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Florida Marriage

How to Get Married in Florida

florida-marriageCongratulations Florida residents! A federal judge who in August 2014 struck down Florida’s marriage equality ban announced last Thursday that clerks across all 67 of the state’s counties have a constitutional obligation to issue licenses to same-sex couples effective today – January 6, 2015.

Florida Attorney General Pam Bondi indicated that her office would not challenge the order.

Miami-Dade County began issuing licenses to same-sex couples yesterday, with the rest of the state following suit today.

If you DO get married in Florida after reading this post, PLEASE take a minute to let us know and we’ll send you a wedding gift! (continue reading article below form)

If you want to get married in Florida, here’s what you need to know:

1. You do not have to be a resident of Florida.

2. There is no waiting period for Florida residents who have both completed a state sanctioned marriage preparation course within the last 12 months. There is a three-day waiting period for Florida residents who have not taken the course.

3. Florida requires that you have picture ID such as a driver’s license and your Social Security card or a valid passport number or I-94 card. You may be asked for a certified copy of your birth certificate.

4.  If you have been previously married, the date of your divorce or date of your spouse’s death must be supplied. If the divorce or spouse’s death occurred within the past 30 days, a certified copy of the divorce decree or death certificate is required.

5. It costs approximately $93.50. Many locales do accept credit cards now, but be sure to check with the local county clerk to make sure. Couples who have completed a state-sanctioned marriage preparation course within the past 12 months are entitled to a discount.

6. If an individual is under 18 years of age, but older than 16 years of age, a marriage license can be obtained with parental consent. If a parent has sole custody or the other parent is dead, the permission of one parent is sufficient. If a person is under the age of 16, the marriage license has to be issued by a county judge, with or without parental permission. If a minor’s parents are both deceased and there is not an appointed guardian, he/she may apply for a marriage license. A minor who has been previously married may also apply for a license. A minor who swears that they have a child or are expecting a baby, can apply for a license if the pregnancy has been verified by a written statement from a licensed physician. A county court judge may at his/her discretion issue or not issue a license for them to marry.

7. Any ordained or licensed clergy, notary publics, and justices of the peace.

8. License is valid for sixty (60) days.

9. Marriage licenses in Florida are issued by the County Clerk of Court. See table below for a list of County Clerks and their contact information:


