CIVIL LEGAL ISSUES AND BDSM
LIFE AND DEATH
ISSUES
The purpose of this page is to
acquaint members of the BDSM and other power exchange or alternative
lifestyle communities with issues that may arise from the nature
of their relationship both during life as well as in the event
of death or disability.
Many of us are involved in dedicated
relationships outside of the traditional man-woman 2.3 kids
marriage. We acquire property together – we incur liabilities
together, and we often fail to acknowledge that sooner or later,
be it by going our separate ways, or death or disability, each
and every one of these relationships will end. The purpose of
this presentation is to address some of the issues and problems
that we might encounter, and help prepare for them.
DISCLAIMER: This presentation
contains legal information set forth in general terms. It is not
intended to provide specific legal advice. An attorney in your
state or jurisdiction should be consulted for that. Laws vary
from state to state. Documents discussed must sometimes conform
to specific state requirements in order to be valid.
Issues That Arise in
Relationships
Legal frameworks that apply to married,
traditional couples, generally do not provide much help for
alternative lifestyles, or arrangements where two or more people
live together
Some exceptions but most states’ family law
provisions apply only to married couples. There are generally no
specific statutes that define rights and liabilities of
unmarried people who cohabit
Common law marriage issues. Some states still
have laws that provide a marriage will result without legal
ceremony, etc. Requires more than just living together – must be
a holding out by the parties that they are husband and wife. But
once established there is no difference between common law and
formal marriage.
But people living together have to deal with
property and liability issues. They may acquire items of
property – real or personal. This may be titled individually or
jointly, but if common funds are used to acquire the property,
there will be ownership issues. Partners may also be liable
together for bills and other obligations such as lease
agreements.
These problems can be overcome in large part by
written agreements which can then be enforced as any other
contract. Agreements should contain at a minimum:
-A recital that the parties have commenced a
relationship involving cohabitation
-Whether or not property brought into the
relationship will remain separate
-How property will be divided when the
relationship ends
-How liabilities will be handled – including
joint bills, lease agreements etc.
And be careful –
bankruptcy can void any such protection and leave a non bankrupt
partner liable for ALL debts
One of problems with
joint debt – all parties will remain liable no matter what
happens to relationship
-Do not try to incorporate these issues in a
“slave contract” – remember who your audience will be if a
dispute arises
-Also consider effect of agreement if one of
the parties is married to someone else – all states have laws
that give a spouse an interest in property owned by the other
The problems encountered by unmarried couples,
different or same sex are also encountered by those in
polyamorous relationships. The magnitude of the problems is
simply greater.
-Do they take their share of property? Are they
paid for it? Do they leave it behind? These are issues that must
be addressed
Issues That Arise When Someone Becomes Ill
or Disabled
When a partner in a relationship becomes
disabled, physically or mentally, provisions must be made to
take care of their affairs, and of them.
There is no automatic mechanism – must be
created by appropriate documents. Creating the authority by
documents ahead of time is much easier than trying to do it
after the fact.
To allow someone else to manage affairs – a
general or specific power of attorney
-General power of attorney that survives
incompetence (a durable power of attorney) allows someone to do
for you anything that you could do.
-Specific power of attorney allows someone else
to do certain things – e.g. sell property – but nothing else
To allow someone to make decisions regarding
care or medical treatment, a health care power of attorney is
required.
-It allows the designated person to make health
care decisions, including the providing or withholding of
treatment
-It goes hand in hand with a living will
-Sometimes called a
“statement of desire for a natural death"
-Directs the
withholding of life-sustaining treatment when terminal or
comatose
-Must be properly
executed – but if properly drafted and executed will
allow designated persons to make
decisions over spouse or other
relative
-For any of these
forms – do not use generic or downloaded forms.
Each state has specific requirements
including certain way of
executing, or specific wording required
and deviation will void the
document
Legal Issues That Arise upon the Death of a
Partner
For the same reasons that planning is prudent
in non traditional relationships, if the relationship is of a
permanent nature, planning for the death of partner is
absolutely essential. Only with proper planning can one be sure
that things will occur – property will be distributed, and
affairs will be handled as intended upon death.
-Absent well prepared documents that make
proper provisions, there is virtually no basis for a life
partner, next friend, master, slave or whatever to participate
in the estate of deceased partner.
-If there is no will,
law of intestate succession, which is normally set
forth in specific statutes, governs order
of inheritance.
