As the walls come tumbling down …

Recent New York cases and Governor Paterson’s Memorandum directing that New York state agencies recognize same gender marriages legally performed in other jurisdictions,1 as well as a New York State Depart-ment of Health directive advising that same gender spouse are to be treated the same as traditional spouses in regard to Medicaid eligibility2 appear to be leading the way to extending constitutional protections afforded all Americans, irrespective of gender.

These actions signal the loosening of the stranglehold of puritan ideals and the realization that fairness and equality apply to all and is not exclusive to those who look, think and live as the framers of the constitution did. These actions signal a true separation of religion and the law, and allowing people to be treated equally without regard to the gender of their partner. Maybe the framers of the constitution never envisioned that equal rights would extend to same gender couples, and it is doubtful they envisioned such rights would extend to women and minorities. Seemingly, the world, and we as citizens, are better people for these expansions.

Notwithstanding the positive movement in recognition of constitutional protections, even those couples with valid civil unions or same gender marriages solemnized in other states or countries may run into significant road blocks. Currently the laws across the country are in a state of flux. While domestic relations laws are being changed to recognize same gender couples, laws in related areas struggle to catch up. For example, a recent New York case held that a domestic partner was not entitled to survivorship benefits under workers’ compensation,3 yet another court ordered a college to provide spousal health benefits to a same gender spouse of a Canadian marriage.4 By way of further example, New York County Surrogate Kristin Booth Glen held that the surviving same gender spouse of a decedent under a Canadian marriage was the decedent’s spouse for estate purposes.5 This decision followed a decision in another county holding that the validity of the same gender marriage had not yet been determined and that the blood relatives of the decedent and not just the same gender spouse must be included in the decedent’s estate proceeding.6

For the most part same gender spouses and domestic partners lack the statutory protections of a traditional spouse or blood relative; this means the rights of a same gender spouse may be left to the interpretation of a judge; advance directives, wills and trusts can be used to create and support those rights.

Rather than leave the protection of a same gender spouse or domestic partner to chance thoughtful life planning can help ensure that the surviving partner will be taken care of as intended. While the laws across the country appear to be broadening the application of “equality for all,” nonetheless affirmative steps need be taken in estate planning by same gender couples for their testamentary provisions to survive even in the face of anti-equality legislation like California’s Proposition 8. It would be good practice to advise same gender couples to be proactive and formulate and implement an estate plan which would provide for the surviving member, even if laws were enacted invalidating civil unions or same gender marriages and the intestacy rights that may go with them.

Proper planning can also empower your client, safeguard their wishes and see that those wishes are met, even at a time when your client lacks the ability to communicate them. Much of the planning will mirror that utilized in planning for traditional couples.

Durable Power of Attorney

Durable Powers of Attorney can be valuable in the event of illness, incapacity, or your clients’ inability to address property management. This document is very powerful and can be dangerous in the wrong hands. The statute which gives life to the durable power of attorney provides guidance as to the proper execution of the document and this guideline should be carefully followed. An improperly executed power of attorney is not valid. The New York State law governing Powers of Attorney has undergone an extreme makeover. The effective date of the amended law is September 1, 2009, for Powers of Attor-ney executed after September 1, 2009 care must be taken to conform to the new requirements relating to major gifts and fiduciary acceptance.

Care should be given in the selection of agents. An agent should not be selected to appease the sensitivity of family members, an agent should be selected based upon their emotional and financial stability and their ability to make effective and appropriate financial decisions. If your client wants their attorney in fact to financially provide for the, this direction should be included in the durable power of attorney. In light of issues relating to self-dealing consideration should be given to appointment of a co agent for the purpose of exercising powers which enrich the partner.

Health Care Proxies

Without a duly executed health care proxy, a partner, traditional or otherwise is not automatically authorized to make health care decisions for their partner upon incapacity.

End of Life Decision Making

Specific wishes regarding end of life decision making, should be expressed in writing. If your client does not want to have feeding tubes or hydration, this must be stated in very clear language. Absent clear and convincing evidence of an individual desire to forgo artificial hydration and nutrition, the presumption is that such intervention is desired. A living will provides a road map to follow in a time of crisis. The Terry Schiavo case demonstrated that well intentioned family members and loved ones may have wildly divergent thoughts on what someone’s wishes are.

Advance Directives and Guardianship Proceedings

In the event your client becomes unable to manage personal and or property management and a guardianship proceeding is commenced, the court will inquire into the existence of health care proxies, living wills and powers of attorney. The court will consider validly executed advance directives in determining who should be guardian. Additionally, New York guardianship law requires that the appointed agent be made part of a guardianship proceeding, which places an agent on near equal footing with family members in such a proceeding.

Hospital Visitation Authorization

The law allows a patient to designate in writing who shall have priority of visitation. To ensure that a partner has access during a hospital stay, a written designation should be executed. This is particularly important if next of kin and your client’s partner have a strained relationship, and the family is anticipated to exclude the partner from visitation.