Florida County Clerks of Court Offices
Court Office
Alachua County Clerk of Court 201 East University Ave
Gainesville, Florida 32601
Baker County Clerk of Court 339 E. Macclenny Ave.
Macclenny, FL 32063
Bay County Clerk of Court 300 E. 4th Street
Panama City, FL 32401
Bradford County Clerk of Court 945 North Temple Ave.
Starke, Florida 32091
Brevard County Clerk of Court P.O Box 219
Titusville, Florida 32781-0219
Broward County Clerk of Court 201 S.E. 6th St.
Fort Lauderdale, FL 33301
Calhoun County Clerk of Court 20859 SE Central Avenue, Rm. 130
Blountstown, FL 32424
Charlotte County Clerk of Court 350 E. Marion Ave
Port Charlotte, FL 33950
(941) 505-4716
Citrus County Clerk of Court 110 N. Apopka Ave.
Inverness, FL 34450
Clay County Clerk of Court 825 N. Orange Ave
P.O. Box 698
Green Cove Springs, FL 32043-0698
Collier County Clerk of Court PO Box 413044
Naples, FL 34101-3044
Columbia County Clerk of Court 173 NE Hernando Avenue,
Lake City FL. 32055
Desoto County Clerk of Court 115 East Oak Street, Room 101
Arcadia, FL 34266
Dixie County Clerk of Court P.O. Box 1206
Crosss City, FL 32628
Duval County Clerk of Court 501 W. Adams St.
Jacksonville, FL 32202
Escambia County Clerk of Court P.O. Box 333
Pensacola, FL 32591-0333
Flagler County Clerk of Court 1769 E Moody Blvd, Bldg 1
Bunnell, FL 32110-0787
Franklin County Clerk of Court 33 Market Street, Suite 203
Apalachicola, FL 32320
Gadsden County Clerk of Court P.O. Box 1649
Quincy, Florida 32351
Gilchrist County Clerk of Court P.O. Box 37
Trenton, Florida 32693
Glades County Clerk of Court 500 Avenue J
P.O. Box10
Moorehaven, FL 33471
Gulf County Clerk of Court 1000 Cecil G. Costin, Sr. Blvd.
Rm. 148
Port St. Joe, FL. 32456
Hamilton County Clerk of Court 207 NE 1st Street, Room 106
Jasper, FL 32052
Hardee County Clerk of Court P.O. Drawer 1749
Wauchula, FL 33873
Hendry County Clerk of Court P.O. Box 1760
Labelle, Florida 33975-1760
Hernando County Clerk of Court 20 N. Main St., Room 130
Brooksville, Florida 34601-2800
Highlands County Clerk of Court 590 South Commerce Ave.
Sebring, Florida 33870-3867
Hillsborough County Clerk of Court P.O. Box 1110
Tampa, Florida 33601-1110
Holmes County Clerk of Court P.O. Box 397
Bonifay, FL 32425
Indian River County Clerk of Court P.O. Box 1028
Vero Beach, Florida 32961
Jackson County Clerk of Court P.O. Box 510
Marianna, Florida 32447
Jefferson County Clerk of Court 1 Courthouse Circle
Monticello, FL 32344
Lafayette County Clerk of Court P.O. Box 88
Mayo, FL 32066
Lake County Clerk of Court P.O. Box 7800
Tavares, FL 32778
Lee County Clerk of Court P.O. Box 2469
Ft. Myers, Florida 33902
Leon County Clerk of Court Address PO Box 1024
Tallahassee, FL 32302-1024
Levy County Clerk of Court 355 S. Court Street
Bronson, Florida 32621
Liberty County Clerk of Court 10818 NW SR 20
P.O. Box 399
Bristol, FL. 32321
Madison County Clerk of Court P.O. Box 237
Madison, FL 32341-0237
Manatee County Clerk of Court P.O. Box 25400
Bradenton, Florida 34206
Marion County Clerk of Court Post Office Box 1030
Ocala, Florida 34478
Martin County Clerk of Court 100 East Ocean Boulevard,
Suite 200
Stuart, Florida 34994
Miami-Dade County Clerk of Court 73 West Flagler Street,
Suite # 242
Miami, Florida 33130
Monroe County Clerk of Court 500 Whitehead St.
Key West, Florida 33040
Nassau County Clerk of Court 76347 Veteran’s Way
Yulee, Florida 32097
Okaloosa County Clerk of Court 101 E. James Lee Blvd.
Crestview, Florida 32536
Okeechobee County Clerk of Court 312 Northwest 3rd Street
Okeechobee, Florida 34972
Orange County Clerk of Court 425 N. Orange Avenue
Orlando, FL 32801
Osceola County Clerk of Court 2 Courthouse Square, Suite 2000
Kissimmee, FL 34741
Palm Beach County Clerk of Court 301 North Olive Ave
West Palm Beach, FL 33401
Pasco County Clerk of Court 38053 Live Oak Ave.
Dade City, Florida 33523
Pinellas County Clerk of Court 315 Court Street
Clearwater, Florida 33756
Polk County Clerk of Court 255 N Broadway Ave
Bartow, FL 33830
Putnam County Clerk of Court P.O. Box 758
Palatka, Florida 32178-0758
St. Johns County Clerk of Court 4010 Lewis Speedway
St. Augustine, FL  32084
St. Lucie County Clerk of Court P. O. Box 700
Fort Pierce, Florida 34954
Sarasota County Clerk of Court 2000 Main Street
Sarasota, FL 34237
Seminole County Clerk of Court 301 N. Park Avenue
P.O. Box 8099
Sanford, FL 32772
Sumter County Clerk of Court 215 E McCollum Avenue
Bushnell, FL 33513
Suwannee County Clerk of Court 200 S. Ohio Ave.
Live Oak, Florida 32064
Taylor County Clerk of Court P.O. Box 620
Perry, FL 32347
Union County Clerk of Court 55 West Main Street
Union County Courthouse Rm 103
Lake Butler, FL 32054
Volusia County Clerk of Court P.O. Box 6043
Deland, Florida 32721-6043
Wakulla County Clerk of Court 3056 Crawfordville Hwy
Crawfordville, FL 32327
Walton County Clerk of Court P.O. Box 1260
DeFuniak Springs, Florida 32433
Washington County Clerk of Court P.O. Box 647
Chipley, FL 32428


Of course you’ll still want to make sure you and your loved ones are protected with a will and trust package from Rainbow Law so click here to help you figure out which package is right for you!



11 Years Later, Carrie and Elisia Get Their Wish

As Marriage Equality finally arrives in Florida this week, one of the couples who will be celebrating are Carrie and Elisia Ross-Stone, the lesbian grandmothers who rode their bicycles from Florida to California in 2004 to advocate for marriage rights before it was available in any state in America.

Calling their journey the Rainbow Ride Across America, the couple, who lived in Tampa and began their journey in Florida, were featured on several local media outlets.

Elisia and Carrie rode alone through Florida, Alabama, Mississippi, Louisiana, Texas, New Mexico, Arizona to California. Then they rode back across the country through Nevada, Utah, Colorado, Kansas, Missouri, Illinois, Indiana, Ohio, Pennsylvania to New York – stopping in cities and towns along the way to introduce themselves as a lesbian couple to people who did not support marriage rights in an effort to show they were not the scary stereotype that was being portrayed at that time in the media and to argue they deserved the same rights and protections as heterosexual couples.

