It is sad when a family member dies, and even sadder when the aftermath of the death brings feuding and court actions between loved ones.  The parents and fiancée of Kevin Prior, a firefighter killed in the 9/11 attack on the World Trade Center, are embroiled in such a dispute over the $37,600 a year in benefits payable to survivors under Mr. Prior’s pension plan. A 2003 New York State law allowed “domestic partners,” as well as parents and spouses, to collect the pension benefits of firefighters and policemen killed on 9/11.  The definition of domestic partner is someone who showed either “unilateral dependence or mutual interdependence” with the deceased based upon a court’s analysis of any relevant factors such as living arrangements, budgeting, length and seriousness of the relationship, and intent to marry.  In the case of Mr. Prior’s survivors, the two sides offer completely different versions of the reality that constituted Mr. Prior’s personal relationships.

The fiancée, Doreen Noone, claims that the two lived together for eight months during the 1990s and that Mr. Prior paid most of her bills.  She also claims that she spent four or five nights a week with him in his parents’ basement, where he later moved, returning to her own parents’ house only when he was on duty at the firehouse.  Prior’s parent flatly deny her account, insisting that none of their boys were allowed to “have girls overnight” in the house.  Although they concede that their son had paid approximately $7,000 of Noone’s bills over a three-year period, the Priors contend that the couple did not share budgeting.  “All that happened was they had plans for a wedding, and those plans were interrupted,” they say.  Mr. Prior’s best friend, Sgt. Edward Wheeler (who is now married to Ms. Noone), supports Ms. Noone’s version of the relationship.

Many people who hear about this case will conclude that the legislature made a mistake with its decision to include “domestic partners” in the list of potential pension recipients along with parents and spouses.  People who have this response may disapprove of co-habiting arrangements as too immoral, informal, or inappropriate to deserve statutory protection; or they may simply disapprove of relatively fuzzy terms in a statute.  After all, we can establish who is a parent or spouse of a decedent by looking at public records, but the determination of who is a domestic partner will require case-by-case fact-finding by the court.  In an age of over-crowded dockets, a bright-line rule has a lot of appeal.

I want to offer a different take on this, though.  Inheritance laws are meant to carry out the probable intent of the average decedent, and where the law does not accomplish this it is often because the law has not caught up with social realities.  Fifty years ago, many if not most state intestate laws gave a substantial proportion of a decedent’s intestate estate to his descendants, with a correspondingly lesser sum going to the surviving spouse.   Today, most statutes give most or all of the estate to the surviving spouse as long as any descendants were descendants of the marriage.  Why the change?  Surveys and ordinary experience of estate planners showed that the spousal relationship has become more and more important in American society, and most testators elect to give most or all of the estate to their surviving spouses unless there are children from previous marriages.  The New York statute’s inclusion of domestic partners in the group of persons eligible to collect the 9/11 police and fire pensions acknowledges the current social reality that a significant percentage of couples, particularly those in the age group of many of the 9/11 casualties, live together before or in lieu of marriage.  Often these relationships are serious and stable, and often they include children.  To the participants, they represent family relationships of the utmost importance.  In effect, the New York Legislature wanted to allow the courts to make individual determinations about what the deceased police and firefighters would have wanted to happen to their pensions, given that for many the relationship with their domestic partner was the most important relationship in their lives.

Sadly, what has gone wrong in the Prior case is an older story: since the versions are so contradictory, it is apparent that at least one party is not telling the whole truth.  There is a lot of money at stake here, but I suspect that, as is usual in estate disputes, each party is trying to hang onto a piece of the decedent by claiming his property.  Despite the fact that the individualized fact-finding required by the statute gives the parties more of an opportunity to lie and thus makes the court’s job harder, I believe that the individual fact-finding also makes it more likely that the truth of the decedent’s intent will be discovered and followed.