differently because same-sex couples are denied the right to marriage makes members of same-sex couples second class citizens in Washington. Just as the time for race-based limitations on marriage is over, sexual orientation-based limitations on marriage is wrong and should be so recognized by the state. Lastly, the paper concludes that society as a whole will benefit from extending the reach of laws governing the transmission of wealth to same-sex couples, and furthermore, the most effective way to extend this web of rules to same-sex couples is to allow same-sex couples to marry.


II. Marriage in Washington State: No Same-Sex Marriage

Getting married in Washington State is not challenging for opposite-sex couples. At its simplest, marriage in Washington requires $52, a minister or judge, a notary, and a bride and groom who are at least eighteen years old.1

Marriage is defined in RCW 26.04.010 as “a civil contract between a male and a female who have each attained the age of eighteen years and who are otherwise capable.” A superior court judge of the county where the couple resides can waive the age restriction, however, on the showing of necessity. Id.

The statute has only recently required marital couples to have opposite-sex partners. In 1998, the Washington Legislature acted on authority of the U.S. Congress, pursuant to P.L. 104-199; 110 Stat. 219, the so-called “Defense of Marriage Act” or DoMA. DoMA defines marriage for purposes of federal law as a legal union between one man and one woman. 1998 Wash. Legis. Serv. Ch. 1 (S.H.B. 1130), § 1 (West). In it, Congress gives authority to states to either grant or deny recognition of same-sex marriages considered valid in other states. Id. This change would allow Washington to refuse to recognize same-sex marriages, should they be permitted in other states.

Although the marriage statute had previously not designated the parties’ biological sex, case law requires marriages to be between one man and one woman, thus rendering the revised statute redundant. The Washington Court of Appeals held in Singer v. Hara, 11 Wash. App. 247 (1974) that the Washington State marriage statute does not allow marriage between people of the same sex.2

Singer dealt with a male couple, John Singer and Paul Barwick, who applied for a marriage license in 1971. 11 Wash.App. at 248. The King County Auditor named Mr. Hara refused to issue the license. Id. The couple made three main arguments to support their contention that they could be legally married. These arguments resonate throughout similar cases. First, the marriage statute RCW 26.04.010 did not in fact prohibit same-sex marriage, and both parties to the proposed marriage were competent to marry. Id. Second, Hara was acting in violation of the Washington State Equal Rights Amendment to the Washington State Constitution, Const. art. 31, s. 1. Id. Third, the refusal violates the eighth, ninth and fourteenth amendments to the United States Constitution. Id.

The Washington Appellate Court rejected all three arguments the plaintiff couple presented in Singer. First, it agreed with the State’s contention that the language of RCW 26.04.010 reflects a 1970 amendment which substituted the word “persons” for the prior references to “males” and “females” to eliminate the discrepancy between the designated marriageable ages between the sexes. In so doing, the court inferred that “persons” retained the original meaning of the statute, i.e. male and female persons. Id. at 249-50.

Second, the court held that there was no discrimination on the basis of biological sex if male couples and female couples were treated equally, according to the common-sense meaning of the Equal Rights Amendment. Id. at 258. The court went on to hold that “the refusal of the state to authorize same-sex marriage results from such impossibility of reproduction rather than from an invidious discrimination ‘on account of sex.’” Id. at 260. Third, the court rejected plaintiff’s constitutional claims, alluding to the Hebrew Bible:

The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children … is as old as the book of Genesis … This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and society interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation. Id. at 264.
The court rejected other constitutional arguments because “the state has exclusive dominion over the legal institution of marriage and the state alone has the ’prerogative of creating and overseeing this important institution.’” Id. at 262 (citing Coleman v. Coleman, 32 Ohio St.2d 155, 160, 291 N.E.2d 530, 534 (1972)). These counter arguments appear repeatedly throughout the same-sex marriage debate.


III. Arguments for Same-Sex Marriage

Just as the states have defended their positions of prohibiting same-sex marriage as they did in Singer v. Hara, the American Civil Liberties Union (ACLU) and other groups have been staunch advocates for the formal recognition of gay and lesbian relationships.3

There are several reasons why same-sex marriage should be allowed in Washington and other states. Six reasons are provided here.

First, the “common sense” argument: civil marriage is the way our society defines someone’s “most intimate, committed relationships.” “ACLU Background Paper on Lesbian and Gay Marriage,” March 1997, p. 8. Marriage is the “device” our society employs to identify a person’s life partners for almost every practical situation in which it is important to identify one’s choice of “the person who is closest to you.” Id. Given the important role of marriage in society, it should be available as a choice for everyone meeting the statutory requirements, without restriction because of sex.

Second, marriage is not formed for the sake of procreation, nor must procreation occur within the context of marriage. Griswold v. Connecticut, 381 U.S. 479 (1965) (government cannot interfere with efforts to avoid procreation on the grounds of marital privacy). Of course, procreation can happen in the context of marriage, but there are many couples who chose not to have children both in and out of marital relationships. In addition, senior citizens, who are past their child bearing years, are permitted to marry each other.

