ARE YOU A G.A.Y. DUCK?

In this instance, G.A.Y. Ducks is short for the phrase “get all your ducks in a row” which customarily refers to the act of getting your life and/or affairs in order.

Coincidentally, the word GAY is an anachronism for “Get” “All” and “Your,” and thus the expression “Get All Your Ducks in a Row” has become a Rainbow Law catchphrase.

In a manner of speaking, therefore, those LGBTQ folks who have created legal documents that protect their rights and the rights of their partners and/or children are GAY Ducks!

And so we ask… are YOU a GAY Duck?

If you are not a GAY Duck, perhaps it is because:

• You’re not sure you need to create legal documents;
• You don’t understand the whole concept;
• The subject matter is confusing and/or intimidating;
• You do not know where to begin;
• You believe Estate Planning is only for the very wealthy;
• You feel intimidated by legalese;
• You don’t want to think about death and dying;
• You do not have a partner.

This post is the first in a series of easy-to-understand articles -- written in plain English -- that will put to rest the concerns that we’ve outlined above.

Naturally, no one wants to think about illness, death and dying – especially when it comes to our own lives and those of our loved ones.

But because we are unwilling to think about the hard stuff, an alarming number of gays and lesbians have put off getting their legal ducks in a row.

Statistics show that 7 out of 10 Americans – in general -- do not have a Last Will. We believe the number is much higher in the LGBTQ community.

This is especially alarming given that – 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.

And all of that pain and suffering could easily be avoided by writing down our wishes in advance!

In short, PLANNING for the inevitable is not about death and dying. It is about life and love.

I. Estate Planning 101

Today’s article will focus on “Estate Planning,” which is just a high falutin’ way of describing a written plan to make sure, after you die, your assets (the stuff you own) passes in an orderly and efficient manner to the person, persons or organizations you name. Estate Planning documents include (but are not limited to) Wills, Trusts, and Powers of Attorney.

I guess we really need to start at the beginning by dissecting the phrase ‘Estate Planning’ which is pompous sounding in and of itself…

A. What is an Estate?

The very word ‘Estate’ conjures up images of mansions and limos. If that is so, why would little ole you -- driving around in your Subaru and owning or renting a modest home – ever need to think about let alone plan for something you don’t even have?

Well, if you own anything at all – whether it be real estate a bank account, a mutual fund, stocks, bonds, a car, jewelry, furniture – or even if you only own the toaster-oven you received as your "coming out" gift -- then you – in fact – have an ESTATE!

Another way of looking at it is this:

While you are living, if you want to get rid of all or some of your stuff, you simply sell it at a yard, garage or moving sale. Once you are dead, someone else will sell that very same stuff at an Estate sale.

Thus, the word ‘estate’ merely describes the stuff you own at the time of your death – in other words your assets – no matter how much or how little you own.

B. What is a Plan?

Encarta Dictionary defines a plan as “a scheme, program, or method worked out beforehand for the accomplishment of an objective: as a plan of attack.”

If you do not have your own written plan in place, your state’s law has provided one for you. And the plan that your state’s legislature has enacted (unless you live in Massachusetts) grants ALL rights to your legal relatives and NO rights to your partner.

For the purpose of Estate Planning, a Last Will and Testament and a Living Revocable Trust provides you with the opportunity to do the following (this list is not all inclusive):

• Name your partner (or someone else you trust) as your Successor Trustee (the person who takes over the management of your property -- financial and otherwise – through your Trust when you die or become incapacitated) and Personal Representative (the person who will settle or administer your ‘estate’ through your Will after you die – a.k.a. "executor");
• Name the people you want to inherit all or some of your estate;
• Disinherit (leave out) people who would otherwise – by law – have a right to inherit your estate.

Other documents (i.e. Advance Directives) give you an opportunity to name one or more person – in advance -- who will make medical and financial decisions for you if you become incapacitated:

• A Living Will allows you to decide what medical treatment you wish to receive – or not – when you are at the end of your life with no hope of recovery;
• A Durable Power of Attorney lets you appoint someone to manage your financial accounts;
• A Disposition of Remains gives you an opportunity to name the person you want to have rights to take possession of your ashes or make funeral or other arrangements after your death.

