A Will Protects You and Your Partner

Russ D. Sommers

From GFN.com

May 20, 2003

 

Even financially savvy lesbian and gay couples may wonder if they really need to go through the effort of creating a will. After all, they own their home with their partner in joint tenancy with right of survivorship, and their life insurance policies have their choice of individuals named as beneficiaries.

 

Some couples have even arranged it so that investments held in taxable brokerage and bank accounts will pass directly to beneficiaries using pay-on-death or transfer-on-death orders. Isn't that enough?

 

With All The Other Documents in Place, Is A Will Necessary?

 

Even with a carefully drawn estate plan, every lesbian and gay individual, whether single or part of a couple, will benefit from a will, because it will tie up loose ends and make specific wishes known.

 

If you die without a will, the law will presume that you intended your property to go to your surviving spouse if there is one (the ex-wives and ex-husbands of a gay man or lesbian have been known to suddenly appear to make a claim), then your children, your parents, your siblings, or other blood relatives. Unfriendly family members have used the law to their benefit when a gay relative has died without a proper will.

 

The law does not recognize the right of a surviving same-sex partner to inherit the property of a deceased partner without a will, no matter how long you have lived together. For members of the gay community who think all the talk about civil unions, let alone gay marriage, is just unnecessary political flag waving, this issue alone should compel anyone on the fence to recognize the inequities GLBT individuals face when it comes to the law.

 

My Estate is so Small...Should I Bother?

 

A will allows for decision-making beyond property distribution, and therefore it is important for people who don't own much property to still consider making a will.

 

For instance, you can nominate a guardian for your minor children, such as your partner who has been helping you raise your children. While your family may challenge the nomination of your partner as the children's guardian, the will would let the court know what your wishes were after death.

 

You may also provide for funeral and burial arrangements in your will. This is especially important for a person whose wishes will be not what their family wanted, often contrary to their religion.

 

Without a will stating your intentions for burial and services, some states allow "next-of-kin" (usually your adult children, or parent) to take possession of your body and make the funeral arrangements they want.

 

Think of your will as a legal mop, an indispensable tool without which you wouldn't run a household, or an estate. A will can mop up spills and handle messy chores such as:

 

Naming your executor. This is the person (or institution) who represents your estate and is responsible for seeing to it that debts and taxes owed are paid and property transferred as you instructed. An executor will enforce all provisions of your will, including making sure your burial, property distribution, or guardian provisions are followed.

 

It is a position of great trust, and you should normally appoint your partner to be the executor and name another close friend as an alternative in case you and your partner die at the same time, or your partner is unable to act as your executor because of illness or their own incapacity.

 

Clarifying how estate taxes will be paid. Your will should say who will pay the tax and with what. Say you have a taxable estate and have arranged it so that your IRA beneficiary can minimize distributions and stretch out the IRA's tax-deferred growth for years. If you don't address how estate taxes will be paid, your beneficiary may be forced to tap the IRA to pay them.

 

A Challenge to Your Will

 

Lesbians and gay men often fear that blood family members will be able to successfully challenge their wills, particularly if they leave all or most of their property to their lover, to gay friends, or charitable organizations. If the will is properly drafted and executed, the person is of sound mind, and there was no fraud or undue influence by one of the beneficiaries of the will, it is highly unlikely that a family member could succeed in overturning the will.

 

Remember, the sexual orientation either of the person making the will or the beneficiary under the will, is not a legal basis of overturning the will.

 

Of course there is nothing that can actually stop a family member from filing a challenge to your will or any legal document, no matter how frivolous the grounds.

 

Consider using one of the following ways to prevent this from happening: