The Anthony Kennedy Retirement  – a Death Knell for LGBT Rights in the Court?

The Anthony Kennedy retirement was a shock to many, as was his pro-LGBT legacy.  Whether the Kennedy legacy will live on with a new Supreme Court remains to be seen.

Supreme Court Senior Associate Justice Anthony Kennedy was responsible for the first pro-LGBT Supreme Court decision in 1996, when Colorado, by voter ballot, amended its state Constitution to prohibit the state from protecting gay people from discrimination.  This decision, Romer v. Evans, started a conversation among the Justices that would continue on through the marriage cases and beyond the Anthony Kennedy retirement.Anthony Kennedy retirement

Anthony Kennedy laid that ground work for marriage equality by decriminalizing sodomy in the Lawrence v. Texas case, decided in 2003.  I had the privilege of working at Lambda Legal, the attorneys for Petitioner Lawrence, while preparing for that case.  Sodomy was a crime only for gay people in Texas and a conviction of the crime of sodomy was used as an excuse for employment discrimination, removal of children and much more.  This landmark ruling laid the foundation upon which much of our current LGBT jurisprudence rests.

Kennedy authored the Windsor case in 2013 and the Obergefell case in 2015, both of which solidified marriage equality and the federal recognition thereof.  But he also joined the majority siding against LGBT issues in several cases, most recently in the Masterpiece cake shop case.

In order to predict the future of a post-Kennedy Supreme Court’s treatment of LGBT rights, we need to dispense with a few misconceptions.  First, the Republican senate will not hold themselves to the same standard they held President Obama in his attempt to fill the Scalia vacancy.  If they did, they would wait until after the 2018 midterm elections to allow a new, possibly democratic, senate the right to vote on President Trump’s next pick.  Do not hold your breath, but do call Susan Collins and Lisa Murkowski!

Second, the Anthony Kennedy retirement will not move current right-leaning Justices to the left in order to preserve the very delicate balance between the conservative and progressive wings of the court.  Roberts, Thomas, Alito and Gorsuch have made their opinions clear on previous LGBT matters before them and another conservative voice on the court will tip the balance against progressive protection of LGBT rights for generations to come.

Finally, there are real and relevant conflict of interest issues which may directly affect criminal and civil prosecutions directed at the very president that would be nominating Supreme Court Justice who would be hearing them.  If there were ever a “litmus test” issue, it is not abortion or LGBT rights, it is the potential ability of a sitting president to be indicted or prosecuted.

Anthony Kennedy retirementWhat is most troubling about Anthony Kennedy’s legacy is what he did not do.  Kennedy was a wordsmith, much to the chagrin of many in the legal community.  He never clearly defined what level of legal scrutiny gay people deserved in equal protection cases.  The equal protection clause of the 14th Amendment to the US Constitution provides for different levels of protection depending on which category the discriminated class falls into.  The legal scrutiny that a class receives often determines whether the discrimination is permissible or not.  The key indicators of whether a case deserves heightened scrutiny were, perhaps purposefully, left out of Kennedy’s written decisions regarding LGBT litigants.  He shied away from describing gay people as a “subject classification.”  

Kennedy did not discuss whether a “compelling state interest” existed to justify the discrimination, another word indicator of common equal protection analysis.  My fear is that the absence of a clear direction for equal protection scrutiny will now be left in the hands of a decidedly more conservative court.  Make no mistake; they will not speak around the issue as Kennedy was accused of doing.

The Anthony Kennedy retirement will, and should, cause LGBT individuals, couples and families to reevaluate their own legal affairs.  The good news is that the most important issues, such as estate planning, second and step adoption protections and anti-discrimination policies are state based.  This cuts both ways if you live in a state which does not provide adequate protections for LGBT Americans. 

While it is unlikely that the Supreme Court would overturn their 2016 decision in V.L. v. E.L., a case which required states to recognize the second parent adoptions of other states, of particular interest to gay couples moving to less LGBT friendly states, a newly conservative court may take the opportunity to allow a state to deny recognition of a pre or post-birth order for a gay male couple establishing parentage after surrogacy from another state.  While this fact pattern has not yet arisen, it is foolish to deny that anti-LGBT organizations will be looking for ways to chip away at the protections we have fought so dearly for.