These documents (as well as others which are listed and discussed in detail here) provide you with an opportunity to make an already difficult period less stressful for your loved ones.

It may seem like a hassle to take time to do this but if you do not do it now, your failure to act may cause severe pain to your partner and/possibly your children who may lost their home and most if not all of their assets.

C. How do I Make an Estate Plan?

Once you have decided that you will create Estate Planning documents, your biggest challenge is getting up the gumption to do the work that is required to make your plan effective.

First: Make a list of the stuff you own – your ‘assets.’ A good first step is to sit down and make a list of all your valuable stuff – real estate, personal property, financial assets, etc. If you have a partner, you both need to do this -- together or apart. Put the list in writing. Next, separate the list into three columns, one list will include property that is owned by you, a second list is made of property owned by your partner and a third list of jointly owned property.

Second: Talk about your plan with your partner. After the lists are made, the fun really begins -- you need to talk to each other about your stuff. How will your stuff be divided if you split? Who will inherit your stuff when you die? Do you want our partner to inherit everything? What is your partner dies before you? What if you die together? Try to anticipate all possible scenarios and hammer out a plan for what you want to do with your stuff in case each scenario becomes a reality. This conversation can be very difficult. Don’t let that keep you from going forward with your need to get all your ducks in a row!

Third: Make a list of your ‘cast of characters.’ Who do you want to inherit your stuff and who will you put in charge of making decisions about your health care and finances? List their names! Perhaps you want your partner to make medical and financial decisions for you if you become disabled – or maybe you would rather ask a trusted friend or family member to do so. Think about the possibility that the people on your list will predecease you – who would you want to take their share or make decisions in their place? Collect and make a note of the addresses and phone numbers of all of the people on your list.

Fourth: Talk to those people are naming as a ‘decision-maker.’ This is a great responsibility and you do not want to surprise this person someday with a burden they may not want to carry. Ask if they understand what you would like them to do and if they are willing to do so.

Fifth: Make a plan for your dependents – your children and/or pets. Who will care for them after you are gone? What can you do to provide financial support to whomever will care for them? Who will be your second choice if your first choice is unable to care for them?

Sixth: Tell important people in your life that you have created these documents. The last thing you would wish on your partner is to have disgruntled family members fighting over decision making powers and/or inheritance rights at this very stressful time -- especially since you will not be around to able to defend your wishes! We recommend that you personally tell your family and close friends you have signed these documents. Give copies to a clergy member or close friend who may be able to intervene calmly on your behalf. If you do this you will no doubt greatly ease the burdens of your partner and family who will be trying to care for you or are grieving your death.

II. Example of List Making Worksheets:

A. List 1: My Stuff, Your Stuff, Our Stuff:

List your valuable assets (include separate a space each for your stuff, your partner’s stuff and jointly owned stuff). Valuable assets may include real estate, automobiles, collections (books, art, music, etc.), antiques, family heirlooms, bank accounts, life insurance, etc. But, NOT your socks or toothbrush!

B. List 2: Your ‘Cast of Characters’

Who will make decisions for your health care and finances and who will inherit your estate? Get their full, legal names as well as their current contact information. In case your first choice predeceases (dies before) you, name an alternate for each person on your list. Also list those people you want to disinherit.

C. List 3: Your Partner’s List:

Your partner (if you have one) should also make a Cast of Characters and an assets list. If you do not make your lists together, you should at least go over them to make sure that you are both on the same page. If there are misunderstandings, now would be the time to lay them to rest!

Take the next few days to complete these tasks and then come back next Monday for the next installment in the Get All Your Ducks in a Row series!

In the upcoming issues we will provide in depth information about the legal documents you need to protect your relationship and you rights as well as discussing important topics like what to do after your partner dies and how to deal with a break-up. Other topics will include how to plan for children, how to save your home from government taking, and what to do when you partner says “if you love me you’ll put my name on the deed!”