“Our mission was to change the hearts and minds of folks who didn’t support us and obviously, given where we are today, I’d say we succeeded” said Elisia. Carrie agreed, adding, “It’s like ripples in a pond. We threw our pebble in the water along with all the other activists fighting for marriage rights and together we created a tsunami.”

After the ride ended, Carrie and Elisia continued to advocate for marriage equality through their website, www.rainbowlaw.com, by offering free and affordable legal documents that create and protect legal rights, performing at speaking engagements, writing books, blogging, podcasting and by being good parents and grandparents.

Did their actions make a difference?  Well, back in 2004 Gallup polls showed just 36% of Americans approved of  marriage equality while a majority – 59% – disapproved of same-sex marriage. However, a recent Gallup poll – from May 2014 – found that 55% of Americans now approve of marriage equality while just 42% oppose it. This the largest percentage of approval ever measured by Gallup.

Over the last 11 years, there is no doubt the American people have become more accepting of marriage rights for same-sex partners, in part because of activists like Carrie and Elisia. But even more important, lawmakers and judges have been persuaded to overturn federal and state bans on marriage equality making Florida the 36th state where gay and lesbian couples are able to legally marry.

It’s a new day and a new year for Carrie and Elisia and for the Florida LGBT community. Happy 2015!

To celebrate LGBT marriage rights in Florida and around the country, Rainbow Law is offering all of our current and any new customers a wedding gift (whether or not you are “legally married”): a Joint Trust Package at 25% off the regular price from now until January 31st.

To order your joint trust at the discounted price, fill out the questionnaire below. After you click submit, don’t click on the payment button. Instead, click this link to pay the discounted price.

If you want more information, email us at info@rainbowlaw.com or give us a call at 304-629-4646.



Gay Marriage Banned

Stop in the Name of Love!

gay-marriage-bannedBucking a nationwide trend where four federal courts have overturned bans on marriage equality creating marriage rights for gay and lesbian couples in 32 states* across the U.S., last Wednesday, the 6th Circuit becomes the first federal appeals court to rule against gay marriage.

Just last September, Supreme Court Justice Ruth Bader Ginsburg told an audience at the University of Minnesota Law School that close attention should be paid to any upcoming decision on state gay marriage bans in the 6th Circuit. Apparently she sensed that the 6th circuit – in particular – might choose a different path than the one most taken. She warned that given such a split in judicial circuits on the issue of marriage rights, “there will be some urgency” for the Supreme Court to step in and resolve the constitutionality of marriage equality once and for all.

That ruling could come as early as the end of this term, in late June of 2015.

In his opinion, 6th Circuit District Judge Martin Feldman, upheld Louisiana’s ban on same-sex marriage arguing Louisiana “has a legitimate interest … whether obsolete in the opinion of some, or not, in the opinion of others … in linking children to an intact family formed by their two biological parents?”

Besides determining Louisiana has a right to ban marriage because – “children”- Judge Feldman went down the familiar slippery-slope and pondered such age-old questions as whether or not marriage equality would open the door to states being compelled to recognize “a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female?”

Sounds like someone Justice Antonin Scalia could really relate to.

So, what will become of marriage equality in the U.S. if a majority of the Supremes side with the 6th Circuit?

All states with bans on marriage (aka mini DOMA’s) will have the option of reinstating those bans or leaving marriage equality laws on the books. States with bans still in place will keep them until such time as they get overturned by court order, legislative action or popular vote.  In other words, we will go backward. Not completely, but a lot.

What will this mean for you?

If you’re already married, chances are, states that reinstate bans will let gay and lesbian married couples remain married. Otherwise, chaos will ensue, right?  Well, it’ll be unfair and chaotic either way but hey, a bigot’s gotta do what a bigot’s gotta do! In state’s where the members of the legislature notice the sky didn’t fall after gay men and lesbians started getting married may find that there is no longer a blood thirst for a marriage ban – especially if a family member or close friend has come out and had a wedding.

Basically, what we’ll have is more of the same patchwork quilt of zones of equality and inequality across America where you’ll be married or not married depending on where you happen to be located at any given time.

If you have a will or trust and advance directives giving your partner/spouse inheritance and decision making rights and you keep those documents up-to-date you’ll be fine – legally – no matter what song the Supremes sing in June.

But they really ought to take a song out of Aretha Franklin’s playbook and give the LGBTQ Community a little R-E-S-P-E-C-T! (Sorry, I just couldn’t resist!)

If you don’t have a will, trust or advance directives you need to get them here now today!  It’s affordable and easy. Just click on the buy a package link and choose which package is right for you. If you’re not sure, click on the ‘figure out what you need’ link to take a short quiz. If you’re STILL not sure, give us a call at 304-629-4646 for a FREE phone consultation to help you figure out what you need to get all your ducks in a row.