If the Anthony Kennedy retirement can teach us anything, it is that being proactive in the creation and protection of our families is no longer optional, it is imperative.  Create your estate plan if you do not have one.  If you have been putting off your second parent adoption, don’t!  Give to Lambda Legal, the ACLU, NCLR and GLAD.  If the senate allows Trump to nominate and appoint a new Justice to the Supreme Court, we, as LGBT Americans, will be living with that choice for the next generation.  That is the sad and simple reality. 

By Anthony M. Brown, June 29, 2018

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The Masterpiece Cake Shop Decision – A Narrowly Decided Cautionary Tale

The Masterpiece Cake Shop Decision demonstrated the Supreme Court of the United States threading the religious needle.   

In Masterpiece Cake Shop, while making it a point to explain that no determinations were actually being made on whether people with religious convictions can openly discriminate against gay people, or, more alarmingly, whether gay people deserve protections against such discrimination at all, the Supreme Court went out of their way to emphasize the importance of respect for religion.

 

gay rightsDon’t get me wrong, I have great respect for most religious belief.  My family holds hands and says what we are thankful for before every meal. We acknowledge the need for divine intervention with friends and family who are dealing with health issues.  We have ingrained just such a respect in our son to be tolerant of others, even those who would mock and deride our family just because it has two dads.

 

However, most Americans do not take the time to parse Supreme Court decisions to get to what the Justices are actually saying and, with the Masterpiece Cake Shop Decision, the message most people will hear is that religious beliefs now trump the dignity and equality of the LGBTQ community.

 

I feel the need to explain what I interpreted as the main message of The Masterpiece Cake Shop decision. In the majority decision, Justice Kennedy, the author of almost every positive gay rights decision out of the high court, gave short shrift to a complete analysis of the freedom of speech and free exercise of religion claims which strike to the heart of this decision. He did, however, along with the majority of the court, focus on the treatment that the baker received from the Colorado Civil Rights Commission.

 

masterpiece cake shop decisionJustice Kennedy held that, “When the Colorado Civil Rights Commission considered the case, it did not do so with the religious neutrality that the Constitution requires.  In other words, because of the Commission’s original treatment of the baker’s claim, no matter whether the result of their analysis was correct, the process was tainted from the start and therefore the holdings of all subsequent courts agreeing that the baker violated the rights of the petitioning gay couple, who, as Justice Ginsburg stated in her dissent,  “simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips (the Respondent) would have sold.”  But because the process was tainted with anti-religious bias, the underlying discrimination was no longer relevant.  

 

Because the Colorado Civil Rights Commission “showed hostility” toward the baker and his beliefs, that in and of itself, “cast doubt on the fairness and impartiality of the Commission’s adjudication of the … claim.”  Even if the Commission was right in their determination that impermissible discrimination existed, they weren’t adequately respectful to religion.  Thus the message that religion is more important than discrimination may be misinterpreted.

 

I have been searching for a meaning behind this seemingly incorrect finding.  Many of the greatest LGBT legal minds have attempted to make the distinctions in this decision that would stave off its potential future anti-gay wake of behavior and court reaction to that behavior.  This quote is a bit long but captures the proverbial threaded needle. Mary Bonauto, the civil rights director of GLAD and who argued the Obergefell marriage case before the Supreme Court in 2015 said:

“… this limited ruling provides no basis for this Bakeshop or other entities covered by anti-discrimination laws to refuse goods and services in the name of free speech or religion.

The Court was mindful of how far adrift we could go if every individual could apply his or her religious beliefs to every commercial transaction.  The Court contrasted permission for a clergy person to refuse to marry a couple as an exercise of religious belief, on the one hand, with the unacceptable “community-wide stigma” that would befall gay people if there was a general constitutional right to refuse to provide goods and services.”

I fear that this distinction will not be made by those who are less invested in understanding how these cases actually affect the lives of LGBTQ individuals, couples and families. My concern is for the families out there who now are questioning the legal certainty of their families, or whether their families will receive equal treatment in courts of less gay friendly jurisdictions.  We are, after all, a portable nation and our families are everywhere. 

 

While this decision does not actually give license to shop owners to deny gay people services, it is important to note that employment discrimination based on sexual orientation is still legal in 28 states.

 

At the risk of sounding like a lawyer, full disclosure – I am a lawyer, this case should serve as a wake up call that nothing can be taken for granted.  If you have put off doing your estate planning, do it now.  If you are a religious person, please pray that Justices Kennedy, Breyer and Ginsburg live long and healthy lives because these decisions can turn on a dime once right wing conservatives attain an indisputable majority on the court.  If you have questioned about whether you should get a second or step parent adoption, do it now. If you have legal questions about your immigration status, or that of your partner or spouse, find out about it now.

