LGBT Planning

A Woman in Life, but a Man After Death: Protecting the Postmortem Identities of Transgender Individuals

Westlaw:  “Contemplating death is not a pleasant experience for most people. However, for the transgender community, it is becoming increasingly more important to consider from an estate planning perspective. Throughout their lives, transgender people face numerous challenges regarding their identities. These challenges can continue after a transgender individual’s death if he or she is not buried according to their gender identity. Transgender individuals run the risk of having their surviving family members bury them in an undignified manner if the transgender individual passes away without specifically documenting instructions for their burial.”

By |2018-04-16T09:36:30-07:00April 16th, 2018|

California Recognizes Tort of Intentional Interference with Expected Inheritance

California has finally joined the majority of states and recognized the tort of intentional interference with expected inheritance (“IIEI”).  This adoption was done by the California Court of Appeals based on the fact that the IIEI claim is consistent with other California laws, the fact that of the 42 states that have considered adopting an IIEI claim, 25 states have adopted the claim, that the US Supreme Court has called IIEI as “widely recognized” tort, and other public policy considerations.

The ruling came out of the California Court of Appeals for the Fourth Appellate District, after the deceased’s longtime partner was denied any inheritance by the California probate court.  Brent Beckwith was in a committed relationship for nearly 10 years with partner Marc Christian MacGinnis.  MacGinnis had no living family members other than his sister, Susan Dahl.  But MacGinnis was estranged from his sister.

At one point, MacGinnis showed Beckwith a will on his computer that divided his $1 million plus estate between Beckwith and Dahl.  MacGinnis never signed the will.  MacGinnis wanted to print and sign the will, but was never able to do so.  MacGinnis later fell ill.  He asked Beckwith to print the will.  When Beckwith couldn’t locate the will, MacGinnis asked Beckwith to prepare a new will, based on the distribution plan MacGinnis had already discussed with Beckwith.  When Beckwith called Dahl to discuss the will, Dahl claimed that she had friends who were attorneys and she would have them draft a trust for MacGinnis, which she claimed was more appropriate for her brother.   She told Beckwith not to give the new will to MacGinnis for signing.  A few days later, MacGinnis went in for surgery.  The doctors told Dahl that MacGinnis may not recover from the surgery.  However, because Beckwith “was not family”, the doctors did not tell him about the potential risks of the surgery.  Dahl did not share this information with Beckwith nor did she ever give MacGinnis any trust documents to sign.  MacGinnis later died without signing any estate planning documents.

Since he did not have an estate plan, Dahl was able to successfully claim that she was the sole heir to MacGinnis’ sizable estate.  Beckwith disputed Dahl’s claims, but since California’s rules of intestate succession do not recognize MacGinnis’ partner of nearly 10 years, Beckwith got nothing.  Beckwith later sued, claiming that Dahl had improperly interfered with his expected inheritance.  The result was the court recognizing a new claim for IIEI.

In California, a plaintiff may plead an IIEI claim only if a probate remedy is not available.  The California Court identified the five specific elements that a plaintiff must allege to state a claim for IIEI:

1. Expectation of inheritance. The plaintiff must plead that he or she had an expectancy of receiving an inheritance.

2. Causation. “[T]here must be proof amounting to a reasonable degree of certainty that he bequest or devise would have been in effect at the time of the death . . . if there had been no such interference.”

3. Intent. “[T]he defendant had knowledge of the plaintiff’s expectancy of inheritance and took deliberate action to interfere with it.”

4. Tortious interference. “[T]he interference was conducted by independently tortious means, i.e., the underlying conduct must be wrong for some reason other than the fact of the interference.”

5. Damage. “[T]he plaintiff must plead that he was damaged by the defendant’s interference.”

 To read the entire story, visit Estate of Denial.

