The You Tube video "It Could Happen to You" set out above has gone viral with well over two million views. The video shows exactly what can happen when same sex couples fail to take proper steps to ensure that family bigotry and/or hostile cultural settings do not lead to horrific and cold hearted results. Here in Virginia - a decidedly anti-gay state - there are some things same-sex couples can and should do to provide for
some of the legal protection automatically conferred on heterosexual married
couples. The story set forth in the video does not have to happen. One can even specify who will plan one's funeral and make all related decisions. Unfortunately, far too many LGBT couples fail to take these relatively
simple steps to avoid the adverse and/or unexpected effects of current Virginia law, in particular the “Marshall-Newman
Amendment” to the Virginia
Constitution enacted in November, 2006.
NECESSARY DOCUMENTS AND STEPS: There
are some basic documents and steps that every unmarried couple and every
same-sex couple in a committed relationship should have prepared and duly
signed. These documents will stand up
under the Marshall Newman Amendment and include:
Will - A will specifies how you wish
your property to be distributed upon your death. In a will, you designate the
person you wish to handle your estate -- your partner or another individual.
Without one, your partner receives absolutely nothing. Pursuant to § 64.1-46 of the Virginia Code,
anyone who is over the age of 18 years and not mentally incompetent may make a
will and thereby dispose of any estate to which he shall be entitled, at his
death, including any estate, right or interest to which the testator may be
entitled at his death, notwithstanding he may become so entitled subsequently
to the execution of the will. Inasmuch as neither § 64.1-46 or other provisions
of the Virginia Code restrict permitted devisees to spouses or blood relatives,
both unmarried heterosexual couples and same-sex couples may make wills leaving
assets to their partners.
Trust - A properly established and
funded trust avoids publicly probating assets owned by the trust at the time of
one’s death and is more difficult to challenge in court than a will. In addition, a trust can provide beneficiaries
with creditor protection in certain circumstances. Properly structured, a trust can provide
support for one’s surviving partner for the remainder of his or her life, with
the remainder to pass to other relatives and designated beneficiaries,
bypassing potential taxes associated with the surviving partner's estate. 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.”
*
Health Care Power of Attorney - 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 incompetency or other incapacity. Properly drafted, a health care power of
attorney can also ensure hospital visitation rights to the designated
attorney-in-fact
*
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. Advance
medical directives must be signed by the declarant in the presence of two
subscribing witnesses who cannot be the spouse or blood relatives of the
declarant.
There
is no statutory restriction that one’s agent must be a spouse or blood
relative. Rather, §54.1-2982 of the
Virginia Code provides that under any such advance medical directive, an agent
means “an adult appointed by the declarant under an advance directive, executed
or made in accordance with the provisions of § 54.1-2983, to make health care
decisions for him. . ." Such authority includes visitation rights,
provided the advance directive makes express provisions for visitation. Therefore, properly drafted and executed
advanced medical directives by a same-sex couple should not be deemed to
“bestow a privileges or obligations of marriage.”
* Legislation
passed in 2007 authorized a central statewide repository where these documents
can be filed and accessed by healthcare providers. The system is still not yet operational.
General/Business Power of Attorney -
This form of power of attorney allows a member of either an unmarried couple or
a same-sex couple to authorize their partner to handle their financial affairs
in the event of disability or unavailability.
Child Care Power of Attorney for
Non-Adopted Children - Another common difficulty is that non-adoptive,
non-birth parents are NOT considered to be the parent or guardian of the
children of the birth parent in the relationship. Thus, they are legally “strangers” and have
no right to be involved in health care, educational, or other decisions for
their partner’s children. In this
context, it is critical that the birth parent execute a child care power of
attorney in favor of their partner so that the non-birth parent partner
authorized to communicate with make decisions with school personnel, doctors,
dentists and other providers.
Title on Deeds and Accounts - How title
to property is held can effect both future
ownership and tax liability. Joint tenancy with rights of survivorship,
for example, will ensure that the surviving partner will have full ownership
upon the death of the deceased partner and avoid ownership disputes with
surviving blood relatives. However, it
can create certain negative estate tax treatment depending on the size of one’s
taxable estate. Historically, deeds creating a tenancy by the entirety have
been reserved for husband and wife couples.
In light of the Virginia Affirmation of Marriage Act cited above, such a
deed conveying title to a same-sex couple even though validly married in
another state such as Massachusetts would not
be effective in Virginia.
BENEFICIARY DESIGNATIONS: Most securities and retirement accounts
provide for the designation of beneficiaries.
These should be reviewed periodically to ensure that desired goals are
achieved and also should include the designation of contingent beneficiaries to
ensure the desired parties are named in the event of the death of the principal
beneficiary.
LIFE INSURANCE: Properly utilized, life insurance can provide
funding for payment of estate taxes, outstanding mortgages, charitable trusts,
education of minors, and other functions.
SPECIAL NEEDS TRUST: If a loved one is
disabled, you will want to consider establishing a Special Needs Trust for that
individual. A Special Needs Trust can be created by the donor during his or her
life or it can be created by one’s Last Will and Testament. The purpose of such a trust is to enable the
donor to provide for the continuing care of a disabled partner or child so that
the loved one will have access to the trust assets for purposes other than
those provided by public benefits programs. Of equal importance, the
beneficiary will not lose eligibility for needs-based benefits, such as
Supplemental Security Income ("SSI"), Medicaid, or low-income
housing.
NOTE: This article contains a general discussion of
estate planning matters which vary greatly in asset structuring needs and
potential tax liability based on the particular facts and circumstances of
individuals and the nature of their assets.
Therefore, it should not be relied upon as a substitute for individualized
legal advice addressing one’s particular situation.
