Sullivan on Estate Planning for Same-Sex Couples
I previously wrote about the pitfalls of estate planning for same-sex couples here. Andrew Sullivan sort of discusses the issue in this post. I say "sort of" because the individual mentioned in the article (Sam Beaumont) failed to inherit his partner's property for two reasons:
1. Because the law did not recognize Mr. Beaumont as a spouse, he didn't acquire the typical spousal rights. (In Illinois, this includes -- but is not limited to -- the right to be treated as an heir, and the right to elect to set aside an unfavorable Will and receive a percentage of the decedent's probate estate.)
2. Because the Will didn't have enough valid witness signatures.
Only one of those reasons (#1) can be said to relate to discrimination against gays and lesbians (although not for the reason set forth in the article -- see below). Reason #2 has been around for a long time -- it has nothing to do with sexuality, and everything to do with intelligent planning. EVERY Will that is short one witness signature is going to be declared invalid. This rule only discriminates against the incompetent.
By the way, the following statement is patently false:
Every state has common-law marriage rules that protect heterosexual couples. If someone dies without a will, or with a faulty one, his or her live-in partner is treated as the rightful inheritor.
For instance, Illinois doesn't recognize common-law marriage. If you are part of an unmarried heterosexual couple in Illinois and one of you dies, you have no rights to inherit anything from your partner. Mr. Beaumont and his partner weren't denied benefits afforded other unmarried (yet heterosexual) couples; rather, they were denied the opportunity to acquire the benefits afforded married, heterosexual couples. That may seem like a small point, but I think it's an important one.
[added 1/21/06: I e-mailed Mr. Sullivan with a link to my post, and he was nice enough to send an e-mail back with his thoughts. He said that he would agree with me "if every gay man and lesbian had access to great lawyers. but many - especially rural folk - don't. that's why marriage is so important. why should gay people have to fight so much harder to have their basic rights respected?" I understand his point, but I don't think it's really an issue of having access to a great lawyer. Even the most incompetent attorney usually knows enough to make sure a signed Will has the correct number of signatures (and if he or she doesn't, the beneficiary can probably sue for malpractice). In fact, even do-it-yourself Will kits (which I don't recommend) make sure to address this issue. So, while I agree with Mr. Sullivan that (a) gay people have to fight much harder to have their basic rights respected and (b) they shouldn't have to, I also think it's important to pick your battles. This case was written up to elicit sympathy, and I simply don't think the facts (i.e. the decedent's mistakes) bear that out. (Or, rather, I am sympathetic to Mr. Beaumont's situation, but think Mr. Beaumont's partner is just as much to blame for it as the government).]
