Marriage Equality in The Crosshairs

Marriage Equality in the Crosshairs:
Estate Planning Protections amidst Targeted Discrimination
Presented for Esquire CLE

by Max Elliott, Managing Attorney and Founder
The Law Offices of Max Elliott, Ltd.
August 29, 2018
Ready… Aim…
Copyright 2018. The Law Offices of Max Elliott, Ltd. All rights reserved.
Marriage Equality Jurisprudence
Before Marriage
Marriage equality jurisprudence is derived

from the bedrock of individual rights jurisprudence
that is not expressly provided
for in the United States Constitution
Before Marriage
This bedrock, also known as the penumbras, was articulated
through holdings in landmark U.S. Supreme Court cases that
speak to the rights and freedoms of individuals implied in the
Bill of Rights
• First Amendment, Ratified 1791
• Fifth Amendment, Ratified 1791
• Ninth Amendment, Ratified 1791
• Fourteenth Amendment, Ratified 1868
Before Marriage
The Penumbras
• First Amendment, Ratified 1791
o Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances.
Before Marriage
The Penumbras
• Fifth Amendment, Ratified 1791
o No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation.
Before Marriage
The Penumbras
• Ninth Amendment, Ratified 1791
o The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by
the people
Before Marriage
The Penumbras
• Fourteenth Amendment, Ratified 1868
o Section 1. All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.
o Section 5. The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.
Before Marriage
The Penumbras Caselaw
• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Loving v. Virginia, 388 U.S. 1 (1967)
• Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971)
• Bowers v. Hardwick, 478 U.S. 186(1986)
• Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 833 (1992)
• Romer v. Evans, 517 U.S. 620 (1996)
• Lawrence v. Texas, 559 U.S. 558 (2003)
Before Marriage
• Griswold v. Connecticut, 381 U.S. 479 (1965)
o Authored by Justice William O. Douglas, Justice Arthur Goldberg’s
concurring Opinion provided the more compelling arguments and analyses
➢ “In determining which rights are fundamental, judges are not left at
large to decide cases in light of their personal and private notions.
Rather, they must look to the “traditions and [collective] conscience of
our people” to determine whether a principle is “so rooted [there] . . .
as to be ranked as fundamental.”
➢ Goldberg related the fundamental rights to the pursuit of happiness as
discussed by the Founders along with the “right to be let alone.”
Goldberg then unequivocally stated that where fundamental rights are
at stake, rational basis review cannot be the standard of review for the
law at issue affecting those rights
Before Marriage
• Loving v. Virginia, 388 U.S. 1 (1967)
o Overruled anti-miscegenation statutes, the Supreme Court found that
the State of Virginia had no rational reason for a law prohibiting
interracial marriage:
“[We] cannot conceive of a valid legislative purpose…
which makes the color of a person’s skin the test
of whether his conduct is a criminal offense.”
o The Court further held that the freedom to marry has long been
recognized as a vital personal right essential to the orderly
pursuit of happiness by free men
Before Marriage
• Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (Minn., 1971)
o Plaintiffs sought a marriage license in Minnesota and the County Clerk, Gerald
Nelson rejected their application
o Baker and McConnell sued arguing that, because Minnesota’s marriage statute
did not prohibit same-sex marriage, the legislature intended the state to authorize
same-sex marriages
o The trial court disagreed
o Baker and McConnell appealed on grounds of due process and equal protection
rights under the Fourteenth Amendment and using Griswold and Loving to
support their arguments
o The Supreme Court of Minnesota affirmed the lower court’s ruling
o The couple appealed to the U.S. Supreme Court but because they did not file a
Petition for certiorari, the Supreme Court dismissed the case and the holdings and
reasonings in Baker v. Nelson became precedent for decades
Before Marriage
Cases of the Penumbra
• Bowers v. Hardwick, 478 U.S. 186(1986)
o Michael Hardwick was arrested and charged with violating Georgia’s sodomy law
o Hardwick challenged the constitutionality of the statute that was
the basis for his arrest
o The Court framed the issue as whether the Constitution provided
a fundamental right for LGBTQ persons to have sexual intercourse
with each other
o The Court stated it would look to the defining essence
of those rights that require a compelling interest be shown,
using a disjunctive test:
➢ if the activity was proscribed, there would be
no liberty or justice; or
➢ the rights were those “deeply rooted in the nation’s history
and tradition.”
o According to the Court, same-sex intimacy didn’t satisfy the test;
Eleventh Circuit’s decision was reversed, allowing the law to stand
Before Marriage
• Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 833 (1992)
o Petitioners challenged the constitutionality of changes to Pennsylvania’s
reproductive rights statute
o Courts in other jurisdictions also challenged and disagreed on the legal standard
used to determine reproductive rights: trimester or undue burden
o The Court decided to use the undue burden standard and broadened the issue:
“These matters, involving the most intimate and personal choices
a person may make in a lifetime, choices central to personal dignity
and autonomy, are central to the liberty protected by the Fourteenth
Amendment. At the heart of liberty is the right to define one’s own concept
of existence, of meaning, of the universe, and of the mystery of human life.”
Before Marriage
• Romer v. Evans, 517 U.S. 620 (1996)
o Several Colorado municipalities passed ordinances prohibiting
discrimination based on sexual orientation
o Colorado legislature then proposed and passed Amendment 2, a
referendum, allowing for discrimination
o LGBT Colorado citizens sued to enjoin enforcing the Amendment and
prevailed
o The State appealed arguing that Amendment 2 only denied LGBT persons
“special rights”
o The U.S. Supreme Court disagreed with the State
➢ The ordinances in question were codifying the duty not to discriminate
Before Marriage
• Lawrence v. Texas, 539 U.S. 558 (2003)
o John Lawrence and Tyrone Garner were charged and convicted of “deviate sexual
intercourse,” in violation of a Texas statute
o Lawrence challenged the statute as unconstitutional on the basis of the
Fourteenth Amendment’s Equal Protection Clause
o The Court saw Lawrence presenting 3 issues, whether:
➢ The Texas statute violated the Fourteenth Amendment’s Equal Protection
Clause;
➢ The Texas statute violated the Fourteenth Amendment’s Due Process Clause;
➢ Bowers was decided correctly
o The Court considered several cases and their premises, including Griswold, Roe,
Bowers, Planned Parenthood v. Casey, and Romer:
➢ The stigma associated with same-sex intercourse should be removed
➢ “Stare decisis is not absolute”
➢ Bowers was incorrectly decided
Penumbras’ Cracks
Congress v. SCOTUS (Romer)
Defense of Marriage Act (DOMA), Pub.L.
104–199, 110 Stat. 2419, Sept. 21, 1996
• Defined marriage: A union between
“one man and one woman,” barring
same sex couples from receiving
marital benefits, such as immigration
visas for families, military benefits for
same-sex couples, Social Security
surviving spouse benefits
Penumbras’ Glue
Baker v. State of Vermont, 744 A.2d 864 (Vt. 1999)
• Established Civil Unions: “[G]overnment is, or ought to
be, instituted for the common benefit, protection, and
security of the people, nation, or community, and not for
the particular emolument or advantage of any unmarried
person, family, or set of persons, who are a part only of
that community ....”
Penumbras
Hypothetical #1: The Rambunctious Professor
It’s 1989 in Colorado. Your client and their partner were in your
client’s home one evening. The home is located on a private
university’s campus. Your client is a university professor. On this
particular evening, students phoned campus police stating they
feared domestic violence was occurring. The campus police go
to the residence and allegedly hear screaming and furniture
being knocked over. The police break down the door and file a
report with the university and, subsequently, the provost asks
your client to move. What recourse does your client have?
Penumbras’ Glue
• Goodridge v. Department of Public Health, 798 N.E.2d 941
(Mass. 2003)
o Massachusetts’s Department of Public Health refused to
issue marriage licenses to same-sex couples
o Couples sued
o Defendant’s argument was primogenitor of cases arguing
biology today: because same-sex couples can not
procreate, they should not allowed to be married
o The illogic failed then…
Penumbras’ Superglue
• U.S. v. Windsor, 570 U.S. 744 (2013);
133 S. Ct. 2675; 186 L.Ed.2d 808
o IRS wanted estate taxes but surviving spouse
of lawfully married same-sex couple argued
that she should have the right to the same
benefit given to all, lawfully married couples
the marital deduction
o The logic prevailed
Penumbras’ Superglue
Civil Unions Redefine the Battleground
Illinois Religious Freedom Protection and Civil Union Act,
750 ILCS 75, 2011
“This Act shall be liberally construed and applied to promote its

underlying purposes, which are to provide adequate procedures
for the certification and registration of a civil union and provide
persons entering into a civil union with the obligations, responsibilities,
protections, and benefits afforded or recognized by the law of Illinois
to spouses.”
Penumbras’ Crazy Glue
States begin recognizing and providing same-sex marriages
Religious Freedom and Marriage Fairness Act, 750 ILCS 80/1 et seq.
(2014)
• Illinois became 15th state to recognize and provide same-sex
marriages
o “Section 10. Equal access to marriage. (a) All laws of this State
applicable to marriage, whether they derive from statute,
administrative or court rule, policy, common law, or any other
source of civil or criminal law, shall apply equally to marriages
of same-sex and different-sex couples and their children.”
Penumbras’ Crazy Glue
• Obergefell v. Hodges, 570 U.S. ___ (more) (2015); 133 S. Ct. 2675;
186 L.Ed.2d 808
o Same-sex couples from states in Sixth Circuit and Michigan faced marriage
recognition problem
o Trial courts ruled in favor of couples
o States appealed to Sixth Circuit
o Sixth Circuit overruled lower courts citing Baker v. Nelson
➢ Circuit split
o Plaintiffs filed Petition for certiorari
o The U.S. Supreme Court granted certiorari on Fourteenth Amendment
grounds
➢ Plaintiffs prevailed on relatively narrow, plurality decision
Marriage Equality Highs and Lows
Post Obergefell
Unfriendly jurisdictions still exist toward married
LGBTQ couples
Post Obergefell
First Amendment Lows
• Masterpiece Cakeshop v. Col. Civil Rights Comm’n, 584 U.S. ____ 2018
o Plaintiffs question
➢ Whether applying Colorado's public accommodations law to compel
defendant to create expression that violates his religious beliefs
violates free speech or free exercise clauses of First Amendment
o This made it to SCOTUS because quasi-religious freedom arguments are
used to circumvent the commerce-clause argument (read Hobby Lobby)
o SCOTUS ruled in favor of the Defendant on “technical” grounds
Post Obergefell
Fourteenth Amendment Highs
• Pavan v. Smith, 582 U. S. ____ (2017)
o Revisiting unsuccessful biology argument used in Goodridge
o Two married same-sex couples had children born in Arkansas
➢ Wanted both spouses’ names on birth certificates
➢ Arkansas Dept. of Health refused on statutory grounds
o Couples sued and prevailed at trial; basis was Obergefell
o Arkansas Supreme Court reversed trial court’s decision
➢ Issue: Biology, not marriage
o U.S. Supreme Court overruled Arkansas
➢ Issue: Disparate treatment of same-sex married couples, which
Obergefell prohibits
Post Obergefell
Fifth Amendment Plateaus
• Marouf v. Azar, No 1:18 cv-378 (D.C., 2018)
o Plaintiffs (lawfully married couple) question whether federal tax dollars should
be used to support organizations that discriminate against same-sex couples
o Plaintiffs sought to become foster or adoptive parents via U.S. Dept. of Health
and Human Services (HHS)
➢ HHS uses religious organizations to provide foster care and adoption services
o Plaintiffs’ applications were denied on the basis of their sexual orientation
o Implicating the Establishment Clause and Due Process and Equal Protection
under the Fifth Amendment
Post Obergefell
NO
STANDING
Post Obergefell
Standing Plateaus
• “The Case of the 2 Pigeons” aka Freeman v. Turner,
No. 4:17-cv-02448 (S.D. Texas, 2017)
o Freeman plaintiffs were Houston employees in same-sex marriages seeking
benefits for spouses
o Mayor obtained legal opinion post Windsor
➢ Consequently ordered benefits
o Plaintiffs in Pidgeon I, certain Houston taxpayers, questioned taxpayer
dollars funding benefits of spouses in same-sex marriages
o Obergefell was then decided
o But Pidgeon II argument questioned the Fourteenth Amendment
o Freeman ultimately case dismissed for lack of standing
Post Obergefell
Standing Plateau
• Barber v. Bryant, No. 16-60477 (5th Circuit, 2017), aka “How to lose on
standing”
o Mississippi had enacted a mini-DOMA
o Plaintiffs were a fiancé in a same-sex couple and Mississippi government
employees
o The court’s 2-part ruling:
➢ The fiancé marriage equality complaint wasn’t ripe
➢ The employees failed to raise the proper claim under Flast v. Cohen
Post Obergefell
Fourteenth Amendment Highs
• Birchfield v. Armstrong, No, 4:15 cv 000615 (Fla. No. Dist. 2017)
o Plaintiffs’, Hal Birchfield and Paul Mocko, spouses died in Florida in 2013 and 2014
o At time of their deaths, Florida had legislated against marriage equality
o Death certificates for deceased did not refer to marriages and surviving spouses
o Hal and Paul sought to have the death certificates corrected
o Florida refused but would agree to correct if Hal and Paul would produce a court Order
mandating the corrections
o Hal and Paul went to court to get their Orders
o Court considered whether the State’s action violated Obergefell
➢ Opinion: Yes. Per Federal Constitutional law, a state cannot refuse to correct a
statute that violates the Constitution, and the correction can be retroactive