Third, although marriage has traditionally been a legal contract between a man and a woman, courts have ruled so-called marital traditions illegal when they are recognized as unfair, discriminatory, or arbitrary. Likewise, the time has come for restrictions to be lifted from marriage laws regarding same-sex couples. ACLU Background Paper on Lesbian and Gay Marriage, March 1997, p. 9. For example, in Loving v. Virginia, 388 U.S. 1 (1967), interracial marriages were legalized, although traditionally both partners were required to be of the same race. Id.

Fourth, the Equal Rights Amendment argument that the plaintiff made in Singer applies. If someone’s right to marry is denied because of the biological sex of one’s partner, the person has been discriminated against because of sex, even if men or women in the aggregate are not. “ACLU Background Paper on Lesbian and Gay Marriage” at 9. Accordingly, the court in Singer wrongly asserted that constitutional rights are aggregate rights (men and women as a group are treated the same), rather than individual rights (a woman is denied marriage and therefore discriminated against if her partner is also female). Id.

Fifth, there is a fundamental right to marry, according to the U.S. Supreme Court. Zablocki v. Redhail, 434 U.S. 374 (1978) (freedom to marry is a fundamental liberty protected by the Due Process Clause of the Constitution). In Loving v. Virginia, 388 U.S. 1 (1967), which struck down racial barriers to marriage, the Court noted, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ’basic civil rights of man,’ fundamental to our very existence and survival.” 388 U.S. at 12, quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).

Sixth, there is a separation of church and state in the U.S. (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”) U.S. Const. amend. I. Religious groups who oppose same-sex marriage for religious reasons will still have the usual freedoms to impose restrictions on whom members of that group marries, just as they have independent authority to decide whom to ordain. Furthermore, the legalization of same-sex marriage would recognize individuals’ civil legal rights; it would have nothing to do with the “morality” or religious effects of same-sex relationships.

In summary, the overwhelming weight of authority rests with advocates of the same-sex freedom to marry. Just as it was illegal at one time for individuals of different races to marry, so is it presently illegal for individuals of the same-sex to marry. Current public reaction to same-sex marriage indicates that the public’s view of same-sex marriage has been manipulated by what many people consider to be fringe conservative groups.4


IV. The Impact of the Prohibition of Marriage on Same-Sex Couples

The failure of Washington and other states to recognize same-sex marriage has numerous legal implications for same-sex couples. Everything from hospital visitation to organ donation is a challenge for same-sex couples because relevant laws “assume” that couples who would want their partners to speak for each other would marry each other. The laws are not written or interpreted to mean “spouse or similarly situated person in a committed same-sex relationship” when they read “spouse.” Instead, the laws stating “husband and wife” or “spouse” recognize a married relationship under law — a relationship that is wholly unavailable to same-sex couples.

In addition, same-sex couples are denied the choice of marriage. Opposite-sex couples can choose whether they want to marry each other. They can decide whether or not they want to marry, using whatever criteria they wish. Same-sex couples, on the other hand, are denied this choice; they cannot marry each other under any circumstances. Same-sex couples are therefore not privy to the same rights and responsibilities as opposite-sex couples because they cannot chose to marry each other and therefore will never qualify as statutory “spouses.”

The following section focuses on an area of law that brings spousal rights and responsibilities into a clear focus: transmission of wealth. This field is utterly shaped by interpersonal relationships, especially the spousal relationship. For same-sex couples, the laws present numerous challenges because lawmakers have practically written same-sex couples out of the law’s protection or responsibilities.

A. Transmission of Wealth Law in Washington

1. Intestate Succession

The majority of people in the United States die intestate, that is, without a valid will. Jesse Dukeminier & Stanley M. Johanson, “Wills, Trusts, and Estates” 5th ed. 67 (1995).5 Thus, intestacy provisions affect citizens of different races, backgrounds, creeds, sexual orientations and, of course, both biological sexes. Intestacy statutes aim “to carry out the probable intent of the average intestate decedent.” Id. at 70.

In Washington, the decedent’s spouse is the first to take if the deceased person dies intestate, thereby carrying out the majority of decedents’ surmised intent that the first person to take should be the one whom the decedent chose to marry. The Washington statute governing the intestate succession of real and personal property is RCW 11.04.015. Pursuant to this statute, the surviving spouse receives the following share:

(a) All of the decedent’s share of the net community estate; and
(b) One-half of the net separate estate if the intestate is survived by issue; or
(c) Three-quarters of the net separate estate if there is no surviving issue, but the intestate is survived by one or more of his parents, or by one or more of the issue of one or more of his parents; or
(d) All of the net separate estate, if there is no surviving issue nor parent nor issue of parent.
Given that there would be no legal spouse in the case of a committed same-sex relationship, the partner could not take, although an opposite-sex committed married partner would be able to take. There is no provision for non-relatives or non-spouses in the statute.

