A Tale of Three Halves
Last fall, the Illinois Appellate Court, First District, Second Division, ruled on an interesting case of “first impression” involving our probate courts. The case, Harris v. Adame, involved incapacity and property ownership with respect to joint tenancy, an issue that is likely to appear more often over the next few years, given our aging population. Two brothers, Arnold and Arthur, once owned a home together in joint tenancy with rights of survivorship. In 2002, Arnold was in a car accident that left him in a coma. The court appointed a guardian of the person and estate for Arnold, who later recovered but kept the guardian. A few years later, in 2005, the guardian helped sell the brothers’ home to Jose Adame. The title packet included a form stipulating that Arnold was subject to guardianship. Less than a year later, Arnold died without a will, i.e., intestate, leaving his brother, Arthur, as his sole heir. In 2008, Cook County’s Office of the Public Guardian (OPG) was appointed guardian for Arthur. Next, in 2009, the OPG filed a citation to recover assets against Adame in an attempt to void the entire 2005 home sale. At trial, Adame argued that he was an innocent bona fide purchaser (BFP). OPG argued that the entire transaction was void because Arnold was incapacitated when he signed the conveyance, despite the fact that Arthur had capacity. Adame stated that he did not have legal notice of Arnold’s incapacity before the 2005 closing. Adame further argued that if the transaction was found void, then, because he was a BFP, he should to be reimbursed for the money he paid for the home. The trial court, in 2012, ruled in favor of the OPG on the issue of whether the entire transaction was void but decided not to rule on whether Adame was a BFP and, therefore entitled to reimbursement. Huh?! I know, right? Enter a timely and appropriate appeal by Adame questioning whether the aforementioned ruling was erroneous. The appellate court, rightfully, found just that. In particular, the court found that the transaction regarding Arnold’s joint tenancy interest was void, but the sale of Arthur’s was valid and Arnold’s estate now had Adame as a tenant in common. Essentially, Arthur wasn’t due Arnold’s entire estate only Arnold’s half. The court explained the rule that without a court order, neither a person who has been adjudicated disabled nor that person’s guardian can sell the disabled person’s property interest. Here, the guardian acted without leave of court, so the transaction selling Arnold’s interest was void. As a response, OPG argued that Arthur’s part of the transaction should be considered void because at the time of the trial, Arthur was also incapacitated. The court found the OPG’s timing was off and required proof that Arthur was incapacitated at the time of executing the sale contract. OPG provided no such proof, so Arthur’s transaction was not void. Not depending on the appellate court to get the law right, Adame argued that even if the entire transaction was deemed void, the after acquired title property doctrine should apply. The after acquired title property rule provides that a transaction may be found void if a ne’er do well tried selling a property – the entire enchilada – when they don’t have marketable title. However, only half of the interest was sold to Adame, so the doctrine was inapplicable in this case. Well, if only half of the transaction is valid – or void – depending on one’s perspective, then the entire transaction must be void, OPG stated, to which the court responded with a first-year law school lesson in joint tenancy. First, the court again reminded OPG that, in law, a party needs evidence to support one’s arguments, and OPG provided no evidence, i.e., case or statutory law providing that an entire transaction is void simply because one party’s joint tenancy interest was not conveyed. On the contrary, the court provided ample support for the rule that one tenant can server joint tenancy without the other tenant’s knowledge or consent, transforming the joint tenancy into a tenancy-in-common with the new interest holder. And Arthur did just that: he created a tenancy-in-common relationship between Arnold’s estate and Adame. Now, to ensure that all parties were on the same page, the court then explained the fact that when a party severs joint tenancy, even if the action was a mistake, the agreement severing the joint tenancy is still enforceable. Thus, the appellate court found Adame owned ½ interest in the home and further instructed the trial court to determine whether, since Adame paid consideration for an entire house but only obtained ½ interest, Adame should be reimbursed for the other ½ of the consideration paid. Seems like an easy determination…
No Deed Needed to Transfer Property…With a Valid Trust
