John McCall Jr.
Legal Voice

DEAR LEGAL VOICE: My partner and I have been together for almost 17 years.  We own several homes together, we have joint bank accounts and investments, and we also own separate life insurance policies with each other as beneficiaries so that in the event of an untimely death, the surviving partner is protected and financially secure. I continually read the horror stories about biological families trying to intervene after the death of a partner. What other documents do we need to be sure we are protected under all circumstances?
Mr. S.

MR. S.: Your question falls under estate planning and is a very sensitive matter for same-sex couples. The Texas Probate Code is not amicable to us and as a result, individuals such as you and your partner have a great deal to lose if legal protections are not perfectly in place.

When I consult clients about these affairs, I remind them there is no guarantee documents I draft will not be challenged by another family member. The code allows for challenges based on different criteria. It is my job to make sure those criteria are never met.

The best legal protection for one’s estate is to have your will, power of attorney and medical directive all drafted by an attorney who not only practices, but also litigates. Once you have been in court arguing over inheritance, it becomes very clear what wins and loses in court. There is a priority of tests the court makes in determining whether a challenge is granted or denied.

The first test that must be addressed is, who has the “standing” to challenge inheritance in Texas? Since Texas does not recognize same-sex marriage, we can presume that your partner does not have the capacity to hold himself out as a spouse. Likewise, if you were previously legally married, an ex-spouse cannot challenge. Those who can and normally do challenge are biological children, siblings or living parents of the deceased.

The next test is, are the documents being challenged the originals? There is a code provision for copies, but chances are those challenging will proclaim that an original was subsequently destroyed after the copy was made, and the deceased would then be presumed to have died “intestate” and/or without legal medical documents granting power to the partner.

If the documents are original, have they been witnessed and notarized? I cannot emphasize the importance of these components and how they can impact the finding on any challenge. Most challenges are made under the pretense that the individual signing the legal document “lacked capacity.” In layman’s terms, this means the signature was made while under the influence of others, medication or alcohol. To overcome that challenge, the witnesses and/or notary are the ones who testify to the condition of the individual at the time of signature.

While some people draft or sign wills in the hospital, it does not automatically mean they were under the influence of medication at the time they signed. Likewise, the individual in the hospital may quickly go under the influence, but so long as they were not at the time of signature, the challenge for “lacked capacity” is more than likely denied.

Even though a challenge to estate planning documents is ultimately denied, most challenges in court last for months and sometimes years. These challenges must be handled through a licensed attorney; Dallas County does not allow any pro se parties. Likewise, legal fees can run into the thousands of dollars, which normally comes out of the estate.

To circumvent these expenses, I advise clients to seriously consider who is the likely heir that might challenge a will. Chances are you already know who that person is and if they have “standing.”

Remember, it cannot be an in-law, it has to be a legal heir as mentioned above. With that being said, once said individual is identified, it is probably advisable to bequeath a token of one’s estate to them with the disclaimer that any challenge forfeits the inheritance.

My clients will always ask how much of a token should the potential challenger receive. The answer is normally 5 percent of your entire estate.

Since none of you know your potential net wealth years from now, we can only speculate on what size your estate will be and forecast accordingly. While the exact percent is not critical, what is critical is what motivates the challenger and what amount would give them pause before dragging your partner through the courts.

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This article appeared in the Dallas Voice print edition July 27, 2012.