By |2012-07-09T12:37:52-07:00July 9th, 2012|

Estate Tax Win For LGBT Couples

JD Supra reported on a big win for same sex couples as it relates to the estate tax.  A recent New York judge held that same sex couples who reside in states that recognize same sex marriage may take advantage of the estate tax marital deduction.  According to JD Supra:

Earlier this month, U.S. District Judge Barbara Jones granted a summary judgement in an estate tax case that, according to law firm Duane Morris “created a precedent that is likely to positively affect same-sex married couples for years to come.”

The case involved a same-sex couple (Thea Spyer and Edith Windsor) who were legally married in Canada and recognized in New York because “New York affords legal recognition to civil marriages that are lawful in the jurisdiction where they are performed.”

 

 

By |2012-06-21T10:16:55-07:00June 21st, 2012|

Planning For LGBT Couples

Nolo.com:  Members of the lesbian, gay, bisexual and transgender community often face financial and legal hurdles that many straight couples may have never even considered – such as the ability to participate in medical decisions for a sick spouse, or the concern that a partner or spouse’s retirement plan or Social Security benefits would evaporate if their partner dies. These are just two of the things LGBT couples must consider when planning financially, so it’s important that members of the LGBT community – and those who support them – understand these and other issues they may face, and how to approach them.

The inability to have a relationship recognized by their state can take a financial toll on LGBT families, so retirement and legacy planning takes on even greater importance for LGBT individuals and couples, and can help create a financial safety net for the future.

According to Lamda Legal, an organization committed to advancing the civil rights of the LGBT community, there are approximately 1,400 legal and financial benefits codified in federal and state laws that are reserved for married couples. These benefits range from joint parenting to bereavement and sick leave benefits to joint insurance policies, and many of them are truly priceless since they cannot be “bought” – even through a legal arrangement. Those that can be bought may be out of financial reach for those who can’t afford to hire an attorney.

By |2012-06-11T14:11:07-07:00June 11th, 2012|

California Appeals Court Rules For Same Sex Partner in Estate Case

Estate of Denial:  “The California Court of Appeal established an important new legal protection for unmarried partners who are wrongfully prevented from inheriting property from each other when one partner dies. The Court of Appeal ruled in favor of the surviving same-sex partner of a deceased Southern California man in a lawsuit alleging that the deceased partner’s sister had intentionally prevented him from signing a will that would have left a share of his property to the surviving partner. The two men were not married and were not registered domestic partners, but had been in a committed relationship for nearly ten years.

The surviving partner, Brent Beckwith, filed the suit against his deceased partner’s sister, Susan Dahl, after the Los Angeles Superior Court ruled in a probate proceeding that Beckwith had no right to any share of his partner’s property because he had died without leaving a will and the couple were neither married nor registered as domestic partners. California law allows registered same-sex partners to inherit property in the same way as spouses, but provides no inheritance rights to couples who have not registered as domestic partners if one of them dies without a will.”

By |2016-12-13T20:33:30-08:00May 11th, 2012|

Same Sex Couples and Financial Planning

US News:  “As North Carolina citizens vote on same-sex unions this week and Washington state begins recognizing same-sex marriage next month, gay and lesbian couples throughout the country find themselves in frustratingly complicated financial situations that require much more careful planning.

“Oftentimes they have to seek more planning assistance, more legal assistance, and more tax assistance than many other couples,” says Shawn Koch, a Portland, Ore.-based lawyer turned fee-only certified financial planner. “There’s frustration because ‘sometimes I’m treated as married and sometimes I’m not.'”

Without recognition of marriage at the federal level and in many states, same-sex couples must cobble together their own financial and legal protections. Not doing so can leave assets vulnerable in the event of a break-up or death.”

By |2017-10-07T11:14:47-07:00May 8th, 2012|

Financial and Estate Planning For Gay and Lesbian Couples

Delaware Online:  For gay and lesbian couples, embracing a life as loving partners can be just as fulfilling, and just as challenging, as a marriage between a man and a woman.

 When it comes to finances, though, such relationships can become even more challenging to pull off successfully.