US Supreme Court clears way for gay marriage in five states

METhe US Supreme Court has declined to decide once and for all whether states can ban gay marriage, a surprise move that will allow gay men and women to marry in five states where same-sex weddings were previously forbidden.

By rejecting appeals in cases involving Virginia, Oklahoma, Utah, Wisconsin and Indiana, the court left intact lower-court rulings that had struck down the bans in those states. But the high court’s action means there will be no imminent national ruling on the issue, with litigation in states where gay marriage is still banned likely to continue.

Other states under the jurisdiction of appeals courts that have struck down the bans will also be affected by the Supreme Court’s decision, meaning the number of states with gay marriage is likely to quickly jump from 19 to 30. The other states would be North Carolina, West Virginia, South Carolina, Wyoming, Kansas and Colorado.

The court could still take a future case, but its move today is likely to send a strong signal to lower court judges that rulings striking down marriage bans are consistent with the U.S. Constitution.

Gay couples in the affected states may seek to get married immediately, with the chance of chaotic scenes in some parts of the country, because the high court’s action means that the appeals court’s rulings are no longer on hold.

The high court’s decision not to hear the cases was unexpected because most legal experts believed it would want to weigh in on a question of national importance that focuses on whether the U.S. Constitution’s guarantee of equal treatment under the law means gay marriage bans were unlawful.


The issue could still return to the court, but the message sent by the court in declining to hear the matter would be a boost to gay marriage advocates involved in similar litigation in states that still have bans on the books.

Just over a year ago, the justices ruled 5-4 in June 2013 to strike down a key part of a federal law that had restricted the definition of marriage to heterosexual couples for the purpose of federal government benefits.

That decision in the case US v Windsor led to a series of court rulings favoring gay marriage in numerous states. In a separate case decided on the same day, the justices sidestepped the broader question of whether state bans violated the U.S. Constitution but allowed gay marriage to move forward in California.

The momentum within America’s courts in favor of gay marriage reflects a sea-change in public opinion in the past decade, with polls showing a steady increase in support. Politicians, mostly Democrats but also some notable Republicans, have increasingly voiced their support for ending bans.

It was only as recently as 2004 that Massachusetts became the first state to allow gay marriage following a state court ruling the previous year.

In 17 other states, judges have issued rulings in favor of gay marriage – most of which struck down bans – although the prohibitions have remained intact while litigation continues.

State officials defending their bans counter that the Constitution does not dictate how states should define marriage and that there is no deeply rooted legal tradition that supports a right to gay marriage.

Update on Marriage Equality in the US

Gay marriage supporters at the supreme courtUnless you’ve been living under a rock for the last year, you’ve probably noticed that state bans on marriage equality have been falling all over the country – ever since last summer’s Supreme Court decision ordering the federal government to recognize marriages granted by states that passed such laws through legislative acts or by court order.  Every remaining state (all those that still ban same-sex marriage) all face legal challenges to overturn their bans.

As of this writing, LGBTQ couples can marry in 19 states and the District of Columbia. Here are how things stand in the remaining states:

— ARKANSAS: An Arkansas state judge struck down that state’s same-sex marriage ban on the grounds the state has “no rational reason” for preventing LGBTQ couples from getting married.  The state Supreme Court issued a stay which halted (at least temporarily) Arkansas LGBTQ marriages while they consider an appeal by state officials. The state has until Sept. 8 to file its argument.

— COLORADO: A state judge struck down the state’s ban on marriage equality on July 9 but the ruling was put on hold  pending appeal. Regardless of that hold, some county clerks began issuing marriage licenses to LGBTQ couples who managed to get married in that state. Colorado’s Republican attorney general, John Struthers, admits it’s only a matter of time until marriage equality is legal in Colorado, but that he vows to continue to defend the law and is appealing the ruling. All documents in the case must be turned over to the court by Oct. 20.

— FLORIDA: Judges in three counties have overturned the state’s gay marriage ban, but all stayed their rulings, meaning no marriage licenses will be issued for gay couples pending appeals. A separate lawsuit is pending in federal court seeking to overturn the gay-marriage ban statewide.

— IDAHO: State officials have vowed to appeal a decision from a federal judge overturning the state’s same-sex marriage ban. A federal appeals court is scheduled to hear arguments Sept. 8.

— INDIANA: A federal judge struck down the state’s ban on same-sex marriage in June, and hundreds of gay couples wed before the state appealed. Arguments are scheduled in federal court in Chicago on Aug. 26.

— KENTUCKY: Attorney General Jack Conway has said he will not defend the state’s ban on same-sex weddings, but the state hired outside attorneys to handle its appeal of a judge’s ruling that overturned the ban. It’s among several appeals that were heard by federal judges in Cincinnati on Wednesday.

— MICHIGAN: The 6th Circuit is reviewing Michigan’s same-sex marriage ban that was overturned by a federal judge in March following a rare trial that mostly focused on the impact of same-sex parenting on children.

