Love Isn't All You Need: An Argument for Statutory Recognition of Committed Heterosexual Relationships under Intestacy Laws in South Dakota in Response to in Re Estate of Duval
Hatting, Brittany H., South Dakota Law Review
In In Re Estate of Duval, the South Dakota Supreme Court reversed the circuit court and ruled that Karen Hargrave was not, as she believed, the common law wife of her deceased intestate male partner. The court determined that Hargrave was not Duval's common law wife under Mexico's or Oklahoma's common law. As a result, Hargrave was denied the ability to inherit under intestacy laws as a surviving spouse. Under South Dakota's intestacy laws, unmarried committedheterosexual partners are unable to inherit intestate from a deceased partner, regardless of the relationship's duration, the purpose of the relationship, the pooling of resources, the intentions of the parties, the daily reliance upon one another, and the reputation of the relationship in the community. South Dakota should address this issue by adding a committed partner status for unmarried, heterosexual couples that would create a category similar to a surviving spouse for purposes of inheriting intestate. Alternatively, South Dakota should allow probate courts to place more emphasis on donative intent when adjudicating intestate estates in order to properly execute the intent of the decedent. This action would provide more protection and stability to the lives of the 20,970 South Dakotans currently living in unmarried committed partnerships and prevent undue hardship for surviving partners.
In recent years, the traditional idea of what constitutes a 'family' has undergone drastic changes. (1) The United States Census Bureau reported that nearly 7.5 million households in the United States are comprised of heterosexual unmarried couples, a thirteen percent increase from 2009. (2) The 2010 United States Census indicated that 20,970 South Dakotans are living together in unmarried households. (3) One such family type is the committed heterosexual partnership. (4) While the number of committed heterosexual couples has increased, the number of Americans who obtain estate planning documents is decreasing. (5) In 2004, approximately forty-two percent of Americans had obtained a will. (6) By 2009, only thirty-five percent of Americans had written a will. (7) With the number of non-traditional families increasing and the number of individuals with estate planning documents decreasing, new laws and statutes need to be created to protect new types of family relationships. (8)
In the 2010 South Dakota Supreme Court decision, In Re Estate of Duval, it was determined that an explicit agreement to be married must exist in order for South Dakota to recognize a common law marriage created in another jurisdiction. (9) The appellee, Karen Hargrave, claimed that she and the decedent, Paul Duval, had a valid common law marriage under the laws of Mexico and Oklahoma. (10) The circuit court, however, held that there was not an explicit agreement to be married under Oklahoma's common law and, as a result, Hargrave could not inherit as a surviving spouse. (11) Although Hargrave and Duval had been in a committed, marriage-like relationship for almost fifteen years, Hargrave was denied the opportunity to inherit. (12) In short, the holding refused to acknowledge the merits of the longstanding relationship between Hargrave and Duval. (13) Due to the growing number of unmarried, committed partnerships in South Dakota, a need exists to create statutory protections to prevent other couples from Karen Hargrave's fate. (14) This note urges that the South Dakota Legislature create a "committed partner" status for the purposes of inheriting intestate between committed heterosexual partners who meet the criteria set forth in "totality of the relationship" test. (15) Alternatively, this note proposes that the South Dakota Legislature should adopt a law that would place increased emphasis on the intentions of the deceased for the purposes of intestate succession between unmarried partners. (16)
II. FACTS AND PROCEDURE
A. FACTS OF IN RE ESTATE OF DUVAL
In 1986, Paul Duval separated from his wife and the mother of his two daughters while he was living in Massachusetts. …