 

While my sincere hope is that more cases like this, with better fact patterns, will ultimately force the court to answer the questions that we all thought would be addressed in the Masterpiece cake Shop decision, namely whether religious “free speech” trumps anti-discrimination protection for LGBTQ people, until that time, we cannot sit idly by while others find solace and fortitude in their own anti-gay beliefs, whether religiously held or not.  

 

Anthony M. Brown, Time For Families – June 5, 2018

Estate Planning for Dummies – The Important Steps You May Have Already Taken

Estate Planning for Dummies explains the most basic estate planning tools, many of which you may have already implemented without even knowing it.

Estate planning for dummies is a misnomer.  Because the premise of this article is that you may have sufficient estate planning in place, you are clearly not dummies.  But understanding how to make the most of your estate plan, will ensure that you and your family are protected in case the unforeseen occurs.

Do I need a Will?”  This is usually the first question asked by clients.  The short answer is yes and, to better understand why, it is important to know the protections that a Will provides.  A Last Will and Testament is the cornerstone to a comprehensive estate plan.  Whether you have children or not you do have assets.  Depending on their size, more complex planning may be required.  But the key to knowing whether you have unwittingly begun work on your estate plan, you must know what property passes under a Will.estate planning basics

Probate Asset v. Non-Probate Assets

Wills cover probate assets, or assets held solely in your name. Examples include real property, bank accounts and personal belongings. Personal belongings are key because many people do not like the idea of a distant relative rooting through their most cherished items after death. Wills do not pass non-probate assets, or assets held jointly with someone else (like a bank account or real property held as a married couple or as joint tenants), assets held in trust for someone else or any asset that has a designated beneficiary, like an insurance policy, a 401(k) or an IRA retirement plan.

The goal of a good estate plan for a married couple is to maximize you non-probate asset designations.  If done correctly, there will be no need for a probate process upon the death of the first spouse.  Probate is the process by which the state of a decedent ensures that their Last Will and Testament was drafted and executed correctly, that the assets and debts of the decedent, the person who died, are identified, that the debts are paid and the assets are distributed according the decedent’s Will. The New York probate process governs the transfer of legal title of property from the estate of the person who has died to those named in that person’s Last Will and Testament.

If you are married and your home is listed in both spouses’ names, then the house will pass automatically to the surviving spouse with no need for probate.  Likewise, if you have joint bank accounts, the assets in those accounts pass outside of probate.

right of survivorship, JTWROS, joint tenantsMany city couples rent their apartments, making their most valuable assets their investment or retirement accounts.  For these investment vehicles, you may name your spouse, or partner if you are unmarried, as a designated beneficiary.  You may also name multiple designated beneficiaries as long as the percentage allocations are clear to the administrator of the investment/retirement account.

Estate planning for dummies = the maximization of non-probate asset designations.  It is the best tool you have to avoid probate.  And while this type of specific planning may allay the need for a Will, it is always a good idea to have a Will in place, even if you do not need to put that Will through probate.  If you are unmarried, it is of particular importance that you have a Will because the protections of marriage, which include naming the surviving spouse as the default beneficiary of a decedent’s assets, will not apply to you and your partner.

For more information, visit www.timeforfamilies.com or email Anthony@timeforfamilies.com.

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Marital Trust Planning – Making the Most of Your Money

Marital Trust planning is essential for those couples who are concerned about protecting surviving family members, especially children, and avoiding estate taxation.

Marital Trust planning is the use of trusts to achieve the goals of asset preservation and family protection.  The term, “Marital Trust” is used in this article to discuss both marital trusts and non-marital trusts

What is a Marital Trust?  There are essentially three types of marital trusts.  QTIP (Qualified Terminal Interest Property) Trusts, Estate Trusts and General Power of Appointment Trusts.  Each has a specific targeted goal, but the reason why someone would consider a Marital Trust is to provide for their surviving spouse and children.marital trust

A QTIP Trust, in most cases, is funded upon the death of one spouse and directs payments of interest income, on at least an annual basis, to the surviving spouse.  The remainder in the trust then passes upon the death of the surviving spouse to the children of the original Grantor.  The benefit of this trust is that it allows someone with children from a previous marriage to ensure that those children are provided for, while also providing for a surviving spouse.  An Estate Trust essentially does the same thing, but requires the remainder to be passed through the surviving spouse’s estate, giving the surviving spouse greater discretion in the allocation of the original asset.  A General Power of Appointment Trust is appropriate if there are no children and gives the surviving spouse access to the full amount in the trust during their lifetime.