— NEVADA: Eight gay couples are challenging Nevada’s voter-approved 2002 ban, which a federal judge upheld a decade later. The 9th U.S. Circuit Court of Appeals in San Francisco has scheduled arguments for Sept. 8.

— OHIO: The challenge to the state’s ban is one of several before the Cincinnati-based appeals court that heard them all Wednesday in a significant session in the wave of legal efforts around the country to overturn marriage bans.

— OKLAHOMA: An appeals court tossed the state’s ban on gay marriages last month but put its ruling on hold on hold pending an appeal, meaning same-sex couples can’t marry in Oklahoma for now. Gov. Mary Fallin has pledged to “fight back against our federal government when it seeks to ignore or change laws written and supported by Oklahomans.”

— TENNESSEE: A federal judge ordered the state to recognize three same-sex couples’ marriages while their lawsuit against the state works through the courts. Tennessee officials appealed the preliminary injunction to the 6th Circuit in the spate of hearings Wednesday.

— TEXAS: A federal judge declared the state’s ban unconstitutional, issuing a preliminary injunction. The state is appealing to the 5th U.S. Circuit Court in New Orleans, which is expected to soon set a date to hear arguments.

— UTAH: The 10th Circuit Court of Appeals in Denver ruled this summer that Utah must allow gay couples to marry, finding the Constitution protects same-sex relationships, though it put the ruling on hold pending an appeal. The state filed its appeal Tuesday, asking the U.S. Supreme Court to take up the case and uphold the state’s ban.

— WISCONSIN: A federal judge in Madison struck down the state’s ban in June, leading to more than 500 same-sex marriages in the state before the judge put her ruling on hold. State prosecutors filed a brief with the 7th Circuit U.S. Circuit Court of Appeals in Chicago late last month arguing that no fundamental right to gay marriage exists. The court will hear arguments late this month.

— VIRGINIA: A federal appeals court panel in Richmond ruled last week that the state’s voter-approved prohibition on gay marriage is unconstitutional. A county clerk has asked to delay the ruling while it’s appealed to the Supreme Court. If no delay is granted — though the court typically allows them — marriage licenses could be issued 21 days after the ruling.

— EVERYWHERE ELSE: Other states with court cases demanding recognition of gay marriage are: Alabama, Alaska, Arizona, Georgia, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, South Carolina, South Dakota, West Virginia and Wyoming. Most lawsuits challenge same-sex marriage bans or ask states to recognize gay marriages done in other states.

Marriage Equality is Coming to the Deep South

virginia.prideThis week, the 4th Circuit Court of Appeals in Richmond, Virginia, which has jurisdiction over the district courts in the states of Virginia, Maryland, North Carolina, South Carolina and West Virginia, issued a 2-1 ruling that said, under the Constitution, gay men and lesbians do have a right to marry. Said the three-judge panel, “Inertia and apprehension are not legitimate bases for denying same sex couples due process and equal protection of the laws.”

Maryland already has marriage equality. North Carolina’s Attorney General is dropping it, and West Virginia’s attorney general is still undecided, but South Carolina is determined to keep their ban. SC Governor Nikki Haley released a statement saying, “This administration will continue to uphold the will of the people.” Continuing, “Ultimately, the U.S. Supreme Court will decide this issue, and until that time, South Carolina will continue to be governed by the laws of our state.”

Supporters of Virginia’s ban on marriages between same sex couples now have 21 days to file an appeal with the full 4th Circuit or with the U.S. Supreme Court.



You can give Rainbow Law’s legal document preparation service a risk-free try by ordering state-specific advance directives (living wills, medical & financial powers of attorney with hospital visitation & more). Payment can be made via a small donation or you can get them for free in exchange for a Tweet or Facebook post!

Just double click on the rainbow banner:

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Probate Court

What Happens to Your Last Will and Testament When You Die?

Will ProbateSince you’re not going to be around when this happens, we thought we’d let you in on what happens to your Last Will and Testament after you die.