-These statutes
include legal spouses, children, parents, siblings – but
never a friend, “life partner”, etc.
-Likewise, the basis
for being appointment executor or personal
representative is in terms of
traditional relationship – spouse,
children, parents, etc. This means that
without proper planning
documents, a life partner would not even
be allowed to participate in
handling affairs of a deceased partner.
-Estate Planning Documents can overcome these
problems – but careful consideration must be given not only to
the kinds of documents, but when and how they are prepared.
-The most familiar
estate planning document is a will – a document
that directs to whom property shall go,
appoints an executor and
addresses other issues
-A
will can provide general gifts or give specific things to
specific
people.
-But wills have some
shortcomings
-They
can be contested for a variety of reasons – especially in the
event of disability or long term illness
-If a will is prepared or changed during a disability,
someone
unhappy with it can claim lack of
capacity.
-If a beneficiary is someone that was close to the
decedent,
digruntled family members can argue that
he or she exerted too
much influence or control. This is always
grounds for contesting
a will - that is urging a court to
disregard it.
-Some states have statutes that provide for a spouse, or
in some
cases children to take property in spite
of being omitted in a will.
-This can disrupt what was planned in a will -
property that was
intended for someone may end up
elsewhere.
-They are not very flexible estate
planning instruments which can
make it difficult to handle unexpected
developments.
-The probate process may keep assets tied up for a year or
more
after death.
-The probate process is public – everything in the process
is
public record
Trusts can be valuable tools in estate
planning. While they are used generally, they are particularly
valuable for planning in alternative lifestyle situations.
-People are often
intimidated by the term “trust” – it sounds formidable and
complicated
-Trusts
can be simple or complex – giving someone else
something to keep for someone else is a
simple trust.
-A
trust occurs where property is held for the benefit of someone
else.
-Can
be oral (I want you to keep this stamp collection and give it to
my son when he is old enough) or written.
Simple or complex
-Trusts
can be irrevocable – once put into a trust, things must stay
there
-Compared to wills, trusts
have many benefits and merit consideration
in thinking about estate planning.
-The
trust arrangement is private – nothing is public record other
than transfers of property to the trust.
-Even here, privacy is helped – transfer can occur
gradually, over
time.
-If a
trust is created ahead of time it is more likely to stand up to
the
typical “will challenges” – undue
influence, lack of competence.
-Because it is not necessary to actually put anything into
a trust
when it is created, it can be created
well in advance, before
disability for example.
-If property is
transferred to a trust before death, the property is not
part of the probate process and is not
“tied up”
-They can give discretion to a trustee (the person holding
property) or can spell out specific
instructions
-They
can allow property to be distributed over time, which is very
difficult to do with a will.
-They
can provide for multiple people – children, life partners etc.
in various ways over different periods of
time. This is something
that is very difficult to do with a will.
-Wills
must be probated and the probate must be ended at some
point – a trust can last almost
indefinitely.
-Basic terms of trusts
– a primer!
-Settlor
or trustmaker is the person that establishes the trust
-Trustee
is the person who is given the property to hold and
manage for the benefit of someone else.
-Trusts can be divided
into different kinds – each has its strengths
and weaknesses.
-A
living trust is one in which property goes into the trust while
the
settler or trustmaker is still alive.
-A
testamentary trust is one which remains empty until the settler
or trustmaker dies.
-An
irrevocable trust is one where once created, and once property
is transferred into the trust, it cannot
be taken out.
-Trusts can work with
a simple will which adds to the flexibility of the
trust.
-A
trust may have some property put into it before a person’s
death, then after death, receive other
property through the will.
This is called a pour-over will.
-Or,
the trust may be completely empty, receiving property only
after death – through the will, or from
life insurance policies.
-Gives more flexibility and control over life insurance
policies.
Instead of a lump sum to named
beneficiary, a trust can control
a substantial amount of money is handled.
-If someone has any
substantial assets at all, and wishes to provide for
a life partner or someone else outside of
the typical family structure,
careful consideration should be given to
a trust as an estate planning
tool, and professional advice from an
attorney familiar with estate
planning as well as alternative
lifestyles should sought.
-As
with other documents discussed, it is important that a trust be
properly drafted to comply with state
specific laws, to insure that
the desired result will be achieved, and
to protect against efforts to
disrupt the desired estate plan