[vc_row type=\”in_container\” full_screen_row_position=\”middle\” column_margin=\”default\” column_direction=\”default\” column_direction_tablet=\”default\” column_direction_phone=\”default\” scene_position=\”center\” text_color=\”dark\” text_align=\”left\” row_border_radius=\”none\” row_border_radius_applies=\”bg\” overflow=\”visible\” overlay_strength=\”0.3\” gradient_direction=\”left_to_right\” shape_divider_position=\”bottom\” bg_image_animation=\”none\”][vc_column column_padding=\”no-extra-padding\” column_padding_tablet=\”inherit\” column_padding_phone=\”inherit\” column_padding_position=\”all\” column_element_spacing=\”default\” background_color_opacity=\”1\” background_hover_color_opacity=\”1\” column_shadow=\”none\” column_border_radius=\”none\” column_link_target=\”_self\” column_position=\”default\” gradient_direction=\”left_to_right\” overlay_strength=\”0.3\” width=\”1/1\” tablet_width_inherit=\”default\” tablet_text_alignment=\”default\” phone_text_alignment=\”default\” animation_type=\”default\” bg_image_animation=\”none\” border_type=\”simple\” column_border_width=\”none\” column_border_style=\”solid\”][vc_column_text]***This issue has an important update.*** In September, a ruling by the Illinois Second District Appellate Court sent small shockwaves throughout the Illinois estate planning community. The case, The Estate of Mendelson v. Mendelson, presented the Court with the question of whether real property transferred via a trust without recording the transfer is a valid transfer. To preserve legal chain of title, real estate transfers in Illinois must be recorded with the appropriate county recorder of deeds office. Additionally, it is well-settled law that a transfer to a trust is valid without recording a deed if one later uses a pour-over will via probate. Mendelson questions the need for a pour-over will or recording before death. Timeline & Facts 2005: The decedent, Diane, signed a deed transferring the home she owned outright into joint tenancy with one of her 4 sons, Michael. The deed wasn’t recorded. 2006: Diane established a trust and executed another deed that, upon her death, divided the home among the 4 sons. The trust and that deed were recorded. 2011: Diane established a new trust, completely revoking the 2006 trust and designated Michael, once again, as the sole beneficiary of the home and successor trustee to Diane. On October 1, Diane died leaving her sons and no surviving spouse. A few days later, Michael recorded the 2005 deed and the 2011 trust. In November, the legal battle begins. 2014: A trial court ruled that the 2006 trust was valid and, thus, the home was to be shared by the 4 sons. Michael appealed. Battle Theories The Estate (representing the 3 sons) made 2 arguments: (1) The 2006 trust was valid; or (2) the 2011 trust was valid, revoking the 2006 trust but because the 2005 deed was recorded post-death, the home was probate property subject to Illinois laws of intestacy. Illinois descent and distribution laws state that if a property is subject to probate whereby there was no valid will in place and no surviving spouse, the property shall be divided evenly between descendants. The Final Ruling The Appellate Court found that the 2005 deed was invalid because it was not properly delivered to Michael; it wasn\’t Diane’s intent to transfer the property to Michael then. The Court also found that the 2011 trust revoked the 2006 trust, the revocation meeting the requirements for revoking a trust. In so finding, the Court fleshed out the valid requirements of a trust: (1) intent to create a trust; (2) defined trust assets; (3) stated beneficiaries; (4) designated trustee; (5) stated purpose and administration provisions; and (6) delivery of property to trustee. Mendelson’s ruling hinged on number 6: whether the property of the trust – the home – was delivered to the trustee. No Illinois law existed before this case to answer whether assets needed to be formally transferred to a trust. In this case, the trust was a revocable living trust, so the Court reasoned that because the trustee of a revocable living trust already owns the property, no formal transfer was necessary. Therefore, Mendelson’s final ruling, which is arguably narrow, is that a “[trustmaker] who declares a trust naming herself a trustee is not required to separately and formally transfer the designated property into the trust.” Accordingly, Michael’s actions after Diane’ death – recording the deed and trust – were legally valid. The ruling caused shockwaves for 2 primary reasons: (1) Titling property to trusts is a revenue stream for title companies and municipalities; and more importantly, (2) if real estate is assigned to trustees without recording the transfer with municipalities, then the chain of title listed with the recorder of deeds indices will eventually become fraught with errors, leading to increased litigation over property rights. Nevertheless, for now, Mendelson is the law in Illinois.[/vc_column_text][/vc_column][/vc_row]
Zen and the Art of Dying Well (Video)
The Wait Is Over: All Americans Are Free to Wed