o Note: An important states’ rights analysis for advocates of LGBTQ rights going
forward
Post Obergefell
Hypothetical #2: The Missing Surviving Spouse
Chris and Dana are civil union partners residing in Idaho. Chris is
pregnant and they want to convert their civil union into a marriage.
They apply for a marriage license with Idaho’s Dept. of Family
Services. The Dept. also receives Federal funding. The clerk denies
their application citing religious grounds. Chris and Dana file suit.
Unfortunately, 10 days before the hearing, Dana dies in a car crash.
Chris is adamant about being listed on Dana’s death certificate as
surviving spouse.
Post Obergefell
Fourteenth Amendment Low?
• Zawadski v. Brewer Funeral Services, 55CI1:17-cv-00019-CM (Miss. 2017)
o Surviving spouse, Jack, and deceased spouse’s nephew, John, filed suit against
Brewer Funeral Services and its owners for breach of contract
➢ When Brewers learned, after contracting, Jack and Bob were a gay couple,
Brewers reneged on agreement
o Jack and Bob
➢ A loving, committed couple, together more than 52 years
➢ Married in 2015, shortly after Obergefell
➢ Months later, Bob, who had a heart condition, became gravely ill
o John searched for a funeral home and found Brewer online
➢ John entered into verbal agreement with Brewer for their services
➢ Brewer’s paperwork required next of kin’s signature and Bob signed as
surviving spouse
➢ Brewer received paperwork and refused to provide services
Post Obergefell
Fourteenth Amendment Low?
• Zawadski v. Brewer Funeral Homes, No, 4:15 cv 000615 (Fla. No. Dist. 2017)
o John eventually found another service provider 90 miles away
➢ Body had to be moved from nursing home before other provider
became available
➢ Arrangements were last minute and far away, so Picayune friends
couldn’t pay last respects
o Complaint: Intentional Infliction of Emotional Distress, Negligent
Infliction of Emotional Distress, Breach of Contract, and Negligent
Misrepresentation
Post Obergefell
FEDERAL TREATMENT – PENDING LEGISLATION
• Civil Rights Uniformity Act
The Civil Rights Uniformity Act would allow for discrimination
against transgender persons
• Child Welfare Provider Inclusion Act
The Child Welfare Provider Inclusion Act would undermine
government’s ability to ensure child welfare organizations use
best interests standard
Post Obergefell
FEDERAL TREATMENT – PENDING LEGISLATION
First Amendment Defense Act (FADA), S. 2525
• The First Amendment Defense Act, under the pretext of protecting religious
freedom, undermines laws, rules, regulations, and an Executive Order,
which were designed to protect LGBTQ individuals from being discriminated
against by the Federal government and corporations
o Expanded constitutional principle and definition of “person”
➢ First Amendment religious freedom would encompasses “moral
convictions”
➢ “Person” would include for-profit corporations and non-profit
programs receiving federal funding
Post Obergefell
Federal Treatment - Agencies
• October 2017
o U.S. DOJ: Mandated federal agencies to be very lenient with federal
workers requesting exemptions for religious purposes
o HHS: Authorized any employer or insurance company to withhold
contraceptives
- Dignity Denied: Religious Exemptions and LGBT Elder Services
(“Dignity Denied”), Movement Advancement Project (MAP),
Public Rights/Private Conscience Project
at the Center for Gender and Sexuality Law
at Columbia Law School, December 2017,
available at https://www.sageusa.org/
Post Obergefell
States’ Legislative and Agency Treatments
Per Dignity Denied, the following states have Religious Freedom Restoration Act (RFRA)
statutes, exempting persons and organizations from adhering to anti-discrimination statutes
because of their religious doctrines
Arizona Idaho New Mexico
Texas Oklahoma Kansas
Missouri Arkansas Louisiana
Illinois Indiana Kentucky
Tennessee Mississippi Alabama
Florida Pennsylvania Virginia
South Carolina Rhode Island Connecticut
Marriage equality is still being opposed in a number of jurisdictions
– large and small
• Obergefell provides protection for LGBTQ married couples
• Unmarried members of the LGBTQ community cannot avail themselves of the
legal protections afforded by marriage equality laws and, thus, will likely
confront even more significant challenges when trying to assert their
individual rights and freedoms, especially those who are older and,
consequently, more vulnerable
The “Golden [or Pewter] Years”
COHABITATION WOES
Long-time-committed, unmarried LGBTQ couples
still have burdens to bear
• In re Estate of Andrea Marie Hall,
707 N.E.2d 201, Ill. App. 2d (1998)
o When Illinois did not recognize same-sex
marriages, life-partners had no standing
to seek the statutory spousal share
o Now that same-sex marriage is recognized,
only surviving spouses of lawfully, married
same-sex couples or parties to a civil union can
seek the statutory spousal share of a deceased
spouse’s estate
COHABITATION WOES
“[T]he incidents, benefits, and obligations of marriage