The most important element of a Marital Trust to remember is that it does not shield assets from estate taxation.  They simply postpone the taxation event until the death of the surviving spouse, as there is a unlimited marital exemption upon the death of the first spouse.   Assets in a marital trust pass subject to any applicable estate tax guidelines.  This is particularly important for QTIP Trusts as they may contain assets earmarked for the children of the Grantor, but are potentially diminished by estate taxation.  To shield assets from estate taxation, you must have a Non-Martial Trust.

What is a Non-Marital Trust?  Non-Marital Trusts are often referred to as “Credit Shelter Trusts” or “Bypass Trusts.” These trusts allow the Grantor to provide income to their surviving spouse, while ultimately passing assets to the Grantor’s children   

Bypass Trusts are irrevocable trusts that can be created during the lifetime of the Grantor or in the Grantor’s Last Will and Testament.  If they are created in a Grantor’s Will, they become irrevocable upon the death of the grantor.  The trust is funded with an amount equal to the annual exclusion applicable in the year of the Grantor’s death.  In 2017, the annual exclusion amount is $5.49 million dollars.  A surviving spouse will have access to interest income from the trust and also the trust principal, but only for the surviving spouse’s health, education, maintenance or support.  Upon the death of the surviving spouse, the trust remainder passes to the original Grantor’s children tax free.

One important note with Bypass Trusts is that the IRS has a three year look back period for tax free transfers.  That means that if the surviving spouse dies within three years of the original Grantor’s death, the assets will be subject to estate taxation.  Also, if a family residence is transferred into a Bypass Trust, it will receive the stepped-up value as of the date of the Grantor’s death.  However, if the value of the residence continues to increase, any gain attributed from the date of the Grantor’s death to the distribution to beneficiaries will be subject to capital gains tax.  A Bypass Trust cannot claim the $250,000.00 personal capital gains exemption.

Surviving spouses are often named as trustees, which makes compliance with tax requirement critical in both the drafting of Bypass Trusts and in their execution after the original Grantor’s death.  That’s why it is crucial to consult with an experienced estate planning attorney when considering Marital and Non-Marital Trusts.  Remember that a strong basic estate plan is also a must for any family.

For more information, email me at Anthony@timeforfamilies.com or visit www.timeforfamilies.com.

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Do I need a Will ? – Essential Estate Planning

Do I need a Will ? “I don’t own anything.”  “It’s too complicated.”  “I’m too young to think about a Will.”  I have heard all of these reasons and more for not adequately preparing an estate plan.

“Do I need a Will ?” is a very important question and this article will shed light on your Will’s importance and what happens if you don’t have one. While it may trigger unwanted emotions, having your “affairs” in order is the best gift you can give to your family and friends.

What happens if you do not have a Will? For the family and friends of those who have died without indicating their wishes for the disposition of their assets after death, not having a Last Will and Testament can be a nightmare.  State law determines where assets go when someone dies without a Will and the state doesn’t always get it right.  If you are married, your spouse receives your estate.  If you are married with children, most states direct half of your assets to your spouse and the other half to be divided among your children.  This may or may not be appropriate depending on an individual’s wishes and the ages of their children.estate planning trust, estate planning gay estate planning, lgbt estate planning, glbt estate planning, Wills, trusts, gay family law

If you do not have children, the state will look to your closest living legal relative as a recipient of your estate. This is where it gets tricky.  In most cases, a surviving parent is next in the line of succession, then siblings and their children.  If you do not have siblings, nieces or nephews, then the court will look out to your aunts, uncles and cousins.  The reality of this scenario is that someone who you may have never met, or had a relationship with may be the beneficiary of your estate if you do not plan carefully.

How does a Will work? A Last Will and Testament is the foundation for all Estate Plans and it passes only probate assets, or assets that are owned    in one person’s name without a designated beneficiary.  Examples of probate assets include land, homes, cars, personal belongings and bank accounts.  A Will does not cover non-probate assets.  A non-probate asset is something that is owned jointly or an asset with a designated beneficiary.  Examples of non-probate assets include jointly held real property, a joint bank account, a life insurance policy with a designated beneficiary and an IRA, 401(k) or other investment account with a designated beneficiary.  You may also name a “TOD” (transfer on death) designation for a bank account you own solely in your name.