In a plurality Opinion authored by Justice Anthony Kennedy, today, June 26, 2015, the United States Supreme Court ruled in favor of marriage equality for the country. Removing any doubt that states that did not support same-sex marriage would be able to continue to discriminate against LGBTQ couples, in Obergefell v. Hodges, the Court provided that states must (1) recognize same-sex marriages that were lawfully performed, even if outside of their states and (2) states must issue marriage licenses to same-sex couples. Accordingly, if a state did not recognize or did not provide for same-sex marriages before, it must do so now. The Court’s rationale for its ruling considered 4 principles: (1) personal choice; (2) the status of marriage; (3) the protection of children; and (4) the stability of America’s social order. This 27-page Decision downloaded here, followed by 76 pages of dissent, is based on the fundamental right to marry, which is undergirded by the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. The holding is as eloquent as it is just: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” The 62 pages of dissent begins with Chief Justice Roberts, who argues that the acceptance of marriage equality will be much more difficult to achieve because of those who were and are against marriage equality will be chaffed by the fact that their opinions are now irrelevant in the eyes of the law. He analogizes the coming “cloud” over marriage equality to that of the cloud over racial equality. It is a point well taken but, respectfully, the Chief Justice is ignoring the fact that a long-standing responsibility of the Court is to provide equality in the law where inequality exists for those who have been marginalized. The fight for social recognition, of course, is not over. However, being equal with respect to the law does not require social acceptance. Justice Scalia argues that America’s democracy is now in jeopardy. His dissent is not unusual in that he disagrees with the Opinion on the grounds of Constitutional literalism and states’ rights. It is unusual in that he equates the Court with God but then states that the Court, or the 5 activist judges comprising the majority in this Decision, is acting out of hubris. His opinion that 135 years of precedent has been overturned is quite remarkable, itself. Justice Thomas is also in his usual form, reiterating Justice Scalia’s remarks but offering for good measure a nod to the Magna Carta that just celebrated its 800th anniversary and the philosopher John Locke. The final and most brief dissent, authored by Justice Alito, is a rejection of the new norm or “orthodoxy” as J. Alito terms it. Notwithstanding the dissents, as C.J. Roberts stated, the argument – at least legally – is over; and to quote J. Kenned, “It is so ordered.” We do.
What If I\’m Neither: More Non-Financial Planning Pointers for Transgender & Queer Persons
This is the 5th in our segment on estate planning for the T & Q of the LGBTQ Community… Most people will agree that family battles are what make estate planning “sexy.” Forget about the smart tech wizards who create subtrusts and the stability that goes with it; Philip Seymour Hoffman’s story, may he rest in peace, is much more interesting. However, squabbles – or wars – in families of straight married couples may benefit on settled law and when the legal issue is murky, experienced judges are readily available. Neither settled law nor experienced judges are generally available when addressing family dynamics for transgender or queer couples. So, a transgender or queer person’s first line of defense against contentious family members is their trusted advisors. Attorneys must be able to identify potential conflicts of interest and manage confidentiality with aplomb. Conflicts of interests involve understanding who our client is, e.g., are we representing Dana as an individual or Dana and Chris as a couple. Equally, if not more important is the issue of confidentiality. What information have we been given permission to disclose, to whom, in what manner, and when. For example, can Bobbie’s mom know that Dana was born male? The employer? The children? With respect to a will or trust, below are a few key concerns in light of family dynamics. Disinheritance. Family members who are contentious can always be written out. Fiduciaries. Would you want a family member who has always been a tad combative acting on your behalf? Digital assets. Only close loved ones should have access and control to the digital assets, especially personal email and social media accounts; otherwise, such assets should probably be deleted or destroyed. It’s nobody’s business when Dana or if Dana had sexual reconstruction. As with all testamentary documents and trusts, the critical administrative provisions are also critical areas where instructions should be included with respect to communicating information, fiduciary selections, and more. Another broad category