Don Davis

On Same-Sex Inheritance, Or, "'Til Death Do We Part" Comes To Boyzone

Filed By Don Davis | October 14, 2009 4:30 PM | comments

Filed in: Living, Marriage Equality
Tags: Andrew Cowles, Boyzone, civil rights, DOMA, economic policy, estate planning, Inheritence, Law, same-sex marriage, Stephen Gately

There was a time, in the 1990s, when "boy bands" walked tall in the musical world. New stars with names like "BoyzIIMen" and "Backstreet Boys" and "*NSYNC" were everywhere to be seen, and positioned prominently within this firmament of stars was an Irish band, "Boyzone".

One of the five members of Boyzone's most famous lineup, Stephen Gately, died over the weekend in Mallorca, at 33, much to the dismay of the group's fans and friends.

Because Gately came out at the height of his career, and at considerable risk to his (and the group's) "brand" prospects, the LBGT community is experiencing considerable dismay over the loss as well.

Today's story, however, isn't about any of that.

Instead, we'll consider what's likely to happen to Gately's estate.

The point of the exercise? With this being one of the most prominent deaths of a gay celebrity to occur since civil commitment came to pass, and with Mr. Gately being legally committed to husband Andrew Cowles at the time of his death, it seems like a good time to examine how the law responds to these situations in the UK--and how it could work in the United States.

stephen gately.jpg
To get things started, a quick acknowledgement: I was unaware of Stephen Gately's death until I saw Prince Gomolvilas' story here on the Bilerico Project's front page. His story covers topics we won't be covering here, so if you haven't yet, I would encourage you to have a look.

For those completely unaware of Boyzone's body of work, you might wish to start with the song for which they are probably the most famous, "No Matter What", an Andrew Lloyd Weber composition.

"You're 'committed'? How's that work, exactly?"

The preliminaries out of the way, let's talk law:

In the UK, same-sex civil commitments are already enshrined in national law and the process is fairly simple. Before either a marriage or a civil commitment can take place, advance notice must be given by both parties, in person, at the register office (analogous to a city or county clerk's office) where the couple resides.

The notice will be displayed for fifteen days, after which the grant of authority for the union can be issued by a minister or some comparable official at the wedding. (If you're to be married in a Church of England or Church in Wales facility this requirement is waived.)

If one of the partners dies, UK law treats marriages and civil commitments identically. I won't go into every nuance of the law here, but basically, it works like this:

There is an inheritance tax, and if you died this year it would be triggered if you were passing an estate larger than £325,000 (at today's exchange rates, that's about $514,000). You would be taxed 40% for anything over that threshold, and the amount you can pass without paying the tax goes up over time. (Gifts above £3000 per year that you gave in the past seven years are considered part of the estate, except gifts given to spouses and for other purposes, such as charitable giving.) Under certain circumstances it is possible to double the amount that can be passed, tax-free, to the next generation or to unrelated individuals.

The tax normally does not apply at all, regardless of the size of the estate, if the assets are passing from one spouse to another or to charity.

So how do we contrast all this to the American experience?

Right off the bat, in the UK the law applies nationwide, unlike in the US, where states like Virginia have introduced bills that, if enacted, would void any same-sex civil unions granted by any other state, and relatives try to use the courts to prevent enforcement of arrangements entered into by same-sex partners.

the eviction.jpg

This means Mr. Cowles can at least sleep under his own roof without fear that a lawsuit will emerge forcing him to either vacate his home or mount a costly legal defense to keep it--or worse yet, to have to mount a costly defense...and lose his home in the process, something that happens in the US on a regular basis.

Additionally, should Mr. Gately have chosen to direct his assets to Mr. Cowles, that decision will likely be carried out; and there would be no special legal hoops (other than the civil commitment process) through which anyone would have to jump to make such a decision carry the force of law.

It is also highly likely that Mr. Cowles will be given full authority to make any decisions about funeral arrangements that are required, and that he won't have to fight the relatives for the physical custody of the body of his deceased partner.

There are two other interesting contrasts of which you should be aware: the divorce rate in England and Wales today, nearly 4 years after gay weddings first began in England and Wales, is at a 26 year low, and there is evidence to suggest that allowing same-sex marriages actually leads to those who marry living longer lives than those who want to marry today, but can't.

And that's where we're going to end this for today: in the UK, a family like Stephen Gately's and Andrew Cowles' may suffer from an unexpected tragedy, but the law doesn't conspire to make a bad situation a thousand times worse for the surviving member of the same-sex couple--unlike in the US.

