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GAY PEOPLE'S CHRONICLE APRIL 22, 1994

Protecting lesbian and gay families with existing laws

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ing. You think you're indestructible. You go on thinking you'll never need it."

Taking a bit of his own medicine, and "because we care about each other," Readinger made the effort to find an attorney both he and Giles felt comfortable with, one who would understand the problems a gay couple faces. Readinger advises others to look carefully for "someone who's familiar with people who are gay. That way you aren't teaching them everything and you don't have to hide things. It meant being able to really discuss all the things that were important to us."

Readinger and Giles availed themselves of a handful of legal documents that give them near legal parity with straight couples. These documents (a will, a durable power of attorney for health care, a power of attorney for property management, and a living will), not only detail an individual's wishes in time of medical emergency, death and beyond, but they can also protect the rights of the surviving partner. Without these documents, the law makes no provision for your spouse. Like it or not, in the eyes of the law, parents and family are next of kin, not your partner of twelve years.

The first step for everyone, whether single or coupled, is a detailed will. Though no one wants to think about the future-who's got the time?—a completed will can bring much peace of mind.

It's easy to convince yourself that "I really don't own anything, so I don't need to worry." That's a dangerous misconception, say area attorneys. Cleveland lawyer Edele Passalacqua is adamant that tomorrow could be too late for those who wait. "I don't care if you're gay, straight, married, single, whatever. I recommend everyone have a will. Don't put off until tomorrow when you may not have the competency to sign the necessary documents."

Attorney Ruth Tkacz agrees, stressing that "Executing a will early on is so important, especially if you are HIV. There have been AIDS cases where a surviving partner has lost their rights because the state of mind of the decedent has been challenged."

With a properly executed will, you can leave anything to anyone you wish. Without a will, state laws recognize only spouses or biological relatives for estate disbursement. Passalacqua advocates two smart additions to any will that can help prevent unwanted meddling from relatives who might contest your will. First, make sure you name any blood relatives who would inherit by law, or who may contest the will should they be left out entirely. Specifically naming them, even if you only leave them something sentimental, like a photograph or a token dollar, doesn't exclude them and it shows clear intent of your decision.

Passalacqua's next recommendation is a "no-contest" clause. "It's a disclaimer clause," she says. "It says that 'I've considered you and these are my wishes. Don't second guess me. You will have predeceased me if you contest.'" In other words, anyone who tries to challenge the will is immediately excluded from it.

Lawyers are quick to point out that in most cases there is no second-guessing of an airtight will. It's the lack of a will that is the problem.

When anyone dies, even if they have only a few possessions, they leave behind an estate. Since every estate must go through probate, it's important to ensure that the surviving partner has enough funds to maintain the household until the will is fully executed. If there are joint bank accounts, they should be designated "joint survivorship accounts." This keeps the account open and out of probate. Interestingly, Tkacz advocates that lesbians maintain separate bank accounts. "Because women have traditionally relied on others for control of the finances, I think separate accounts provide both women with control, identity and financial independence."

Then there's the issue of property owned jointly. Tkacz advises that "If you own a home together, make sure that both names appear on the deed as 'joint survivors.' Even if only one partner's name is on the financing, there should be a 'joint-survivor deed.' If a deed instead lists both partners as 'tenants in common', then the deceased partner's

share in the house will go to the estate." If only one partner's name appears on the deed, the surviving partner could find herself without a home.

Power of attorney and living will

Another important set of documents in the queer legal arsenal is the power of attorney for health care, and the durable power of attorney for property management. The power of attorney for health care names a person specifically that is in charge of health care decisions should you be unable to make those decisions yourself. Since same-sex partners do not have next-of-kin status in the state of Ohio, and are not guaranteed a place by the bedside of a hospitalized partner, this document provides that legal recognition in a health crisis.