under non-financial considerations is lifestyle intentions, i.e., travel and retirement in particular. Again, the overall issues are similar to straight married couples. However, the nuances are what distinguish planning for straight married couples from planning for transgender or queer couples. For example, today’s society is very mobile and clients are becoming more informed about a little of what we do, which is dangerous, especially if they don’t consult local lawyers about what they have learned. So, when considering lifestyle intentions and non-financial estate planning considerations, planning should include the following considerations. Vacations. Vacations should not be ruined because, while being treated for an allergic reaction, the client’s spouse can’t visit them. Relocation from Illinois or Cook County to an unfriendly jurisdiction. Though this may not be necessary, soon. Perhaps employment, grandchildren, or retirement has provided a desire to move. While many attorneys are only licensed to practice in one or two jurisdictions, any lawyer serving the LGBTQ community on issues related to family should have a thorough understanding of the national jurisdictional landscape with respect to marriage equality. For example, what does the jurisdiction say about children of married couples who are not adopted; what is the landscape for transgender rights? Does the retirement community or municipality to which the client plans to retire or visit as a snowbird provide healthcare treatment for transgender or queer persons? Is the community friendly to transgender or queer elders? The more unfriendly the jurisdiction, the more “right and tight” as Justice Ginsburg says the estate plan must be for those who travel or plan to relocate but retain property in Illinois, and especially for transgender and queer persons. Estate Planning for the T&Q of the LGBTQ Community: Part 1 | Part 2 | Part 3 | Part 4 | Part 5
What if I\’m Neither: Practical Planning Tips for Transgender and Queer Persons
Welcome to our 4th segment in our series on estate planning for transgender and queer persons. When planning for the \”T\” & \”Q\” of the LGBTQ community, attorneys must understand the overlapping factors and relationships between retirement planning, estate planning, gender definitions, and legal interpretation. While we can control some factors, such as estate planning and applicable definitions, other factors, such as the laws governing retirement plans and statutory definitions of gender, are typically out of our control. Additionally, estate-planning attorneys should consider planning in the context of Windsor for transgender and queer persons as we do for all clients: examining financial and non-financial issues. Yet, most attorneys also agree that non-financial issues are usually the more challenging part of planning. The 3 categories generally considered in non-financial estate planning conversations are: (1) the client’s health and the health of close family members and loved ones; (2) family dynamics; and (3) lifestyle and retirement goals. This article focuses on health and issues attorneys face with healthcare Advanced Directives. Good health and healthcare is important to everyone; transgender and queer persons may have more or less issues and some of their issues are different. So, this issue may or may not be important, and is only one of many for transgender and queer persons. Assessing a client’s health for purposes of estate planning includes, but is not limited to, issues surrounding chronic or terminal illness. For transgender and queer persons, we should consider the implications of sexual reconstruction and potential related matters, e.g., whether our client has or had a therapist. All of these issues should be addressed in our clients’ Advanced Directives. Other than certified copies of vital records, Advanced Directives are probably the most important documents a person can have during their lifetime. Additionally, like lesbian, gay, or bigender persons who are unmarried, transgender and queer persons generally need more than a basic power of attorney for healthcare and a living will and even if married. Advanced Directives should include: 1. Illinois Statutory Power of Attorney for Health Care; 2. Illinois Statutory Power of Attorney for Property 3. HIPAA forms 1 and 2 4. Illinois Mental Health Treatment Declaration 5. Hospital Visitation Authorization form 6. Illinois Living Will 7. Illinois Department of Health DNR-POLST To be clear, a person’s sexual physiology is generally irrelevant for purposes of protecting a transgender or queer person’s interests. What is relevant and most important is how that person identifies on the societal gender scale. What is also relevant are the facts as that person wants them communicated, how and when the facts should be communicated, to whom those facts must be communicated, and that those facts are accurately and legally. The Illinois Power of