Everyone should have a will, says Durham family law attorney Sharon Thompson, but same-sex couples especially need to protect their legal rights, given that they are not afforded full citizenship and protection under the law. That applies even to couples who own little more than the clothes on their backs.
Many of the 1,138 benefits, rights and protections provided by federal law on the basis of marital status pertain to what happens if a spouse dies. If a couple is married and does not have children, the entire estate goes to the surviving spouse. If the deceased partner does have children, half of the estate goes to the children and half to the spouse.
Furthermore, surviving spouses are eligible for a year's allowance following a death, money that comes off the top of any cash assets before creditors are paid; the state legislature passed a bill this year to increase that allowance from $10,000 to $20,000.
But North Carolina law explicitly disavows the marriage rights of same-sex couples. The default, then, is that gay or lesbian partners get nothing. Without a will, they are entirely vulnerable to the whims of surviving family members. "Even if there's no family conflict, the surviving partner is without the protections of the law," Thompson says.
"The death of a spouse is one of the hardest things anyone faces in life," says Ian Palmquist, executive director of the gay, lesbian, bisexual and transgender advocacy group Equality N.C. "But when a same-sex partner dies, the surviving partner faces the additional trauma of possibility of having their joint property taken and their wishes for disposal of remains ignored. No one should face that on top of the loss of the person they love and made a life with."
One of Thompson's clients was told by the daughter of his deceased partner that he would not be allowed to attend the funeral service unless he relinquished all the money in their joint bank accounts. (Though the client initially agreed, Thompson was able to get his money back.) In other cases, family members have come to the couple's home, insisting furniture and other belongings were rightfully theirs. "I've seen cases where the family swoops in from out of state and the surviving partner has absolutely no authority unless they had a will that stated that," she says.
Thompson usually charges about $500 per person for a simple will, a legal power of attorney and two medical documents.
There are will kits available for free online. "I don't necessarily recommend using those because there are some things an attorney might think of that those kits don't cover," Thompson says.
"It used to be, years ago, the fear same-sex couples had was that their will would be challenged on the basis of 'undue influence' from the partner," Thompson says. "I think people don't challenge on that basis anymore because we're a little more enlightened. But what I do see is, any way in which family members can use the law for their benefit versus the surviving partners, they will do that."
If nothing else, she says, couples can write their own wills—but be aware that in order for the will to be legally valid it must be written longhand and signed in the person's own handwriting. Typed wills, even with a signature, are not legally valid without two witnesses and a notary's seal.
Taking these actions can help you protect your rights—whether you're gay or straight:
- If you do write your own will, specify who should receive your property.
- To clarify who owns household belongings—including furniture, appliances and personal mementos—include a line that says, "We acknowledge that the property in our house is equally and jointly owned."
- Specify whom you want to make funeral arrangements. Without such a statement, that person would be the next of kin, which usually means the adult child or parents of the deceased.
- Talk to your bank and designate the balance of your accounts be "payable on death" to your partner.
- Make sure your partner is listed as the beneficiary of any life insurance or retirement accounts. "It's crucial that people make sure they've got their partner listed as beneficiary," Thompson says. Otherwise, that property defaults to the estate.
- Visit the N.C. secretary of state's Web site (www.secretary.state.nc.us/ahcdr) and download free health care power of attorney and other documents.
"I find that unmarried couples not only want rights, but they are more than willing to assume responsibilities," Thompson says, "to pay taxes, to handle estates properly. Many of these couples have been together for years and years and expected to take care of each other in their old age just like any other couple. It's extremely unfortunate that distant family relatives can come in and so drastically affect the financial security of the surviving partner."