Fleming & Curti, P.L.C. - Life Planning Can Be Challenging for Same-Gender Couples

JANUARY 28, 2008 VOLUME 15, NUMBER 31

Life Planning Can Be Challenging for Same-Gender Couples

Wendy H. Sheinberg, Esq., CELA, is the managing member of Sheinberg & Associates PLLC, located in Garden City and Brooklyn, New York. Wendy’s primary areas of practice are Guardianship, Elder Law, Trust and Estate Planning and Trust and Estate Administration. She is one of fewer than 400 Certified Elder Law Attorneys across the country, having been certified by the National Elder Law Foundation. She has completed the Guardianship Training at the Samuel Sadin Institute on Law of the Brookdale Center on Aging at Hunter College. In 2007, Wendy was named on of 15 New York Metro Super Lawyers practicing in Elder Law. Wendy is admitted to the Bar in New York State and Connecticut and is admitted to practice in the United States District Courts of the Eastern and Southern Districts. Wendy is a friend of ours, and graciously agreed to write about same-gender couples for our newsletter.

Same gender domestic partners lack the statutory protections of a spouse or blood relative; advance directives, wills and trusts can be used to create and support those rights for your partner. Thoughtful life planning can help ensure that the person you have chosen to spend your life with will be taken care of as intended. Proper planning can also empower your partner, the person who knows your heart and wishes the best, to safeguard your wishes and see that your own needs will be met, even at a time when you lack the ability to communicate them.

Durable Power of Attorney

Durable Powers of Attorney can be valuable in the event of illness, incapacity, or your inability to address your affairs. This document is very powerful and can be dangerous in the wrong hands. The statute which gives life to the durable power of attorney provides guidance as to the proper execution of the document and this guideline should be carefully followed. An improperly executed power of attorney is not valid. Many times the defects of a power of attorney will not be discovered until you have become incapacitated, and at that point, you will not be able to execute a new power.

Care should be given in the selection of agents. An agent should not be selected to appease the sensitivity of family members, an agent should be selected based upon their emotional and financial stability and their ability to make effective and appropriate financial decisions. If a member of your family does not like your partner, do not appoint that person as your attorney-in-fact. If you want your attorney in fact financially provide for your partner with your assets, state that direction in the durable power of attorney. Make sure that you chose an agent who will administer your affairs as you would.

Health Care Directives

Without a duly executed health care directive, your partner is not automatically authorized to make health care decisions for you if you become incapacitated. In addition to appointing your partner as agent, you should name successor agents in the event your partner becomes unable to act for any reason. The appointment of co-agents under a health care directive should be avoided. In the event the co-agents disagree your decisions may be left in a state of limbo until your doctor can sort out the conflict.

End of Life Decision Making

If you have specific wishes regarding end of life decision making, you should provide clear and convincing written evidence of your wishes to your health care agent. If you do not want to have feeding tubes or hydration, you should state this in very clear language. A written statement regarding your end of life wishes will provide your agents with a road map to follow in a time of crisis. The Terry Schiavo case demonstrated well intentioned family members and loved ones may have wildly divergent thoughts on what someone’s wishes are; a living will provides the client a canvas upon which to make their wishes known.

Advance Directives and Guardianship Proceedings

In the event you become unable to manage your affairs and a guardianship proceeding is commenced, the Court will inquire into the existence of valid advance directives. In the event that valid advance directives are in place and you have needs which are not addressed in the directives, a guardian will be appointed. The Court will consider validly executed advance directives in determining who should be guardian. Additionally, many state guardianship laws require that the appointed agent be made part of a guardianship proceeding, which places your partner on equal footing with family members.

Hospital Visitation Authorization:

The law allows a patient to designate in writing who shall have priority of visitation. To ensure that your partner has access during a hospital stay if you become unable to communicate that wish, a written designation should be executed in accordance with the laws of your state. This is particularly important if your next of kin and your partner have a strained or dysfunctional relationship, and your family is anticipated to exclude the non-marital partner from visitation.

Designation for Disposition of Bodily Remains:

Many states have statutes which create a list of individuals who may make burial decisions for a deceased person. Generally, preference is given to a spouse or a domestic partner. [Ed. note: this arrangement is the law in Arizona.] The urgency of burial is very real, and need for expedience can result in a partner being overlooked, or excluded not only from the decision making process but from the final arrangements. A written designation of agent for burial and funeral arraignments should be made, naming your partner as the person to make those decisions. if you have specific burial wishes they should be stated in clear language within the document. If your family has religious beliefs or practices that are inconsistent with yours it is very important to state not only what you do want, but also what you do not want.

Last Will and Testament:

There are no statutory inheritance rights for non-marital partners. This means, unless you expressly provide for your partner, they will not inherit from you on your death. State statutes provide for the distribution of estates for people who die without wills. If you die without a will and you have not made other arrangements for your partner, your assets will most likely go to blood relatives, with no consideration as to what your actual relationship with that person was.

In a properly drafted will you can provide for your partner and provide the same rights in your estate that a spouse would have. You can direct which assets will go to your partner, you can provide your partner with an income stream, a right to live in the domestic residence, protect them in the event of a future illness and/or can provide where the assets will go when your partner passes away.

Life Time Trusts

Wills can be contested, and even without a will contest the probate of a will can delay the distribution of assets to your partner. One way to avoid the inherent issues of probate is with a fully funded life time trust. You can do Medicaid and long term care planning through your trust. The trust give the manager of the trust (called the trustee) the ability to provide for your partner in a way to supplement any available governmental benefits.

If all of your assets name beneficiaries or are held in the Trust, your estate may avoid probate and more importantly, your assets will get to your partner faster.

Beneficiaries of Life Insurance, 401k, IRA and Annuities:

Annuities IRA(s) and life insurance are contracts. Your will can state that these assets go to your partner, but, unless your partner is designated as the beneficiary under the contract with the account manager, your partner will not receive them. If the trust owns the annuity of life insurance policy, make sure there are no inconsistent beneficiary designations on those accounts which conflict with the terms of the trust.

Plan for the Worst, Hope for the Best

Under most state laws, spouses enjoy statutory protection from disinheritance by a predeceased spouse. Spouses also enjoy certain preferences and guarantees in regard to the health care decision making, burial direction, hospital visitation, and appointment as guardian in the event of an incapacitating event. Same gender domestic partners for the most part, lack the statutory protections of a spouse. A comprehensive life plan can create or support those rights.

We thank Wendy Sheinberg for her thoughtful contribution on life planning for same-sex couples, and we heartily endorse all she suggests. Wendy writes from her position as a New York lawyer; while Arizona law differs in many important and substantial particulars, Wendy's points are extremely well-taken for Arizona couples, as well.