The above described assets pass outside a Will, the benefit of which is a faster and easier transfer of someone’s money or property when they die. If, however, you are single and there is no appropriate person to name as a designated beneficiary, it is imperative that you have a Will to pass your property where you want it to go upon your death.

What else does a Will do? A Last Will and Testament, in most states, is the only document that will allow you to name a guardian for children if something happens to both legal parents.  If you have young children, it is critical that you have a Will to state who you want to care for them if anything were to happen to both parents.  A Will also allows you to name an executor.  An executor is the person who will be in charge of marshalling your assets, identifying your debts and ultimately paying them off and making a final distribution according to your wishes as written in the Will.  If you die without a Will, your closest living legal relative will be the first choice for an executor.  Only you know whether this would be appropriate or not.

What happens after I die? If you die with a Will, the executor named in your Will petitions the probate or surrogates court in the county where you lived to receive authorization letters from the court.  This process is called “probate” and it ensures that a Will has been drafted and executed correctly, as well as managing the asset distribution.  Authorization letters will allow you to set up a bank account in the estate’s name and start paying any bills that are due.  If an executor must spend their own money to start a probate proceeding, it will be reimbursed prior to any distribution of assets.

Each state is different and will have a different time line and fee structure, so it is imperative that you meet with an attorney in your area to discuss the process in detail. If you find yourself asking, “Do I need a Will ?,” now you know better how to answer that all important question.
For more information, visit www.timeforfamilies.com or email me at Anthony@timeforfamilies.com.

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LGBT Family Rights in a Trump Presidency

Many are asking, “Will there be LGBT family rights in a Trump presidency?” While there certainly is cause for concern about the direction of our country, there are also certain realities that are reassuring.

I never thought I would be writing about LGBT family rights in a Trump presidency. But I also never received as many concerned calls from previous and prospective clients asking whether their marriages would be invalidated, or whether their second or step parent adoptions would be overturned.  These serious questions have led me to write about what I see as LGBT family rights in a Trump Presidency.

First, there is strong precedent holding that when a marriage is validly performed, it will be respected and honored under the law. This means that those LGBT Americans who are already married should not have to worry about a new Supreme Court taking their marriages away from them.LGBT family rights in a Trump presidency

For those who are not married but may wish to in the future, the question is a bit more nuanced. Shannon Minter, the legal director of NCLR, the National Center for Lesbian Rights, and one of the smartest legal minds in our community, said in a recent press release, “it is also highly unlikely that the fundamental right of same-sex couples to marry will be challenged or that the Supreme Court would revisit its 2015 holding that same-sex couples have that fundamental right.”  Mr. Minter is basing this belief on the long held tradition of the court to honor its previous decisions, a term called stare decisis.

The question many legal scholars are asking is whether a newly conservative Supreme Court will ultimately hear a case challenging the right of LGBT couples to marry and overturn the Obergefell marriage decision. While unlikely, it is possible. We can only wait to see who Trump appoints to the Supreme Court.

The most moving calls that I have received in the past days have been from people either in the process of having their families or plan to have families in the near future. They are deeply concerned about the security of their families.  I recently wrote about New York’s changing family law and how second and step parent adoption are now critical to create unassailable family protections, particularly for non-genetically related parents.  These specific forms of adoption are state based and largely shielded from Federal meddling.  That said, if you have a child and have not gone through the adoption process, it is strongly recommended that you do so now rather than later, when our Federal judicial system may be less friendly to LGBT families.

Among LGBT lawyers, one issue of great concern regards transgender Americans and obtaining accurate gender markers on federally issued identification, such as passports. While there is a transgender rights case which the Supreme Court has agreed to hear, we do not yet know whether a ninth more conservative justice will be appointed in time to hear it.

My husband reminded me that politics is cyclical. We have bounced between conservative and liberal presidents and congresses many time before, however, we have never before been faced with a president who based his entire campaign on dividing America by fearful and bigoted rhetoric.  We have never before had a President who, during his campaign, threatened to ban all Muslims from the country, or “lock up” his presidential opponent or degrade women as objects of his own control and pleasure.