are uniform for all married couples within each State,
though they may vary, subject to constitutional guarantees,
from one State to the next.”
- U.S. v. Windsor, 570 U.S. 744 (2013)
COHABITATION WOES
“In our view, the legislature intended marriage to be the only
legally protected family relationship under Illinois law, and
permitting unmarried partners to enforce mutual property
rights might “encourage formation of such relationships and
weaken marriage as the foundation of our family-based
society.”
Blumenthal v. Brewer, 2016 IL 118781 (Ill., 2016) (emphasis added)
Civil Unions and Domestic Partnerships
Because Federal agencies follow the law established by Windsor,

Federal agencies do not provide benefits to domestic partners,
civil union partners, or cohabiting couples
COHABITATION WOES
Civil Union Statutes Domestic Partnership Statutes
New Jersey California
Illinois District of Columbia
Hawaii Hawaii
Colorado Maine
Rhode Island Nevada
Vermont Oregon
Washington
Remembering Marvin v. Marvin,
Palimony or “Unjust Enrichment”
Express provisions for Palimony

Alaska, Arizona, California, Florida, Minnesota, Nevada,
Iowa, Virginia, Wisconsin, Washington, Colorado,
Hawaii
Provides some form of redress, i.e.,

“unjust enrichment”
North Carolina, New York, Maryland, Ohio, Wisconsin,
Illinois, Rhode Island, Indiana Wyoming
Post the apex of the marriage equality movement, Obergefell,

if a couple is not married, an estate plan, as airtight as practical,
should be in place to protect the surviving loved one
Hypothetical #3: Spoiled by Spelunking
Bruce and Robin cohabitated for 15 years, from 1985 – 2000 in
Vermont. Bruce wanted to enter into a civil union but Robin was
fine with the way things were. Bruce continued to press Robin and
Robin was very weary of Bruce’s spelunking activities. So Robin
left Bruce in 2000 and took with him the sportscar, the
motorcycle, and Bruce’s special belt. So, Bruce sued Robin for
palimony. Robin filed a counterclaim for half of the manor.
From a practical, financial perspective, 2/3 of Americans are not
saving sufficiently for retirement
The result is that these 2/3 Americans

will likely live in retirement communities,
receiving some form of government assistance
- Bloomberg, February 21, 2017
LGBTQ Retirees
• Tax Planning
o Married LGBTQ couples who file joint income tax returns are now subject to the
marriage penalty
o Married LGBTQ couples have a combined $22.36 million lifetime Federal estate tax
exemption credit and $30,000 annual Federal gift tax credit
• Healthcare Management
o Income disparity for a married couple can result in an elimination of ACA credits
o Domestic and civil union partners must consider their state laws
• Retirement Planning
o Married LGBTQ couples may now receive Social Security benefits
• Additional considerations
o Post Obergefell creates state law defaults that may cause issues, e.g., life insurance
designated beneficiaries after a divorce
More than 2.7 million LGBTQ adults