In the meantime, let us know if you have a specific topic you want us to write about!

See you soon!

When Bad Things Happen to Gay People

Have you ever seen the HBO movie If These Walls Could Talk, 2? Even though it was filmed in 2000, it is as timely as ever.

The film follows three lesbian stories in three different time periods and is set in the same house.

In the first story, the home is occupied by an elderly couple played by Vanessa Redgrave (Edith), and Marian Seldes as her life-partner (Abby). The film makes it obvious that these two have lived together in the house for most of their adult lives. Yet, when Abby becomes ill, Edith is denied the right to visit her in the hospital. And worse, after Abby dies, Edith loses her home and everything in it to a distant relative who inherits the house and contents -- by law.

Although the segment was set in 1961 - except for rare exceptions like California, Massachusetts and Vermont – state and federal laws have NOT changed. Gay and lesbian partners are STILL at risk of losing our property today.

Do you and/or your partner own your own home? Are both of your names on the deed? Do you have “rights of survivorship” so that when one of you dies the other will still own the house?

Do you have a Living Revocable Trust or Last Will and Testament that names your partner to inherit your property when you die?

Have you signed a Living Will and Medical Power of Attorney that gives your partner the right to make medical decisions for you and visit you in the hospital?

Just like the movie, for most of us, when our partner dies without a Will or Trust, our property will pass – by law -- to our nearest living relatives and not to our partner who is considered – by law – as a stranger!

That means, no matter how long we’ve been together – no matter how many ups and downs we’ve shared – our partner will have NO right to inherit anything we own.

In order to protect our partner, we need to put our wishes in writing. It’s easier and far less expensive than you might imagine:

Rainbow Law creates free and affordable legal document packages for single people and partners, with or without children. In addition, there are do-it-yourself software programs and other (non-gay) legal document preparation websites. And, some attorneys will work on a sliding scale.

Because we are denied equal marriage rights, as we grow older – and trust me, unless you die young, you are going to get old -- LGBTQ couples face a much greater risk of spending the end of our lives in poverty:

“Gay, lesbian and bisexual seniors also are at significant risk of losing their home when an elderly partner enters a nursing home. This is because federal Medicaid law permits a married spouse to remain in the couple's home when a husband or wife enters a nursing home — but it does not grant unmarried couples the same right.“

If a gay or lesbian partner is forced to use Medicaid – the state often places a lien on the home in order to recoup their losses. In fact, the Federal government encourages such liens – at the same time that they deny us the protections of legal marriage.

Even when we own our home jointly with rights of survivorship, a state has the right to place a lien on the one-half interest belonging to the partner who required nursing home assistance in the first place.

You can do more to protect your home from a Medicaid lien by sheltering it in an Irrevocable Trust. This may seem a bit complicated but it definitely beats homelessness!

When you put your home into an Irrevocable Trust, you are still able to live in it and benefit from it just as you do now. And time is “of the essence” if you want to use this method of home protection.

Medicaid has a “look back” period of 5 years. This means you must place your home into the Trust 5 years before applying for Medicaid or entering a nursing home!

Sadly, even when we obtain all of the legal documents necessary to protect our partner’s rights, other obstacles continue to adversely impact our lives:

• Laws such as the Defense of Marriage Act (DOMA) and Amendments to State Constitutions ban equal access to federal and state marriage rights and protections;

• And we remain ineligible for a host of state and federal protections like Social Security survivor benefits and estate tax exemptions.
  

• Even couples who have lived together for decades are often barred from sharing a room in a nursing home or an assisted living facility because there are no protections form discrimination based on sexual orientation.
  

We have seen breathtaking changes in our lifetime but clearly, it is not enough. It is one thing to kvetch about marriage equality. It is quite another to take the steps necessary to protect one another while we wait for lawmakers to stop catering to the wing-nuts.

Since protecting your partner is your greatest responsibility, will you take a few minutes to do it today?