  • First, someone has to locate it – which is why we recommend keeping it someplace safe yet convenient. When you purchase a legal document package from Rainbow Law we’ll let you in on a great storage place that is fir resistant and easily accessible at all hours of the day and night.
  • Once it is located, the will must be presented to the court having jurisdiction over your estate. Normally, that would be a probate court (or similar court designated to hear probate matters) within the city or county in which you lived at the time of your death.
  • Once presented to the court, someone (generally your surviving spouse/partner, child or other family relative) will petition the court for admission of your will to probate. At that point, the court will schedule a hearing to determine whether your will should be admitted to probate. At the same time, it will send notice of the hearing to everyone who might have an interest in your estate, including those individuals and entities specifically named in your last will and testament and those individuals who are your heirs-at-law.
  • Your heirs-at-law are notified because, if your will is not admitted to probate, then your heirs-at-law (people who inherit or have the right to inherit your stuff when you die) might be entitled to a share of your property under your state’s intestacy (dying without a will) laws. Many states will forego a hearing on the admissibility of a will if all of the interested parties agree in writing that they do not object to the admission of the will to probate. In that case, the court will admit the will without a hearing.
  • If a hearing is held by the court, any party who has an interest in your last will and testament (referred to as “standing”) is entitled to object to its admission to probate. If no objection is made, the court will admit your will to probate without a hearing.
  • At the same time, the court will appoint a personal representative to settle your estate. In most cases, the court will appoint the individual(s) or entity(ies) you named in your will to serve as your personal representative. However, the court is not required to appoint the person or persons you named in your will and may appoint a totally independent person or entity if it finds that one or more of your appointees are not suitable for one reason or another.
  • If the court does approve the person(s) you nominated, then that person or entity will be referred to as your Executor, if a male or an entity, or as your Executrix, if a female, although many states now prefer to simply refer to anyone serving in that position as your Personal Representative.
  • If an objection is made to the admission of your will, then the court will conclude the hearing and schedule another hearing to consider the merits of the objection. This hearing, which is commonly referred to as a will contest, is actually conducted as a court trial whereby both the proponents and the opponents of the last will and testament are able to present their cases in accordance with the proscribed rules of evidence and procedure.
  • In most will contests, the proponents of the will are called upon first to demonstrate that the will meets all the requirements for a valid will; i.e., that the will is written and that it is signed by the testator and witnessed by two witnesses.
  • At least one witness is called upon to testify that he or she did, in fact, witness the testator’s signature and that the testator declared the document to be his or her last will and testament.
  • However, many states now provide for a “self-proving affidavit” by the witnesses to the will, which is an affidavit made by the witnesses at the time the testator signs his or her will, which is then attached to the will. The self-proving affidavit attests to the fact that the testator signed the document in the presence of the witnesses, that the testator declared the document to be his or her last will and testament, and that, at the time of signing the will, the testator appeared to be of sound mind and memory and competent to make a last will and testament. If a state authorizes a self-proving affidavit and if the will includes a self-proving affidavit, then the witnesses to the will are not required to be present and give testimony during the will contest.
  • If, at the conclusion of the will contest, the will is ruled invalid for any reason, then the testator may be deemed to have died intestate (i.e., without a will). unless a prior will is then admitted as a valid will. If the testator is deemed to have died intestate, then the court will appoint an administrator to settle the estate and any property remaining after the payment of all debts of the decedent, all administrative costs, and all estate and inheritance taxes, will be distributed to the decedent’s heirs in accordance with the “intestacy laws” (often referred to as the laws of “descent and distribution”) of that state.

Now that you know what happens with a will, maybe you should really consider drawing up a living trust and avoiding the who probate process altogether… even though you won’t be there to enjoy it yourself!

Old Man S Hand Resting On Headstone 300x201

My partner just died. What do I need to do?

old-Man-s-Hand-Resting-On-Headstone-300x201As a surviving spouse or partner, you’ll face many personal and financial challenges in the following months and there are many things you’ll need to do to settle your loved one’s “estate.”  Your initial emotions of grief and confusion may make it difficult to focus on what steps you need to take to make sure your partner’s will is filed properly and final bills and taxes are paid.

Hopefully, this article will help you better understand what it is you need to do and the order in which it should be done:

  1. Gather the documents. If your deceased partner/spouse ran the household finances, it would be great if s/he left behind an organized filing system as well as all the passwords you need to access computer files. But if you need to dig through the piles yourself, start a filing system using colored manila folders. Among the headings: banking, bills, credit-card statements, taxes, life insurance policies and estate documents.
  2. Gather Social Security numbers, birth and marriage certificates, military discharge papers, company benefits booklets, car titles, powers of attorney, and current statements for bank, brokerage and retirement accounts. Get 10 to 25 copies of your spouse/partner’s death certificate. The funeral director can help with this. Many financial institutions require a death certificate to close an account or to change ownership of investments.  You’ll also need the certificate to transfer title on real estate and to claim life insurance and veterans benefits.
  3. Make sure to pay your bills for credit cards, utilities, car loans, property tax, insurance premiums and the mortgage. You could incur late charges if you let these tasks slide. (If you are hit with such charges, ask for a waiver due to the circumstances.)
  4. Notify Medicare and other health insurance companies that you will no longer pay your spouse’s premiums. Also cancel club memberships and magazine subscriptions that you don’t need. Explain the situation and you may get a partial refund.
  5. Keep a joint checking account for at least a year. Occasionally, odd checks to the deceased spouse/partner come in.  If you close or retitle the account, there won’t be a place to put them.
  6. If you need help, get it. If the estate is large, you may want to create a “financial support team” that includes an accountant, a financial planner, and a trusted friend or family member who has good financial skills. In the first six months, you’re in a state of shock. Your team can help you when you’re least able to attend to details.
  7. Assess your cash flow. While you should postpone big financial decisions, you should take stock quickly of your expenses and income. Make a list of your income sources: Social Security, pension payments, dividends, interest, job earnings and IRA distributions.
  8. Write down your fixed expenses, such as groceries, mortgage payments, utilities and insurance. Look at your checkbook to see if there are recurring payments on your credit card. Make a separate list for your discretionary costs, such as gift s and travel. If you are short on cash, start chipping away on the discretionary spending.
  9. Collect life insurance benefits. If you can’t find the life insurance policy and you don’t have an agent, go through checkbook registers and canceled checks to see if there were any checks written to an insurance company. When you file a claim, you may have choices regarding how you will receive the money. Read the fine print carefully. In some cases, an insurance company will place your funds into its own money-market funds and send you a checkbook. Turn down this option, and then place the money in a federally insured bank account or a money-market fund. If you’re instead considering guaranteed monthly payments for life, seek the advice of your financial adviser.
  10. You have nine months from the date of your spouse/partner’s death to file a federal estate-tax return. Some states have earlier deadlines for filing returns for state estate and inheritance taxes.
  11. Save all receipts related to the estate, especially if the estate’s value is close to or exceeds the estate-tax exemption.
  12. Assuming you had named your partner/spouse to make financial and health-care decisions on your behalf in the event you became incapacitated, you will need to designate a new agent for your financial power of attorney, health-care power of attorney and health-care directive.
  13. Check with the employer. If your spouse/partner was employed at the time of her/his death, call the benefits administrator to ask about benefits due to you. Besides life insurance, these can include unpaid salary and bonuses, accrued vacation and sick pay, left over funds in a medical flexible spending account, and stock options.
  14. You’ll also need to check on pension benefits. Assuming your spouse/partner was retired and you were both receiving monthly pension benefits in the form of a joint and survivor annuity, notify the plan administrator immediately. Depending on the type of annuity you chose, you could be due 50%, 75% or 100% of what both of you were receiving before your spouse/partner died.
  15. If your spouse had a 401(k) and you were legally married, it makes the most sense to roll the account into an IRA. If your spouse still had accounts from former employers, consolidate them into one IRA. The custodial firm that holds your IRA can help with the paperwork. The 401(k)-to-IRA rollover can be dicey. Ask the 401(k) administrator to make a direct transfer to the IRA. If the plan instead sends you a check, get it into the IRA within 60 days. If you miss the 60-day cutoff, the IRS will consider the money to be a withdrawal and you will pay tax on the entire amount.
  16. If you were receiving health coverage under your spouse/partner’s employer plan, you may be able to continue on the group plan for 36 months through COBRA coverage. (An employer with fewer than 20 employees is not required to provide COBRA coverage.) Ask the plan administrator if the company will continue picking up the employer’s premium subsidy.
  17. Again, if you were legally married, roll over an IRA. If you are the only beneficiary of your spouse’s IRA, you can roll the retirement plan into your own IRA tax-free. (There are other steps you must take if you are one of several beneficiaries.) Before doing so, make sure your spouse, if s/he was 70 1/2 or older, took her/his required minimum distribution before s/he died. If s/he didn’t, you must take her/his RMD by December 31 in the year s/he died or pay a penalty. In the following years, after you’ve rolled the plan into your own IRA, you can skip distributions until you’re 70 1/2, allowing the account to grow tax-free. Once you turn 70 1/2, your required distributions will be based on your life expectancy. It may be wise to forgo a rollover if you’re younger than 59 1/2 and need to tap the account. By leaving the account in your spouse’s name and remaining as a “beneficiary,” you will not pay a 10% penalty on any withdrawals. After you turn 59 1/2, you can roll the account into your own. If your spouse left you a Roth IRA, you can claim the Roth IRA as your own, in which case distributions are never required during your lifetime.
  18. If you were legally married, claim a Social Security benefit. A widow or widower is entitled to a survivor benefit that is equal to 100% of the deceased spouse’s benefit, as long as the survivor waits until full retirement age to collect. You can collect a survivor benefit as early as 60, but your benefit will be permanently reduced a bit for each month you claim before your full retirement age. (It’s reduced by 28.5% if you claim at 60.) If you were collecting a spousal benefit, you can “step up” to a survivor benefit. At that point, the spousal benefit will disappear. If you are younger than full retirement age and decide to wait to claim the full survivor benefit, you will stop receiving the spousal benefit. If your spouse dies before claiming a benefit, you will be eligible for a survivor benefit equal to the benefit s/he was entitled to at the time of her/his death.
  19. During this difficult time, you’ll also want to stay in close touch with friends and family members and accept their support and assistance. Websites, and local support groups are also available to help you cope with your recent widow(er)hood.

After you have taken these steps to settle your partner/spouse’s affairs, you will need to review your own legal documents. If you have a will, you probably need to get it updated to reflect the death of your spouse/partner. You’ll also need to have documents rewritten, such as a power of attorney, letter of instruction, or living will.

