Missouri Screws Over LGBT Couples When It Comes To Estate Planning

Categories: LGBT

jan.JPG
Jan Schamis
Paul Goetzheimer (left) and Jan Schamis.
Missouri is not a simple place for an LGBT couple to build a life. In fact, it's a mess. Just ask Jan Schamis, who married his partner Paul Goetzheimer on October 4 in New York.

The two live in St. Louis, and they worry over the legal ramifications of living in a state that considers their marriage licence worthless. Though not a subject newlyweds typically think about, they were concerned about what would happen if one of them died.

"We want to make sure we're covered," Schamis says. A certified financial planner, he knows that as an "unmarried" couple in Missouri they posses very few rights, and this is especially true when it comes to estate planning.

The only solution for Schamis and Goetzheimer is imperfect and expensive: Spend thousands of dollars amassing legal documentation that suggests they are, in fact, two consenting adults who want their spouse taken care of if the worst happens.

See also: Illinois Makes Same-Sex Marriage Official, Businesses Prepare for Wedding Boom

So what documents would an LGBT couple need? Attorney Adam Bagwell recommends nine:

  • Domestic partnership agreement
  • Will
  • Trust
  • Living will
  • Healthcare power of attorney
  • HIPPA authorization
  • Designation of agent
  • Durable power of attorney
  • Business power of attorney

It's not simple or cheap to have all those documents prepared, and the trust itself by could cost thousands of dollars. The point, Bagwell explains, is to have legal support for the relationship.

"The more stuff you have that says 'Yes, we're a couple' the better," he says. Not having that "stuff" creates the possibility that the family of the deceased spouse could contest that the relationship even existed. They could lock out the surviving partner and claim the benefits for themselves.

"The law doesn't presume a valid relationship," Bagwell continues. "The family could come into court and challenge the will. The family could say 'This was just a roommate.' They could make up anything they want."

That's right: A signed and notarized will is not enough by itself. Contesting the will would be much more difficult, however, if the surviving spouse could produce signed and notarized proof of the relationship.

But even so, nine documents don't equal a marriage certificate. Not by a long shot.

"The rights that come along with being married number in the hundreds," says Barbara Gilchrist, director of Legal Clinics at St. Louis University Law School. "It's just not possible to recreate that in an alternative way."

See also: 6 Questions (And Answers) About Illinois' New Same-Sex Marriage Law

Making matters worse is the conflict between Missouri and federal law. "We are in a very confusing period of time," she says.

Confusing is a bit of an understatement. One one hand, Governor Jay Nixon has shown he'll protect the federally recognized rights of married same-sex couples. Earlier this month he issued an executive order requiring the Missouri Department of Revenue to accept joint tax returns for legally married same-sex couples in Missouri.

Also, unlike the governors of four other states that ban gay marriage, Nixon has not obstructed the Missouri National Guard from providing full military benefits to same-sex couples.

On the other hand, the Missouri Supreme Court ruled the partner of a slain Missouri State Highway Patrol officer could not receive survivor's benefits since the two were not married.

"As a person, it makes me crazy," says Gilchrist. "As a lawyer, we utilize the law as it exists. That's what we have. It's not right, and I cannot tell another person that if we prepared these five or ten or two dozen documents it would recreate marriage. It's just not possible."

Bagwell echoes the sentiment:

"This is the framework we have to operate in. I wish it was easier for same-sex couples, I wish this was a recognition state," adding, "This is what I went to law school do to: To understand the law, not matter how jacked up it may be."

See also: State Rep. Nick Marshall Threatens to Impeach Gov. Nixon for Allowing Gays to File Joint Taxes

The legal issues here are complicated, and LBGT couples worried about preparing their estate in Missouri should talk to a lawyer, especially when it comes dealing with child custody agreements and pensions. There are also some good resources for information available online.

Follow Danny Wicentowski on Twitter at @D_Towski. E-mail the author at Danny.Wicentowski@RiverfrontTimes.com

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8 comments
JamesMadison
JamesMadison topcommenter

Contesting a will can happen with a straight marriage as well. Happens a lot when a couple is separated or the family dislikes their choice in partners. Justified when the family believes the spouse was the cause of their loved one's death. Hence, these legal documents are also recommended for straight couples. Nothing exceptional for gay couples. Plus, the RFT is engaging in fear mongering to the gay community. Most gay couples have families that support them or at the very least, would never contest the will. You can draw up a will without a lawyer - zero legal fees, until the time of death. Or you can seek legal advice on the drafting of the will. Usually a few hundred bucks, and often depends on the size of the estate. As far as both a will and trust? Seems like a lawyer is just trying to gain billable hours. It is common to have one or the other, not both.

This seems like a story with much ado over nothing. As far as Missouri goes, these two have a civil union, and they can write into that union the terms of dissolvement either by mutual consent (divorce) or upon the death of the other (will).

It is a story about how gay couples want the State in their bedroom with legal papers. Nothing more.

smdrpepper
smdrpepper

My old friend and former boss had to deal with this when his partner died.  He ended up screwed by his partners family who came in and took everything.

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