Estate Planning in Hostile Times

October 28, 2004

Lawrence S. Jacobs

This article has been published with the permission of the author Lawrence S. Jacobs.  
Lawrence S. Jacobs is a gay lawyer serving the GLBT community in DC, MD, & VA. 
Lawrence S. Jacobs can be found online at http://gaymarriagelawyers.com/District.htm 

Estate planning for same-sex couples has never been easy because there is so little law out there that applies to us. Much of what exists is not helpful in the least because it ignores the realities of our lives. For example, in Maryland and most other states, if a domestic partner dies without a will, his or her partner will inherit nothing. To make it worse, domestic partners do not even have the right under Maryland law to become an “interested person” who can challenge the will. For this reason, I have counseled clients over the years to draft very specific wills in order to begin to protect their partners.

Only through the use of such written agreements can same-sex couples create a legal relationship to protect each other in most states, other than in those few states that have created domestic partnerships, civil unions or have allowed marriage.

Against this background, over the last year in particular, we have watched with anguish as the legal climate for same-sex couples has gotten even worse. The “Federal Marriage Amendment” is perhaps the best-known example of this legislative gay-bashing since the adoption of the “Defense of Marriage Act” (DOMA) in 1996. Some states have enacted or proposed DOMA-type laws that primarily seek to prevent the recognition of Massachusetts marriages. Some states have sought to amend their constitutions to bar their own courts or municipalities from ever allowing same-sex marriages. Other states have gone either further, sometimes much further, as is the case with Virginia’s “Affirmation of Marriage Act” or Ohio’s proposed constitutional amendment.

Virginia’s law, which went into effect on July 1, 2004, appears to bar any of the limited rights that couples may now have to protect each other through the use of written agreements, possibly voiding existing estate planning documents. The law states:

“A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.”

This vague and discriminatory language has not been challenged in court, but it likely will in the future. However, since its passage, this law has turned the whole legal foundation for estate planning for same-sex couples in Virginia on its head. For example, if a “partnership agreement or other arrangement” includes a will or medical power of attorney between any two persons of the same sex, are all existing documents of this type “void and unenforceable?” Hopefully not, but no one really knows at the moment. If my partner and I land at Washington Dulles Airport in Chantilly, VA and have an accident while on the way home to Maryland, do our powers of attorney cease to exist before we cross the Potomac? I cannot answer that question and I have been doing partnership planning work for more than a decade.

Not surprisingly, many of my clients since July 1 have been Virginia residents. The documents that I am now drafting for them are considerably different than they would have been a few months ago. Gone are the references to each other as “my domestic partner.” Gone are many of the references to a common residence or even to Virginia as their home state. Instead, I am inserting various provisions which attempt to make the law of states other than Virginia apply to these documents. While these strategies have not been tested, I believe that their use may be helpful if future challenges by adverse family members are brought in Virginia. Where there’s money involved, such challenges arise far more often than people realized.

I respectfully suggest that this strategy of creatively seeking to work around existing bad law is what good lawyers who represent same-sex couples should all be doing. I suspect that many of them already are. At the same time, same-sex couples in these “bad states” should be demanding that their own lawyers look at any existing documents through the lens of these new laws. It may be that many of these documents will need to be redrafted. Better safe than sorry!

This article has been published with the permission of the author Lawrence S. Jacobs.  
Lawrence S. Jacobs is a gay lawyer serving the GLBT community in DC, VA, & MD.  
Lawrence S. Jacobs can be found online at http://gaymarriagelawyers.com/District.htm