Now more than ever it is time to be proactive. Many of us have experienced the shock and sadness associated with the loss of what we had hoped would be a liberal president in the White House.  We are entering uncharted territory.  LGBT family rights in a Trump Presidency will undoubtedly take some hits, but we are a strong, resilient and loving community.  And we have the tools to protect our families.   Don’t fail to use them!

By Anthony m. Brown, Esq.  November 11, 2016 – For more information, visit www.timeforfamilies.com or email Anthony at

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Estate Planning News – Novel Argument Could Save Surviving Partner’s Home

When William Cornwell died on June 19, 2014, believing he had made a will leaving his entire estate to Thomas Doyle, the man with whom he had shared his life for more than half a century, his departure was more than just a heartbreaking loss for Doyle.

It soon became clear that Cornwell’s intention to pass on the West Village brownstone where the two men had lived since 1961, and from which they derived rental income as well, was not properly executed – and for Doyle, anything that could go wrong, legally speaking, threatened to go wrong.

In preparing and signing his will in 2004, Cornwell had not involved a lawyer, apparently, because no lawyer would have made the simple mistake he made: getting only one person to witness it.estate planning trust, estate planning gay estate planning, lgbt estate planning, glbt estate planning, Wills, trusts, gay family law

After Cornwell died, Doyle turned to Sheila McNichols, Cornwell’s niece and a longtime friend to the two men, “for comfort, support, and advice,” said Doyle in a sworn petition filed this month in the New York County Surrogate’s Court. He showed her the will, and she suggested taking it to her lawyer, Peter Gray, to handle probate.

Gray immediately saw the problem. The New York courts will not accept a will unless there are at least two sworn witnesses to the signing. Indeed, the will form that Cornwell used had spaces indicated for two witness signatures, but one was blank. The instruction sheet that came with the will form did not specifically say that two witnesses were required, although the instructions referred to witnesses in the plural several times.

Gray advised Doyle that the will could not be accepted for probate, and because the men had never married, Doyle had no rights as a surviving unmarried partner. The estate would go to Cornwell’s intestate heirs, two nephews and two nieces, all living in California, three of whom had virtually no relationship with Cornwell or Doyle.

This was a big blow to Doyle, now 85, because his living arrangements depended crucially on the rental income from the other apartments in the Horatio Street brownstone and his ability to continue occupying the ground floor apartment without paying rent (see Paul Schindler’s profile). The men originally moved in as tenants after living together elsewhere beginning in 1958, and in 1979 when the owner decided to sell the building, Cornwell, who had greater resources to finance the purchase, bought it, setting up a corporate entity to own and operate it and putting Doyle on the board.

That building and the rental income it generates is the estate’s main asset. Cornwell and Doyle had lived on their Social Security checks and the rental income. Now Doyle was reduced to his individual monthly Social Security check (smaller than Cornwell’s, because Cornwell had a steady full-time job while Doyle often worked as a freelancer), having no pension or other resources.

Although the men lived together and considered themselves spouses, they had never taken any step to formalize their relationship. In the time they lived together, New York City had passed a domestic partnership ordinance in the 1990s, then in this century surrounding states and finally New York State in 2011 had changed their laws to allow same-sex couples to marry, but the two men never registered their partnership or married.

Doyle said they were planning to marry, and had even purchased rings in anticipation of a ceremony, but in the end Cornwell’s poor health prevented them from traveling to the city Marriage Bureau to tie the knot. The only legal documents of their relationship are health care proxy forms the men had made in 2002 (properly witnessed by two people) and joint bank account statements.

Click here to read the entire article.

By Arthur Leonard, Gay City News October 27, 2016

Unmarried Estate Planning Information

While America has transformed in its understanding of marriage equality over the last five years, unmarried estate planning is still vital for those who, by choice, remain unmarried.

Unmarried estate planning was the bulk of my practice prior to marriage equality. In 2010, I published a law review article on estate planning for unmarried couples discussing just this material.  Finding the loopholes that would provide protection for unmarried couples is an art form and many today who are unmarried by choice, must know these rules and regulations that may negatively affect them without proper planning.