Designation for Disposition of Bodily Remains

New York has a statute which lists the priority of individuals who may make burial decisions for a deceased person. Preference is given to a spouse or a domestic partner. The urgency of burial is very real, and need for expedience can result in a partner being overlooked, or excluded not only from the decision making process but from the final arrangements. A written designation of agent for burial and funeral arraignments should be made, naming the partner as the person to make those decisions.

Last Will and Testament

There are no statutory inheritance rights for domestic partners and New York statutory law does not expressly extend to same gender spouses. State statutes provide for the distribution of estates for people who die without a will. If you die without a will and you have not made other arrangements for your partner, your assets may go to blood relatives instead. There have been some cases which have placed a same gender spouse in a valid foreign same gender marriage in the same position as a traditional spouse as a distributee under the EPTL in a probate proceeding.7 Whether the result would be the same in an intestacy proceeding remains to be seen, but I for one would assert that our clients are better served by executing a valid will.

In a properly drafted Will your client can provide for their partner and provide the same rights in the estate that a traditional spouse would have, and can rest assured that the future security of their partner will not be subject to the vacillating whims of public opinion and the agenda of various special interest groups.

Life Time Trusts

Wills can be contested, and even without a Will contest the probate of a will and the distribution of an estate is not automatic. One way to avoid the inherent issues of probate is with a fully funded life time trust. Medicaid and long term care planning can be effected through such trusts. If all of assets name beneficiaries or are held in the Trust, an estate may avoid probate and more importantly, your client’s assets will be more readily available to the beneficiaries.

New York now has an administrative directive, directing that same gender spouses be treated as traditional spouses in regard to Medicaid eligibility. Caution should therefore be exercised in regard to intervivos supplemental needs trusts and the limitations on spousal trusts under OBRA 93.8

Beneficiaries of Life Insurance, 401k, IRA and Annuities

Annuities IRA(s) and life insurance are contracts. Your client’s partner should be designated as the beneficiary under the contract with the account manager, or the partner will not receive them. If a trust owns the annuity of life insurance policy, make sure there are no inconsistent beneficiary designations on those accounts which conflict with the terms of the trust.

Medicaid Planning for Long Term Care

Under New York law, as it stands today, New York State agencies must treat same gender spouses, the same as traditional spouses. The caveat is of course that New York does not solemnize same gender marriages. In order for a same gender spouse to be treated as a traditional spouse, the parties must have been legally married in a jurisdiction that recognizes and performs same gender unions. In such circumstances, the parties are entitled to the protection of the spousal impoverishment and transfer rules.

Plan for the Worst, Hope for the Best

Under most state laws, spouses enjoy statutory protection from disinheritance by a predeceased spouse. Spouses also enjoy certain preferences and guarantees in regard to the health care decision making, burial direction, hospital visitation, and appointment as guar-dian in the event of an incapacitating event. Same gender spouses or partners for the most part, lack the statutory protections of a traditional spouse. Despite the favorable court decisions, there are groups which oppose the extension of spousal rights to same gender spouses. Groups such as the Alliance Defense Fund have filed lawsuits challenging the granting of spousal rights in same gender marriages, these actions make it very clear that despite the progress being made administratively and judicially, there is a very real risk that these newly enforceable rights could be snatched back. A comprehensive life plan can create, enforce and support spousal protection for same gender couples.

Wendy H. Sheinberg, Esq., CELA is a partner in the Law Firm of Davidow, Davidow, Siegel & Stern LLP a law firm that concentrates in Elder Law, Planning for Same Gender Estate and Life Planning, Special Needs, Estate Planning, Guardianships, Estate Admini-stration Trusts, and Wills, serving clients in Nassau, Suffolk, Queens, Brooklyn and Manhattan. She is one of fewer than 400 Certified Elder Law Attorneys in the United States. She has been certified by the National Elder Law Foundation as a Certified Elder Law Attorney, Ms. Sheinberg has been named one of fewer than 80 Fellows of the National Academy of Elder Law Attorneys, and she is AV rated by Martindale Hubbell.

Ms. Sheinberg is a Member of the Irish American Bar Association of New York; Member of the Board of Directors of the National Academy of Elder Law Attorneys (NAELA); Member of the Association of the Bar of the City of New York, Member of the New York State Bar Association Elder Law Section: Member of the New York State Bar Association Health Law Section; Member of the New York State Bar Association Trial Lawyers Section; Member of the Nassau County Bar Association Publications Committee; Board Member Long Beach Lawyers’ Association and a member of the Lions Club. Wendy can be reached by calling 516-222-7720 or at

1. Executive directive May 14, 2008
2. GIS 08 MA 023
3. Matter of Valentine v. American Airlines, 17 A.D.3d 38 (3d Dept. 2005)
4. Martinez v. County of Monroe, 850 N.Y.S.2d 740 (4th Dept. 2008)
5. Matter of H. Kenneth Ranftle, NYLJ Feb. 2, 2009, Page 27, Col. 1.
6. Will of Alan Zwerling, NYLJ, Sept. 9, 2008
7. Matter of H. Kenneth Ranftle, NYLJ Feb. 2, 2009, Page 27, Col. 1.
8. GIS 08 MA 023