Friday, February 15, 2008

Enforceability of Sam Sex Estate Planning Documents in Virginia

Frequently same sex couples in Virginia as me whether or not their wills and similar estate planning documents will be enforceable in Virginia in light of the “Marriage Amendment” to the Virginia Constitution enacted in November, 2006 (which applies equally to ALL unmarried couples, gay or straight). Here is my analysis of how these documents hold up to potential challenges. First, historically naming devisees, attorneys in fact, and trust beneficiaries has NEVER been restricted to spouses or blood relatives. Therefore, anti-gay "marriage" provisions do not reach these types of agreements, although the existence of such provisions may increase the chances that hostile relatives might try to challenge a gay couple’s estate planning decisions. Second, it is highly unlikely that a court – especially an appellate court - would overturn properly drawn and executed documents since it would cause a cataclysm legally and put MANY trusts, wills and other documents at risk. In addition, certain statutory provisions do not bar same sex estate planning documents:

WILLS: Neither § 64.1-46 or other provisions of the Virginia Code restrict permitted devisees to spouses or blood relatives; therefore, both unmarried heterosexual couples and same-sex couples may make wills leaving assets to their partners.

TRUSTS: Chapter 4, Title 26 of the Virginia Code governing the appointment, qualification, resignation, removal of fiduciaries, including trustees, contains no provision restricting permitted trustees or trust beneficiaries to spouses or blood relatives. Therefore, both unmarried heterosexual couples and same-sex couples may create trusts naming their partners as beneficiaries in a manner that does not purport “to bestow the privileges or obligations of marriage.”

ADVANCED MEDICAL DIRECTIVE - § 54.1-2983 of the Virginia Code provides that any mentally competent adult may, at any time, make a written advance directive (i) authorizing the providing, withholding or withdrawal of life-prolonging procedures in the event such person should have a terminal condition, and (ii) appointing an agent to make health care decisions for the declarant under the circumstances stated in the advance directive if the declarant should be determined to be incapable of making an informed decision.

HEALTH CARE POWER OF ATTORNEY – Recently enacted legislation in Virginia has authorized individuals to select any adult for hospital visitation and health care decisions. Therefore, a health care or medical power of attorney allows one’s partner regardless of gender to make medical decisions on your behalf in the event you are not able to do so due to incompetence or other incapacity. Properly drafted, a health care power of attorney can also ensure hospital visitation rights to the designated attorney-in-fact.

CANONS OF JUDICIAL CONDUCT: Should a judge ignore these legal realities, there is one other generally unknown protection available to same sex couples. This is found under Canon 3.B.5 of the Canons of Judicial Conduct for the Commonwealth of Virginia, which provides in relevant part:

“A judge “shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so. . . .” (Emphasis supplied)

This is the only provision under current Virginia law where sexual orientation is a specifically a protected class. A judge that fails to abide by this non-discrimination directive should recuse himself/herself from the case. Failure to do so may subject a judge to possible disciplinary action.

No comments: