Nontraditional Family Law

To Do List for Executors and Administrators

Have you been named as an executor or has someone asked you to serve as one? Maybe a family member or friend has recently died and you were named as administrator. What now?

Executors vs. Administrators

An executor is a person named in a will to take care of the deceased's estate. An administrator serves basically the same function when a person dies without a will. In either case, the person so named must act as a "fiduciary" with respect to the deceased's assets. Acting as a fiduciary generally means you must do your best to protect the assets of the deceased and act in the best interest of the estate.

Here is an overview of some of the of the tasks you'll need to do.

To Do List:

- Collect information about the deceased's assets and liabilities. You and your attorney will use this information to come up with a list filed with the court.

• Look for property deeds, car titles and other documents that show ownership of assets
• Locate copies of financial statements such as bank, brokerage and IRA account statements
• Find out if the deceased had a safe deposit box. Your attorney can help you access it.
• Locate insurance policies - home, health, life
• Obtain records of home loans, car loans, and credit card and other bills

- Find and safeguard all business interests, valuables, personal property, important papers, the residence, vacation homes, and other properties.

- Pay the decedent's bills and taxes.

• Household bills such as utilities and water
• Property taxes
• Outstanding medical bills

- File tax returns such as the deceased's income tax return and an estate income tax return (in some cases). You may also need to file an estate tax return.

- Keep detailed records of all receipts and payments.

- Prepare and file a final accounting with the court.

- Distribute property to heirs.

Being an executor or administrator is a serious and sometimes time-consuming commitment. Fortunately, your estate attorney can assist you along the way.

The Importance of a Health Care Proxy

In February 2007, Janice Langbehn's partner of 18 years, Lisa Marie Pond suffered an aneurysm while they were on vacation in Florida. At the hospital Janice was told that she would need a healthcare proxy before she could see her partner. "When I finally was allowed to see Lisa it was with a priest to perform her last rites."

If you don't have one, please consider a health care proxy and other estate planning documents. See the Estate Planning Category for more information.

Read the whole story here.

Source for Post: Human Rights Campaign Foundation

Estate Planning Category

GLBT Foster Parents

In observance of National Foster Care month, the Human Rights Campaign is featuring a story from a GLBT foster family in Austin. This family provides a foster home for children who have endured unimaginable neglect and abuse.

Holly Lindsey writes about their first child, a troubled 14 year old:

"Our first year together was filled with hours and hours of raging. The hurt and anger that poured from her ripped at our hearts. But we refused to give up on her even though everyone told us to let go. I won’t lie — it was a horrible year. But we survived it and are proud of all the steps — big and little — that she makes every day. She fights to survive and grow."

What courage and commitment! Just what these children need. As a court appointed special advocate (CASA), I work with children in foster care and applaud this family for their dedication to foster children.

Source for post: Human Rights Campaign

Technorati Tags: Non-traditional Family, Nontraditional Family

New Study on Gay Baby Boomers

• 51% have not completed wills or living wills
• 1 in 5 are unsure who will take care of them when the need arises
• Over 75% have "families of choice" - close friends who are considered family
• Almost half want to spend their final days at home with hospice care

What do these statistics mean to you?
Maybe you can identify with one or more of these statements. If so, the best way to ensure that your wishes are followed are to complete a will, a heath care proxy (medical power of attorney) and a living will. Without these documents in place, people you consider family may not be able to make decisions for you or on your behalf and your loved ones may not be able to inherit from you. For more information on these documents and other important life planning documents, click here.

Source for post and link to study: Human Rights Campaign Foundation

Technorati Tags: Alternative Family, Estate Planning, Nontraditional Family

Massachusetts Governor Sues to Force Vote on Same-Sex Marriage Amendment

Governor Mitt Romney, filed suit Friday to force the Massachusetts legislature to vote on a constitutional amendment banning same-sex marriage. On November 9th, the legislature voted to recess a constitutional convention before the matter was taken up. Massachusetts law requires two votes by the legislature before the measure appears on a ballot. Proponents assert that the vote for a recess was a deliberate attempt to avoid an up or down vote on the amendment by citizens. Read more about it here.

Technorati Tags: Nontraditional Family, Same-Sex Marriage

Uniform Domestic Partnership Act

According to the Wills, Trust and Estates Prof Blog, two law professors have written an article proposing a Uniform Domestic Partnership Act modeled after uniform business partnership acts. They contend that marriage as it stands today fails to fulfill the expectations of most families - traditional and nontraditional. Their proposal would allow parties to select from several forms of domestic partnerships and leave marriage under the control of religious institutions.

The abstract for their article states:

"For decades, Americans have argued about who may marry and what marriage actually means in legal, religious, and philosophical terms. For almost as long, two problems - the rising divorce rate and the poverty of some “divorced” children and their custodians - have fed concerns about the viability of marriage as an institution that promotes domestic stability and economic security. This Article explores the notion that domestic partnership based upon business partnership law would better serve more couples, their families, and society as a whole. It proposes a Uniform Domestic Partnership Act, loosely modeled after the UPA, as a substitute for marriage and recommends that marriage continue, without legal significance, under the exclusive control of religious institutions. By demonstrating that modern couples expect civil marriage to provide something different than couples did historically and by adapting business partnership law approaches to areas such as fiduciary duty, agency and transaction costs, and limited liability, this Article proposes a legal structure for domestic enterprises. Actually, it offers four new solutions: the Filial, the Enduring, the Caregiving, and the Provisional Domestic Partnerships."

Drobac, Jennifer Ann and Page, Antony, "A Uniform Domestic Partnership Act: Marrying Business Partnership and Family Law" . Georgia Law Review, 2007 Available at SSRN: http://ssrn.com/abstract=929269

Technorati Tags: Alternative Family, Civil Union, Domestic Partnership, Nontraditional Family

Shared Parenting Agreements

If your nontraditional family has or is planning to have a child, the best option to protect your rights and those of the child is a second parent adoption. Second parent adoption is a legal procedure that allows a second parent to legally adopt the child without terminating the rights of the first parent. Read more about second parent adoption here.

For some, second parent adoption is not possible because state law doesn't allow it or because another parent is involved. For example, say Chris has a child from a prior marriage to Michelle. Michelle is still legally recognized as a parent of the child. As long as Michelle has parental rights, a second parent adoption by Chris's partner is not possible. Similarly, second parent adoption is not available where a sperm donor or surrogate biological mother retains parental rights.

The next best option is to state the couple's intentions with regard to children in a shared parenting agreement. These agreements are not likely to be enforced by a court; instead courts assess what is in the best interest of the child. However, the agreement may help guide the court by establishing the relationship between the child and the partners. A shared parenting agreement should address:

• The parties' intent to mutually raise the children and share rights and responsibilities
• Day-to-day care of the child - how decisions are made and how expenses are shared
• Which parent will claim the child as a dependent for income tax purposes
• Whether one or both will name the child as beneficiary under life insurance policies
• Custody, visitation, support should the relationship end
• How disputes under the agreement are to be handled - mediation, arbitration etc.

The process of drafting a shared parenting agreement allows the partners to fully discuss their expectations and may help them deal with disputes when they arise.

Technorati Tags: Alternative Family, Domestic Partnership, Nontraditional Family

Why You Really Need Health Care Planning Documents

On her blog, Massachusetts Estate Planning and Elder Law, Leanna Hamill has a great post and story illustrating why a health care proxy and power of attorney are so important. Suppose your partner is in an accident and is admitted to the hospital. As a non-relative, you can't get information from the hospital about her condition. And what if a decision regarding surgery needs to be made? In the absence of these important planning documents, you can't make that decision.

There are several terms used to describe health care planning documents. The definitions vary by state, but in general can be described as follows:

• Living Will - allows a person to describe in advance what treatment options they authorize in the event they should have a terminal and irreversible condition. For example, a person may declare that they want doctors to withdraw or withhold life-sustaining procedures, such as artificial means of respiration.
• Special Medical Power of Attorney (also known as a "Health Care Proxy') - allows a person to designate another individual who can give consent to medical procedures. The document can be effective whether or not a person's condition is terminal and irreversible.
• Durable Power of Attorney - allows a person (the "principal") to designate another person as "agent" to make variety of decisions on behalf of the principal, usually involving finance and business transactions. In the medical context, this document might give the agent access to funds in the principal's bank account to pay hospital bills.

Technorati Tags: Alternative Family, Estate Planning, Nontraditional Family

The Pension Protection Act: Benefits for the Nontraditional Family

The Pension Protection Act of 2006 wasn't necessarily intended to benefit nontraditional families, but at least one aspect of the new law does just that. The Act allows a non-spouse beneficiary of a corporate sponsored retirement plan to rollover inherited plan assets to an "inherited IRA" and receive distributions based on their life expectancy. Under prior law, only spouses could make a direct rollover; other beneficiaries (partners, children, etc.) could be forced to withdraw the entire amount over a very short time frame resulting in higher income taxes for the beneficiary.

In order to take advantage of the new non-spouse beneficiary rules, contact your plan administrator to make your partner, child etc. a beneficiary of your retirement account. Upon your death, your new beneficiary will be allowed to rollover the proceeds to his or her own inherited IRA. The law is effective as of January 1, 2007.

The Act has other provisions that may benefit you and your family. For example non-spouse beneficiaries may now be eligible for hardship distribution rules that apply to certain qualifying medical and financial situations. The Act also allows certain older taxpayers to make direct transfers to a charity instead of having to withdraw the funds, pay taxes on them and then contribute them to charity.

To read more about the act, click here.

Technorati Tags: Alternative Family, Estate Planning, Nontraditional Family

More on the New Jersey Ruling

New Jersey's recent court ruling was a big step, but according to Lambda Legal, it represents just a first step. They contend that "... a civil union is a separate, confusing legal idea that divides us from our friends and neighbors, rather than bringing us together as equals. We agree with Chief Justice Poritz, who wrote in her dissent, “Labels set people apart as surely as physical separation on a bus or in school facilities.”" (Source Lambda Legal email newsletter October 26, 2006)

Want to know more about the ruling and how it might affect you? Some common questions and answers are:

What does the decision mean?

The court ruled that same-sex couples and their families have a constitutional right to the same benefits as heterosexual families. It ordered New Jersey’s Legislature to pass legislation providing these benefits and protections to same-sex couples within 180 days.

When does the law go into effect?

The court’s decision is effective as of April 23, 2007. By that time, the state legislature must adopt legislation to provide equal benefits and protections to same-sex couples.

What about non-residents?

New Jersey does not have a residency requirement for marriage. The court ruled that it cannot be any more difficult to enter into a civil union than into a marriage. S,o out-of-state couples will be able go to New Jersey to marry or enter into a civil union, depending on how the state legislature proceeds. However, your marriage or civil union might not be recognized in your home state.

These questions and answers were adapted from the very helpful list on the Human Rights Campaign website.

If you are a New Jersey resident and want to find out what you can do, click here to contact your legislators.

Technorati Tags: Alternative Family, Civil Union, Non-traditional Family, Same-Sex Marriage