450 S. Yellowstone Dr., Madison, WI 53719 | 602 Pleasant Oak Dr., Oregon, WI 53575
Telephone: 608-821-8200 | Toll-free: 888-860-KIDS (5437)

Life and Estate Planning: Protecting LGBT and Same-Sex Couples

by Attorney Emily Dudak Leiter

Introduction

Marriage brings with it many advantages under both state and federal law. As you probably well know, however, you and your family do not receive the benefits and protections that are automatically granted other families because, under present law, you cannot marry. The law instead treats you and your partner as “legal strangers,” and more like business partners than life partners.

The Law Center will help protect you and your family from this discrimination by thinking creatively and carefully crafting wills, trusts, contracts, and other legal documents. We will help you confront and navigate the complex legal issues, and provide cutting-edge solutions to the unique challenges you, your family, and your estate face.

Why do you need a Life Plan?

The term “life planning” may sound vague and broad, but it is actually very easy to define: it is what you and your family need to protect each other in the event that one of you becomes seriously ill or injured. The need for careful planning and clear wishes was nowhere more evident than in the public debacle in Florida in 2005 surrounding Terry Schiavo’s death.

For better or for worse, contract law governs your family, not family law. By not having a life plan, upon your incapacitation or death or the dissolution of your relationship, you are inviting federal and state law to haphazardly govern your family using a so-called “traditional” family model. If you do not spell out your wishes in legal writing, you risk, for instance, losing the right to choose whether to live or die, and/or your partner being denied visitation rights in the event of your hospitalization.

You and your family face an additional challenge: prejudice. Frequently, courts do not accord family constellations that include gay and lesbian partners the same deference as other families. The Law Center will help you to predict such discrimination and protect against it. To this end, we recommend and will design the following documents to meet the individualized needs of your family:

• Living Wills and Health Care Powers of Attorney
• Health Care Facility Visitation Authorizations
• General and Limited Financial Powers of Attorney
• Nominations of Guardians for Minors and Adults
• Name Change documents
• Domestic Partnership Agreements
• Co-Parenting Agreements
• Agreements governing termination of the relationship intended to avoid litigation, including property division and child custody, visitation, and support

The Law Center can also refer your family to trusted insurance agents and certified public and tax accountants with experience in handling complex financial matters for families similar to your own.

Why do you need an Estate Plan?

If you do not have an estate plan, the State of Wisconsin will provide one for you, no matter your wishes; and it will assess your estate hefty probate fees to do so. Unless you have an estate plan, the U.S. government and the State of Wisconsin may deplete your estate through their tax laws, so that you will pass on less to your loved ones. Furthermore, with or without an estate plan, you and your family face the additional challenge of having to predict and address the possible prejudice your estate may face after your death.

Intestacy
Intestacy is the costly and time-consuming process that will control the distribution of your property at your death if you die without an estate plan. The statutory process is based on the so-called “traditional” family model: children, grandchildren, parents, siblings, and grandparents. Surviving partners do not appear in the order of descent. Thus, without an estate plan, your estate will pass to your next of kin instead of your life partner. There is no room for your wishes in intestate succession. This process can be easily avoided with a will.

Probate
Probate is also a state statutory process that is lengthy and expensive. Specifically, it is the court proceeding in which: (1) your will is validated or intestate succession is implemented (if you do not have a will); (2) federal and state gift and estate taxes are paid; (3) your personal creditors are paid; (4) probate fees are assessed; and (5) your remaining property is inventoried and distributed to your beneficiaries (or heirs-at-law if you do not have a will). The disadvantages of probate, however, can be easily minimized with experienced and creative estate planning.

Gift and Estate Taxes
If your gross estate at your death exceeds certain dollar amounts, it will be subject to considerable federal gift and estate taxation, as well as Wisconsin estate taxation. The Law Center can assist you in structuring your estate plan and your financial behavior during your life, to lessen the tax burden your estate will face after your death. Such planning will enable you to pass on more of your estate to your loved ones rather than to the federal and state governments.

Challenges to Your Wishes
After your death, your family may face additional legal woes. Because estranged and/or unaccepting family members may, and sometimes do, challenge wills in probate, your estate plan may be vulnerable to attack. Sometimes even mental competency is challenged. The Law Center will help your family plan and take every action to foreclose those potential challenges, for instance by conducting meticulous procedures in executing your will and drafting affidavits to document your state of mind.

To protect you and your family against these threats, The Law Center will fastidiously guide you through the following estate planning options:

• Wills
• Trusts
• Intestacy
• Funeral arrangements
• Non-Testamentary/Non-Probate Transfers (e.g., payable on death (“POD”) and transfer on death (“TOD”) designations, life insurance, and retirement benefits)
• Property Title (e.g., joint tenancies)

Recommendation

The Law Center recommends that you and your family take at least the following steps immediately:

• Work with an attorney knowledgeable in same-sex estate planning to make a Will and/or Trust to dispose of your assets upon your death.
• Title your assets strategically.
• Consult with an income taxation accountant regarding how to maximize your family’s allowable deductions, exemptions, and credits.
• Take out life insurance policies on each other to cover some of the unavoidable tax and probate expenses to which same-sex couples are subjected by virtue of their non-marital status.
• Execute a Living Will and Durable Powers of Attorney to enable your partner to make decisions for you in the event of your incapacitation.
• Enter into a Domestic Partnership Agreement and a Co-Parenting Agreement (if applicable) with your partner, so that the two of you decide what will happen if you dissolve your relationship rather than Wisconsin’s outdated contract and family laws.

Despite the challenges discussed above, the life and estate planning process does not have to be a morbid or painful experience. You may want to be protected because you are starting a family or because you have just been diagnosed with a serious illness. Regardless of the circumstances that bring you to The Law Center, we strive to make the process a structured and positive one with the final product being your peace of mind knowing that you have done everything you can to protect your family.