Engelhard, a 10-year veteran of the Missouri State Highway Patrol, was killed last December after getting out of his patrol car to place flares at the scene of a traffic accident.  Under Missouri state pension rules, if a trooper dies in the line of duty, his or her spouse is eligible for lifetime survivor benefits.   For Engelhard, that would have been more than $28,000 a year.

Missouri pension law is clear about who is a spouse.  In 2004 Missouri voters approved a constitutional amendment banning same-sex marriage.  Neither the state Highway Patrol pension system nor Missouri law recognizes domestic partners.

Although the unmarried partner of a heterosexual trooper would also not be eligible for survivor pension benefits, that couple would have had the option of getting married.   An option not available to Engelhard and Glossip.

Illinois, a bill, SB 2822, has recently been introduced that would amend the state pension code to allow a designated domestic partner to qualify as a surviving spouse for purposes of survivor and death benefits.  The bill defines a domestic partner as a person of the same gender as the unmarried pension participant who:

• is at least 18 years old
• is involved with the participant in a long-term relationship
• has resided witht he participant at the same address for at least 12 months
• is not a close blood relative of the participant
• is not married to another person
• has an exclusive mutual commitment to the participant in which they agree to be jointly responsible for each other’s common welfare and to share financial obligations.

Adoption for same-sex couples arises in one of two ways.   A “second-parent” adoption is a legal procedure in which a co-parent adopts her or his partner’s child without terminating the partner’s parental rights. In a “co-parent” adoption, an unmarried couple jointly petition the court to adopt a child.

An adopted child is the legal child of both adoptive parents.  Each parent has the same rights and responsibilities of any other parent.  This is true even if one of the adoptive parents is the biological parent of the child.  If the adoptive parents’ relationship breaks down after the adoption, neither of them has greater rights to the child than the other parent.  The child would have the right to have custody, visitation and child support issues heard by an Illinois court.

If you have a health care power of attorney, you will likely not need Tool # 7 unless you want to designate someone other than your health care agent to have authority to dispose of your remains.  However, the Appointment of Agent to Control Disposition of Remains must be coordinated with the health care power of attorney to avoid confusion or conflict.

The Disposition of Remains Act provides that a person may provide written directions via the following:

• a will;
• a prepaid funeral or burial contract;
• a power of attorney that meets the criteria of the Illinois Power of Attorney for Health Care;
• a cremation authorization that complies with the Illinois Crematory Regulation Act; or
• a written document that satisfies the provisions of Sections 10 and 15 of the Disposition of Remains Act and that is signed by the person and is notarized.  (that is, the “Appointment of Agent to Control Disposition of Remains.”)

The Act does not prioritize which of the above takes precedence, but the Appointment of Agent to Control Disposition of Remains does state that any prior appointment of a person to control disposition of remains is revoked.   755 ILCS 65/40(a).  It also provides that any disputes are to be resolved by a court.

As I’ve discussed many times -

• discuss;
• plan;  then -
• take action

to ensure that what you want and what you intend for yourself and your loved ones come to pass.

For LGBT persons, a will is not optional.   Dying without a will guarantees that your property will be automatically distributed to your legal heirs, as defined by the law of Illinois, if you’re an Illinois resident, or your state.  The Illinois statute is here.

Who are legal heirs?

• They are your family of origin – children, parents, brothers and sisters.  If you have none, then your closest relatives are your legal heirs.
• A same-sex partner or spouse is not a legal heir (with the exception of a few states where the marriage, civil union or domestic partnership laws recognize the right of a same-sex partner to inherit.)
• No matter how long you’ve been with your partner, no matter what your relationship is with your family of origin – if you die without a will, your property will go to your legal heirs as defined by the law of the state in which you live.

A last will and testament can accomplish several important things, including:

• naming your partner or a close friend as guardian of your minor children;
• spelling out your burial wishes;
• clarifying your intention to provide for your same-sex partner or close friend or a charity;
• naming your partner as executor of your estate.

If you anticipate a will challenge or hostile family members, you need to take even greater precautions in drafting your will.

It is far less expensive, financially and emotionally, to plan now to make sure that your property goes to the people or charities you choose.  Remember, every state has different legal rules for creating a valid will.  Prepackaged forms are often incorrect or out-of-date or just don’t fit your situation.   Have an experienced, knowledgeable attorney who is familiar with the laws in your state and the issues faced by LGBT persons help you draft your will and life planning documents.

In Illinois this document is known as a power of attorney for property.  It’s also known as a power of attorney for finances or a durable power of attorney.  You are the “principal” and the person you name is the “agent.”     The document allows your agent to manage your finances if you can’t.  You may cancel the power of attorney at any time and do not have to give a reason;  if not, the appointment ends when you die.  You decide how much control your agent has over your finances.  You can limit the powers of your agent to a specific time frame, or to specific functions.  Some of the powers may include:

• using your assets to pay your bills and everyday expenses;
• handling your checking account or other transactions with banks and financial institutions;
• buying or selling real estate or other property;
• operating your small business.

Executing a power of attorney for property can save you and your loved ones the expense and difficulty of a guardianship proceeding in court.  It can also prevent your relatives from intervening in your financial affairs if you are incapacitated.

A power of attorney for property can be made effective immediately (a non-springing power of attorney), or you can specify that it go into effect only if you become incapacitated or on a certain date (a “springing” power of attorney.)  This is a very personal decision.  If you create a “springing” power of attorney, your agent can act only if something that you specify happens, like becoming incapacitated.  The disadvantage  of this springing power of attorney may be delays in determining whether you are, in fact, incapacitated.   A disadvantage of a non-springing power of attorney is that your agent could misuse it while you are still able to make your own decisions.  Consult an attorney about what is right for you.

Naming someone as your agent should not be taken lightly.   You are giving that person very broad rights to handle your finances, including the ability to empty your checking or savings account with your knowledge.  The person you name as your agent should not only be someone who knows how to handle money, but also someone you trust completely.

Think of the what matters most:

• Who will make medical decisions for you if you are unable to do so for yourself?
• Who will make financial decisions for you if you become incapacitated?
• What will happen if your partner and you break up?
• Who will care for your children if something happens to you?
• Who will inherit your belongings when you die?
• Who will see to it that your wishes for your funeral arrangements are carried out?

The reality is that current Illinois law has several barriers between you and the person you may want to be by your side or provided for if something happens to you.    Creating a Life Plan Toolbox now will protect you and the ones you love.

These are the basic tools that should be in your Toolbox:

• Medical Power of Attorney
• Financial Power of Attorney
• A Living Will
• Beneficiary Designations for life insurance policies or retirement plans
• A Will
• Real Estate Ownership Arrangements
• Second-Parent Adoption

I’ll discuss each of these tools in more detail in coming posts.