When American Air-lines flight attendant Jeff Collman died at e World Trade Center September 11, the last thing on his partner Keith Bradkowski's mind was that Collman didn't have a will. But as Bradkowski has since discovered, even though Collman had few assets, the lack of a will has complicated such seemingly simple matters as deciding which of Collman's family members and friends would receive heirlooms and personal items with sentimental value.
"I had no idea how critically important it is to have a will," Bradkowski says. "I know people don't want to talk about what happens when they die, but not doing that can put the people you leave behind in a difficult and awkward place."
Bradkowski's lesson is a poignant one, and other gay people who have lost partners have found themselves in equally or even more difficult situations, says Michael Adams, deputy legal director for Lambda Legal Defense and Education Fund. About half of all Americans don't have a will. And too often, the partners of gay men or lesbians who have died without drawing up a will find themselves in nasty and protracted legal battles over a variety of issues: ownership of property, where and how funeral arrangements will be carried out, and even whether they will be able to remain in the home the couple shared.
These problems arise because state laws typically specify that when a person dies without a will, assets revert first to a spouse, followed by blood relatives. Because gay people cannot legally marry, they can very easily be shut out of inheritances.
"What I like to tell people is that you have a will whether you know it or not," explains Eugene Lawson Jr., a member of the Arlington, Va.-based law firm Fletcher, Heald, and Hildreth. "There's a designation in existence already, and you have to take steps if you want to change that."
A first step is to make sure your partner is named the beneficiary on your life insurance policy, your retirement accounts, and other investments that allow you to direct death benefits, says Laurie Neilson Lee, a partner in the Portland, Ore., office of the law firm Miller Nash. Establishing joint savings and checking accounts also will ensure that your partner has access to them if you should die or become incapacitated.
Next, work with an attorney to draft a will--and have your partner do the same, Adams advises. The legal document should spell out exactly how to distribute your wealth and assets. Don't worry that listing a particular beneficiary will forever guarantee that person a part of your estate, Lee says. Wills can be rewritten or amended as needed, allowing you to change your beneficiaries whenever you desire.
The will also should appoint a representative, called the executor, who will take charge of carrying out your wishes. Be sure to name an executor who is familiar with your relationship and will adhere not only to the specifics of your instructions but also to the spirit of them, says J. Jeffrey Haines, an associate attorney in the Baltimore office of Venable, Baetjer, and Howard. "While the executor has to follow your directions, they have a lot of flexibility on when they do things and how they do them," he says. Name your partner as your executor if you both are comfortable with that idea, he advises. You can also change your executor as you wish.
A will also can convey a person's wishes as to the kind of funeral or memorial ceremony desired and whether the body will be cremated, buried, or donated for medical research, says Haines. Laying out these directions can avert potential disputes with family members who may want a specific type of service--even one that pointedly excludes the surviving partner--or who wish to take the deceased's body "back home" for burial or cremation.
Lee says a simple will can cost as little as $500, with the costs climbing for estates with more assets or with more complicated inheritance directives. …