Inherent in intestacy law (and indeed most, if not all, law) is the underlying assumption that if the decedent really wanted a partner to be designated his or her “spouse,” the decedent would have married the partner. The law does not contemplate the predicament of the unavailability of choosing a spouse in same-sex relationships. Thus, a more accurate description of the principles behind intestacy law would be that it is written to anticipate the probable intent of the average heterosexual decedent.

Some scholars are questioning the assumption that the public does not approve of same-sex couples taking under intestacy statutes and the general disapproval of the legal recognition of same-sex marriage, in general. The Minnesota Center for Survey Research (MCSR) at the University of Minnesota conducted a 1996 survey to assess the public attitudes in that state about treating committed partners as heirs. Mary Louise Fellows, et al. “Committed Partners and Inheritance: An Empirical Study,” 16 Law & Ineq. 1 (1998). The study used random telephone interviews of Minnesotans who were 25 years old and older. Id. at 31. Interestingly and importantly, “a substantial majority of the respondents gave some share of the estate to the surviving partner. Nearly three-quarters of the respondents from the general public sample, over four-fifths of the respondents with opposite-sex partners, and all of the respondents with same-sex partners gave some share of the estate to the surviving partner.” Id.

This study shows that while intestacy laws are written by lawmakers aiming to anticipate decedents’ wishes regarding the disposition of their estate, lawmakers seem to be off the mark because the general public and certainly the decedent would approve of same-sex partners’ inclusion in intestacy statute.

2. Durable Powers of Attorney

The durable power of attorney is a document whereby one person called the “principal,” authorizes another person, the “attorney in fact,” to act on the principal’s behalf if and when the principal becomes incompetent or incapacitated.6

Arnold M. Zwicky illustrates the importance of the durable power of attorney to same-sex couples with this true story. (See Arnold M. Zwicky, “Letter from the Trenches,” “Legal Marriage News” at 4 (1998).) His partner Jacques was admitted into the emergency room during a part of the year they spend in California. Their home state was Ohio. Due to incapacity, Jacques was unable to consent to medical treatment. Hospital officials asked Zwicky if he had a durable power of attorney, which he did, although it was in Ohio, locked in a safe. By the time Zwicky was prepared to make arrangements to have the document sent to him, which was in a safe in his Ohio home, Jacques was competent enough to sign papers. However, the situation in the long term is more complicated than a one-time admission to the E.R.

The couple’s attorney in Ohio informed them that because they spend considerable time in California, they should be on the safe side and obtain powers of attorney for each other there (as well as adjusting their wills and living wills). That warning raised the question of crossing into different states as the couple travels each year between Ohio and California. To be safe, advised their lawyer, the couple should have all of the pertinent documents (durable powers of attorney, wills, living wills) drafted in each state along the way — and carry these documents with them at all times. In the end, even the lawyer admitted that “[n]obody would bother to do that, even me, and I’m a lawyer.” In Washington, opposite-sex couples need not worry about appointing an attorney in fact because their spouse can serve in that role, wherever the couple may roam. RCW 26.16.060 establishes the power of attorney between husband and wife:

A husband or wife may constitute the other his or her attorney in fact to manage, control or dispose of his or her property with the same power of revocation or substitution as could be exercised were they unmarried persons.
Thus, unless the married couple designates otherwise, husbands and wives “automatically” have each others’ power of attorney. If a same-sex couple wishes the same treatment and wants to ensure complete coverage, they should draw up the proper legal forms in each state they visit. All of these extra precautions stem from the fact that same-sex couples have no right to an automatic power of attorney. Same-sex couples do not have the luxury of failing or forgetting to appoint the partners as the designated individuals with durable powers of attorney if they wish their partners to furnish informed consent for each other.

Furthermore, spousal status exempts couples from certain restrictions governing the power of attorney. For example, according to paragraph (3) of RCW 11.94.010:

A principal may authorize his or her attorney-in fact to provide informed consent for health care decisions on the principal’s. Unless he or she is the spouse, adult child or brother or sister of the principal, none of the following persons may act as the attorney-in-fact for the principal: Any of the principal’s physicians, the physicians’ employees, or the owners, administrators, or employees of the health care facility where the principal receives health care.
Thus, if a same-sex committed partner (unrelated by blood or adoption) wishes to be appointed attorney, but is related to the hospital or physician treating the sick partner, the partner cannot serve as attorney in fact because he or she is not a spouse.

3. Revocation of a Will and Nonprobate Asset Distribution upon Dissolution

If a marriage in Washington is dissolved, a provision made by a spouse while the couple was together that relates to the payment or transfer at death of the decedent’s interest, is revoked. RCW 11.07.010. In addition, “[i]f, after making a will, the testator’s marriage is dissolved or invalidated, all provisions in the will [that give] any interest or power to the testator’s former spouse are revoked.” RCW 11.12.051.