over the age of 50
reside in the U.S.
- Dignity Denied: Religious Exemptions and LGBT Elder Services
“1-2 million Americans, 65 or older,
have been injured, exploited, or otherwise mistreated
by someone on whom they depended for care or protection,”
but only 1/14 incidents are reported and even less are reported
by LGBTQ persons for fear of further discrimination or being “outed”
- The Aging and Health Report: Disparities and
Resilience among Lesbian, Gay, Bisexual, and
Older Adults. © 2011. Seattle: Institute for
Multigenerational Health
• Wetzel v. Glen St. Andrew Living Community, LLC, 2017 WL 201376
o In 2014, Marsha Wetzel contracted with Glen St. Andrew Living Community, a
senior living community and moved in
o Marsha claimed that, for more than a year, she suffered severe harassment,
intimidation, threats, and discrimination because of her gender and sexual
orientation
➢ Sued Glen St. Andrew for violating the Federal Housing Act and Illinois
Human Rights Act
o Glen St. Andrew prevailed because of Marsha’s faulty pleadings
➢ Alleged disparate treatment instead of disparate impact
➢ Failed to plead retaliation, barring the claim
➢ FHA claims required her to move but she didn’t
o The court did not address the human rights claim
• Wetzel v. Glen St. Andrew Living Community, LLC, 2017 WL 201376
o What if Marsha were married
➢ Marital status probably couldn’t cure faulty pleadings
❑ BUT were she married would she have even needed to bring a
claim
o Unmarried LGBTQ community members suffer harmful and
discriminatory incidents more frequently than their straight
counterparts
• Marsha’s case is excellent roadmap for attorneys representing older,
unmarried members of the LGBTQ community
• Lawrence v. Office of Personnel Management, EEOC Appeal No. 0120160960 (June 8, 2016)
o Marc Lawrence, a transgender retiree of the Federal Bureau of Prisons, was denied
health coverage for hormone treatments
➢ Non-transgender employees and retirees routinely received this care
➢ Marc was denied because health plan explicitly refused to pay for gender
transition treatments
o Lambda Legal filed Complaint with Equal Employment Opportunity Commission (EEOC)
➢ Alleging violation of Title VII protections because he was transgender
o EEOC gave OPM (Agency governing Federal Bureau of Prisons) a few bites at filing date
deadline
o OPM missed deadlines and was forgiven until an appeal was filed with EEOC
o OPM issued findings in favor of the Bureau, thus denying Marc his health coverage
Older people are generally more vulnerable, which leads to
increased frequency of abuse, exploitation, and discrimination
Sadly, the source of the mistreatment is

often family members or caregivers
- The National Council on Aging
Then, when considering older, unmarried LGBTQ, the issue

becomes even more disturbing, especially when no planning is in
place…
Lack of sufficient retirement planning is also why older people tend to
relocate, if possible
• Lower cost of living
o Lower or no state income taxes
o Lower or no state estate taxes
o Lower sales taxes
o Friendly Medicaid jurisdiction
• More experienced and friendlier retirement communities
Estate Planning Through Generations
Estate Planning
• Generally, recommended after any life event
• Focus: Asset transfers
Elder Care Planning

• Ideally, a component of Estate Planning
• Focus: Maintaining quality of life during elderly,
vulnerable years
Estate Planning
• Ultimate crisis prevention tool
Elder Care Planning

• Often emerges as crisis management
Estate Planning, and crisis prevention
• Young, unmarried adults
o Advanced Directives, including HIPAA forms
o Nominal life insurance
o Crossing fingers that family dynamics are reasonable
Estate Planning and crisis prevention
• Young married couples
o Advanced Directives
o Life Insurance
o Last Will and Testament
➢ Guardianship provision implications
o Joint and separate financial accounts
• Young unmarried cohabiting couples
o Life Insurance
➢ Guardianship provision implications
• Married couples with children accumulating wealth
o Permanent Life Insurance
o Long-Term Disability Insurance (LTDI)
o Revocable Living Trusts
• Unmarried cohabiting couples with children accumulating
wealth
• Unmarried cohabiting couples with children accumulating
wealth
Hypothetical #4: Who Gets Jack?
• Karen and Jennifer had also been together for 30 years but never married
o Somewhat “free spirits” not wanting to be bound by much legally
➢ No estate plan
➢ No immediate family: Decided not to have children; their parents
had predeceased them; and neither had siblings
➢ Spent lives together enjoying their small landscaping business (had
a few full-time employees), quaint home, and dog, Jack
Hypothetical #4: Who Gets Jack?
• Karen and Jennifer had also been together for 30 years but never married
o 2016, Karen is diagnosed with an aggressive brain cancer
➢ Jennifer delegated majority of business responsibilities to
employees
➢ Karen died that year
o 2017 Jennifer killed in car accident leaving house and $350,000 cash in
the bank with no designated beneficiaries
o Jennifer considered estate planning after Karen died, but was paralyzed
by grief
Hypothetical #4: Who Gets Jack – Planning Analysis
• 2016, Karen is diagnosed with an aggressive brain cancer
o Will the hospital let Jennifer into emergency room
o Will the hospital let Jennifer make decisions for Karen
• Jennifer delegated business responsibilities to employees

