California's Unregistered Same-Sex Partners Remain Vulnerable to Unintended Disinheritance.

As the song goes, "Love and marriage, love and marriage. Go together like a horse and carriage, …" In comparison, "Love and civil unions, ..." kind of falls flat. To many, next to marriage, a civil union seems like the proverbial red-headed, step sister—largely perceived as inferior and stigmatizing. No wonder so many committed, same-sex couples choose to forego domestic partnership registration.

But the very same-sex couples who reject civil unions on principle are more vulnerable to unintended disinheritance than their legally married counterparts in California. When a married person dies without a will, the probate laws outline a detailed scheme for the spouse's inheritance rights. But when an equally committed, same-sex, unregistered partner dies without a will, the doors to the probate court are slammed closed. Period.

Worse, hostile family members may try to prevent their deceased family member's same-sex partner from receiving any inheritance. And under the current status of California law (vis-à-vis marriage rights and available tort remedies), unregistered, same-sex couples are particularly vulnerable to such misconduct and abuse.

The case of Beckwith v. Dahl illustrates the point. Beckwith and his long-term, same-sex partner, Christian, did not register as domestic partners. And after Christian's hostile sister intentionally and successfully interfered with Christian's effort to sign a will naming Beckwith as a beneficiary, Beckwith found himself wholly disinherited when Christian died. Unmarried and unregistered, Beckwith's claim was tossed out of probate court.

But Beckwith didn't stop there. It was clear to Beckwith that Christian's sister wrongfully interfered to prevent Christian from signing his will—by means of fraud and deceit. So Beckwith sought to hold Christian's sister personally accountable in civil court for her misconduct.

Beckwith sued under a tort theory known as intentional interference with inheritance expectancy. The Second Restatement of Torts § 774B defines intentional interference with inheritance expectancy as, "One who by fraud or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift." Simple enough.

But intentional interference with inheritance expectancy is not recognized in all states. While 25 states recognize the tort claim, California remains on the sidelines. That is, California has yet to recognize or reject claims of this nature. As a result, the trial court dismissed Beckwith's lawsuit. Beckwith appealed.

Beckwith's lawsuit is now pending before the California Court of Appeal and the appellate court is expected to decide whether California should recognize a new tort, intentional interference with inheritance expectancy, when, as here, no probate remedy exists.

After the parties submitted their appellate briefs, the appellate court on its own motion issued an Order inviting four public policy organizations to submit briefs on the issue. The court solicited briefs from the Consumer Attorneys of California, the Civil Justice Association of California, Family Research Council, and the National Center for Lesbian Rights.

Should the court issue a published decision recognizing the tort of intentional interference with inheritance expectancy, "unregistered" same-sex couples in California will be less vulnerable to the kind of abuse that Beckwith suffered. But until then, the disparate impact of the law is just another reminder that civil unions and marriage are indeed less than equal.

Markson Pico LLP represents Beckwith in his fight to hold Christian's sister accountable for her misconduct. Markson Pico LLP is committed to protecting the rights of all people, regardless of race, gender, nationality, religion, or sexual orientation. Click here to contact a lawyer from Markson Pico LLP.

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