Attorney Act changed substantially last year, and the changes went into effect January 1, 2015. The changes provide individuals with more options regarding the authority they grant to their agents. Yet, more options also requires the need for more information on the part of the principal, which is why we do not recommend individuals completing this form without the assistance of an attorney. The issues to consider in the new Illinois Power of Attorney for Healthcare form cover 5 pages of questions whose considerations could result in a disastrous miscommunication of facts if not done in precise legal context. Again, before addressing financial matters, especially for transgender and queer persons, estate-planning attorneys must ensure that carefully prepared Advanced Directives are in place. Otherwise, the wills and trusts could easily be contested and nullified. Estate Planning for the T&Q of the LGBTQ Community: Part 1 | Part 2 | Part 3 | Part 4 | Part 5
What If I\’m Neither: The Dual-Track Agency Dance
In our first article in this series, unlike Illinois law, we alluded to how Windsor created tricky issues for the LGBTQ community to navigate with respect to marriage. The Illinois Marriage Fairness Act embraces the entire LGBTQ community, whereas Windsor does not. Okay, but what does this mean? Part of the Windsor decision required action by the IRS, which resulted in the IRS passing Revenue Rule 2013-17 (“Rev. Rule 2013-17” or “Rev. Rule-17”). The rule stated that the agency never gave much, if any, meaningful consideration to gender; so, since the Court in Windsor required IRS action, the agency the IRS mandated that, post-Windsor, its rules and regulations governing all taxation applicable to heteronormative (“straight”) married couples would also apply to lawfully same-sex married couples. Additionally, the IRS announced that it would use the “place of celebration” standard when reviewing its matters with respect to married couples. Finally, the agency strongly suggested that other federal agencies, especially those whose benefits were governed by IRS rules and regulations, to follow suit. However, many federal agencies that used male and female descriptors in definitions involving marriage didn’t recognize same-sex marriages before Windsor. So, post-Windsor, a number of federal agencies decided that, like the IRS, they were required to abide by the Supreme Court decision for lawfully married same-sex couples, the agencies were not required to use the same standard of review for determining benefits as the IRS and the Court would not disagree, per another seminal Supreme Court case, Chevron. Therefore, many agencies decided to use the “place of domicile” standard instead. Explaining the \”standards\” Place of Celebration: Same-gender marriages are recognized as legal as long as the place where the couple was married provides legal same-gender marriages. An agency that uses this standard will recognize your marriage even if you live in an unfriendly state. Place of Domicile: The same-gender marriage must be legal where the married couple resides. Ergo, if the couple was married in Illinois, which provides same-gender marriages, but lives in Florida, an unfriendly state that does not recognize same-gender marriages, then an agency using this standard will not recognize the marriage as legal. The dual-standard usage by federal agencies resulted in a dual-track federal benefit system for legally married same-sex couples. So, while Windsor was a great milestone for the LGBTQ community, the federal agency guidance that followed created an interesting path for planners to navigate, depending on the benefits the plan needed to consider. For example, if estate planning attorneys consider the dual-track federal benefit system strictly from a same-sex paradigm, i.e., lesbian, gay, and bigender, the decision matrix would resemble the chart to the left. Also, if attorneys consider the dual-track benefit system when planning for a transgender person who is in transition and cannot check a gender box or a queer person who will not check a box, then we\’re left with the question marks below. All of the question marks are appropriate for transgender married couples who even reside in friendly states, such as Illinois, because lawyers must consider a plethora of benefits from agencies that a potential surviving spouse should receive were that spouse in a heteronormative marriage. Still, as the chart below illustrates, agencies following Windsor and using the place of domicile standard can inadvertently preclude transgender or queer surviving spouses from enjoying benefits that surviving spouses who are in lawful same-sex marriages enjoy. Considering a transgender person who has completed their sexual reconstruction and resides in an unfriendly state or who would like to leave benefits to their spouse, results in several questions about the definition of ‘spouse’ as derived from a particular statute or regulation