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Private lawyer is best option for gay troop’s estate planning

Q I am in the military and I am gay. It is my desire to leave my estate, to include my remains, to my partner rather than to my family members. I have chosen not to have my will prepared by my unit judge advocate general because I do not want the service to know about my sexual preference, nor do I want to be asked why I am naming my partner instead of a family member. What are my options?

A Basically, you have two options to keep your sexual preference a secret. The first option is to do nothing, and hope that this can be taken care of after you leave the military, or stick it out until the military changes its policy to allow homosexuals to serve (if it ever does). But as a member of the military, you may be called to serve in areas of the world that put you in harm’s way, so you should not choose this option.

When a person dies without leaving a will, that person is said to have died intestate, and his property is distributed under the intestacy law of the state where the person was a legal resident. I am unaware of any state that has an intestacy law that would result in your property going to your partner rather than to your closest relatives.

I would point out that when you consult a JAG, an attorney-client privilege is made, and the Pentagon’s policy on gays can’t pierce that privilege. Unfortunately, most service members don’t feel comfortable talking to military officers about their sex lives. Only in the military does your sex life, whether you’re homosexual or heterosexual, have such a major impact on your employment (discrimination in employment based on sexual preference is outlawed in the civilian federal work force and by many state human rights laws).

Your second option is to consult a private-practice attorney who concentrates on estate planning matters. This is the best and really the only viable option to ensure your property is left to your partner. A qualified attorney will be able to prepare your estate planning documents to give your partner the right to make health care decisions for you when you cannot with a health care proxy. A general durable power of attorney can also be given to your partner, which will authorize him or her to do just about anything you could do during your lifetime, which can be an invaluable tool if, for instance, you were to become seriously ill and unable to take care of your own affairs (Note: You should only give this powerful document to somebody you absolutely trust because of the risks involved. You could come back from a deployment to find your partner is now living with someone else, your bank account is empty and your car is sold.)

Lastly, your privately retained attorney would be able to prepare a will for you to ensure that your partner is the ultimate beneficiary of your assets. Another plus is that a private attorney will be able to assist you in a discreet, professional and nonjudgmental manner in a private office and provide more time to explain estate and guardian trust laws to you.

I would like to thank my law partner and former Army JAG Greg Rinckey and Michael Tommaney, my firm’s trusts and estates attorney who has more than 35 years of experience in handling these types of cases, for helping me avoid any landmines in these very tricky columns.

Q I am in the military. Should I rely on the estate planning documents (basic will, health care proxy and living will) furnished to me by the unit JAG, or should I consult with an attorney in private practice to make sure my wishes will be carried out?

A First things first: If all you own is what is in your barracks room and the car in the parking lot, you shouldn’t worry. If you have a spouse, a child (especially a special needs child) being raised by somebody else, or some unusual situation, then keep reading.

Although having these government-provided documents in place is certainly far better than not having anything, there is no substitute for consulting with an attorney in private practice who concentrates on estate-planning matters to ensure that something important has not been overlooked or has not been stated as clearly as it should have been. At times, the JAG attorneys have to process many estate-planning documents for a large number of military personnel in a short amount of time, so it may not always be possible to take the time to analyze all of the options that may be available to ensure that the client’s wishes will be carried out. A privately retained attorney will ensure that your will has been executed in compliance with the laws of your state of residuary and will ensure that your wishes will be carried out in the event of your untimely death.

If you can’t fit a private attorney into the family budget, schedule an appointment with the unit JAG during a less hectic time for at least an hour and advise him in advance that you are coming to talk about your unique situation pertaining to your estate.  

The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.