For example, if Wife wrote a will while she was married, leaving Husband her prized sports-car or its value of $50,000 upon her death and then the couple divorced, Husband would automatically be written out of her will and he would not get the sports-car or its monetary value, pursuant to RCW 11.12.051. (It would be inadvisable for the wife to leave objects in her will without a provision for what should be done if the object were lost or to loose value.) Thus, the spouses would be protected from accidentally or carelessly leaving assets to their former spouse, despite their assumed wishes to write their ex-spouse out of their wills or insurance policies if they dissolve their relationship.

The same protection is unavailable to same-sex couples, whose relationship would never be legally recognized in the first place. Therefore, when a same-sex couple breaks up, the ex-partners must be extremely careful to write the other (former) partner out of his or her will (and to exclude the partner from nonprobate assets, such as insurance policies). Otherwise, the assets could be distributed as if the couple were still together after the dissolution of the relationship.

The foregoing discussion regarding dissolution assumes that the couples would not want to include the former partner in their wills or policies as they had intended to when the couple was married. However, if the couple were still on cordial terms and wanted to preserve their original disposition of assets, the married couple would be disadvantaged because the law assumes that the former spouses would not want the will drafted during marriage to stand. The dissolved married couple could still formally rewrite their wills to include the former spouse, however, pursuant to RCW 11.07.010(b)(i). On the other hand, the same-sex couple wishing to preserve the status quo would not need to update his or her will, thereby enjoying one of the few benefits of being in a same-sex couple.

4. Omitted Spouse Included in Will

Washington law assumes that if a testator writes a will and then marries without revising his or her will to include the spouse, the testator would have wanted to include the spouse to the will. Therefore, the will is read to include the so-called “omitted spouse.” Pursuant to RCW 11.12.095,

[i]f a will fails to name or provide for a spouse of the decedent whom the decedent marries after the will’s execution and who survives the decedent … the spouse must receive a portion of the decedent’s estate … unless it appears either from the will or from other clear and convincing evidence that the failure was intentional.
(Notwithstanding this statute, couples should still rewrite their wills upon a change of marital status.) Under Washington law, only omitted spouses are “read into” the will; same-sex partners would not get the same treatment. Same-sex couples whose “couple status” changes are charged with the duty of updating their wills with every change; the law will not anticipate changes in their relationship status to fit their relationships.

5. Community Property7

Community Property is “[p]roperty … acquired after marriage by either husband or wife or both” RCW 26.16.030. (Assets from inheritance that spouses obtain individually or assets each spouse brings to the marriage are separate property and excluded from the one-half distribution rules.)8 The basic theory behind community property is that whatever property spouses enjoy together as property acquired during marriage belongs to both partners equally during life.

For example, some married couples have one spouse in law school while the other spouse is gainfully employed. In some cases, the law student will be the primary wage earner after law school graduation. The couple will buy things and make investments with its money during and after law school. According to the theory behind community property, even though both spouses may not earn money equally, both spouses should have a one-half interest in the property owned as a couple, regardless of who originally earned the money used to buy the item or make the investment. Community property benefits greatly the spouse who is not the primary wage earner.

Without marriage, there can be no community property outside of contracts between the parties. Therefore, same-sex couples do not enjoy community property rights, to the detriment of the partner who is not the primary wage earner, and to the couple as a whole, if that would be their intent.

Community property does have some disadvantages for married couples, however. For example, only separate property is protected from recovery as a result of “all injuries committed by married persons.” RCW 26.16.190. Thus, both spouses’ community property could be used to settle claims against third parties, when only one spouse is liable. However, debts or liabilities incurred prior to marriage are considered “separate debts,” and therefore creditors could not insist on being paid with community property. RCW 26.16.200.9 A same-sex couple’s assets would not be similarly vulnerable because they have no community property under law.

6. Anatomical Gifts

While not transmission of wealth in the usual sense, designations of anatomical gifts have increased in popularity recently and are part of putting one’s affairs in order, so they will be addressed here.

Under Washington law, if someone has not made other arrangements (through the department of licensing, or a written document filed with a cemetery authority or something similar), the right to control the disposition of the remains of a deceased person vests in the following individuals, in this order: (a) the surviving spouse, (b) the surviving adult children of the decedent, (c) the surviving parents of the decedent, (d) the surviving siblings of the decedent, (e) a person acting as a representative of the decedent under the signed authorization of the decedent. RCW 68.50.160. Same-sex couples’ partners would be fifth on the statutory list, whereas opposite-sex couples’ partners are first. Therefore (because same-sex couples do not love their partners any less than do opposite-sex couples), same-sex couples need to make arrangements prior to death if they wish their partner to oversee the disposition of their remains. [For statistics on how few same-sex couples actually draw legal agreements, see the 1990 Partners National Survey of Lesbian & Gay Couples.]

