A STEP CLOSER FOR INHERITANCE RIGHTS FOR GAY MARRIAGE: DOMA’s death

# Gay marriage, and #same-sex couples, got a huge victory from the Obama administration this week on its way to equality in the eyes of the law  — as well a step closer to a piece of billions of dollars in #inheritance money —  and, #inheritance rights.

According to the Christian Science Monitor, “Attorney General Eric Holder announced Friday that the Obama administration would fully recognize the more than 1,000 same-sex marriages that were performed in Utah shortly after a federal judge declared the state’s ban on same-sex marriages to be unconstitutional. The US Supreme Court issued a stay of the lower court’s ruling two weeks later, bringing to a temporary end the performance of same-sex marriages in Utah and raising questions about the legitimacy of the new marriages.”

#Same-sex couples still do not have the same legal right to marry as hetero couples do, even though the US Supreme Court overturned #the Defense of Marriage Act in June 2013.  (#DOMA)

Why isn’t #DOMA dead?

Even after the US Supreme Court’s ruling, overturning #DOMA, there are still some state laws which discriminate against #gay marriage. The legal process needs to work its way through dealing with these state laws.   Let’s not forget, that repealing #DOMA and state laws which discriminate against #gay rights, is in just about the right to marry   —   gay partners who validly marry have huge #inheritance rights.

#Inheritance Rights for #Same Sex Marriage

So, why does this move by the US Atty. Gen. affect #Florida inheritance rights, or an interest in a #Florida estate? Because the state of Florida does not recognize #same-sex marriage, and this is costing #gay couples billions of dollars in #inheritance rights.

The $41 Trillion Inheritance War

The #Boston College Center on Wealth & Philanthropy estimates that   $41 trillion will pass from the World War II generation to Gen X and Gen. Y. This is the greatest generational wealth shift in history.

The state of Florida gives very valuable property rights to a #Florida widow, when one spouse dies — unless you are gay.

*  Florida law does not recognize #gay marriage.

*  This means that #gay couples don’t have #Florida inheritance  rights in the estate of their spouse when their spouse dies in Florida.

How valuable are these #Florida estate rights of a widow? Consider this: a #Florida widow has the following rights to a #Florida estate of a deceased spouse

• a guaranteed 30% share of the #Florida estate, called the #Florida elective share
• a guaranteed share of the #Florida estate even if your #gay spouse did not have a #Florida will — #Florida intestacy laws
• *  guaranteed rights to the #Florida home —— #Florida Homestead
• a guaranteed share of the #Florida estate even if your #gay spouse didn’t mention you in his or her #Florida will or left you nothing
• #family allowance (cash during the #Florida probate)
• personal property
• car
• rights to the #Florida revocable trust property

Challenge the Florida Will

How will #same-sex couples in Florida be able to enforce their #Florida inheritance rights if your #gay spouse did not have a good #Florida estate plan? It’s going to have to be settled in a #Florida probate court, during the #Florida probate administration Here’s how I see it going down one day:

• a rich gay Florida resident dies, having married his or her partner in a state which recognizes #same-sex marriage
• there is no #Florida will, or there’s no updated #Florida will
• the #surviving spouse, the #Florida widow, files papers with the #Florida probate court to get your #Florida inheritance rights
• family members of the deceased rich, gay Florida resident higher #Florida probate litigators to fight the #Florida widow
• the family members argue that Florida does not recognize #same-sex marriage and that the money in the #Florida estate should go to the family members and not to the #gay spouse

Preserving Inheritance Rights For Your Florida Spouse

is there anything which you can do to preserve #inheritance rights for your spouse in a state like Florida which does not recognize #gay marriage, and which still has on its books, #DOMA like laws ?

Here are six things that you can do to protect your #gay spouse in a state like Florida which doesn’t provide #same-sex couples with #inheritance rights of a hetero #surviving spouse:

1. hire a good #Florida estate planning attorney who not only rights #Florida wills, and #Florida trusts, but also understands how to enforce #Florida inheritance rights in a #Florida probate court, and who understands Florida’s #DOMA like laws
2. prepare a #Florida will leaving your spouse whatever you want
3. have your #Florida lawyer write a #Florida revocable trust for you
4. consider getting a #Florida power of attorney and Florida healthcare documents such as a #Florida living will, and Florida advanced health care directive
5. set forth, in writing, your intent to leave a #Florida inheritance to your #gay spouse. Have your #Florida estate lawyer put in your #Florida will in other estate planning documents that you expect that your family members may #challenge the Florida will
6. consider, over time, amending your #Florida trust for your #Florida will. If your family #challenges the will in the #Florida probate when you are dead, this makes their job more difficult.

FOR REFERRAL SOURCES, ATTORNEYS AND LITIGATORS

First, we should note that anyone in Florida, including gay couples, can alter rights by a valid contract. This also means that #Florida inheritance rights may be limited by a valid prenuptial or postnuptial agreement. ( In fact, just days ago, Florida’s Second District Court of Appeals issued a very important opinion for #Florida litigators who litigate the invalidity of a prenup, and those who try to set aside a prenup or challenge it in court.)

Our firm restricts its practice to #Florida trials, litigation and #Florida appeals involving inheritance rights, #will challenges, and valuable Florida property. We believe that a #Florida probate court will be the place where very important constitutional issues of discrimination, human rights, and freedom will be “fought out” in the form of a #will challenge or other #Florida probate litigation. Our firm is very interested in representing gay persons, and partners of #same-sex marriages performed in other states who may have #inheritance rights.  Our firm is very interested in helping #gay widows, and surviving spouses of #gay marriages to enforce their inheritance rights and the rights to a deceased gay spouse’s estate.  Lawyers and litigators at our firm can also speak to you about the legal oddity of    adopting your adult boyfriend or girlfriend.    What will be interesting, from a procedural and #Florida litigation strategy, will be whether the venue or form for this expected #Florida probate litigation will be in a Florida state probate court, or whether the battlefield of the inheritance war may be in a federal court, like the #Anna Nicole Smith case.

John Pankauski, www.johnpankauski.com, is the author of The Trustee’s Book – An Individual’s Guide To Money, Misfits, Marriages, and Mismanagement, and the upcoming The $41 Trillion Inheritance War. He is an estate and trust litigator in West Palm Beach, Florida. www.pankauskilawfirm.com and has been featured on the CBS Evening News, The Wall Street Journal, MarketWatch, NBC, ABC and Fox.