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Second Division

December 31, 1998

No. 1-97-4654

JUSTICE RAKOWSKI delivered the opinion of the court:

Andrea Hall died intestate on November 16, 1996. Petitioner, Regina Pavone, Hall's life-partner, filed a petition in the probate court seeking a surviving spouse share of Hall's estate pursuant to section 2-1 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/2-1 (West 1996)). Respondent, William Hall, is the administrator of Hall's estate. Respondent filed a motion to dismiss petitioner's claim pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)), contending that petitioner cannot be a surviving spouse because Illinois does not recognize same-sex marriages. The trial court granted respondent's motion to dismiss, and petitioner appeals. We have jurisdiction pursuant to Supreme Court Rule 304(b)(1). 155 Ill. 2d R. 304(b)(1) (allowing appeals from judgments entered in the administration of an estate that determine a right or status of a party).

On appeal, as in the trial court, petitioner challenges the constitutionality of Illinois' prohibition of same-sex marriages. Specifically, petitioner argues that the prohibition violates the equal protection provisions of the United States and Illinois Constitutions. Nevertheless, finding that this issue is not justiciable within the context of this case, we do not reach the merits of petitioner's contentions. For the reasons that follow, we affirm.

I. BackgroundPetitioner made the following allegations in her third amended verified complaint. Hall and petitioner met each other in February 1988. Shortly after that, they began dating exclusively and ultimately moved in together. On October 17, 1991, their relationship was solidified when Hall quitclaimed to petitioner one half interest in the property at 321 Cherry Court in Glenview, Illinois.

In September 1993, Hall and petitioner sold the 321 Cherry Court property and used the proceeds to purchase a home located at 1107 West Pratt in Chicago. The financing for this property was secured by both Hall and petitioner.

On December 23, 1995, Hall and petitioner were "married" in a private ceremony. At that ceremony, they exchanged vows and wedding bands. Although Hall and petitioner wished to formalize their union by obtaining a marriage license, they did not apply for one, reasoning that any attempt would be futile in light of Illinois' prohibition on same-sex marriages.

Nevertheless, from December 23, 1995, onward, Hall and petitioner considered themselves married. They shared the above mentioned home at 1107 West Pratt as well as a "special community of thoughts and deep emotional attachment." They also held themselves out to the world as being "married," including, but not limited to, friends and immediate family members. Moreover, they were dependent on each other for the maintenance and upkeep of their home as well as daily living expenses and necessities of life. They commingled their funds through joint bank accounts, joint lines of credit, and purchases such as boats and cars. Hall and petitioner's obligations also included the financial support of Hall's sister and Hall's minor son. In sum, petitioner contends that her relationship with Hall mirrored that of a heterosexual couple legally joined through marriage; it "exhibited all of the pertinent attributes associated with matrimony and a long term, enduring commitment between two consenting adults."

II. Justiciability of Petitioner's Constitutional Challenge

Petitioner's third amended complaint sought a surviving spouse share of Hall's estate pursuant to section 2-1 of the Probate Act. Section 2-1 provides in pertinent part:

"The intestate real and personal estate of a resident decedent *** descends and shall be distributed as follows:

(a) If there is a surviving spouse and also a descendant of the decedent,