Volume 3, Number 1 • November 2004

Estate Planning for the Same-Sex Couple

 By William Schwab

I had known him for over a decade as a divorced professional with grown children. I never saw him with a woman, but I didn’t think twice about that. Then he retired and came to see me for estate planning purposes with his friend who I learned he had been with for all the time I knew him. But then, I really had not known him and the life he led. He had come out of the closet to me.

I didn’t think any less of him, but I began to appreciate the unique issues facing gays and lesbians in our society. For years he kept his private life private, and as his lawyer I had advised him without knowing all the facts. This was dangerous for him, but also professionally dangerous for me because I saw only a part of my client and knew only a part of his story. I could have inadvertently committed malpractice.

For the first time in my career, I was faced directly with the issue of estate planning for a same-sex couple. I had to ask myself “Where do I start? What am I overlooking that is unique to this client?” I know how to prepare a will, powers of attorney, and living wills, but was I overlooking anything? Married couples have certain inalienable rights under state law—divorce, inheritance, and so forth. These rights did not apply to this client. Neither did the ethical issue of representing two separate individuals, or (in other words) the ugly face of dual representation. I never considered that I needed a unique retention agreement to represent a same-sex couple, because under law they are two individuals. It just was something that didn’t occur to me.

Into this void comes a new book that has just been published by Joan M. Burda entitled Estate Planning for Same-Sex Couples. From an introductory chapter that puts the unique nature of a same-sex couple into a context that heterosexuals can understand and identify with, this book lays out in clear, easily understood language the issues that a lawyer faces when dealing with a same-sex couple. The book gives the lawyer the tools to represent the couple properly.

Burda tells the story of a Florida couple that had everything in one partner's name. He died, and his partner's family encouraged his long-time partner to take a walk on the beach. While he was out they changed the locks on the house and took the dog to the pound. The mourning friend did not even have the legal rights to go back into his home for his clothes. A lawyer who properly represented that couple could have carried out the couple's wishes without any heartache.

To put it simply, the book is a virtual checklist of what needs to be reviewed. It outlines and gives examples of agreements such as domestic partner agreements and agreements for burial and medical care. And let's not forget the family dog, which is provided for in a pet trust. For those couples with minor children, Burda devotes an extensive portion of the book to custody and guardianship issues and the documentation that is needed to properly represent that couple. Burda also provides a practical help by including easily modified forms on a CD.

It is a book for today's lawyer, practicing in today's society. I recommend you make the investment, whether you devote your practice exclusively to estate planning, or are like me, a general practitioner who first faced the situation after practicing 26 years.

The book is available for $59. The price for GPSSF Section members price is only $45.

Find out more and order the book.


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