bigger love: considerations for polyamorous clients

Bigger Love: Considerations for Polyamorous Clients December 05, 2019

This article originally appeared in theNovember 2019 issue of the Estate PlanningJournal, a publication of Thomson Reuters. Click here for a full PDF .

Author: Carrie A. Harrington

Traditional strategies involving use of thefederal estate tax unlimited marital deductionand state intestacy rules do not anticipatedecedents with multiple partners.

CARRIE A. HARRINGTON is an attorney inthe Trust & Estates Group of LevenfeldPearlstein LLC in Chicago, Illinois. This articleis adapted from a chapter in The Tools &Techniques of Estate Planning for ModernFamilies, 3d edition, (National Underwriter, adivision of ALM Media). Copyright ©2019,Carrie A. Harrington.

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In recent years, there has been much debateabout the changing legal landscape as itrelates to marriage and the alleged erosion oftraditional relationships. However, the term"traditional" means something different toeveryone and reflects the values of the time in

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which those passing judgment have lived andthe views of the particular community wherethey have resided. People have been living in"nontraditional" relationships for centuries.Estate planners often focus on the traditionalhusband-wife situation because that is themost tax-friendly and "common" situation,although non-heterosexual relationships nowhave the option of being equally taxadvantaged through marriage in the U.S.

With "nontraditional" lifestyles becoming moreaccepted, estate planners are encounteringmore people openly living in what aregenerally considered alternative familyrelationships. Estate planning fornontraditional family arrangements ispossible. Successful structuring of an estateplan for a client with multiple spouse-likepartners, however, requires a focus on theparticular challenges presented by the law inorder to effectuate the intent of the client. 1

History of Marriage

Marriage is often thought of as the traditionalstep couples take after dating and beforehaving children (and, according to historicalsocietal norms, in that order). Somecommentators argue that marriage is only fortwo people and for the purpose of having



children, and therefore should also be onlybetween one man and one woman. However,a look at history shows that this concept ofmarriage is relatively new. Some civilizationsencouraged a man to take multiple wives sothat the wives would be able to help eachother in doing housework and raising theminor children. 2 Some wives enjoyed thissetup as the extra help was welcome-butmany did not and they even schemed withtheir children against their co-wives. 3 Othercivilizations supported same-sexrelationships, as it was their belief thatopposite sex partners could not provide theemotional support or friendship found insame-sex couples. 4 In still other civilizations,husbands would marry off their wives topolitical allies-polygamy was not an issue forthem. 5

Having a spouse enter into a second marriagefor the purpose of political alliance is similar tomarrying sons and daughters off in exchangefor wealth and land. 6 Families could createconcentrations of land by marrying off theirchildren with their neighbor's children. Further,poorer families could advance their status byhaving an attractive child marry into a wealthyfamily.

Eventually, religious groups began requiringthat marriages be church-sanctioned in orderto be considered legitimate. In 1563, marriage



was deemed one of the seven sacraments inthe Roman Catholic faith. 7 Until then, mostpeople did not get married inside a church,likely because most people did not live closeenough to a church. At that time, the churchhierarchy required that a marriage occurinside a church for it to be valid. AsCatholicism spread to other parts of the world,the one man, one woman, church-sanctionedcouple began to be the norm for developedcultures. 8

The 20th century was a constant seesaw withrespect to generational views on marriage.The Victorian Era encouraged women to bechaste and asexual. 9 The 1920s saw womenand men interact in social spaces withoutchaperones. The 1950s found the best familyto be the nuclear family with a working fatherand a stay-at-home mom. 10 In the 1970sand the 1980s, more women were workingoutside the home and couples were gettingmarried later.

