Be prepared when the worst happens

Posted on 21 Jan 2010 at 6:07pm
By Tammye Nash | Senior Editor nash@dallasvoice.com

Lesbian faces the loss of her home after partner dies without a will


John McCall Jr.

When Gina’s partner of 23 years, Michelle, died suddenly in their East Dallas home last October, Gina thought things were as bad as they could get.

"There just aren’t any words to describe it," she said of the emotions she went through then.

But then, it did get worse. Michelle’s mother and brother decided to lay claim to the house Gina and Michelle had purchased together nearly 20 years ago.

Gina —who asked that only her first name be used because of pending legal action— said the move by her partner’s family caught her completely by surprise. "I never would have dreamed it," she said.

Michelle had been estranged from her brother for years, Gina said. And even though they lived within a few miles of Michelle’s mother, they only saw her "three, maybe four times a year."

"That was Michelle’s choice," Gina explained. "Michelle loved her mother, but she didn’t like her very much. She would take her mother a cake on her birthday, and we would see her at Christmas and maybe once more each year. But that was it."

But because Michelle died without a will and the house was in her name alone, the law is on the side of her estranged family, according to John McCall Jr., the attorney representing Gina in her efforts to keep her home.

Gina said she and Michelle bought their home in 1991. At the time, the mortgage was in both women’s names.

But in 2003, Gina was diagnosed with cancer. She became concerned that if she died, Michelle could be faced with having to fight Gina’s family for the house. So they refinanced the mortgage, this time putting it only in Michelle’s name.

"I wanted to protect her. I wanted to make sure she would be ok," Gina said. "And her mother was right there, telling me it was the right thing to do to protect Michelle."

Gina recovered. But the pendulum begin to swing in the opposite direction. Early last summer, Michelle lost her job. She also suffered from rheumatoid arthritis and had to start a new treatment when the medications she had been using failed to be effective against the painful disease. And Michelle fell into a depression.

"In those months before she died, Michelle started talking about making a will. But I didn’t want to talk about it," Gina said. "It worried me to hear her talking about it. I was worried that in her depression she might be contemplating something else, that she might try to hurt herself. So I didn’t want to talk about a will or think about it."

Then on Oct. 6, Michelle suffered a rupture in her stomach that caused a massive bleed. She died in the house. What caused the rupture, Gina said, is still undetermined.

Within hours, she said, Michelle’s mother began trying to assert her ownership of the house and its contents.

"She didn’t come out and say it, but little things she said, the way she touched things in the house, questions she asked — I started to just get a feeling about it," Gina said. "I paid all the funeral expenses. They [Michelle's mother and brother] offered to help with the expenses, but I said no. First, because I knew Michelle wouldn’t have wanted that. But also because it felt funny, like they were trying to get into our business and find out what we had."

But then Michelle’s mother made it clear she intended to claim the house for her own. And legally, McCall said, it is.

According to the law, he explained, if a person dies without a will, the first person in line as an heir is the deceased’s legal spouse. If there is no legal spouse, then the person’s property goes to their children.

If there are no children, then the estate falls to the deceased’s two living parents. If there is only one living parent, the estate is divided between that parent and any living siblings. If there are no living parents, it goes to the siblings.

So the law in this case is, at least on the surface, on the side of Michelle’s family.

"In some cases when it comes to a same-sex couple and there is no will, the family [of the deceased] is cooperative and signs a waiver. But in other cases, like this one, they think their child or sibling died with money or property that’s worth a lot of money, and they think, ‘There’s gotta be a big piece of the pie for me,’" McCall said.

In this case, McCall said, he has found a legal precedent in a case out of Fort Worth that says when a "legal stranger" — someone with no legal relationship to the deceased — has contributed in paying a mortgage and household expenses, that person is legally entitled to compensation.

"With that precedent, I’d say worse case is I can get Gina some money out of the house," McCall said.

That doesn’t mean Gina and her attorney are giving up. They are, they said, moving ahead and examining every avenue possible to help her keep her home.

Still, McCall said, the court battle probably wouldn’t have been necessary at all if Michelle had had a will.

"We have a lot of hurdles ahead of us," McCall said. "It would have been so much easier if Michelle had left a will leaving everything to Gina. That wouldn’t have meant her family couldn’t have contested the will. But it would have made things a lot easier and more certain for Gina."

Gina said she decided to share her story in hopes that other same-sex couples might be prompted to get their affairs in legal order and avoid finding themselves in similar straits when it is too late.

McCall agreed. "A lot of people don’t want to think about things like making a will. It seems depressing to them, and they feel like if they don’t talk about it, if they just don’t deal with it, then it pushes death away. But everybody will die some day, whether they’ve taken care of things or not," he said.

At a bare minimum, McCall said, same-sex couples should at least download a form from the Internet, carefully fill it out and have it notarized before witnesses. But Gina urged couples not to be satisfied with that.

"I say everyone should go to a lawyer. All the language needs to be correct. There are so many questions you need to ask and get answered. It costs more, yes, but it’s worth it. It would cost you even more in the long run if it isn’t done right," she said.

And, she added, don’t just rely on a good relationship now with your family or your partner’s family to protect you in the event the worst should happen.

"I just can’t wrap my mind around the fact that she [Michelle's mother] is trying to do to me what she wanted to protect her daughter from, what I helped protect her daughter from," Gina said. "We always got along well, better than even she and Michelle got along sometimes. We never exchanged harsh words.

"I know that Michelle would be wildly upset by what’s happening. She would never want me put out of our house so her mother could have it," Gina continued. "But we didn’t take care of things when we should have, so that may be what happens now."

This article appeared in the Dallas Voice print edition January 22, 2010.

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