o Here, BOTH KEY business persons are absent
Hypothetical #4 : Who Gets Jack – Planning Analysis
• No children; parents predeceased them; and no siblings
o This scenario begs for planning because neither partner will have heirs
• Small landscaping business

o Professional service providers – accountant, banker, lawyer – must
speak up
o Beware Legal Zoom business setup (no mention of key person dying)
Estate Planning Through
Generations
Hypothetical #4: Who Gets Jack –
Planning Analysis
• Jennifer dies leaving a house,
$350,000 cash, a business,
Jack the Dog, and no heirs,
legatees or beneficiaries
Elder Care Planning, ideally, an Estate Planning component
• Mature married couples with children in college
o Long-Term Care Insurance (LTCI)
o Retirement assets with designated primary and contingent
beneficiaries
o Joint and separate accounts with designated contingent beneficiaries
• Mature unmarried couples with children in college
o Long-Term Care Insurance (LTCI)
o Retirement assets with designated primary and contingent
beneficiaries
o Joint and separate accounts with designated contingent beneficiaries
• Older married couples with no dependents
o Advanced Directives (copies to financial and healthcare institutions)
o Long-Term Care Insurance
o Designated contingent beneficiaries on all accounts
o Letters of instructions for children or fiduciaries
o Alternative residential plan when independence wanes
o Elder care plan in case of incapacity, terminal illness, or pending death
• Older unmarried couples with no dependents
o Advanced Directives (copies to financial and healthcare institutions)
o Long-Term Care Insurance
o Designated contingent beneficiaries on all accounts
o Letters of instructions for children or fiduciaries
o Alternative residential plan when independence wanes
o Elder care plan in case of incapacity, terminal illness, or pending death
Estate Planning and Asset Considerations
• Nominal Assets
o Operation of law transfer mechanisms
➢ A whole lotta whole life insurance
➢ Prepaid funeral, cremation, memorial services
➢ Joint Tenancy With Rights of Survivorship
➢ Joint Accounts
➢ Transfer on Death Accounts
➢ Transfer on Death Instrument
o “Friendly” alternative, quality residences
➢ Independent living
➢ Assisted living
➢ Nursing homes
o Establish comprehensive Advanced Directives, expressly prohibiting
➢ Hostile birth family members as fiduciaries
➢ Being placed in unfriendly facilities
➢ Being attended to by knowingly unfriendly healthcare practitioners
$$$$$
• “House Rich / Cash Poor”
o Joint Tenancy With Rights of Survivorship
o Transfer on Death Instrument
o Prepaid funeral and memorial services
• Substantial Assets
➢ Expressly precluding hostile family members as fiduciaries
➢ Expressly providing partner as Agent and providing Agent with
discretionary authority
➢ Attaching statutory language evidencing Agent need not be family
member
➢ Referencing Last Will and Testament for disposition of remains
➢ Using Hospital Visitation Authorization Form that incorporates by
reference Healthcare Power of Attorney
Estate Planning Asset Considerations
o Revocable Living Trust
➢ Expressly disinheriting hostile family members
➢ Expressly precluding hostile family members as fiduciaries
➢ Expressly recognizing partner as next of kin
➢ Providing partner authority to act as fiduciary and appoint others
➢ If necessary, including a conduit trust for retirement interests
Estate Planning Asset Considerations
o Last Will and Testament provisions
➢ Expressly disinheriting hostile family members
➢ Expressly prohibiting hostile family members as fiduciaries
➢ Expressly recognizing partner as next of kin
➢ Pour-over provision
➢ Expressly providing Independent administration
➢ Waiving bond for “chosen” family members
➢ Designating partner as Executor with statutory right to determine disposition of
remains
➢ Executor has authority to name Successor Executor
o Home titled in Joint Tenancy With Rights of Survivorship and to RLTs
Hypothetical #5: When Harry Met Winston
• Harry and Winston, a gay couple from Idaho had been together
for 30 years
o Relocated to Illinois in 2011 and entered into a Civil Union
o Winston’s family was hostile toward their relationship
o Estate plan:
➢ Revocable Living Trusts: Reciprocal spousal inheritance with
remainder to their friend, Marilyn
o Bought a beautiful home and held it in tenancy by the entirety
Estate Planning Protections
for LGBTQ Couples – the Last Hypo
Hypothetical #5 : When Harry Met Winston
• Harry and Winston, a gay couple from Idaho had been together
for 30 years
o 2014, they married and saw no need to revise their estate plan
o 2015, Winston started presenting signs of Alzheimer’s
o Harry dutifully and lovingly cared for Winston
o Harry died in 2017 and Winston died in January 2018
o Never titled home to their Trust; no pour-over will
o Winston’s family opened probate to take the home, contended Marilyn
was just a friend and not due anything
Hypothetical #5: When Harry Met Winston –
Planning Analysis
• 2011 entered into Civil Union
o Married couple’s benefits in Illinois
• Hostile family, so estate plan included Revocable Living