 While Delaware’s new law allowing civil unions has smoothed over some of the potential pitfalls, gay and lesbian couples remain in something of a legal limbo and face far more peril than married couples when it comes to ensuring that assets pass smoothly to a surviving partner.

 “With a same-sex relationship, some of the key things to be aware of are the rights of the partners in the event of the unexpected, addressing ‘What would happen if?’ ” said Bridget Erhard, a Newport-based certified financial planner with Ameriprise Financial, which markets its services to same-sex couples.

 In response to the new law, some financial planners, attorneys and accountants are tailoring services specifically to the unique and still-uncertain circumstances that arise when domestic partners are not “officially” married in the eyes of the law.

In Delaware, the differences are now not as sharp, thanks to the passage of the Delaware Civil Union and Equality Act, which was adopted last year and took effect New Year’s Day. But when it comes to the federal government, the law remains relatively blind to the notion of civil unions, creating a mix of conflicting rules, and potential risks, for couples who want to minimize taxes and protect family assets.

 Yet even as the professional community recognizes the market potential of financial planning for gays and lesbians, some couples remain dangerously unconcerned.

 “We have people who completely take the ostrich approach” when it comes to financial planning, said Jarrett Morris, a certified financial planner with Diamond State Financial Group. “They stick their head in the sand and they deal with it later.”

Continue reading about financial and estate planning for gay and lesbian couples.

By |2017-10-07T11:14:46-07:00January 9th, 2012|

Estate Planning Issues For Same-Sex Couples

Record Online:  Thousands of same-sex New York couples have wed since July, when the state became the sixth and largest to legally allow such unions.  The change means that these couples are no longer required to pay state taxes on domestic partnership benefits, will gain access to workers’ compensation benefits, can bring wrongful-death lawsuits on behalf of a spouse, and can file joint state tax returns.

Equality fight goes on

However, the fight for equality continues.  Same-sex marriages are specifically repudiated at the federal level through the Defense of Marriage Act (DOMA), which defines marriage as a legal union between one man and one woman. This has significant repercussions on the estate planning needs of married same-sex couples.  These couples cannot file joint tax returns or joint bankruptcy petitions. Upon the death of one spouse, the other cannot inherit veterans benefits or Social Security benefits. Also, property passing to a surviving spouse is subject to federal estate taxes. It is estimated that married same-sex couples will still be denied more than 1,000 federal benefits automatically given to heterosexual married couples.  In addition, surviving same-sex spouses are no longer subject to New York estate taxes on assets they receive from their partners at death.

By |2011-11-07T07:11:23-08:00November 1st, 2011|

New Estate Planning Litigation: Defining “Spouse”

Estate of Denial: One obituary described Ellyn Farley as a happy, studious, pet-loving attorney married to her spouse Jennifer Tobits and only “reluctantly” wearing dresses to attend Mass. The other described her as a fierce litigator and champion to the underdog, survived by her parents, her brother, various aunts and uncles, a godmother, and “good friends for life who will be in her heart forever, Jennifer and Nancy, of Chicago; and numerous cousins and other devoted friends.”

The first was published in the Chicago Tribune, the city where Farley lived with her spouse Jennifer Tobits. The latter was published in the Roanoke Times, in Virginia, where Farley grew up.

The first was drafted by one of the lesbian couple’s friends and was reviewed and edited by Tobits. The latter was coordinated by Farley’s parents who, according to Tobits, did not consult her about its contents.

The first makes clear that Farley was married to a woman; the latter scrubs that reality out of her life story.

“This is the new era,” said Shannon Minter, legal director of the San Francisco-based National Center for Lesbian Rights. “We are all familiar with hearing stories about parents stepping in and not honoring their children’s relationships and trying to take all the assets. Now that so many couples are in marriages or civil unions or domestic partnerships, it’s still happening; but we have a degree … of legal protections that we didn’t have before.”

By |2011-08-26T09:06:28-07:00August 26th, 2011|
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