7. Property Rights upon Dissolution

A crucial part of planning one’s estate involves knowing how the law will treat partners if their relationship dissolves. A major issue in estate planning in Washington is, therefore, how the law treats joint assets acquired during the term of the relationship. The following cases deal with community property in committed relationships. The line of cases culminates in Connell v. Francisco, 127 Wn.2d 339 (1995). Although Connell makes it clear that assets owned jointly by a couple who lives as a married couple are community property, Connell leaves two key questions unanswered: first, do the same rules apply to same-sex couples, and second, what happens at death? This line of Washington cases will be presented, followed by a discussion of these two key questions.

a. In re Marriage of Lindsey, 101 Wn.2d 299 (1984)

In this case an unmarried couple bought real estate jointly, married each other, and later divorced. The husband owned the property in his name and claimed it as his separate property. The court held that when a quasi-marital relationship exists, and property is purchased for use during the marriage, the property should be treated as community property.

b. Peffley-Warner v. Bowen, 113 Wash.2d 243 (1989)

The sole issue in Peffley-Warner was whether Washington affords a woman partner in a “meretricious” relationship the same status as a wife under the laws of intestate succession with respect to the personal property of the deceased partner. The surviving partner of a quasi-marital relationship was suing to appeal a decision by the Social Security Administration denying her widows’ benefits. The court held that Washington law should not treat a nonmarital partner as a spouse because it refused to apply Lindsey to a relationship in which marriage never took place. Id. at 251-2.

c. Foster v. Thilges, 61 Wn.App. 880 (1991)

In Foster, the parties lived together for ten years, pooled their resources, owned several pieces of real property, obtained a joint loan to buy a home, were engaged to marry each other, and otherwise conducted themselves as a married couple would. The court held that given their intertwined, nearly married status, the relationship was practically that of a marital family, but for the marriage. Upon dissolution, the court applied RCW 26.09.080 to the division of their property (spousal dissolution division of property). However, the court refused to award lawyer’s fees to the prevailing party on the grounds that the parties were not married, but merely sharing a meretricious10 relationship, which would not entitle the parties to the full rights of married persons.

d. Connell v. Francisco, 127 Wn.2d 339 (1995)

In Connell, the Washington Supreme Court held that property acquired by the parties in the course of a “meretricious” relationship in which the parties held themselves out as married is subject to equitable distribution upon the dissolution of the relationship. The court reiterated that a meretricious relationship need not be “long-term,” but that length is a significant factor. Id. at 346. The relationship could be short-term, but if so, it must also have several other significant and substantial factors present, including, but not limited to: continuous cohabitation, duration of the relationship, purpose of the relationship, pooling of resources and services for the couple’s joint projects, and intent of the parties. Regarding the couple’s separate property, the Washington Supreme Court held that the application of RCW 26.09.08011 (statute governing distribution of property upon marital dissolution) would only extend so far and that, unlike a divorce, the trial court has no jurisdiction over the separate property of the parties in a meretricious relationship. Id. at 348.

Thus, the Washington Supreme Court held that the presumption of community property would apply to cohabiting couples. The Washington Supreme Court held that upon the termination of a quasi-marital relationship, the characterization of property as separate and community applies by analogy even though in the absence of a marriage there is by definition no true community property. Id. at 352-3.

The first question regarding the legacy of Connell v. Francisco is how property should be distributed between same-sex couples who could not have chosen to marry. It seems that the court may be abandoning its former “moral” judgment about the rights and wrongs of cohabitation outside of marriage.12 In accordance with this trend of reserving judgment on the moral issues in favor of focusing on legal rights, it certainly seems likely that a same-sex couple who could not choose to marry would be treated like an opposite-sex couple who could have chosen marriage, but did not.

Many lawyers’ advice to same-sex couples operates under the assumption that the Connell principles will apply to same-sex partners. (See Lisa E. Schuchman, “Estate Planning and Probate Considerations for Same-sex Couples Married Outside of Washington State,” Schuchman & McDonald, Seattle, Section E of CLE (1997).)

However, in light of the major blow dealt same-sex marriage rights in the 1998 Federal legislative session in the wake of DoMA, “state courts might hesitate to apply marital law that would effectively legitimize the relationships.” Id. at 7. In addition, same-sex couples may not be able to hold themselves out as married in the same way that an opposite-sex couple would be able to.

The second question is how the assets would be distributed at death because Connell dealt with the distribution of assets upon dissolution when both parties were alive. In an unpublished opinion, the Washington Appellate Court Division 3 treated assets of a cohabiting couple as it would a married couple when one of the partners died. Estate of Anderson v. Anders, 1997 WL 6984 (Wash.App. Div. 3). The court applied the Lindsey criteria establishing a meretricious relationship, such as duration of relationship, whether the couple cohabitated, and the sharing of financial resources, to determine that a meretricious relationship did exist. Id. Therefore, the court treated the property in question as if it were community property.

8. Undue Influence

In order to contest a will for undue influence, the suing party must prove that the surviving testator substituted his/her wishes for that of the decedent. For example, the In Re Kaufmann’s Will, 205 N.E.2d 864 (N.Y. 1965)13 case involved a same-sex couple. In 1958, one of the partners, who was a millionaire, left substantially all of his property to the surviving partner. Along with the will, the millionaire also signed a letter addressed to his blood family, dated seven years earlier, in which he disclosed he had been in a same-sex relationship.

