Right Of Survivorship: Fill & Download for Free

No. Marriage is a three-way contract between two individuals and the state. The state is an indispensable party.In the contract of marriage two people make promises to one another and the state agrees to confer upon them certain benefits. Rights of survivorship with certain forms of real estate ownership. Social security survivorship rights. Tax benefits. The right to not be compelled to testify against one another in court. There are roughly 1100 legal benefits of marriage in the United States.If only churches could marry people there would be no central registry of those who are truly married, spotty and irregular access to divorce, no way of determining who the real spouse is when two different people both claim to be the surviving spouse of X. The government needs to be involved.

It is of political concern because in just about every country in the world the act of getting and being married results in the government bestowing certain benefits on the married couple.Pension rights, insurance rights, rights of survivorship and inheritance, the rights vary from country to country, but the spouse is the next of kin just about everywhere, and many legal rights flow from that.Therefore, the state must act in order to make the benefits of marriage available to same-sex couples, who could not otherwise obtain them, for no good reason.

Personally, I think it’s entirely unacceptable and unconstitutional unless it is A) tied to a specific criminal indictment, or at least to probable cause, and B) automatically and promptly undone as soon as the indictment is dismissed or the defendant is acquitted (or the government decides not to indict at all within a reasonable period).See, I can get behind freezing the assets of a defendant, so that they can’t use their ill-gotten gains to hire a slick attorney. I can also get behind seizing assets used in a crime as part of the penalty of a crime—and if so, then you need to seize them before the trial, so that the defendant can’t hide them away or otherwise dispose of them.But to force the defendant to prove that he is entitled to his stuff back is a Due Process violation, and the legal fiction of an “in rem” proceeding (i.e., “It’s not you we’re putting on trial, it’s your stuff which is ‘guilty’ of participating in a crime.”) is no help at all.We don’t force defendants to prove innocence, and there’s a good reason for that—because it’s next-to-impossible to prove a universal negative. So, for example, the government seizes your video equipment, because they accuse you of making child pornography with it—fine and good, the government should throw the book at child pornographers.But if they have no proof that you made kiddie porn with that equipment (or made it at all), then how in the world are you supposed to prove that the equipment never was used for kiddie porn? Remember, if the burden of proof is on you, then just saying, “There’s no evidence that it was” is not enough.Are you supposed to provide corroborated proof of your activities for every minute of every day since you bought the equipment? Could you do that—could you provide verifiable evidence of your activities all day, every day, for even the last month? I couldn’t.And to seize assets by reason of an alleged crime without any trial of the defendant is even worse—it’s a direct, per se violation of the express terms of the Due Process Clause.On a related note, I also think civil forfeiture is unconstitutional when it seizes assets that are jointly owned without any proof or allegation of wrongdoing by the co-owner.For example, my wife and I own our home as “joint tenants with right of survivorship”—that means we each have an “undivided half” of the house, there isn’t a “her half” and “my half”, but we each have a 50% legal interest in the whole. So, if someone (including the government) sued me for something that she had no involvement in, the most they could receive is my 50% share, not the whole house—and, since it’s an undivided 50% share, that would mean they’d have no legal right to prevent my wife from continuing to use the house (and allowing me to use it as a guest, if she wanted).So, if the government seized the house in civil forfeiture, they’d be violating my wife’s property rights, even if they had a legal right to deprive me of ownership.Again, for any “pro-forfeiture” lawyers reading this, I’m fully aware of the “in rem” nature of forfeiture proceedings. But if the government can do an “end run” around due process rights to property simply by proceeding in rem, then those due process rights are thin enough to vanish in a light breeze.