Wills, Trusts & Estates Prof Blog

The uphill battle for LGBTQ people after death

The Louisiana LGBTQ+ End of Life Guide was published in 2022 and is considered the first in the United States. Ezra Salter, a funeral director in suburban New Orleans, felt compelled to compile resources after witnessing horror stories in the industry. Salter worked with the New Orleans non-profit Wake, which provides death-care information and resources to publish the guide. 

Salter describes scenarios in which estranged family members can override prearranged funerals, including excluding what many refer to as “chosen family” from the services. This is because, in Louisiana, all powers of attorney expire at the time of death. However, Salter found that many people were unaware of this. A possible solution is setting up a Funeral and Disposition of Remains Directive, a newly minted form to determine who gets to make decisions after death.

Nicholas Hite of Hite Law Group in New Orleans explains, “For queer folks, your biological family — the people who are legally the next in line to make decisions — are frequently the last people that you want making your decisions… So you need legal paperwork allowing your most closely held individuals — who aren’t necessarily married to you or related by blood — to be in the hospital and at the funeral home with you and on your behalf.”

For more information see Katy Reckdahl and Christiana Botic “The uphill battle for LGBTQ people after death” The Washington Post, April 21, 2023.

Special thanks to Naomi Cahn (University of Virginia) for bringing this article to my attention.

Khloé Kardashian said that it's in her will to get her nails done 'once a week' if she's in a coma: 'People are gonna visit me'

In the most recent episode of Hulu’s “The Kardashians,”  sisters Kylie Jenner and Khloé Kardashian discuss post-death wishes with their mother, Kris Jenner, as the matriarch prepares for hip-replacement surgery. 

Kardashian later elaborates to the camera, “If I’m in a coma, I’m still getting my nails done once a week, and that’s in my will… Cause people are gonna visit me.” It is important to note that a will would not effectively dictate this until her passing. This information needs to be included in a durable power of attorney.

The family says they frequently discuss their wills and preferences, with Kris saying how she and Kylie have talked about picking out a mausoleum for the family, while Khloé ponders cremation. She speculates as to what would happen if a company like Disney decided to buy and develop land on which her family was buried. “Can you imagine being haunted by the Kardsashians?”

For more information see Palmer Haasch “Khloe Kardashian said that it’s in her will to get her nails done ‘once a week’ if she’s in a coma: ‘People are gonna visit me’," Insider Entertainment, October 20, 2022.

Special thanks to Deedee Nachman (Professor of Law, North Carolina Central University School of Law) for bringing this article to my attention.  

Foreigners fret over stricter Swiss rules on assisted suicide

The Swiss Medical Association has released new guidelines for assisted suicide, requiring those seeking physician assisted suicide to have two meetings with their doctor, at least two weeks apart, before making the final decision. Many fear that it will hamper access to the practice and upset foreigners who seek out the legal end of life care in Switzerland.

Under previous rules, individuals were only required to stay in Switzerland for a few days before completing their treatment. While a primary concern is that the “two-week-rule” creates a cost-prohibitive barrier for the treatment, critics are also saying that it will require those in pain to suffer. The new rule does allow for exceptions, but only for those who are unable to stay in Switzerland for two weeks, or if their suffering is so unbearable that a long wait would be intolerable.

The Swiss Medical Association says they chose to refine the guideline, not simply tighten it. 

For more information:

See Kaoru Uda “Foreigners fret over stricter Swiss rules on assisted Suicide” Swiss Info, July 26, 2022.

National Make-A-Will Month

August is National Make-A-Will Month, which is a great reminder to start thinking about your estate plan to ensure your final wishes are executed as you intended. 

According to a survey published by Caring.com, more than 50% of Americans think having a will is important, but many Americans have not gotten around to it. Some have reported they do not like the idea of planning for their death, and 1 out of 3 survey takers stated that they don’t believe they have enough assets to leave behind. Estate Planning goes beyond just wealth, it is important to have a plan in place to make your passing less complicated for your loved ones.

The COVID-19 pandemic increased interest in estate planning, and the number of 18-34 year olds with estate planning documents in place has increased by nearly 50%. However, 2 out of 3 American adults still do not have a will.

For more information:

See “National Make a Will Month” NFCR Blog, August 18, 2020.

Mark Fleischman, Studio 54 owner, dies by assisted suicide at 82

Mark Fleischman, owner of the notorious Studio 54 nightclub, died on July 13 in Zurich. Fleischman had previously announced his plans to die by assisted suicide in an interview published in the New York Post in June. 

Fleishman had a degenerative condition that left him unable to perform daily tasks. In the interview, he spoke about a previous attempt to end his life where he was revived at a hospital. Due to limitations of assisted suicide in the United States, Fleischman sought the help of a Swiss organization, Dignitas.

Dignitas conducts careful screenings to determine whether terminally ill people qualify for end-of-life treatment. This includes reviewing applications, extensive interviews, psychiatric evaluations, and having the applicant provide a notarized affidavit stating that they want to end their life.

Fleischman said in the interview that he was looking forward to his death as he wants to know what happens when he dies. His wife, Mimi, was by his side at the time of his passing.

For more information:

See Matt Schudel “Mark Fleischman, Studio 54 owner, dies by assisted suicide at 82,” The Washington Post, July 13, 2022.

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this topic to my attention.

COVID-19 Is Motivating Americans to Get a Will – Especially After Contracting COVID-19

The COVID-19 pandemic served as a wake-up call for many Americans, especially regarding end-of-life planning. 

According to the survey question “Did your loved one have a will before dying of COVID-19?” only 22.6% responded with Yes, 17.6% responded that their loved one had a living trust, and 15.8% had a different estate planning document in place.