Upon the millionaire’s death, the decedent’s brother sued to have the will set aside because of undue influence. The Appellate court upheld the suit with the following, demonizing statement, in which the surviving partner is addressed by the impersonal last name, and all others by their personal first names.

“The record enabled the jury to find that the instrument of June 19, 1958 was the end result of an unnatural, insidious influence operating on a weak-willed, trusting, inexperienced Robert [Kaufmann, the deceased] whose natural warm family attachment had been attenuated by false accusations against Joel [brother of the deceased], subtle flattery suggesting an independence he had not realized and which, in fact, Weiss [life partner of the deceased] had stultified, and planting in Robert’s mind the conviction that Joel and other members of the family were resentful of and obstructing his drive for independence.

“The fact that the instrument offered for probate was prepared by reputable, competent attorneys is a relevant circumstance but does not preclude a finding that the undue influence here involved was active, potent and unaffected by the interposition of independent counsel.” 247 N.Y.S.2d at 684.

As a result of cases such as the Kaufmann case, lawyers should try to help testators write wills anticipating family discontent regarding the testator’s sexuality or selection of partners. (See “Legal Challenges to AIDS Patients’ Wills Seen on Rise,” “The Los Angeles Daily Journal,” Aug. 16, 1988, at 1.) In addition, in the case of AIDS patients (who, of course, may or may not be involved in a same-sex relationship), weakened mental faculties render testators increasingly vulnerable to undue influence claims. Id.

V. How Will Same-Sex Marriage Benefit Society?

As section IV has demonstrated, opposite-sex couples who choose to marry are privy to the advantages of many laws dealing with the transmission of wealth. Now the paper will examine why formal recognition of same sex couples, in the form of marriage, benefits society at large.14

First, marriage between same-sex couples should be legal because it is too difficult for society to distinguish between serious and casual relationships without the distinction of marriage. One study sought to determine how statutes could define “committed partners.” Mary Louise Fellows, et al. “Committed Partners and Inheritance: An Empirical Study,” 16 Law & Ineq. 1, 52 (1998). The study asked partners who defined themselves as being in a committed relationship, “What is it about your relationship that makes you define it as committed?” Id. at 53. The following responses were given:

What is it about your relationship that
makes you define it as committed?

(Percent giving the response) Id. at 54.
  Opposite-Sex Same-Sex
Feel Committed 33.3% 44.0%
Deeply in Love 3.3% 24.8%
Stated Commitment Publicly/
Commitment Ceremony
0.0% 21.1%
Living Together 36.7% 35.3%
Monogamy Over an
“Extended” Period
26.7% 45.1%
Financial Interdependence 30.3% 37.6%
Plan Present Lives Together 3.3% 29.3%
Plan Future Lives Together 6.7% 33.1%
Have or Rear Children Together 6.7% 11.3%
Have Mutual Wills 0.0% 4.5%
Have Mutual Life
Insurance Policies
6.7% 6.8%
Other 26.7% 21.5%
Total Numbers of Respondents 30 135

From the variety of responses elicited in this study, we can infer that it would be extremely difficult to arrive at a legal definition of “committed relationship” that would encompass all of the components that partners in same-sex relationships identify as making them feel committed. Common answers such as “feel committed” or “deeply in love” are particularly hard to draft laws around. However, whether someone is married is a “yes or no” question. Therefore, given the relative difficulty of defining commitment outside of legal marriage, the status of marriage should be available to couples. Moreover, statutes and common law already providing for “spouses” would not have to be rewritten because they already recognize marriage as the primary way that otherwise unrelated adults create familial relationships.15

Second, if partners who wish to marry each other can do so, assets would be distributed in a more orderly fashion because the nature of the relationship between the partners would not be “up for debate.” Society would benefit because creditors would get paid faster, courts would be less congested, and lawyers would be needed less. For example, one of the potential problems with disallowing same-sex couples to marry, as the paper has previously discussed, is the dissatisfaction of the decedent’s family with his or her partner or lifestyle. If couples could choose to marry, their relationship would be less vulnerable to attack, and their wills would consequently be less likely to be found “unduly influenced” or other similar charges.

Finally, if couples were required to fit into a statutory definition of a committed couple, some individuals, who would otherwise choose to define themselves as committed, would fall outside of the definition. The only sure way to encompass everyone who chooses the rights and responsibilities of marriage is to allow them to marry.


VI. Conclusion

This paper has examined the current state of marriage in Washington State, which requires marital couples to consist of a male and female partner. This paper has also looked at eight key differences in the legal treatment of same-sex and opposite-sex couples: intestate succession, durable power of attorney, asset distribution upon dissolution of the relationship, omitted spouse inclusion in will, community property, anatomical gift designation, property rights upon dissolution, and undue influence.

