Virginia is For Lovers... Of Dumb Laws?

Dahlia Lithwick of Slate is one of my favorite legal writers, and she has a nice article (here) about Virginia's proposed state constitutional amendment, by which the state would "refuse to recognize any legal arrangement between 'unmarried individuals'—gay or straight—that confers marriagelike benefits."

The article mentions a "70-page memo detailing the unanticipated legal consequences of the gay marriage amendment," consequences that might include (among other things) "nullifying trusts, wills, and medical directives between unmarried couples."  The actual memo can be found (in pdf format) here.  Pages 52-56 address trusts and Wills; pages 56-61 talk about medical directives.  A summary of what the constitutional amendment could do in the areas of trusts, Wills and medical directives:

-increase the amount of litigation by family members seeking to overturn an unmarried individual's ability to leave property to his or her partner;

-allow courts to decide that leaving property to your partner (or naming your partner as your agent in a power of attorney) is a "marriagelike benefit," and therefore shouldn't be allowed.  This would make your Will, trust or power of attorney (or certain provisions thereof) invalid; and

-allow courts to decide that a gift of property to your partner (or naming your partner as your agent in a power of attorney) is void on public policy grounds.

Keep in mind that these problems aren't limited to same-sex couples -- they would seem to apply to unmarried heterosexual couples as well.

Comments

[JD Flanagan]

I haven't read the memo, but from the excerpted portions, it would seem that the analysis is flawed. These are transactions that could occur between persons of the same sex who are not involved in a domestic relationship. The question is not whether the two parties are in a domestic relationship, but whether that relationship is a necessary element of the benefit.

A reading that requires the relationship to be a necessary element would seemingly limit the application of the amendment to such benefits as the ability to file a joint tax return, inheritance under the rules of intestacy, benefits provided for surviving spouses, and similar provisions.

[Erica]

those excerpts are a little alarming...I wish America would get a little more liberal