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- INtestacy - Wills - Living Trust	- Financial Durable Power of Attorney - Advance Health Care Directive

At Stierman & Zellmer we believe that you cannot adequately advise your clients if you do not understand their situation and fears about the future. This is why we strive to remain educated about the changing laws affecting our GLBT clients and work hard to ensure their special estate planning needs are adequately met.

Unfortunately, the gay and lesbian community is not treated equally in the eyes of the law. Nothing in the law of most states protects the families that gay men and lesbians have created. Unlike heterosexual married spouses, committed gay and lesbian partners have NO built-in legal protections. Sadly, as a result of this disparity, many will lose property, children, hospital visitation and the right to make medical and financial decisions as well as rights to arrange for burial, cremation and organ donation for our partners.

Preparing your estate planning documents will protect you during life, enable your partner to have meaningful participation in case of an emergency, and provide for your partner and loved ones upon your death in the fastest and most cost effective method available. Planning for the inevitable is not about death and dying. It is about life and love.

Proper GLBT estate planning should address these important issues:
• Who will make healthcare and financial decisions for you?
• What say will your partner have in your estate and end of life care?
• Who will inherit your property?
• What will happen to your children and pets?

Although the general information contained under the Estate Planning Tab applies to our GLBT clients as well, we have outlined some special concerns here to help inform you of the value and necessity of a comprehensive estate plan.

Intestacy Laws
For anyone in an unmarried partnership, it is important to have some form of estate planning in order to avoid disinheriting your partner. If you do not have an appropriate plan in place, state law will take over, your assets will be tied up in the lengthy and expensive probate process and ultimately distributed according to a "one-way-fits-all" system which may not reflect your intent. The goal of gay and lesbian clients is to ensure that their assets go where they want and are not subject to the vagaries of state inheritance laws.

Most state intestacy laws discriminate against same-sex couples in that gay and lesbian relationships are generally considered invalid for purposes of distributing the estate of a deceased partner who dies without a will. Generally, under intestacy laws, a surviving partner will be left with nothing upon the death of a partner. This is true irrespective of the length and intensity of the relationship between the deceased partner and the surviving partner.

California, however, has made substantial progress in reversing this discrimination. Under the laws that took effect on January 1, 2005, if a domestic partner dies without a will, trust or other estate plan, the surviving registered domestic partner will inherit a portion of the deceased partner's estate provided that both parties are registered with the California Secretary of State as domestic partners. The fraction of the estate the surviving domestic partner will be entitled to will depend on when the assets were acquired (prior to registration or after registration) and whether the deceased domestic partner has surviving children or other relatives.

Wills
In order to ensure that certain property will actually be received by your partner or your friends, you must use a will, joint tenancy or a living trust. Because of the intestacy laws described above, it is unwise to assume that because you are registered domestic partners, that will be enough proof of your intent, and that therefore your partner will be able to inherit your assets (particularly your separate property). You must have an estate plan other than intestacy.

There are two major drawbacks to using a simple will as your primary estate planning device. First, any property passing to your partner, family, friends or other beneficiary pursuant to a will is subject to the costly and time-consuming process of probate. Secondly, a will can be, and frequently is, contested by the family of the decedent, especially if they have not come to terms with the decedent's choices during life. In addition, a will is public, which means that anyone can go to the courthouse and see your will after you die.

Living Trust
A living trust permits the smooth, inexpensive transfer of assets after death, without the court-supervised probate process. It makes it easier for your partner and for your family. In addition, a living trust is private so that, after you die, no one except the beneficiaries have the right to know how you allocated your assets.

Most importantly, a living trust is much less open to challenge than a will. Any legal document can be challenged by anyone with a legal right to do so. For example, a legal family member, a medical professional, or court appointed official may contest your will. Courts are less likely to overturn the wishes set out in your trust document because you put the living trust into place and lived with it during your lifetime.

Your living trust takes effect at the moment it is signed. You live with your living trust (hopefully) for many years before anyone else assumes management. Financial institutions where you have accounts will have become accustomed to dealing with your living trust. So, when your partner (or another person you appoint as your Successor Trustee) “steps into” your shoes as the Trustee of your Trust, no one is surprised or indignant. It should be a smooth and easy transfer.

Financial Durable Power of Attorney
You can plan for incapacity with a Durable Power of Attorney. This legal document will allow you to appoint your partner and/or friend to act as your agent, with authority to make certain decisions for you. The financial power of attorney can go into effect immediately (durable) or only if you become legally incapacitated (springing). A durable power of attorney, which is active both now and if one becomes incapacitated, allows same-sex couples to act for each other the same as married couples do.

If you do not prepare and sign a financial durable power of attorney, someone will have to petition the court to be appointed as your agent. This person may not be of your choosing. This process can be expensive,
time-consuming, and distressing to all involved, especially if there is a conflict between your partner and a family member.

Advance Health Care Directive
For registered domestic partners the need for an advance health care directive has been lessened due to California’s improved laws, which grant the right of registered domestic partners to visit their partners in the hospital. No advance health care directive is required for visitation. If any other family member of a hospitalized domestic partner objects to the other partner's visiting privileges, the hospital or health facility is nevertheless legally obligated to provide the domestic partner access to the hospitalized partner.

Nevertheless, it is prudent to execute an advance health care directive to complement and clarify your rights. You should decide who will make health care decisions for you in the event of incapacity and what your end-of-life treatment should entail. Furthermore, if you travel to another state, it is unlikely that domestic partners will be afforded the same rights as provided under California law.

For partners who are not registered with the California Secretary of State as domestic partners, it is even more crucial to execute an advance health care directive. Without this legal document medical providers and medical institutions will look to blood relatives for health care guidance. Thus your partner may be excluded from hospital visitation by staff or disapproving family members, your partner or agent of your choosing will not necessarily be the one making health care decisions for you should you become unable to do so yourself, and you will not be able to set out end-of-life decisions regarding such issues as life support in the event of a terminal illness.

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