What unmarried couples must know – The law protects married couples in a way that is truly unique.  While some argue against making marriage the benchmark for protection, it nevertheless remains the standard in America.  Without proper planning, a surviving unmarried partner can face a number of pitfalls that could have been prevented with careful planning.  The main categories of awareness center on death, property, health care and asset transfer.tips for estate planning

Death – When an unmarried person dies, their Will is the operative document for distribution of assets upon their death.  If that unmarried person dies without a Will, the state in which they live will decide through the law of intestacy who receives from their estate.  Blood relatives are given priority.  In many states, New York included, if an unmarried person dies with a Will, their closest living legal relatives are also required to consent to the probate of the decedent’s Will.  The emotional and financial costs of these notification provisions can run high depending on the legal family of the decedent.

To best prepare for these issues, maximize your non-probate assets, or assets that are titled solely in the name of the one unmarried partner.   Create “POD,” or payable on death, designations for your bank accounts so they don’t have to go through probate.  Place real property titled in one unmarried partner’s name into a trust, which removes it from probate.  Also, verify all of your non-probate asset designations, such as life insurance beneficiaries, IRA beneficiaries and 401(k) beneficiaries.  These assets will pass directly to whomever you designate, as long as you make a designation.  If you do not, those assets pass into your estate and must go through the probate process.

Real property – You cannot discuss unmarried estate planning without talking about real property ownership.  If there is one legal owner of a house or apartment, then upon death the property will pass either through the Will of the decedent unmarried partner, or through a trust if they were savvy enough to create one.  If you purchase the property together, make sure to hold the title as Joint Tenants With Right of Survivorship.  This will ensure that the property passes to the surviving joint owner without having to go through a probate or an administration proceeding to pass to the surviving partner.

Health Care – One of the most important aspects of unmarried estate planning is addressing one another’s health care needs.  Each partner should have a carefully crafted Medical Power of Attorney, or Health Care Proxy, and a Living Will.  These documents will ensure that your individual wishes are met given an end of life situation and that your partner will make the medical decisions necessary if you cannot.

Asset Transfer – One of the real benefits of marriage is the unlimited transfer of assets between spouses, both during life and after death.  If an unmarried partner wanted to add their partner’s name to the deed of a home or apartment, they would have to file a gift tax return for half the value of the property.  If, however, they were married and did the same transaction, no gift tax return would be required.  Likewise, gifting of over $14,000.00 to any one person who is not your spouse in a calendar year also requires the filing of a gift tax return.

For more information about unmarried estate planning, please visit www.timeforfamilies.com or email me at Anthony@timeforfamilies.com.

 

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Right of Survivorship in Real Property

The right of survivorship in real property is perhaps one of the most important estate planning tools.

For many people, the home is not only their most valuable asset, but it is the one asset that they rely on to secure their own future and those of their children. Owning property as joint tenants with right of survivorship, or JTWROS, assures a quick and seamless passage of that property upon the death of one   of the joint tenants, or owners.

There are several ways to own real property and each state has variations of each particular form. The three most common are: tenants in common, joint tenants with right of survivorship and tenants by the entirety, or as spouses.  Each has their own very important distinctions and characteristics.right of survivorship, JTWROS, joint tenants

Tenants in Common – Real property owned as tenants in common, TIC, is owned by each individual property owner is separate shares, i.e. 50% and 50%.  The key attribute of TIC owned real property is that if one owner dies, that owner’s share in the TIC property passes into his or her estate and must pass through probate to be transferred to its successor owner.  Many who own property with another person who is not a member of their family prefer to own real property as TIC so that they can pass on their share to family members upon their death.  The deed to a property owned as TIC will define the owners as, “John Doe and Jane Doe.”  There will be no other description on the deed.

 

Joint Tenants with Right of Survivorship, JTWROS – The most significant and powerful characteristic of owning property with a right of survivorship is that the joint owners both own the entirety of the property at the same time; therefore there is nothing to pas upon the death of one joint owner.  The property does not go through a lengthy and costly probate process.  One catch is that property which passes automatically may not be eligible for more sophisticated tax planning which could save a surviving spouse, for instance, in estate tax upon the death of the second spouse.  For individuals whose assets do not meet the state or federal estate tax limits, JTWROS ownership can be an extremely beneficial and effective means of transferring assets upon death.  The deed to a property owned as JTWROS will define the owners as, “John Doe and Jane Doe as joint tenants with right of survivorship,” or “John Doe and Jane Doe, JTWROS.”