The paper reveals that in the overwhelming majority of instances, same-sex couples are given short shrift; they are denied basic rights that are part of opposite-sex couples’ choice to marry. Time and time again, Washington State law places extra burdens on same-sex couples. For example, members of same-sex couples must draft wills (usually incurring the expense of a lawyer) because intestacy laws do not properly or fairly anticipate their testamentary intent.

Given the inequitable treatment of same and opposite-sex couples in Washington state on the basis of whether or not members of the couples are legal “spouses,” the State should allow same-sex couples to marry. Treating same and opposite-sex couples differently — because same-sex couples are denied the right to marry — unfairly disadvantages members of same-sex couples in Washington society. Race-based limitations on marriage is recognized as illegal; sexual orientation-based limitations on marriage should be prohibited as well.

The paper also addresses the point that society benefits when the web of rights and responsibilities encompassed by marriage applies to same-sex couples. For example, assets could be distributed in an orderly fashion, creditors could be compensated expeditiously, and there would be fewer legal disputes surrounding the transmission of wealth for same-sex couples because their relationship would be legally recognized. In addition, the paper asserts that the legal recognition of committed relationships outside the context of marriage would be too complicated and burdensome on couples and society because couples define commitment in a wide variety of ways. The legal recognition of commitment would also likely require the re-drafting of many laws that currently give rights and responsibilities to “spouses.”

Finally, this paper does not suggest that all “eligible” couples should choose to marry. Marriage is obviously an intensely personal decision. This paper maintains that two-person couples (who meet the age standard and other requirements) should be allowed the choice to marry, entitling the couple to corresponding spousal rights, regardless of whether the couple is an opposite-sex or same-sex couple.

Footnotes

— 1 —
Specifically, the steps required are the following:

  1. Call the King County Marriage License Information Line (most time consuming part of process, besides locating spouse and falling in love, would be finding the number in the phone book) at 206-296-3933 and press “2.”
  2. The King County Marriage License recording provides callers with the following information regarding marriage in Washington:
    • couples must be a minimum of eighteen years old
    • no witnesses are required
    • if previously married, the couple must have a final divorce and it must be properly filed
    • no birth certificates, blood tests, or papers are required
    • $52 cash is required
    • the “bride and groom” should obtain the license together
    • there is a three day waiting period between picking up the license and its validation
    • the license expires 60 days after it is issued
    • a judge, justice, priest or minister (any religion or denomination) may marry the couple
    • if the application is sent by mail, it must be notarized and returned
    • someone must collect the license; it may not be mailed to the couple
    • more information is available at www.metrokc.gov
    • if the couple wants, the application can be faxed to them, provided they leave their fax number and phone number at the tone
  3. Obtain the certificate.
  4. Conduct the ceremony; sign papers; pay $52.
  5. Send someone to pick up certificate.
— 2 —
RCW 26.04.010 at that time did not include the “male” or “female” designations.

— 3 —
The ACLU has adopted the following position on the issue of same-sex marriage: “The ACLU supports legal recognition of lesbian and gay relationships, including the right to marry. Such recognition is imperative for the complete legal equality of lesbian and gay individuals.” ACLU Policy No. 264, “ACLU Background Paper on Lesbian and Gay Marriage,” March 1997, p. 3.

— 4 —
Same-sex advocates have suffered set backs recently in Alaska and Hawaii where referendums were held November 4, 1998 regarding the legality of same-sex marriage. By “better” than 2 to 1 margins, voters in both states declined to extend marriage to same-sex couples. Lyle Denniston, “Voters in Alaska, Hawaii Defeat Initiatives on Homosexual Marriages”, The Baltimore Sun, Nov. 5, 1998 at 15A. In Alaska, voters rewrote the state constitution to declare that no marriage in the state is legal unless it is “between one man and one woman.” Id. In Hawaii, voters voted to change the constitution to allow the legislature, if it so decides, “to reserve marriage to opposite-sex couples.” Id.

The voters were not alone in making their decision. The Mormon church was heavily involved in the referendums. The church had provided $1.1 million to promote their version of family values. “The Mormon Church Has Praised Voters in Alaska and Hawaii for Approving Constitutional Amendments Outlawing Same-Sex Marriage,” The Associated Press Political Service, Nov. 5, 1998. According to Karsten Rodvik, campaign manager for the Alaska Family Coalition, there was no doubt the money from the Mormons was pivotal in the outcome of that state’s vote. Id. On the other side of the issue, Allison Mendel, spokeswoman for the “No on 2” campaign, said that the money “came early enough in the campaign that [the coalition] could buy up most of the available media outreach. We couldn’t even compete.” Id. Indeed, before the church’s sizable donation in September, both sides had raised about $100,000, and polls showed the issue a “dead heat.” Id. There are 24,000 Mormons in Alaska and 50,000 in Hawaii. Id.