Trusts and Tenancy by the Entirety
o Protection from family on first partner’s death
o State creditor protection during Civil Union
Hypothetical #5: When Harry Met Winston – Planning Analysis
• 2014, married and didn’t revise estate plan
• 2015, Winston started presenting signs of Alzheimer’s
o Harry was Winston’s Agent under Powers of Attorney (terms?)
• 2017, Harry died in 2017 and Marilyn began caring for Winston
o If Winston started running out of money, could Marilyn apply for
Medicaid for him
• January 2018, Winston died leaving everything to Marilyn in trust
o Home, which was residue, not assigned nor titled to trust
o Winston’s family opened probate to take the house
o Court found…
Making the “Golden Years” Platinum
GET MARRIED!
Yet, even when married same-sex spouses are not necessarily given
the same deference in certain jurisdictions…
Perhaps a couple has valid reasons for not marrying, e.g., one
partner is employed by a religious institution…
In either case, planning is essential.

The material presented herein and any supplemental materials are
provided for educational purposes only. Please consult your state
and local rules when considering acting upon this information.
IRS Circular 230 Notice: "To ensure compliance with requirements

imposed by the IRS, we inform you that any U.S. tax advice
contained in this communication (including any attachments) is not
intended or written to be used, and cannot be used, for the purpose
of (i) avoiding penalties under the Internal Revenue Code of 1986, as
amended, or (ii) promoting, marketing or recommending to another
party any transaction or matter addressed herein."
Photo Credits
Cracked Egg, Oliver Zenglein, www.unsplash.com
Man Standing, Matthew Fassnacht, www.unsplash.com
Gold crystal, Alchemist-hp (talk) www.pse-mendelejew.de - Own work, CC BY-SA 3.0 de,
https://commons.wikimedia.org/w/index.php?curid=7611254
Pewter chunks, Chemicalinterest - Own work, CC0, https://commons.wikimedia.org/w/index.php?curid=12520659
Jack Russell Terrier, Plank - Own work, CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=3925936
All other photos are works within the public domain.
Our firm focuses on estate planning, estate administration, and small
business planning, including IP, in Chicago and New York. In addition to
other clients, Ms. Elliott has represented taxable and non-taxable estates
for married and unmarried LGBTQ couples and individuals.
The Law Offices of Max Elliott, Ltd.

500 N. Michigan Ave., Suite 600, Chicago, IL 60611
122 W. 27th St., 10th Fl., New York, NY 10001
1.877.535.1600
melliott@maxelliottlaw.com
www.maxelliottlaw.com
Thanks to team researchers,

Julian Love (DePaul University College of Law, 2018) and James A. Davis, Esq.

Marriage Equality in The Crosshairs

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Marriage Equality in The Crosshairs

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Marriage Equality in the Crosshairs:

Estate Planning Protections amidst Targeted Discrimination

Presented for Esquire CLE

Marriage equality jurisprudence is derived

“This Act shall be liberally construed and applied to promote its

“[T]he incidents, benefits, and obligations of marriage

Because Federal agencies follow the law established by Windsor,

Express provisions for Palimony

Provides some form of redress, i.e.,

Post the apex of the marriage equality movement, Obergefell,

The result is that these 2/3 Americans

More than 2.7 million LGBTQ adults

Sadly, the source of the mistreatment is

Then, when considering older, unmarried LGBTQ, the issue

Elder Care Planning

Elder Care Planning

• Jennifer delegated business responsibilities to employees

• Small landscaping business

• Hostile family, so estate plan included Revocable Living

In either case, planning is essential.

IRS Circular 230 Notice: "To ensure compliance with requirements

Man Standing, Matthew Fassnacht, www.unsplash.com

Pewter chunks, Chemicalinterest - Own work, CC0, https://commons.wikimedia.org/w/index.php?curid=12520659

Jack Russell Terrier, Plank - Own work, CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=3925936

All other photos are works within the public domain.

The Law Offices of Max Elliott, Ltd.

Thanks to team researchers,

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