governing a particular benefit: If the state defines spouse in terms of Windsor and the couple consists of a transgender man and a non-transgender woman, then is the couple a same-sex couple? If a state benefit did not follow Windsor, should the couple argue that the transgender man’s identity should apply and, therefore, they are a heteronormative couple able to receive the benefit? If the transgender man could transfer benefits to his spouse but a same-sex married couple living in the same state could not, is that fair? If the transgender man began his transition before Windsor and completed his transition after Windsor, would a federal benefit even apply? These and many questions are what transgender and queer couples must contend with in Windsor’s wake. Stay tuned for a few solutions and, of course, more questions. Estate Planning for the T&Q of the LGBTQ Community: Part 1 | Part 2 | Part 3 | Part 4
What if I\’m Neither: Opposite Does Not Equal Different
Welcome to the second article in our series on \”Estate Planning for the T&Q of the LGBTQ Community.\” Click here to read the first article. The role of pronouns and how important that role is to transgender and queer persons is illustrated by the language in marriage equality case law and our statutes, especially when combined with certain adjectives. Consider Illinois’ first “marriage equality statute,” the Illinois Religious Freedom Protection and Civil Union Act (“Civil Union Act”). Section 5 of the Civil Union Act provides that one of its fundamental purposes is to “provide persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses.” Section 5 contains no language involving gender or biological markers. However, when reviewing Section 10, Definitions, we see that “‘Civil Union’ means a legal relationship between 2 persons of either the same or opposite sex…” So, according to the Illinois Civil Union Act, persons who entered into civil unions had to be either male or female. What if one or both of the parties was neither? Section 5 requires the Civil Union Act to be liberally interpreted. Arguably, the liberal interpretation is to be applied to the parties and actions satisfying the definitions of Section 10. So anyone living in some of Illinois’ more conservative counties who didn’t satisfy the definitions is SOL, right? Setting aside the question the Civil Union Act left open for transgender and queer couples, the conundrum still emerges when considering the language in U.S. v. Windsor. The last paragraph in Windsor states, “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.” Windsor patently applies to same-sex couples; it is not gender neutral. Therefore, while Windsor was a watershed moment for same-sex couples desiring or intending to marry, it left in the wings, however, transgender and queer couples. Now, you could say that this is being too technical or that this interpretation of Windsor is too narrow; but au contraire. The grant or denial of benefits or rights in this country often hinges on a single word or definition. Even in friendly states, if a person identifies as neither – because they are in the process of sexual reconstruction or because they simply do not identify as male or female – that person may experience legal difficulties because they are asked to check a box that does not comply with their identity. If this issue causes problems in friendly states, imagine the results in unfriendly states. Returning to Illinois statutory law, we see that the language in Illinois’ new marriage equality statute embraces the entire LGBTQ community. Carefully considering our Marriage Fairness Act’s Section 5 language, we see that the Act’s underlying purpose is to “provide same-sex and different-sex couples and their children equal access to the status, benefits, protections, rights, and responsibilities of civil marriage.” Note that the term “different-sex” replaces the term “opposite-sex” that was in the Civil Union Act. This was not an oversight. Thus, the Illinois Marriage Fairness Act embraces transgender and queer couples, in addition to lesbian and gay couples. Perhaps our state\’s legislators should make a trip to the U.S. Supreme Court. Estate Planning for the T&Q of the LGBTQ Community: Part 1 | Part 2 | Part 3 | Part 4
Protecting You and Yours Even if You\’re Neither…
