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Originally Posted by LadyShea
I say a declaration of legal next of kin could cover everything marriage currently does and it doesn't matter who that NOK is, a friend, relative, lover, whatever.
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Such declarations certainly
could be made to do everything that marriage now does, but it would require an awful lot of amendments to existing law. To cite but a few examples:
- Wrongful Death: Some guy gets offed in a car crash caused by the negligence of another driver. By state statute, the executor or administrator of the guy's estate can pursue a claim for damages against the negligent driver. Who gets whatever money is recovered? The persons identified as "beneficiaries" in the statute. AFAIK, every state's wrongful death statute classifies the surviving spouse as a beneficiary. If the decedent was married, his spouse is entitled to a share of the proceeds. If the decedent and his partner weren't married, the partner gets nothing. Making the partner a contractual next-of-kin designee doesn't help because the wrongful death statute doesn't recognize such designees as beneficiaries of the claim. Fixing that problem would requiring amending the wrongful death statute.
- Loss of Consortium: Same guy, same car crash, but this time he survives and experiences a long, slow, difficult recovery. He has a claim against the tortfeasor. If he's married, his spouse has a separate claim against the tortfeasor for loss of consortium (i.e., care, companionship, affection, sexual relations, services, etc.). If the dude and his partner are unmarried, the partner gets nothing because loss of consortium, a common law cause of action, is generally limited to spouses and children. Again, the next-of-kin designation won't help all by itself. You'd still need to persuade the state supreme court to recognize a loss of consortium claim in favor of such designees.
- Family Law: There's a host of legal baggage that goes along with marital status in this arena. For example, a husband is presumed to be the father of a child born during the course of the marriage. No such presumption would exist in a designor-designee relationship without amending the state's domestic relations laws.
- Tax Law: Married folk get the "married filing jointly" standard deduction. Next-of-kin designees couldn't get that without amending the Internal Revenue Code.