Why Gays Need Proper Estate Planning Documents

Among the types of legal work that I do is preparing wills, trusts, medical powers of attorney, etc., for gay and lesbian couples. Obviously, in light of Virginia's "Marriage Amendment" it is crucial that LGBT couples have proper estate planning documentation in place. Equally important is the need for such documentation to be in proper form for admission into probate. Should a will not be in proper form, the surviving partner will be at extreme risk that a hostile family member will be able to qualify as the administrator of the estate - the surviving gay/lesbian partner would likely NOT be able to qualify ahead of a blood relative - and then deprive the surviving partner of all property not titled in that partner's name.

What brought this issue to mind was a telephone call I received yesterday when I happened to be at the office dropping off some stuff. The caller was seeking a Virginia attorney to assist a gay couple who have been together for over 20 years and one partner is ill and not expected to live out the week. To make this sad situation worse, the mother of the dying partner apparently never accepted her son's sexual orientation OR his partner. As a result, if the will that was prepared by someone the caller thought may not have been all that competent is not in proper form for filing with the Probate Division of the Circuit Court, the hostile mother could wreak havoc on the surviving partner. Frequently, I hear of people that buy will kits online or at the local office supply store and have wills prepared of questionable validity. Such kits/forms may or may not have been drafted to the testator's home state's will requirements. The legal requirements for wills can and do vary from state to state, so by buying online or buying simple printed forms, one may in fact be purchasing materials that apply to a different state. My advice is NEVER EVER use these materials!!!

Virginia (and some other states) have statutory provisions that provide for a mechanism to make the will "self-proved" which avoids the need to have witnesses - who may have died, moved or otherwise be unavailable - appear at the court to get the will admitted by the Court. In Virginia, this statutory provision is § 64.1-87.1, Code of Virginia of 1950, as amended. EVERY will that I prepare meets these self proving requirements. I can only hope for the sake of the survivor of the gay couple referenced above that the dying partner's will is in proper form. Proper wills are not that expensive and can avoid a complete catastrophe for LGBT couples. If need be, ask your attorney for a payment plan - I would certainly work with a couple rather than have them at serious risk. Whatever you do, DO NOT PUT OFF GETTING PROPER WILLS PREPARED AND PROPERLY SIGNED.