Estate, Property and Health Care Planning for Same-Sex Couples in Indiana

The debate surrounding HJR-3 in the Indiana House of Representatives serves to highlight a fact that hoosier same-sex couples have known for some time:  Indiana doesn’t exactly foster a hospitable legal environment for same-sex couples.   Simple rights and privileges granted to heterosexual married couples, many of which we take for granted, are almost always inapplicable to same-sex couples.  Accordingly, it is especially important for same-sex couples in Indiana to consult with legal counsel in order to avail themselves of the protection that the law does afford to them, and to help them create legally binding documents and contracts to help place them on a slightly more equal legal footing with married couples.  Here are some examples:

Health Care Representative and Power of Attorney:   

Parties to a heterosexual marriage are entitled to some common rights and responsibilities with regard to decision-making for their spouse, should he or she become incapacitated or unable to look after his or her own affairs.  Health care providers will almost certainly allow a spouse in to visit a hospitalized spouse, or to help make medical decisions on behalf of an incapacitated spouse.  It’s also a near certainty that there will be some preference given to a spouse should a legal guardian need to be appointed.  Same-sex couples do not receive these preferences, and can easily be shut out of these important decision-making roles. This unfortunate consequence can be avoided however, through sound legal planning. if it is important to you that your same-sex partner be entitled to visit you in the hospital, talk with your doctors, and be given preference in dictating your course of treatment in the event that you cannot communicate for yourself, then it’s imperative that you consult with your attorney and execute a valid Health Care Representative designation so that these rights are contractually conferred and are enforceable under Indiana law.  Without the proper documents in place, a same-sex partner can be completely excluded from even visiting a sick or injured partner in this hospital.   

Cohabitation Agreements:  

What happens when, in the words of John Prine, "the dove of love falls off the perch?"  For married couples, there is a robust body of law to guide parties through a dissolution of that marriage.  Indiana has an entire section of the Code set aside for dealing with divorce issues including the procedural and substantive aspects of  dividing up and distributing property, payment of joint debts, etc.  Just like heterosexual married couples, sometimes same-sex couples find their relationship to be irretrievably broken, and desire to dissolve the relationship and divide and apportion their property, rights and responsibilities accordingly. However, unlike married couples, same-sex couples are left to wander in the darkness in search of a legal framework under which to carry out this split.  The standard laws of dissolution do not apply and often these disputes are hashed out using old common law claims and remedies that are ill-suited to deal with what the situation really is: a dissolution.   It is for this reason, same-sex couples who have taken it upon themselves to cohabitate, share property, share expenses should consult with legal counsel and strongly consider entering into a written cohabitation agreement.  This is simply a written contract, in some ways similar to a prenup, that dictates the rights and responsibilities of the parties in the event that a split does occur.   This process allows the parties to agree ahead of time how these situations will be dealt with, contractually, as opposed to leaving the decisions up to an applied framework constituted by an ill-fitting body of law.   

Estate Planning:

 What happens to the assets when when one partner in a same-sex couple dies without a valid will?   Probably not what he or she would have intended.  Dying without a will in Indiana means that the property of the deceased will be distributed under Indiana's laws of intestacy.  Here's a link to the actual code section if you want to read it yourself: (http://www.in.gov/legislative/ic/2010/title29/ar1/ch2.pdf), but for the sake of brevity, I'll summarize:  If you die without a will, and you leave behind no surviving legally recognized spouse, also leave no surviving "issue" (direct descendants like children, grandchildren), then your assets will first pass to your surviving parents, if any, and surviving siblings, nieces, nephews, and on down the line.  If one is in a committed same-sex relationship, this law can leave the surviving partner out in the cold, both literally and figuratively.  If this is not your intent, then it becomes very important to address these issues with an experienced estate planning attorney.  The most horrific possibilities are usually easily avoided through the use of well-drafted wills, trusts and other estate planning tools at our disposal.  

