Special concerns for a gay couple's legal documents?

October 3, 2010 2:44 PM

A few years ago, my partner's father died without organizing his estate very well. Currently, my father is is hospice, though he seems to have outlined his will and testament fairly clearly. We are still fairly young (around 30), but want to make sure that our wishes are written out clearly. Are there things that we should think about specifically delineating because we are a gay couple? Is there other paperwork we should be talking about with a lawyer besides our wills?

Thankfully, my family is very accepting of him and accept that he would know my wishes better than anyone else. I'm not sure we can say the same thing about all of his family. Additionally, we live in New York where same-sex marriages are not performed, but out-of-state marriages are recognized. We've been together for 5 or 6 years and might get married at some point, but have no plans to right now, even if it would make our legal questions easier.

posted by cam295 to law & government (12 answers total)

A few years ago, my partner's father died without organizing his estate very well. Currently, my father is is hospice, though he seems to have outlined his will and testament fairly clearly. We are still fairly young (around 30), but want to make sure that our wishes are written out clearly.

Sorry if I'm being dense here but you're asking about your estate and your partner's estate, not those of your respective fathers, correct?

If that's true, I would speak with a lawyer familiar with the particulars of your situation (your gay, gay marriages are not recognized at the federal level, etc.) Places like Lamda Legal can point you to lawyers who are familiar with you and your partner's circumstance.
posted by dfriedman at 2:48 PM on October 3, 2010

I just read a recent (August?) issue of Kiplinger's magazine that discussed this - it's basic, but here is the article: Finance Basics for Partners.
posted by belau at 2:50 PM on October 3, 2010

Sorry if I'm being dense here but you're asking about your estate and your partner's estate, not those of your respective fathers, correct?

That's correct. Those first two sentences are only there to provide context for why we're starting to think about our own estates.

I'll probably head towards Lambda Legal soon. Thanks!
posted by cam295 at 2:51 PM on October 3, 2010

Power of Attorney. Like, now.

(That said, I don't really know the legal information about Power of Attorney, I just know from episodes with elderly relatives that it can be involved in make emergency medical decisions.)
posted by maryr at 3:03 PM on October 3, 2010

Yes, call Lambda Legal, they have lists of gay-friendly lawyers who work on these issues. I was on it. :)

I used to (before maternity leave) work on estates for gay couples in my state, where gay marriage is not yet recognized. Typically it's important to have health care power of attorney YEARS before a straight couple would worry about it (because married people have it automatically for each other and only fuss over it as serious illness & incapacity becomes a real threat). You probably also want to take more care in considering how your finances are set up -- you'll want to be more intentional and careful in checking how bank accounts, life insurance, benefits, car titles, etc., are set up, since they won't "default" to your partner the way they often would for a married couple.

I often included a little more narrative in the will describing the family situation. Typically the will lays out who the spouse is and who the children are and so forth; I just expand on that a little bit making sure the will is clear that John Smith is William Doe's long-term partner and the will treats him as such. You may also need to be explicit with DISinheritance clauses if there's anyone who would otherwise expect to inherit from your estate, but that depends on your state and on your specific family situation.

But, yeah, health care powers of attorney, right away. You can also discuss with your doctor if she likes to have one on file; some doctors will put them in your file if you're in a long-term partnership not recognized by your state. Some doctors only want them if you're turning up at the ER and actually need it.
posted by Eyebrows McGee at 3:08 PM on October 3, 2010 [1 favorite]

In some areas, the fact that this is a same-sex relationship does not change the approach to planning. A man can name anyone he wants as his beneficiary in a will or trust, and no one will inquire into the nature of the relationship (so long as there is no issue of undue influence).

An unmarried same-sex couple is pretty much treated the same as an unmarried opposite-sex couple. It is when they get married that the paths diverge. A same-sex couple who are duly married in Massachusetts (for example) will still be prohibited from taking advantage of Federal benefits (the most prominent being the marital deduction that exempts 100% of the assets inherited by a spouse from Federal estate taxes, and the mandatory designation of the spouse as beneficiary on employer-provided benefits), and the availability of state benefits (elective share by surviving spouse, etc.) will vary widely.

The use of a good solid power of attorney and health care designation will be helpful but will not necessarily be foolproof. The effectiveness of any such document always depend on the willingness of the person in charge (whether it is a hospital or a bank having custody of account) to accept the document, and there will still be pockets of resistance everywhere.
posted by megatherium at 3:50 PM on October 3, 2010

Seconding maryr and Eyebrows McGee on getting the health care power of attorney in place pronto.

And, following magatherium's caution, by "in place," I don't mean flashing the paperwork in a dire situation, I mean filing copies of the executed document with your primary health care physician, especially, plus your dentist, your therapist, whoever. And following up with them to ensure that their records indicate your SO as your next of kin and your sole health care decision-maker.

My partner and I also set up living trusts, which will ease the transition when, as is likely, one of us dies before the other.
posted by Short Attention Sp at 4:13 PM on October 3, 2010

Depending upon where you are, a Durable Power of Attorney, Durable Power of Attorney for Health Care Decisions, and an Advance Directive are all documents you should look into with your attorney.
posted by ocherdraco at 4:16 PM on October 3, 2010

A will. Make certain that your end of life wishes are known (e.g. die at home, with enough pain meds to make you comfortable, not to prolong life at any cost, to go to a hospise, etc.). Specifically address funeral wishes, since this can often be a contentious issue for relatives. Appoint an executor who is willing to take on the job, thankless though it might be. I would also be very clear about organ donation, if that is your desire. The more you can specify, the easier it is for your executor.

Also have separate powers of attorney for health and for financial affairs that can only be invoked in a situation where you are medically judged to be incapable of making your own decisions. This could be temporary or on-going. I would suggest that you have alternates specified in case your primary designate predeceases you. (Imagine your primary in a car crash with you, where he/she is killed but you are incapacitated.) If you designate 2 co-equal people, then I suggest you insert a deadlock clause: if there is disagreement, whose opinion is to be paramount?

Document your assets and liabilities and try to keep that documentation up to date. You might wish to have something available such as a card or some other indication, where your will/POAs and asset lists are. I have seen a situation where a more recent will could not be found and an earlier will prevailed. Check out your local laws regarding access to safety deposit boxes, if you are using one.

Depending on your local laws, you may be able to have bank accounts with right of survivorship so that your bank account will not be frozen upon your death but automatically transfer to your survivor. Makes life much easier for the living. Same thing for brokerage accounts.

Think about life insurance. If you have any, list it in your assets.

If you pay bills online, then your executor will need to know how to get at those bills and pay them. A lot of people no longer receive paper. So make it easier on your executor.
posted by PickeringPete at 4:25 PM on October 3, 2010

The National Academy of Elder Law Attorneys (NAELA) has a public member directory here, where you can find a certified elder law attorney. While you and your partner are not elderly, the estate planning it sounds like you want to do (including each of the legal instruments already mentioned) falls under the purview of Elder Law. [Full Disclosure, my mother was recently named a NAELA Fellow].
posted by jrb223 at 5:26 PM on October 3, 2010

PickeringPete: "bank accounts with right of survivorship so that your bank account will not be frozen upon your death but automatically transfer to your survivor."

Yes, you can put a POD (payable on death) on all your accounts. They get no access to your account until your death, as long as they are a POD and not a joint account holder.
posted by IndigoRain at 10:27 PM on October 3, 2010

Thanks, everyone! I've got a good start here, and will be sure to talk to a lawyer to fill in the details.
posted by cam295 at 5:58 PM on October 4, 2010