Pets and Estate Planning?

A 2003 study conducted by GL Census Partners found that gays and lesbians are more likely to own a pet than their heterosexual counterparts. In fact, the study estimates that nearly 2 out of 3 GLBT people have a pet of some kind! And as anyone with a pet (or animal companion) will tell you, they are truly a part of your family. You vacation with them, you buy them fashionable sweaters, and care for their health and well-being.

So what does this have to do with estate planning? Well, you probably already have an estate plan in place to protect your property and your spouse or partner if something were to happen to you. But how will your loyal pets be cared for in the event that you are no longer able to look after them? Below is a brief list of options you might discuss with your attorney as you create or update your estate plan in the new year:

• If you already have a will, consider including a specific bequest of your animal to a trusted caretaker, together with a sum of money to provide for the care of the animal. This is a great option for smaller estates and where you have a trusted caretaker in mind.


• You might also consider creating a pet trust to provide for the care of your pet. More than 30 states have laws in place that recognize some variation of the pet trust. Although Massachusetts does not (yet) recognize trusts created for the benefit of an animal, it may be possible to create a trust for the benefit of the individual you have chosen to look after your pet or animal companion.


• For short-term care in the event that you are incapacitated, you might consider drafting a limited power of attorney, which gives another person the right to act on your behalf with respect to certain property (like your animal companion), and certain assets which may be used in the care, feeding, and shelter needs of your pet.


• It may also be possible to contract with an orgnization to provide a sum of money in exchange for providing shelter and medical care during the life of your pet, and/or to locate and arrange care by a foster family.


• A modest life insurance policy naming your intended animal caretaker as beneficiary, either individually or in connection with a trust, could effectively be used to provide funds for the medical care, shelter, and maintenance of your animal companion if you die.

This is a new and deveping area of estate planning law, and creative solutions and options do exist. Don't forget to talk about "Spot" or "Fi-Fi" with your attorney at your next 'legal checkup'.

What is a "Health Care Proxy"?

Massachusetts law allows every individual 18 years or older to appoint another person as her Health Care Agent. A Health Care Proxy is the legal instrument that appoints your trusted Health Care Agent and enables them to make and communicate important health care decisions on your behalf in the event you are unable to do so.

Whether you are unconscious for a period of hours or days as the result of an automobile accident, or incapacitated for longer periods of time as the result of a stroke or other debilitating illness, your doctors will turn to family members to make important medical decisions.

Without a Health Care Proxy, painful disagreements about your medical care can arise between family members and a spouse or partner. For example, who will be permitted to visit you in the hospital? In the event that you are in need of long-term care, should you be treated close to your same-sex partner, or close to your parents back in Connecticut? Would you want to be kept alive using 'heroic' measures such as artificial breathing and feeding, and for how long?

Even same-sex and opposite-sex married couples must prepare Health Care Proxies to prevent other family members, like parents, from attempting to take control of the medical care and medical decision-making process. (We all remember the tragic case of Terry Shiavo several years ago). Unfortunately, individuals in same-sex relationships will often have family members who are (or who may become) hostile to a spouse or partner, and who may refuse to acknowledge your relationship. This can have painful and tragic consequences during an already difficult time.

With a carefully prepared Health Care Proxy, you can ensure that your partner or spouse is legally entitled to make important and intimate medical care decisions in the event that you are no longer able.

When Should I Update My Health Care Proxy?

Assuming I have a current Health Care Proxy and Living Will in place, when or how often should I have these important health care instruments reviewed or updated?

The American Bar Association’s Commission on Law & Aging suggests updating your health care wishes whenever any of the “Five Ds” occur:

• DECADE – when you start each decade of your life;
• DEATH – whenever you experience the death of a loved one;
• DIVORCE – whenever you experience a divorce or other major family change;
• DIAGNOSIS – when you are diagnosed with a serious health condition; and
• DECLINE – when you experience a significant decline or deterioration of an existing health condition, especially when it impacts your ability to live independently.

In addition, I would recommend updating your health care wishes if you move to a new state, or if you are spending long periods vacationing in another state.

For same-sex couples, updates should be made whenever important changes occur in the law with respect to the legal recognition of your relationship, or if you spend substantial periods of time traveling in states that do not afford the same legal recognition or rights as Massachusetts.

Lastly, you should update your health care wishes in the event that your previous documents no longer reflect your current wishes or outlook.

Always speak with an attorney regarding the proper way to revoke or make any changes in a prior Health Care Proxy or Living Will.

Just Married? Time for a New Will!

If you are one of the many same-sex couples that took advantage of the legal recognition of same-sex marriage in Massachusetts, you probably think that you've done everything you can to protect your spouse, your children and your estate. Not so fast.

If you recently got married, those wills you and your partner created years ago to protect one another are no longer valid. That is because in Massachusetts a marriage automatically revokes any wills previously made, unless the will clearly indicates that it's being made in anticipation of an upcoming marriage. Have your current wills and estate plan reviewed and updated by an attorney today so that you and your family are protected in the event of the death or disability of either spouse.

Will Massachusetts Recognize my Same-Sex Marriage?

I was legally married in another country. Will Massachusetts recognize my marriage?

Yes, and congratulations! Canada, along with Spain, Belgium, the Netherlands, and South Africa all recognize the right of same-sex couples to be lawfully married. On May 17, 2004, Massachusetts became the first U.S. state to recognize same-sex marriage. Under the Supreme Judicial Court’s opinion in Goodridge v. Department of Public Health, Massachusetts must issue marriage licenses to otherwise qualified same-sex couples. The decision also means that Massachusetts must give equal treatment to same-sex couples who obtained a valid marriage license issued by another state or country, including those mentioned above.

One important caveat is worth mentioning. Due to the federal Defense of Marriage Act, often referred to as DOMA, the United States government may still discriminate against your valid marriage with respect to any of the more than 1,000 federal rights and privileges, including those relating to Social Security benefits, family and medical leave, taxation and spousal gift-giving, and many others.