Living and Dying in Colorado Without Referendum I

Why are same-sex couples and their supporters pushing for Referendum I? A Colorado Court of Appeals decision issued today shows the difficulties domestic partners face.

Ronald Wiltfong lived with Randall Rex for twenty years as a domestic partner, and died in 2004 from a heart attack, at a time when the couple were still together.  He had no children.A year before his death, at his partner’s birthday party, he gave Mr. Rex a signed letter in his birthday card which said that Rex, their pets and an aunt were his only family, and that everyone else is “dead to me.”  It also said that if anything should every happen to him that everything should go to Rex.  If Rex had been a woman, Rex would have inherited everything Wiltfong owned by operation of law.  But, the mother of three of Wiltfong’s nephews, part of the “dead to me” crowd, contested the claim brought by Rex.

A court in the south suburbs of Denver determined that this letter wasn’t good enough.  It declared that everything that Mr. Wiltfong owned should go to his nephews.  The Colorado Court of Appeals reversed that finding today, on narrow grounds that illustrate the difficulties domestic partners face in the absence of Referendum I, which every newspaper in the state that has considered the issue has endorsed.

Wiltfong, of course, could have and should have gone to a lawyer and had a will drawn up by someone who knew what they were doing.  But, he didn’t.  This is hardly unusual.  In 2005, there were 1,801 probate proceedings in Colorado for people who died without a Will, about one in five probate cases involving a death lack a Will in Colorado.

Fortunately, in this case, the trial court ruling isn’t the end of the story.  Colorado passed a law that copied an idea from an Australian probate statute in 1994.  It says that when someone dies and leaves a typed and signed document behind, that a court has to determine from all available evidence (including statements made to people which are not in the document itself) whether there is clear and convincing evidence that the person who died intended the document to be a Will.  If the court finds that the document was intended to be a Will, the document is honored.  In this case, there is pretty good evidence from the context that this was the intent of Mr. Wiltfong was that this document be a Will (i.e. a document intended to direct the disposition of his things at his death).

The trial court screwed this up by misreading the statute and ruling that a document could count only if it was notarized.  So now, the same judge will hear further evidence in the case.  The ultimate outcome is uncertain. 

If Judge Leopold rules against Mr. Rex, any further appeal is unlikely to prevail, as the decision will be reviewed on the basis of an “abuse of discretion” standard in which the credibility determinations made by the judge are respected except in extreme cases.  Likewise, if Judge Leopold “does the right thing” and honors the obvious real intent of the person who died, even if the judge doesn’t really believe that Mr. Wiltfong believed he was writing a Will, then that decision will also likely survive any further appeal.

But, if Wiltfong and Rex had been allowed to become domestic partners under Referendum I, facing voters this year, there would have been no need for appeals, court hearings, extensive testimony about the birthday party the witnesses’ late friend attended, and the uncertainty of not knowing how the case will be decided until it is all over.

The point of Referendum I is to make it easier for judges to do the right thing and more legally straightforward to protect the expectations created in committed long term relationships like the one between Wiltfong and Rex.  Without it, surviving domestic partners of people who were sloppy about legal matters are at the mercy of the goodwill and gut feelings of judges who have little guidance to help them make their decisions.

Referendum I will come too late for Mr. Rex.  But, it could help someone in the same shoes in the years to come.

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Andrew Oh-Willeke

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