Recognizing and hoping that this series may be moot in 6 months, when SCOTUS hears cases from Ohio, Michigan, Kentucky, and Tennessee that involve state bans on same-sex marriages, in the interim, planning for those who may be \”neither\” is important. The following are remarks from a presentation I gave in the fall of 2014 at the Illinois Institute for Continuing Legal Education: What if I\’m Neither: Estate Planning for Transgender and Queer Persons. In striking down Section 3 of the so-called Defense of Marriage Act (“DOMA”), SCOTUS’s U.S. v. Windsor ruling delivered a great victory to the LGBTQ community and especially to the L, G, and B persons and couples. However, the rights afforded this and other marriage equality victories were still questionable for certain couples, specifically those whose parties included transgender or queer persons. So estate planning for the entire LGBTQ community still required a thorough understanding of the laws, rules, regulations, and opinions involving both marriage and gender equality. A big issue for lawyers is understanding “who” our clients are. If this is important to us, it’s crucial for our clients because if the lawyer doesn’t get it; then you clients should find a lawyer who does. Identifying who is the client, can be reduced to a simplistic answer is we use Illinois law. Section 10(c) of The Illinois Religious Freedom and Marriage Fairness Act (“Illinois Marriage Fairness Act” or “Marriage Fairness Act”) provides: Parties to a marriage shall be included in any definition or use of terms such as “spouse,” “family,” “immediate family,” “dependent,” “next of kin,” “wife,” “husband,” “bride,” “groom,” “wedlock,” and other terms that refer to or denote the spouse relationship, as those terms are used throughout the law, regardless of whether the parties to a marriage are of the same sexes or different sexes. As you can see, this section of the Marriage Fairness Act completely removes gender orientation as a factor in determining marital relationships and the accompanying rights, burdens, benefits, and obligations for Illinois citizens. If gender is removed from the marital relationship formula, then what’s left? Who are the parties? Who are the clients? Simple: Persons. The individual who is sitting at the conference room table seeking our help is a person. The individual may be a transgender person or queer, but he, she, Dana, or they is (and, in this case, the grammar is correct) a person first, deserving of the respect, dignity, and excellent service provided any client. In other words, if a lawyer doesn’t recognize a potential client as a person, then that person shouldn’t recognize that lawyer as competent to serve the potential client’s needs. Estate Planning for the T&Q of the LGBTQ Community: Part 1 | Part 2 | Part 3 | Part 4
Will Marriage Equality Be Recognized Nationally?
The marriage equality march is returning the U.S. Supreme Court again this April and this time, the Court may just determine to end the continued discrimination against same-gender couples in the 14 states that refuse to allow loving, committed couples of the same gender to marry. The plaintiffs who caused the straw on the camel\’s back to break are a lesbian couple from Michigan whose case created yet another division between the 36 who get it and the 14 who don\’t. If you\’re familiar with our marriage equality work, you know we\’ve been watching and participating in the marriage equality march from our firm\’s inception. So, we are pleased that some sources report that Chief Justice Roberts may side with the plaintiffs in this case. Note, C. J. Roberts did not decide on the constitutionality of state bans in Windsor, and left himself room to join or, even pen, the appropriate decision in this case. Why? Because of Loving v. Virginia, which we and other colleagues have long argued is the fundamental legal basis for providing national marriage equality. Other legal analysts also wonder if the Court will revisit the term \”animus\” because the seminal cases involving recognizing individual rights for the LGBTQ community involve a determination of animus on the part of opponents to LGBTQ rights. The Court has allowed extra time for arguments. The decision is likely to be reached at the end of June. We are confident where the socially conservative 3 justices – Thomas, Scalia, and Alito – will stand. We are also confident where the socially liberal justices – Ginsberg, Breyer, and Kagan – will stand. Many also think that Kennedy will side with the liberal 3 but we\’re not so sure given his recent decisions on individual rights involving minorities. Additionally, Sotomayor was the intervenor for Kansas, providing opponents of marriage equality to at least temporarily prevail in upholding Kansas\’s marriage equality ban. Thus, we\’ve got a number of interesting scenarios confronting the question: Roberts votes with Ginsberg, Breyer, and Kagan and Kennedy, who sided with them in Windsor, will create a plurality allowing for marriage equality in America and thus, creating the United States of America once again, at least with this issue; Roberts votes with the liberal 3 but Kennedy and Sotomayor do not, leaving the patchwork and discrimination in place; Roberts votes with the conservative 3 but Kennedy and Sotomayor side with the liberal 3 (see plurality cited in #1); Roberts sides with the conservatives and Kennedy or Sotomayor also side with the conservatives (see patchwork and discrimination in #2). June will be a very interesting month indeed – for the LGBTQ community, for America, and for the Roberts Court legacy.