Posted by Eugene Volokh:
Foreign Same-Sex Marriages and Intestate Succession:
http://volokh.com/archives/archive_2009_02_01-2009_02_07.shtml#1233877159
[1]In re Estate of Ranftle, decided last week by the New York County
Surrogate's Court, seems to me to reach exactly the right result. H.
Kenneth Ranftle married J. Craig Leiby in Canada in June 2008. In
November, he died, apparently not leaving a will; he was survived by
Leiby and by three siblings.
The immediate question before the court was who was "entitled to
receive process under [2]SCPA 1403(1)(a), but since that refers to the
"distributees" -- those who would inherit under the will -- the
procedural question included the substantive one: Should Leiby be
treated as a [3]surviving spouse? Yes, the court said:
Marriages valid where solemnized have long been recognized in New
York; exceptions exist only for marriages affirmatively prohibited
by New York law, or proscribed by "natural law" (Matter of May, 305
NY 486 [1953]). [Footnote: The "natural law" exception is generally
limited to cases of incest and polygamy or where the marriage
violates the state's public policy (Martinez v. County of Monroe,
50 AD3d at 191). It is noted that Governor David Paterson has
instructed New York state agencies to recognize same-sex marriages
that were valid where performed, through an Executive Directive
dated May 14, 2008.] As decedent's marriage was valid under the
laws of Canada, where performed, and falls into neither exception
to the general rule, the marriage is entitled to recognition in New
York (Martinez v. County of Monroe, 50 AD3d 189 [4th Dept 2008])
(recognizing Canadian same-sex marriage for purposes of entitlement
to spousal health care benefits).
This strikes me as precisely correct. New York statutes do not bar
recognition of out-of-state marriages. Neither do New York common-law
principles; the "natural law" reference is indeed shorthand for "cases
involving polygamy or incest in a degree regarded generally as within
the prohibition of natural law." (By the way, Matter of May, which the
court cites, upheld an uncle-niece marriage, which was valid under
[4]a Rhode Island statute that allowed such marriages for Jews; I
expect that many people in 1953 thought such marriages to be
inappropriate, and New York law in fact forbade them, but New York
courts recognized the out-of-state marriage nonetheless.) The judge
didn't have to do his own philosophical "natural law" reasoning to
decide whether same-sex marriages are "natural" or "unnatural"; he was
just reading the existing precedents no more broadly than they
required.
And I think such a preference for recognizing foreign marriages that
were legal in the place where they were entered into -- a preference
that is itself a long-standing legal principle -- makes perfect sense,
especially when it comes to intestate succession. Someone dies. He
should have had a will, but he didn't, and it's too late for
should-haves now. The legal system's goal should be to give the
property to those to whom he would have most likely wanted to leave
it, so long as this can be done without excessive fact-finding of the
"Mother loved me best" variety. It's a fair bet that people would like
to leave their property to their spouses; and that's true even if the
law of the state wouldn't itself allow such a marriage.
You can like the marriage or dislike it, support uncles marrying
nieces or oppose it, but when it comes to distributing the dead
person's property, the focus should be (again, where it is consistent
with the demands of clarity and minimal factfinding cost) on what the
dead person would have wanted, not what the judge or the voters would
have wanted. I'm not saying there's a constitutional obligation to do
it -- just that this is the soundest legal principle.
By the way, if you ask "But what about polygamy?," there's already an
answer: [5]In re Bir's Estate, in which the California Court of Appeal
held -- in 1948 -- that California would recognize a foreign
polygamous marriage (from India) for the purposes of intestate
succession. Though California public policy might lead to a different
result "if decedent had attempted to cohabit with his two wives in
California" -- remember that this was a time when cohabitation with
someone who wasn't your legal wife could be criminal -- "[w]here only
the question of descent of property is involved, 'public policy' is
not affected." Both wives were thus allowed to share equally in the
decedent's property.
What's more, earlier cases took a similar view, especially as to the
question whether the children of the second and later wives were to be
treated as legitimate, back when more legal rules turned on
legitimacy. These matter came up in some cases involving American
Indian tribes, as well as marriages recognized in foreign countries.
And the skies didn't fall, nor would they have, I think, if such cases
had been more common.
References
1. http://volokh.com/files/ranftle.pdf
2.
http://law.justia.com/newyork/codes/surrogates-court-procedure/scp01403_1403.html
3. http://www.jdbar.com/Statutes/eptl-4-1_1.html
4. http://volokh.com/posts/1178131546.shtml
5. http://volokh.com/2003_06_15_volokh_archive.html#200439581
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