Tenants by the Entirety, as spouses – This type of real property ownership is reserved for legal spouses and possesses the same protections that JTWROS ownership provides, with one distinct benefit.  No creditor of one spouse may attach their interest to the other spouse’s ownership share in the home they own as tenants by the entirety.  This is a critical protection mechanism to honor and provide for spouses owning property together. The deed to a property owned as Tenants by the Entirety will define the owners as, “John Doe and Jane Doe as husband and wife,” or “John Doe and Jane Doe, as spouses.”

It is critical for an attorney to review any existing deed that you may have to ensure exactly what type of real property ownership that you have. Your entire estate plan may be dependent on the characterization of your real property ownership.  For more information about real property ownership, and more, contact Anthony M. Brown at Anthony at timeforfamilies.com or visit www.timeforfamilies.com today.

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New York Probate Process

The New York Probate Process controls the transfer of the assets of someone who dies in the state of New York with a Will.

What is the New York Probate Process? – Probate is the process by which the state of a decedent ensures that their Last Will and Testament was drafted and executed correctly, that the assets and debts of the decedent, the person who died, are identified, that the debts are paid and the assets are distributed according the decedent’s Will. The New York probate process governs the transfer of legal title of property from the estate of the person who has died to those named in that person’s Last Will and Testament.  The New York probate process is regulated by the Surrogate’s Court.  The Executor, a person or persons named in the Will to act as coordinator, or fiduciary, of the process, often works with a Probate attorney who handles the legal aspects of the process.

What happens in the New York Probate process? – The executor of a Will contacts a probate attorney to review the decedent’s Will, discuss the process draft and execute the probate petition.  The Surrogate’s Court clerk reviews the probate petition, a document filled out by the Probate attorney, to ensure that the proper parties and assets are listed.  Then the clerk checks the Will to make sure that it is compliant with New York law.  Prior to the submission of the petition to the court, certain relatives of the decedent are located and notified about their passing and given a copy of the Will for approval or challenge.

new york probate process

Why are relatives notified? – The process of notification and waiver ensures that anyone who would have received the decedent’s assets had they died without a Will is alerted and given a chance to dispute the Will if they have just grounds to do so.  The notification process operates on the premise that only those relatives most closely related to the decedent are contacted.  The state looks first to a legal spouse, then to children (both natural and adopted,) then to parents, then siblings, then aunts and uncles and finally to first cousins.  Notification is made to and a copy of the Will is sent only to the closest group of relatives.  If a married person dies, their spouse is the only person notified, and in most cases, is also the executor of the decedent’s estate.  If a legal spouse is dead but the decedent had 2 children, only those children would be notified and sent a copy of the Will for approval or challenge.  If there were no children in the scenario above, but there was a living parent, that parent would be asked to review the Will and sign a Waiver allowing it into probate.

Who can challenge a Will? – Because of the notification process and the uncertainty of exactly who will be alive upon someone’s death, a distant first cousin who may have had little or no relationship with the decedent will all of the sudden be asked to sign off on what may be a substantial estate, an estate that he or she would be the beneficiary of if there were no will.  The monetary incentive to dispute that Will then becomes clear.  However, if the Will is drafted by a competent attorney and is New York compliant in every way, the probability of a successful challenge is greatly diminished.  There are also techniques that a versed Nontraditional Estates attorney can employ to discourage a challenge from a distant family member.  Also, if someone drafts a “codicil,” or amendment, to a Will, anyone who was negatively affected by that codicil has standing to challenge a Will.  Finally, a beneficiary under a previous Will may challenge a subsequent Will, however, they are not required to be notified of the subsequent Will’s submission to probate.

How can a Will be challenged? – The New York probate process has specific procedures for a Will challenge. In most cases, a person who receives a notification of a probate proceeding and fails to consent to it, appears in court in what is called a citation hearing.  At that hearing, the judge makes sure that all parties were served correctly and then offers the challenging party the ability to hold what are called 1404 hearings.  1404 hearings allow a party to interview the witnesses to a Will execution, the attorney who drafted the Will and have access to the attorney’s notes prior to the death of the decedent.  If, after the 1404 hearings, the challenging party chooses, they may seek a trial to determine whether the decedent had capacity to execute a Will, whether there was fraud in the execution of the Will or whether there was coercion in the execution of the Will.  In most cases at the stage of the New York probate process, a case will settle in order to avoid excess costs and fees.

For more information about the New York probate process, contact Anthony M. Brown at Time for Families and speak to a specialist probate lawyer to answer your probate questions.

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