Scare tactics were used by the marriage opponents in the ballot initiatives. Elaine Herscher, “Same-Sex Marriage Suffers Setback,” San Francisco Chronicle, Nov. 5, 1998 at A2. In Hawaii, television ads ran claiming that Hawaii would become the “homosexual honeymoon capital of the world” and thereby repel heterosexual tourists. Id. Another ad likened same-sex marriages to humans wedding their pets or their siblings. Id.

On the same day of the Alaska and Hawaii defeats, however, same-sex marriage advocates claimed a victory: voters in the small coastal community of South Portland, Maine extended civil rights protections to homosexuals. Kim Murphy, Decision ’98: “The Final Count,” Los Angeles Times, Nov. 5, 1998 at S1.

— 5 —
Intestacy is “the state or condition of dying without having made a valid will, or without having disposed by will of a part of his [or her] property” Henry Campbell Black, et al., “Black’s Law Dictionary” 821 (1990).

— 6 —
Mary N. Cameli, “Extending Family Benefits to Gay Men and Lesbian Women,” 68 Chicago-Kent Law Rev. 447, 462 (1992).

— 7 —
The elective share, although outside the scope of Washington law, would also be a factor for same-sex couples. In an elective share jurisdiction, the surviving spouse may make an election to take under the deceased spouse’s will or to renounce the will and take a fractional share of the decedent’s estate. Jesse Dukeminier & Stanley M. Johanson, “Wills, Trusts, and Estates” 5th ed. 484 (1995). Same-sex partners can be denied the benefit of the right of election because they are not spouses, in accordance with the terms of the statute. (See In re Estate of Cooper, 592 N.Y.S.2d 797 (1993) (surviving same-sex partner denied right of election against decedent partner’s will because he is not a “surviving spouse”).)

— 8 —
Quasi-community property is defined in RCW 26.16.220. Quasi-community property is divided between spouses, in accordance with the statute. Upon death, one half of any quasi-community property belongs to the surviving spouse and the other half “shall be subject to disposition at death by the decedent, and in the absence thereof, shall descend in the manner provided for community property under chapter 11.04 RCW.” Again, same-sex couples would be excluded from this treatment because their relationship is not recognized by law as spousal.

— 9 —
This rule is subject to some restrictions, such as “the earnings and accumulations of the husband shall be available to the legal process of creditors for the satisfaction of debts incurred by him prior to marriage, and the earnings and accumulations of the wife shall be available to the legal process of creditors for the satisfaction of debts incurred by her prior to marriage.” RCW 26.16.200.

— 10 —
Meretricious, according to the “Oxford Dictionary of Current English” (1996), means, “showily but falsely attractive.” It comes from the Latin word meretrix, which means prostitute. In Connell v. Francisco, 74 Wn.App. 306, 307 n.1 (1994), the court noted, “though the term ‘meretricious’ is offensive, demeaning, and sexist, courts will continue to use it until a better expression emerges.”

— 11 —
RCW 26.09.080 governs the Disposition of Property and Liabilities upon Dissolution of Marriage. The statute requires the court to consider the following factors:
In a proceeding for dissolution of the marriage, legal separation, declaration of invalidity, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall, without regard to marital misconduct, make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to:

(1) The nature and extent of the community property;
(2) The nature and extent of the separate property;
(3) The duration of the marriage; and
(4) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse with whom the children reside the majority of the time.
— 12 —
The Supreme Court of Washington concluded that homosexuality is immoral and therefore upheld the dismissal of a high school teacher because he was homosexual. (See Gaylord v. Tacoma School Dist. No. 10, 88 Wash. 2d 286 (1977).)

— 13 —
For the facts in the case, see the opinion of the court below. In Re Kaufmann’s Will, 247 N.Y.S.2d 664 (1964).

— 14 —
For a discussion of the economic incentives to society involved with same-sex marriage, see Jennifer Gerarda Brown, “Competitive Federalism And The Legislative Incentives To Recognize Same-Sex Marriage,” 68 S. Cal. L. Rev. 745 (1995). Brown’s article makes the following assertions:
1) same-sex couples would spend an average of $6000 on their wedding and honeymoon in the first-mover state;
2) three percent of the United States population is gay or lesbian; and
3) gay men and lesbians would marry at roughly one-third the marriage rate for the general population. Using two different approaches — the Pent-up Demand and the Post-Legalization Matching models — these assumptions reveal that the present value of the revenue to be generated by the first state that legalizes same-sex marriage is at least $3 billion to $4 billion. Id. at 833.
— 15 —
Given this paper’s focus on the transmission of wealth, it is especially interesting that only 4.5 percent of same-sex respondents drafted their wills to include their partners. This statistic shows the importance of intestacy statutes including same-sex couples as “spouses” because although presumably the committed partners would want to include their partner as the primary beneficiary of their estate, there are a variety of reasons why couples may not draft wills including the partners. One of the main reasons is the cost of attorneys’ fees. Another reason may be a lack of knowledge about how the transmission of wealth laws operate.


© 1999, Gretchen Freeman Cappio
Gretchen Freeman Cappio may be reached at: gaf95@aol.com


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