Now, nearly half of those who had a serious case of COVID-19 are much more likely to have a will than those who have not experienced the virus. This includes an increase with 18-34 year-olds, who have been motivated by the pandemic to take further steps to obtain estate planning documents.

For more Information:

See Daniel Cobb, “1 in 5 People Who Died of COVID-19 Did Not Have an Estate Plan,” Caring.com, June 2022.

Where Not To Die In 2022: The Greediest Death Tax States

With state’s experiencing budget surpluses, some states have begun slashing income taxes in the past year. However, only two states have made any changes to their estate or inheritance taxes.

Estate and/or inheritance taxes at the state level operate separately from federal estate tax, which applies to estates valued at $12.06 million per person. States kick in at a much lower dollar amount, making it important for more people to plan ahead.

For example, in Massachusetts, the tax exemption has not been adjusted for inflation in sixteen years. It is now impacting middle-class families who may have seen their houses and retirement accounts appreciate and were hit with surprise tax bills.

For more Information:

See Ashlea Ebeling, “Where Not To Die In 2022: The Greediest Death Tax States”, Forbes, May 13, 2022.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

Advance Care Planning for Guns: Owners Can Help Ensure Safe Use and Transfer of Weapons

Firearm Life Plan is a new tool that can help gun owners and their families plan ahead for safe firearm use and the transfer of firearms in the event of disability or death.

The plan, created by researching at University of Colorado and the Rocky Mountain Regional VA Medical Center in Denver, is a way for someone to prescribe what they want to happen with their firearms should they die or become incapacitated. Nearly 42% of Americans 65 and older live in households with guns, and up to 60% of people with dementia live in homes with a firearm.

The Firearm Life Plan emphasizes personal responsibility, safety, and the importance of being prepared. The Plan is comprised of four parts: 

1. A list of warning signs that might cause a gun owner to use the weapon inappropriately 
2. A conversation guide for friends and family who may be concerned about their loved one
3. An inventory guide, prompting owners to list where the firearms are stored and who should get the firearms when transfer is appropriate
4. A “legacy” section of the guide allows owners to share memories and stories about their firearms and pass along knowledge to the next generation.

The creators of the Firearm Life Plan hope that gun industry groups, shops, and shooting rangers will make copies of the plan available to their patrons.

For more information:

See Judith Graham, “Advance Care Planning for Guns: Owners Can Help Ensure Safe Use and Transfer of Weapons“, Kaiser Health News, April 27, 2022.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

'I didn't know'; Hampton widow's advice on what to do before losing a spouse

Many of us have lost loved ones unexpectedly. When and if this does happen to you, you should make sure that their finances and accounts are in order. 

Theresa Brooks' husband Henry passed away in 1996, just 8 years after the couple moved to Hampton. Theresa stated, "I never thought that he would die at an early age and it was just hard for me because he was my everything. He was the one that took care of everything in the house. . ." 

According to Theresa, Henry took care of everything, including the finances. So when Henry died, Theres just continued to pay the bills, unaware that she needed to change the accounts into her name. 

According to Naomi Cahn, a Professor of Law at the University of Virginia School of Law, "There's a lot of nitty gritty that is involved, in terms of transferring title to anything that is jointly held, or anything that the deceased person held at the time." 

Theresa stated that her husband did not leave a will or assign an executor of estate, which made the transition process much more difficult following his death. Not only did Theresa have to deal with the grief and the loss of her husband, she had to balance funeral arrangements and financials at the same time. 

Theresa's story is a perfect example of why it is important to have your finances and estate plan in order. 

See Erin Miller, 'I didn't know'; Hampton widow's advice on what to do before losing a spouse, WTKR (Hampton, Va.), March 29, 2022. 

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, University of Virginia School of Law) for bringing this article to my attention.

Oregon ends residency rule for medically assisted suicide

In a settlement filed in the U.S. District Court in Portland, the Oregon Health and the Oregon Medical Board "agreed to stop enforcing the residency requirement and to ask Legislature to remove it from the law." 

The lawsuit challenged the constitutionality of the residency requirement for the law allowing terminally ill people to receive lethal medication. The lawsuit argued that the residency requirement violated the U.S. Constitution's Commerce Clause, "which gives Congress the right to regulate interstate commerce, and the Privileges and Immunities Clause, which forbids states from discriminating against citizens from other states in favor of its own citizens." Attorneys for Compassion & Choices also argued that the law is also unfounded because no other portion of their practice is affected by residency requirements. 

Advocates have stated that they will use the settlement to press other states with medically assisted suicide laws to also remove their residency requirements.

According to Kevin Diaz, an attorney with Compassion & Choices, the national advocacy group that sued over Oregon's requirement, "[t]his requirement was both discriminatory and profoundly unfair to dying patients at the most critical time of their life. . ."

On the other side, Laura Echevarria, who opposes such laws argues that a residency requirement is necessary to save Oregon from becoming the nation's "assisted suicide tourism capital."

According to attorneys at Compassion & Choices, the residency requirements create obstacles for patients and make their lives even more insufferable. This is especially true for patients in Washington who are seeking assistance in ending their lives. Although Washington has a similar law to Oregon's, it is much harder to find facilities willing to assist due to the large number of hospital beds that are in religiously affiliated health care facilities. 

According to Compassion & Choices, the hope is that people will be able to cross state lines in order to receive the help they are seeking, because they legal boundaries like a residency requirement should not cause them to suffer more than they already are. 

See Gene Johnson, Oregon ends residency rule for medically assisted suicide, Everything Lubbock, March 28, 2022.