In the 2012 elections, three states (Maine, Maryland, and Washington) legalized gay marriage, and one state (Minnesota) rejected a ballot measure that would have created a state constitutional amendment prohibiting gay marriage. This brings the total to nine states which, along with Washington D.C., recognize equal marriage rights for gay and lesbian couples. California is not on this list.[1]
A recent California Court of Appeal case attempts to remedy one potential injury which could result from this inequality. Brent Beckwith is the longtime partner of Marc Christian MacGinnis.[2] Mr. MacGinnis had an estate worth approximately $1,000,000. Mr. MacGinnis prepared (but did not sign) a will leaving half of his estate to Mr. Beckwith and the remaining half to his sister, Susan Dahl. Both Mr. Beckwith and Ms. Dahl knew about the draft will. When Mr. MacGinnis was admitted to the hospital for lung surgery, he asked Mr. Beckwith to bring his will to his hospital room so that he could sign it. Mr. Beckwith could not find the will, so Mr. MacGinnis asked him to create a new will with the same provisions. Mr. Beckwith did so, emailing a copy to Ms. Dahl. Following Mr. Beckwith’s email, Mr. Beckwith and Ms. Dahl spoke on the telephone. Prior to their conversation, Mr. MacGinnis’ doctors had informed Ms. Dahl that Mr. MacGinnis’ surgery was high-risk and potentially fatal. Under medical privacy regulations, doctors could not share this information with Mr. Beckwith because California law did not recognize him as Mr. MacGinnis’ family member. Ms. Dahl also did not inform Mr. Beckwith of the risks that Mr. MacGinnis faced. Instead, she instructed Mr. Beckwith that a will was not necessary, and told him that she would arrange for attorneys to prepare a living trust for Mr. MacGinnis following his surgery. However, as doctors feared, Mr. MacGinnis’ surgery was not successful. Mr. MacGinnis was placed on life support and passed away less than one week later. Mr. MacGinnis died intestate, i.e., without an executed will or trust in place. Ms. Dahl then petitioned for the intestate probate of Mr. MacGinnis’ estate asserting that she was Mr. MacGinnis’ sole surviving heir. Mr. Beckwith, Mr. MacGinnis’ longtime partner and the intended 50% beneficiary of his estate, was to be left empty-handed.
Mr. Beckwith filed a complaint alleging, among other claims, that Ms. Dahl had intentionally interfered with his expected inheritance rights. The trial court dismissed his claim on the ground that this tort did not exist under California law. In its recent decision, Beckwith v. Dahl (2012) 205 Cal. App. 4th 1039, the California Court of Appeal reversed, for the first time officially recognizing intentional interference with an expected inheritance (“IIEI”) as a tort under California law. In so doing, California joined 25 other states which recognize the tort.
The new IIEI tort cause of action offers individuals limited protection of expected inheritance rights in specific and narrow circumstances. To succeed on a claim of IIEI, a plaintiff must establish five elements: (1) the plaintiff had an expectancy of an inheritance; (2) the defendant interfered with plaintiff’s expectancy through independently tortious conduct directed at the testator; (3) the defendant acted with requisite intent; (4) the defendant’s actions caused the testator to exclude the plaintiff from his or her estate plan; and (5) damages. Id. at 1057. Additionally, the IIEI tort is not available unless “the plaintiff ha[s] no independent tort action because the underlying tort was directed at the testator [not the plaintiff] and when the plaintiff ha[s] no adequate remedy in probate.” Id. at 1058.
If all of these elements are met, the recognition of IIEI under California law may provide recourse where individuals behave tortiously towards testators or trustors and interfere with their testamentary wishes to the detriment of other intended beneficiaries. The impact of this decision is not limited to gay and lesbian couples who are not registered as domestic partners, but could also apply to unmarried heterosexual life partners, stepchildren who were raised but not adopted by their stepparents, or other blended but non-blood family members.
If you have an issue which may relate to the new tort of intentional interference with an expected inheritance or to other probate, trust, or fiduciary litigation matters, author Kimberly Taylor can be reached at ktaylor@carr-mcclellan.com.
[1] Proposition 8, which bans gay marriage, was passed by California voters in 2008 by a vote of 52% to 48%. In 2010, the United States District Court for the Northern District of California held that Proposition 8 violated the equal protection and due process clauses of the Constitution. The United States Court of Appeals for the Ninth Circuit affirmed on more narrow grounds. Proponents of the marriage ban have filed a petition for writ of certiorari to the Supreme Court of the United States; a decision on that petition is expected by November 26, 2012.
[2] Although the case does not address it directly, the two were apparently not registered as domestic partners, or were not residing within California, or Mr. MacGinnis’ estate consisted of property outside of California. Effective January 1, 2005, gay or lesbian couples registered as domestic partners with the California Secretary of State and residing in California have intestate rights as to property located in California. See California Family Code § 297.5.