Disgruntled relatives aren't able to challenge the union, the spouse can be confident that the decisions they make will be protected in law, and no one's being thrown out into the street solely because of the nature of their marriage.

Oh, and I almost forgot the math part of the deal: same-sex unions not only help the spouses live longer, it's apparently helping to reduce the UK divorce rate for all couples at the same time.

And if you add all that up, aren't we really saying that legalizing same-sex marriages equals nothing less than legalizing Life, Liberty, and the Pursuit of Happiness?

So the next time someone claims gay marriage would somehow be threatening to the Nation...ask them: "why do you hate America, the Founding Fathers, the Constitution--and heterosexual marriages?"

Then stand back and let the stammering begin.

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Yes, contrast this with our county (Sheriff =Coroner) and state with a DP law, wherein a friend's partner dies at home. The Deputy comes and is instructed by the Sheriff, who 'does not believe in DP's' to take all of the deceased's belongings, including his wedding ring, to give to a family he had not seen in 20 years!
Luckily, that particular Deputy...did believe in DP's and the surviving spouse did have a full Power of Attorney also, but had to
convince the deputy that all of the deceased possessions were his...
Awful, it was an awful awful time... Jan 2008. May it never recur.

i don't know how to even respond to this, except to say that i can just imagine the deputies sitting around thinking about how sick and wrong the gay couple are...all the time forgetting that they have mirrors at home that probably work, if they would only use them.

it's hard to imagine that people really sit around looking for new and interesting ways to screw other people over...and yet they do...and i can only say that i'm so, so, sorry that this had to be a part of anyone's life.

Don Sherfick Don Sherfick | October 14, 2009 6:10 PM

Very interesting and enlightening, Don. Our opponents are very fond of claiming that same-sex couples can have the same legal protections that married stright pairs do by simply drawing up certain legal documents like wills, powers of attorney, etc. Putting aside the obvious unfairness involved in having to pay a lawyer to do what the law does for married heterosexuals at no cost whatsoever, the statement simply isn't true. One big area deals with inheritance taxes, which no amount of skilled legal drafting can alter one iota. United States federal estate tax law, because of DOMA, contains no benefits for same sex couples. In addition, in such states such as Indiana, there is an inheritance tax up to 20% that applies to a same-sex union survivor
often even on his/her part of jointly held real estate or other property. As between married heteroxuals, a complete exemption from the tax. If anyone can tie this gross inequality to procreation I'd sure like an explanation. The straight childless couple married 30 seconds or four decates are exempt, while the survivor (maybe still supporting minor children) of a long-term same-sex union gets nada/zip.

you are dead on target when you point out that not having federal law that applies to these issues is a huge burden--but even beyond that, this is another stop on the long, ugly road of using "states rights" to support and maintain local power and/or moral structures...and i won't even go into the irony of the past and recent relationships between states' rights, the mormon church, and prop 8.

when you talk about procreation and marriage and law i assume you're thinking about loving v virginia (which i have forever been meaning to discuss in these pages); and it seems to me that a reasonable person might ask whether, based on that opinion, a couple who is heterosexual and childless would have a "fundamental" right to marry or not?

Something tells me it'll be a while before we see national civil unions in the US, but that doesn't mean we can't fight to reform laws that control who can rent what.

based on today's politics i don't see any reason why most democratic senators would be inclined to move in this direction at all (especially considering that a legislation to create a "public option", which has about an equal level of public support, seems to be a bridge too far), and we already know obama is morally opposed to marriage, but might support civil union--but that said, i suspect he's never gonna push the issue.

all this makes me think the best shot for creating a federal civil union law is to find and promote primary challengers who actually scare the evan bayhs and arlen spectors and blanche lincolns of the party into action.

that's neither quick nor cheap nor easy...but it still might be the best shot available.

Don Sherfick Don Sherfick | October 15, 2009 8:41 AM

Don, when I referred to "procreation" I wasn't thinking about Loving vs. Virginia, but you point concerning whether or not childless couples (or those intending to remain childless) have a "fundamental right to marry" is a fascinating one. My point was directed more as a jab at the idea that while arguably some of the many rights and benefits that come along with being married, a handfull might be justified in the name of "procreation", the vast majority are not. An inheritance tax rate and/or excusion is certainly among the latter.

the basic logic behind loving is that marriage, because it is the only way to bear children (this was the early '60s), is a fundamental right, and the court refused to hold society's interest in segregation above the interest to procreate in a manner of your own choosing.

thanks so very much--and big thanks, once again, to Prince Gomolvilas for putting me onto the story in the first place.