Three Estate Planning Strategies for Same-sex Couples
Though no one likes to think about ones own mortality, it is important for same-sex couples to do some advance planning in the event of their death or incapacitation. Those couples living in states that no not permit marriage — or do not offer civil unions or domestic partnerships that include inheritance rights — especially need a will. Keep in mind that when there is no legal recognition of same-sex unions, gays and lesbians are often left with nothing upon the death of their partner. To avoid losing your home, your personal belongs, and, in some cases, your children, ensure that both you and your partner begin the estate planning process as soon as possible.
First, two common questions:
What is estate planning?
The process of estate planning merely refers to making decisions in life about what will happen at death. In addition to enabling you to control the disposition of your assets so that your belongings will go to the people you want, estate planning documents are also useful for naming the individual you want to make legal decisions for you should you become incapacitated, outlining your wishes when it comes to medical treatment, and indicating who you would like to parent your children should you pass away.
Isn't estate planning just for the rich?
Absolutely not! The word 'estate' tends to evoke imagery of mansions and diamonds, but the truth is that everyone, even you, has an estate. In legal terms, an 'estate' simply describes the collection of all your property at death. This includes your car, your house, any bank accounts, stocks, a stamp collection, your clothing, your pet, and anything you can think of that you own. The value of ones estate can be as small as a few thousand dollars, or as large as several billion; you do not have an 'estate' just because you are rich. While the wealthy tend to take estate planning more seriously as there are taxes they wish to avoid, same-sex couples also need to seriously consider this process because your partner often has no legal rights or claims in the event of your death.
Incorporating the following three strategies in an estate plan helps to ensure that all of ones goals are met:
- Choose an attorney who will work with you
- Plan for a system to update your estate plan
- Include a living will
Choose an attorney who will work with you
Be wary of so-called "will mills" that act as legal document services and offer to send you a prepared will after answering a few questions about your plan. Estate planning is about more than just drafting a legal document; it is about a competent attorney figuring out what your plans are and what will be best for you and your family. Many estate planners simply focus on reducing your tax liability, but a good counseling-oriented lawyer will interview you and make sure to incorporate appropriate and tailored protections for catastrophic disability, divorce or separation, remarriage or re-partnership, a plan for any minor children, and other considerations that go beyond simple property distribution. If you feel that you do not have an attorney who is listening to your needs and goals and ensuring that these needs and goals are reflected in your estate plan, pick another attorney.
Finding a lawyer with experience in gay and lesbian estate planning is wise as well. Same-sex couples face a few hurdles that opposite-sex, married couples do not, and an attorney who is unaware of this may leave gaps or errors in your estate plan. Any mistakes your lawyer makes will not become apparent until you are deceased and it is too late, so avoid the future headaches and select an experienced LGBT estate planner.
Plan for a system to update your estate plan
Many individuals make the mistake of drafting their estate plan and then never updating it. Changes in your wishes, the property you own, and your relationships (marriage, divorce, or separation) should be reflected in updated documents. Not all changes require a complete re-execution of your will, but some may. This is another reason a competent attorney is preferable to a "will mill". Many estate planners offer a service where, for an annual fee, you can return to your attorney to make changes to your estate plan. Your attorney will also update your will to comply with changes to the law. While an annual fee may sound undesirable, especially to a 30-year-old not planning to die for a while, the expense is usually less in the long run as you do not have to later pay for an entire redrafting if your situation ever changes.
Include a living will
The horror stories you hear about gay couples being denied the ability to be together when one is in a hospital room can usually be avoided with a living will. Often also called "medical powers of attorney" or an "advanced directive", this document enables you to name the person you would like to make medical decisions for you in the event of your incapacitation. Many bitter battles have been fought between an LGBT individual's family and his/her partner when there is a disagreement about whether or not to 'pull the plug'. You can save a lot of heartache by making your wishes clear and naming an individual you can trust to carry out your wishes. This person will also make decisions for organ donation and the disposal of your remains.
While it is easy to write off estate planning as necessary only for the elderly or terminally ill, remember that tragedies can happen in an instant. Many gays and lesbians have had to deal with legal troubles in addition to their personal grief when a sudden accident strikes their partner. You can give both you and your loved ones additional peace of mind by taking care of your estate plan early.
Have a question, comment, or response? 1 person does.Washington Expands Domestic Partnerships, Offers Almost-Marriage
The Washington legislature has passed SB 5688, a bill expanding the state's domestic partnership law to include all the rights of marriage. While Washington has had a domestic partnership registry since 2006, the rights afforded to same-sex couples were limited to inherence and hospital visitation. The new bill, which passed 30-18 in the state Senate and 62-35 in the House, expands the law to include:
Any privilege, immunity, right, benefit, or responsibility granted or imposed by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was a spouse.
Washington joins California, Oregon, New Jersey, New Hampshire, and Washington D.C. in offering expanded domestic partnership or civil union recognitions to same-sex couples. It is the only one of the three west coast states not to have a constitutional amendment defining marriage as between one man and one woman.