To update your will or trust package, click this link.

I Did It

I Did It: I Made A Will

i-did-itLiz Margolies, L.C.S.W. Clinical psychotherapist; founder and executive director, National LGBT Cancer Network.

I don’t want to die. I am healthy and active and merely 61-years-old. My 86-year-old father is a nationally ranked tennis player, reinforcing the belief that if I keep eating and living well, my genes will take me past 90. So, until now, I felt justified in postponing writing a will. Everything involved in creating one seemed hellish to ponder.

I have some money saved, but my biggest asset is the coop apartment I own in NYC. It is my deep love and my sanctuary. Once I’m dead, it will be instantly transformed from a beloved home into a series of onerous chores for others; someone has to clean it out, sell my stuff, list the apartment for sale, and distribute the proceeds.

Sell my stuff? Who am I kidding; my things are of no monetary value to anyone but me. I think of myself as a curator of found objects, carefully choosing and displaying old discarded items in ways that please me when I look at them: an old Duck Food sign, a red tin bucket, 15 broken clocks, a child’s toy sewing machine, a 1962 pennant from the Grand Canyon. Each thing is a memory or treasured fantasy to me, but their value surely dies with me.

I am no better at thinking about people who will survive my death. My son will turn 22 next month; he is a mercurial artist whose entire life has been a hopscotch board of crises, a third of which have been life threatening. Who will run or fly across the world to save him when I no longer can? My partner has three children of his own and lives out of state with them. If I imagine him re-marrying, I am filled with resentment. When I imagine my friends getting together without me, I am filled with FOMO.

Then, two weeks ago, a Facebook friend posted a link to a blog and I immediately recognized the face in the photo as belonging to my dear friend, Jo. She was forced to move back to the UK after the immigration laws tightened here post 9/11. We ultimately lost touch about 10 years ago. In that time, I now learned, she was diagnosed with ovarian cancer and is currently fighting for her right to die with dignity, at her own hands, in her own time frame. Soon. I reached out and we reconnected instantly.

Yes, it’s an odd time to (re) find a friend, as she is in the process of dying and leaving me again, but our interactions have been profound and I am incredibly grateful for this time together. In sharp contrast to my whining about my death and the subsequent poor fate of “my stuff”, Jo is focused on her survivors. Her heart breaks for the pain her illness causes her mother, and she has planned a death scene that she hopes will soften the grief for her sisters and friends. (She spoke eloquently about this on British television the other day.)

Jo’s courageous fight for her death woke me up to the responsibility I have to those I love. Although, today, I have no idea when I will die or how, I owe it to my son and my partner, family and friends to make plans, to make a will. It is an act of love for them, not a befriending of the grim reaper.

I called Carrie and Elisia Ross-Stone, the two lawyers who own Rainbow Law, and asked for their help. I knew that they started the organization in 1999, soon after President Clinton signed DOMA, to help all LGBTQ people get their legal “ducks in a row”. They still give away advance directives (DPOA, living wills and medical powers of attorney) for free, and offer 6 basic legal document packages — specific to state laws — designed to fit a variety of circumstances and queer family types, all for insanely low fees. It’s possible to fill out most of the required information online, but I decided to call and have them hold my hand through the decision-making.

Planning my will wasn’t fun, but neither was it difficult. I faced all the odd facts that are my life, including who most needed my financial help, who could be trusted to climb the paperwork mountain that being an executor might be, and how to honor, in will-language, the many people who have loved and supported me throughout my life. Carrie and I spoke for an hour. She had a way of making something scary and legally daunting into a gentle, intimate and kind conversation. Based on what Carrie told me, I probably should have set up a trust, but I think I reached my planning limit this round.

I am waiting for the rough draft of my will to arrive by email. I already think there are some changes I want to make before I sign it, and I know Carrie will be fine with that. Once it’s complete, I plan to tell Jo that she has inspired me to think of my death and take care of my survivors. Her plan, assisted suicide, is illegal in the UK and in 45 states here, all the more reason to take advantage of the legal tools we do have. I did it: I made a will.

This article was originally published on Huffington Post and can be read here

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Nearly entire swath of northeastern US now has marriage equality

national-map-20140625-1024x595Today, a federal judge in Indiana struck down the state’s ban on same-sex marriage, followed almost immediately by the first appellate level win since last year’s Windsor decision as the 10th Circuit Court of Appeals upheld a lower court ruling that struck down Utah’s ban late last year.

Looking at the map, you can see that once Ohio and Michigan’s marriage bans are overturned, the entire Northerner US will be a zone of equality for LGBTQ families.

If the Supreme Court dares to take up the constitutionality of state mini-DOMA’s, there’s a good chance they’ll determine they violate the US Constitution’s equal protection guarantees.

That would make the entire map green with the stroke of a pen.

Watch this space!

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