A power of attorney for property management designates the person you want to make all financial decisions when you can not. Passalacqua urges caution in granting a durable power of attorney to a partner. "Maybe I've got a steel wall around my heart," she says, "but I think you should really trust this person well since you are giving them com-

provides instruction as to whether nutrition and hydration can be stopped if your condition is terminal.

Though any will can be contested, few judges would find fault with a will that not only designates your partner as heir, but also includes these other documents with your partner's name as well. Setting up these legal tools now, well before they are needed, is the best way to ensure that your wishes are followed.

Estate planning

There is an alternative to probate that people with larger assets might consider. Cleveland Heights lawyer Sanford Hockey is a straight attorney who is well aware that the do-good intentions of interfering family members can be a problem for anyone, gay or straight, when there is a question of money. "Blood may be thicker than water," he says, "but money is a blood clot." His LAMBDA (Legal Alternatives to Marriage Between Disenfranchised Adults) estate planning package is a complete set of documents that not only includes those documents discussed above, but also contains a Revocable Living

A queer legal arsenal

Before you see an attorney, make sure you know the terms. Domestic partnership status is not recognized by any municipality in Ohio. The term usually refers to the complete legal package outlined on this page. Durable power of attorney designates the person you want to manage your finances. Durable means that it stays in effect if you become completely disabled.

An estate is the interests you leave behind in real and personal property. Real property includes land, homes, etc. Personal property includes money and personal possessions.

The executor (if a male, or executrix if a female) is the person who is named in your will to administer your estate. Without an executrix or executor, the courts will appoint an administrator. Their duties extend until all debts are paid and all assets are disposed of. Living wills spell out the steps that should be taken if you enter a terminal state. Ohio law allows for the removal of nutrition and hydration should you wish. Power of attorney for health care names the person you want to make health

plete financial control. Carefully consider who this person will be." You can revoke both of these documents at any time, provided you are mentally competent.

Since AIDS is a considerable factor in the gay community, Passalacqua goes a step further than most attorneys in advocating a nomination of guardian. "Often with people with AIDS, it's not the physiological complications that you have to worry about. It's the psychological." AIDS or not, in a medical crisis you may be sick enough that you experience periods of failing lucidity. Your physician may decide that a guardian is needed. A nomination of guardian is an adversarial procedure that has to go before probate court. A physician must say that there is a need for a guardian to be named. Though the petition for guardianship can be challenged or denied, the nomination of guardianship provides clear evidence of your wishes.

A living will is the final piece in the legal rights puzzle. It provides explicit instructions for your care should you enter a vegetative state. An attending physician and one other must say that there is little hope for recovery. Though it can be a separate document, the state of Ohio recognizes it as a companion piece to the power of attorney for health care. Passalacqua recommends designating a third party with the responsibility of carrying out your wishes; this keeps the "inlaws" from blaming your partner because she pulled the plug on you. A living will also

decisions for you when you can not. This document is recognized by the state of Ohio. Probate is the court process to prove a will is valid and to transfer property; an accounting of all assets in an estate. A will is enacted upon your death. To keep unwanted meddlers from contesting your will, lawyers recommend naming even those you do not want to receive anything. It's wiser to write them off with a token acknowledgment than to ignore them completely. Don't write anything on the will after it is signed, since that will make the whole thing invalid. Put it away in a safe place and leave it there.

Remember, keep as much as possible out of probate by naming beneficiaries on life insurance policies, money markets and CDs. If you and your partner maintain joint bank accounts, make sure they are "joint survivor" accounts. It's better to close an account and re-open a joint survivor rather than try to rename an existing account. Make sure the deed to your house lists you both as "joint tenants with rights to survivorship."

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Trust. A Revocable Trust may be set up during your lifetime, with all your assets contained in the trust. You can manage your daily affairs through the Trust. It is also intended to continue beyond your lifetime, giving your beneficiary a fast, reliable source of income without the delay of probate. Hockey says there are other good reasons to investigate trusts. Since property placed in a trust is exempted from probate, your estate is safe from public scrutiny and probate taxes. Everything in a trust remains private. And, assets held in a trust are not frozen while probate proceeds. Hockey says that the average Ohio estate is around $150,000. With probate fees ranging from 4 percent to 9 percent, the fees can mount. He will be conducting a free seminar on estate planning on May 1 at the Center (see the Postings section in this issue).