Have a question, comment, or response? 2 people do.Colorado Approves ‘Marriage Lite’: Designated Beneficiary Agreement Act
Colorado governor Bill Ritter has signed House Bill 1260, the Designated Beneficiary Agreement Act, a bill allowing same-sex couples to obtain some of the legal rights of marriage. Though the Act falls short of a few of the rights married couples or those in a civil union would receive, it provides many important legal recognitions, including inheritance, the ability to make medical decisions, and hospital visitation rights.
The Act goes into effect on July 1, 2009 and permits two unmarried adults to designate each other as beneficiaries through a single form. Previously, many of the rights under the Act were available contractually through such legal documents as wills and powers of attorney, but these rights are now available without the additional cost of a lawyer. The Act has also added several rights not previously available under Colorado law, such as the ability to file a wrongful death lawsuit on a partner's behalf.
The Colorado state legislature previously failed to approve of civil unions for same-sex partners in 2006, the same year voters passed a Constitutional amendment defining marriage as between one man and one woman.
The full list of rights provided by the Designated Beneficiary Agreement Act entitles couples to:
- Certain financial protections regarding ownership of real
and personal property- Be a proxy decision-maker or a surrogate decision-maker to make other medical decisions for the other designated beneficiary
- Be a conservator or guardian for the other designated beneficiary
- Be treated as a beneficiary under the other designated beneficiary's benefits for life insurance
- Be treated as a dependent under the other designated beneficiary's benefits for health insurance if the designated beneficiary's employer elects to provide coverage to designated beneficiaries
- Have the right to visit the other designated beneficiary in the hospital or in a nursing home
- Inherit through intestate succession upon the death of the other designated beneficiary
- Have standing to sue for wrongful death of the other designated beneficiary
- Act as an agent to make, revoke, or object to anatomical gifts involving the other designated beneficiary
- Direct the disposition of the other designated beneficiary's last remains
You can view the full text of the act here [pdf].
Have a question, comment, or response? 2 people do.Why Civil Unions Are Not Enough: Immigration Laws
If you are married in a heterosexual relationship and only one of you is a United States citizen, it is possible to receive special visas to bring your spouse to this country. However, same-sex couples, even those living in states that permit civil unions or marriage, face an uphill battle when trying to permanently bring their partners to the U.S. Because immigration is regulated by the federal government, and because the Defense of Marriage Act ("DOMA") prevents the federal government from recognizing same-sex unions, gay and lesbian foreign nationals have great difficulty obtaining visas to join their partner in this country.
While there may be some headway in overturning DOMA in federal court, it is unclear that this will completely fix the problem. A current attempt is being made to amend immigration laws to include provisions recognizing same-sex relationships. The legislation, called the Uniting American Families Act, was proposed by Senator Patrick Leahy of Vermont. Opponents accuse the act of attempting to federally permit same-sex marriage, but Senator Leahy disagrees, calling his proposal a step toward basic fairness.
The distinction between opposite- and same-sex couples in federal immigration law highlights another inherent human right missing in civil unions when compared to marriage. Because there is no federal recognition of same-sex unions, and because there is not necessarily an international recognition of US-performed civil unions, it is important to push for federal inclusive marriage. Until then, same-sex couples should seek an attorney who specializes in LGBT immigration law who can assist you in bringing your loved one to this country.
Have a question, comment, or response? Share your thoughts.Equal Rights Fail in New Mexico, Utah
The New Mexico Senate rejected a bill that would have provided domestic partnerships to both same-sex and opposite sex couples last Thursday. It was defeated by a vote of 17 for and 25 against.
The bill, which was supported by New Mexico governor Bill Richardson, would have given many of the rights of marriage to gay and lesbian couples.
The day before, Utah legislators also killed the Common Ground Initiative, a bill not granting full marriages or domestic partnerships, but seeking to grant important marriage rights including hospital visitation, inheritance, and adoption. Equality Utah, the organizers of the initiative, has stated it intends to continue the efforts to win equality right by right.
Via KDBC
Have a question, comment, or response? Share your thoughts.Michigan Appellate Court Orders Lower Courts to Recognize Same-Sex Relationships
While not a victory for marriage -- or even domestic partnerships -- the Michigan Court of Appeals said last Friday that the United States Constitution requires the state to recognize lesbian couple Diane Giancaspro and Lisa Congleton as joint adoptive parents. The court reversed the trial judge who ruled that Michigan's 2004 ban on gay marriage and domestic partnerships prevented the court from overseeing a custody dispute between the lesbian pair.
While the ruling has granted same-sex couples no new rights in the arena of marriage, domestic partnerships, or civil unions, it does mean that Michigan may now recognize a joint parental relationship in same-sex households.
In response to the ruling, the American Family Association of Michigan is planning a ballot measure that would ban gay adoption in the state, joining Florida, Arkansas, Mississippi, and Utah that all have similar bans.
Via Chicago Tribune
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