Same-sex couples face a less than ideal legal landscape in Indiana, and while there appears to be a shifting of public sentiment and of the political tide on these issues, change will likely happen slowly here in Indiana.  However, many of the common obstacles discussed above can be overcome through sound legal advice and a well crafted plan.  If you have additional questions about these issues, please feel free to contact us at (317) 575-8222, check out our website at www.halcombsingler.com, or email me directly at:greg@halcombsingler.com.  

JTWROS: Don't Take This Perilous Estate Planning Shortcut!

You've probably heard the term "Joint Tenants with Rights of Survivorship," or "JTWROS" for short.

The term essentially means a method of joint ownership by more than one person or entity whereby one owner's interest in the property automatically transfers to the other owner(s) upon his or her death.  I'm climbing on my soapbox today because the common misuse of this ownership arrangement as a "bootleg" or "DIY" estate planning tool is a personal pet peeve of mine, and another instance of it recently came across my desk.  A prospective client explained that he or she "added" a child to one of his or her accounts so that the child would be able to help the parent with banking tasks as the parent ages. This is not ALWAYS a bad idea, but it does come with some very serious risks.

So, why do I freak out when a client says:

"I put my daughter's name on my account so she can help me with my banking."

Here's why:

1. The statement above that the parent "put daughter's name on the account," is legally vague.  This could potentially be interpreted to mean that the daughter has been given signature privileges, has been made a Joint Owner with Rights of Survivorship, or has been designated as a authorized signer pursuant to a valid Power of Attorney.  Most commonly, in my experience, the client means that he or she has added the child as a Joint Owner with Rights of Survivorship.  Regardless, it becomes incumbent upon us to investigate to determine what "putting daughter on the account" really means.

2. Adding a child as a joint owner on an account places the assets in that account at unnecessary risk in that a joint owner of an account could simply empty the account on a whim leaving the parent with little, if any, recourse.  Taking into account the obligatory, "my child would never do that to me," statement from the client, and assuming that the child in question is a pillar of moral rectitude as parent asserts, then we move to the next set of risks...

3. Adding a child as a joint owner of an account potentially subjects the account to the claims of child's creditors.  This doesn't just mean that the funds might be attached by a traditional "creditor" like the child's credit card company or mortgage lender should the child default on a loan.  Maybe the child causes a car accident which result in damages exceeding his or her policy limits, or maybe the child gets a divorce and the "in-law" spouse claims the account funds should be split off to him/her. Do you know what happens when an account with the child's name on it as a joint owner is discovered by any of these aforementioned parties?  Often a discovery request is sent to the financial institution and the account is immediately frozen with little or no notice.  How upset would you be if you were unable to access your funds because one of these adversarial parties had the account frozen?

4. Making someone a joint owner of an account can foul up your previously executed estate plans.  Even if you've already made a will or a trust designating a particular distribution of your assets upon your death, making one child a joint owner (JTWROS) of an account or other property will result in that particular account or property automatically passing solely to that child upon your death. That will or trust that you went to the effort and expense to have prepared just became completely ineffectual with regard to that particular JTWROS account or asset. There's no automatic "reallocation" of assets from a will or trust to compensate the other child(ren) for not receiving the assets in that JTWROS account.  It usually just ends in a lopsided division of the assets and an awkward feeling amongst all the parties involved.  

All of these scenarios are easily avoidable through the use of proper estate planning methods instead of trying to take the JTWROS shortcut.  Your banker might be very knowledgeable and helpful, but it's not likely that he or she is also an attorney experienced in estate planning matters.  For this reason, it is imperative to seek the assistance of experienced legal counsel before attempting to add anyone to an account as a joint owner.  I assure you, there are almost always much safer ways to accomplish your goals without placing the assets in peril, and without costing an arm and a leg.  

If you have questions or concerns about this or other legal matters, please see our website at www.halcombsingler.com, or contact us at (317) 575-8222.