Tkacz points out that many in the gay community do not possess "average-sized" estates. Average-sized may be more applicable to the straight community. "Maybe some gay men might have the resources that would require a trust. But the women's community has always been poorer," she observed.

Don Barney, a vice-president in the trust department of Society National Bank, agrees that size of assets is important when considering a trust. Explains Barney, "You really do need a meaningful amount of money to make a trust necessary. You're going to have to have money that needs to be invested or

property that needs to be managed. And you're thinking about your heirs. Maybe they won't know how to invest the money or maybe they'll spend it all. Of course, if privacy is important to you, a trust is a good thing." A word to the wise: Barney advises that do-it-yourself trust kits be avoided at all

costs.

So does Pat Seifert, a Cleveland attorney with much probate experience. She says "There's a good side and a bad side to the probate process. In probate, the court and the attorney are looking over the shoulder of the executor, making sure things are carried out as the deceased wished. But it's not uncommon in (the gay) community for one person to leave all their money to another person. Because of that, privacy does become a concern."

Seifert warns that though trusts are exempt from probatę taxes, they may not be completely free from creditors looking for money from your estate. "I know of no way of preventing someone from filing a lawsuit against a trust," says Seifert. If you explore a trust, she says, "Make sure that you shop around for a good estate planning attorney who knows taxes. And talk to your accountant. There are so many things to know."

Because the probate process is lengthy, ties up assets and has tax consequences, it's important to keep as much as possible out of probate to begin with. Naming a beneficiary on your bonds, money markets, IRAs and life insurance policies will do that. Stocks complicate things a bit. Each individual situation is unique and cannot be addressed with one strategy. Stocks can be held in both partners' names, but a gift tax may be applicable when transferring half the stocks to your partner. Whether or not you will have to pay taxes will depend on the size of your assets. Mary Brown of Prudential Financial Services says that "Even though you and your partner can hold stocks in 'joint tenancy with rights,' it might require the signature of both partners to remove one from the stocks." Better, she says, to place the stocks in the will or in a

trust.

For all gay couples, but especially new couples, Tkacz and Passalacqua endorse the use of contracts in protecting the rights and property of both partners from one another. These "co-habitation contracts" says Tkacz, "establish your rights to the rest of the world." Contracts can outline what each party has brought into the relationship and what each party will take from the relationship when it dissolves. Explains an ever practical Passalacqua, "I call them 'pre-nuptial agreements.' They're somewhat in anticipation that nothing lasts forever. They designate what you brought into the relationship. If you paid all of the down payment on the house, then when the house is sold, you get the whole down payment back. It wouldn't be split 50/50. These things are just smart. If gay marriages were recognized in this state, there would be no need for this."

Death and taxes

Ruth Tkacz is aware that the question of gay marriage bothers many lesbians and gay men. But whether you support legal gay marriages or not, Tkacz says you should be covered by the legal protection that is available. "Many gay people avoid these legal issues because they feel that the laws don't pertain to them. And I can understand that some people don't want to be institutionalized, they like being non-traditional. But the reality is you've got to deal with these issues. No one dies without some paper work. And for those couples who want that validation and recognition from society, using the laws that are out there will provide those rights and self-esteem."

Take the time to talk with an attorney. Filing wills and powers of attorney are simple enough procedures with basic fees. A simple will for a single person can cost as little as $50. A trust may cost anywhere from $500 to $1,000. But attorneys say that cost should not deter you from taking the steps necessary to prevent being locked out of your life and your partner's life by legal barriers. Says Tkacz, "When it's the big stuff, when it's important, you should see a lawyer. We don't have our rights yet. That's why these things are so important."

Though he's a little embarrassed to admit Continued on facing page