Volume 2, Number 3
|Table of Contents|
Advising Same-Sex Couples
Excerpt from the book “ Advising Same-Sex Couples” by Joan M. Burda
The issues that must be addressed when advising your lesbian, gay or transgender clients seem to change daily.
Your LGBT clients need your help to minimize the impact of a rapidly changing legal landscape on their lives. A growing number of LGBT couples have children. This situation raises the bar in drafting legal documents that meet the clients’ needs.
Among the basic documents are: Wills, Durable Powers of Attorney for Finances, Advance Directives (Living Will and Health Care Power of Attorney) and Designation of Agent.
Include a clause nominating a guardian in the Durable Power of Attorney for Finances. If the principal becomes incapacitated, a guardian may be necessary to care for her. The court has the authority to appoint whomever the judge deems appropriate, however, a nomination clause provides evidence that the prospective ward considered the situation and made her wishes known. This is particularly important in situations where the person is estranged from her family and relatives are trying to control the proceedings. Include language nominating the principal’s partner as the guardian of the estate if she is not named guardian of the person and the reasons for the nomination.
Estranged family members are more common when dealing with LGBT clients. Address potential problems with the clients at the outset. Then you will be able to draft legal documents that minimize potential problems from the relatives.
An In Terrorum clause in the client’s Last Will and Testament may cause the relative to rethink their strategy. However, make sure the penalty is severe enough to prevent a challenge.
Wills prepared for LGBT clients must be carefully drafted and often include language not usually seen in heterosexual wills. This is an area where creativity and ingenuity is warranted.
For example, include language explaining why the testator is leaving his estate to his partner; It is not out of a lack of love or affection for his birth family, but because his partner is his life-long companion, the person he loves and with whom he has shared his life. Acknowledging the possible opposition of the family in the will serves as additional evidence that the testator considered what he did and provided reasons for his actions. It is advisable to NOT refer to either party as a “spouse.” That is a legal term and does not apply to unmarried persons.
If the will being drafted is updating earlier wills, do not destroy the earlier documents. It is a paper trail to use if the testator’s will is challenged. It is difficult to allege fraud or undue influence if you have previous wills to present showing similar language regarding the same person.
Parties with children should include a guardianship clause in the will of both partners. However, remember that the non-biological parent in a same-sex couple relationship has no legal relationship with the child. Some state courts, most recently, West Virginia’s Supreme Court, have adopted the concept of the “psychological parent.” This term is applied to someone who has become a “de facto parent” to a child even when there is no legal relationship between the adult and the child.
This is a common situation in same-sex couples. One person is the biological or adoptive parent and the other assumes his role as a parent. If the state in which the clients live allows for second parent adoption, encourage the clients to go that route. Having a court order recognizing their individual parental rights benefits them in myriad ways. Not only after one partner dies but also if they travel or move to a state that does not recognize gay relationships or two parents of the same gender.
In addition to the basic documents, the clients may want a Domestic Partnership Agreement. This agreement, similar to a pre-nuptial agreement, memorializes the relationship and can alleviate the stress should the parties terminate their relationship.
Talk to the clients about avoiding probate. Trusts may be an option for the clients. However, be careful with trusts if you live in a common law state. Joint trusts are rarely helpful to lesbian and gay couples. Individual trusts may be in the client’s interests, but the client must understand the advantages and disadvantages before transferring assets into the trust. Jointly held property may pose problems if a trust is established.
The issues that you must consider when representing LGBT clients are broad. However, addressing and resolving them for your client will never be boring.
This excerpt was republished with permission from the GP|Solo Publication: Advising Same-Sex Couples; by Joan M. Burda.
GP|Solo members can purchase this book at a discount through the ABA webstore