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View Diary: How Same-Sex Marriage Would Have Resolved a $22,222.22 Moral Dilemma (182 comments)

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  •  I swear it was a feature of both states' (4+ / 0-)
    Recommended by:
    lgmcp, white blitz, twigg, kyril

    marriage amendments. I will have to look this up in depth.

    just a little bit bored.

    by terrypinder on Wed Jan 23, 2013 at 08:45:53 AM PST

    [ Parent ]

    •  I know there was concern that NC's (3+ / 0-)
      Recommended by:
      terrypinder, Wee Mama, kyril

      amendment was broad enough that challenges to a same-sex couple's will might be sustained and the will invalidated, and that might be true (but it might not be - really depends on a lot of things), but I think any discussion that the will wouldn't be enforced on its face in the absence of a challege was probably a bit too far over the line into fear-mongering over the amendment.  (All this, of course, dependent on the language of the amendment which I am looking up now.)

      One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

      by AUBoy2007 on Wed Jan 23, 2013 at 08:54:03 AM PST

      [ Parent ]

      •  NC's language: (10+ / 0-)
        Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to duch contracts.
        This from a paper against the amendment:
        Based on the same legal rationale laid out in these opinions, if the N.C. Amendment passed, a court could construe enforcement of a will or trust in favor of an unmarried partner as state action. If it deemed the enforcement to be “recognition” of the domestic legal union, it could refuse to enforce the provision on the ground that enforcement is barred by the Amendment. Even if it did not conclude that the Amendment directly barred enforcement, it could refuse to enforce the will or trust on the ground that doing so would violate the state’s public policy...
         But that's a crazy reading without a specific challenge from an outside party.  Court's don't routinely ignore wills.  I don't believe they'll do so here.

        The following paragraph, however, I do believe is right:

        Even if courts ultimately do not void these provisions of wills and trusts, the passage of the Amendment could still unsettle North Carolina estate planning. The Amendment could create an atmosphere of uncertainty and suspicion regarding wills and trusts entered into by members of unmarried couples, which could result in these agreements being challenged in court. Estate planning documents entered into by unmarried couples are already sometimes challenged by disgruntled blood relatives of the individual executing the document. Even if a court ultimately were to uphold a challenged agreement, passage of the Amendment would increase the likelihood that the parties would have to contend with the painful prospect of a protracted lawsuit. Not only is this time-consuming and expensive, but it is inevitably an unwanted intrusion into one’s personal life at a particularly vulnerable time.
         That is very true.  Challenges by distruntled blood relatives are ripe under these schemes.

        One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

        by AUBoy2007 on Wed Jan 23, 2013 at 09:01:45 AM PST

        [ Parent ]

        •  Concur. (2+ / 0-)
          Recommended by:
          AUBoy2007, lgmcp

          I think you're correct on all points.

           - Rieux, Esq.

        •  thank you. (1+ / 0-)
          Recommended by:
          AUBoy2007

          that was what I was recalling, and what I remember about Virginia's amendment from long ago (almost 10 years now).

          just a little bit bored.

          by terrypinder on Wed Jan 23, 2013 at 12:30:48 PM PST

          [ Parent ]

        •  Even disgruntled ones are a big threat -- see OP (3+ / 0-)
          Recommended by:
          cai, white blitz, kyril
          That is very true.  Challenges by distruntled blood relatives are ripe under these schemes.
          Look at the diarist.  He wasn't disgruntled, he barely knew his estranged cousin. But that didn't stop him from pressing a lawsuit to get some of the cash, AND GETTING IT.  

          Now imagine a disgruntled relative with a chip on their shoulder that refused to settle and take their blood money.  They can lock a case up for years in a normal court.  This just makes it worse.

          Minority rights should never be subject to majority vote.

          by lostboyjim on Wed Jan 23, 2013 at 12:38:10 PM PST

          [ Parent ]

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