It is only recently that married couples beganreceiving financial incentives for having alegally recognized union. Earlier in U.S.history, spouses in non-community propertystates did not receive any special treatmentwhen the first spouse died-all assets passingto the surviving spouse were considered partof the first spouse's taxable estate. 11 Thosein community property states fared slightly



better. In community property states, onlyseparate property passing to the survivingspouse was taxable. 12 Eventually, the lawschanged and the bonus for communityproperty residents was lessened. In 1942, thesurviving spouse's interest in the communityproperty was made includable in thedecedent's gross estate unless it could beshown "to have been received ascompensation for personal services actuallyrendered by the surviving spouse or derivedoriginally from such compensation or fromseparate property of the surviving spouse." 13

These hard times for surviving spouses wereshort-lived. In 1948, Congress created themarital deduction. The 1948 law restored thebeneficial federal estate tax treatment tocommunity state residents and it also gavespouses in common law states similarly equaltreatment. 14 However, the maximum amountof the deduction was up to 50% of the"adjusted gross estate" of the deceasedspouse. 15 Furthermore, in communityproperty states, the community propertyamount was deducted from the adjustedgross estate, in effect nullifying the maritaldeduction for such community property. 16

Over time, Congress increased the total dollaramount that could pass tax free betweenspouses until eventually, in 1981, the maritaldeduction was made unlimited for transfers



between spouses. 17 In addition, the lawallowed the marital deduction to fully apply toqualified terminable interest property. 18Since this time, there has been little to nodiscussion of repealing the marital deduction;however, legislative and case law repeatedlyhave made clear that one must be legallymarried in order for a surviving spouse toreceive such treatment.

In fact, the marital deduction played a majorrole in bringing about the recognition of same-sex marriages. Windsor 19 and its relatedcases had larger implications, but theyhighlighted the disparate tax treatment thatcouples received based on gender due topermitted marital status when one of thepartners passed away. Since marriage waslimited to heterosexual couples, onlyheterosexual married couples could receivethe federal marital deduction during life and atdeath. The couple in Windsor successfullyargued that denying the deduction to same-sex couples was unconstitutional. In ourcurrent environment, any two people who arelegally married, regardless of gender, areentitled to all benefits due to spouses underthe law.

Some commentators have argued that theallowance of same-sex marriage will lead theway to allowing multiple legally marriedpartners. This chapter does not allow for a full



discussion of the legal arguments on bothsides of that debate, and for purposes of thisdiscussion, the author assumes that legallyrecognized marriage will be allowed onlybetween two individuals.

The rights of romantic companions, under thelaw and for tax and estate planning purposes,are often contingent upon marital status. Forchildren of an individual, their rights ofinheritance and, in some circumstances, theirability to obtain insurance, social welfare, orlegal benefits, also hinge on the marital statusof their parents. The status of an individual asa spouse has important consequences for taxplanning, employee and governmentalbenefits, and general definitional assumptionsunder common law. As societal norms havechanged, couples are choosing to livetogether and have a family without feeling thatlegal marriage is a necessity. In fact, evenindividuals who have married sometimes havean agreement with their spouse to remainmarried while each party pursues his or herown romantic interests outside the marriage.

Situations that involve multiple amorousparties require special care in planning andalso implicate ethics issues for attorneys andother advisors that necessitate carefulconsideration. The stereotypical polyamorousrelationship, and one that has beenaddressed in-depth by the courts, is



polygamous marriage. In the typical familystructure of polygamy, there is one legalspouse with one or more additional "spiritual"spouses committing for life. Children in apolygamous family usually are raised togetherin a communal arrangement where all"spouses" parent together. Thanks to popularshows like "Big Love" or "Sister Wives," thesetypes of relationships have been normalizedsomewhat on cable television. Actualpolygamy is illegal in the U.S., and for mostestate planners it would be rare to be askedto engage in planning for this type of family.

But polyamory is not limited to polygamy.Throughout the 20th and 21st centuries, theheadlines are filled with stories of famouspeople who were married, but in long-termrelationships with other people. For example,Spencer Tracy remained married to his wifefor religious reasons, but was known to be ina long-term romantic relationship withKatharine Hepburn. Other people choose toremain married for social status or financialreasons, but agree that each spouse is ableto engage in a new committed, monogamous,and often quite public relationship with a newpartner. Planning for the second spouse iscommon. Planning for the second non-spousewhile the spouse is still in the picture presentsan entirely different challenge.

And, of course, there are the secret second-



family scenarios, such as that of CharlesKuralt, who secretly maintained a secondfamily for more than 20 years. Secretrelationships, in particular, present a host ofethical and legal issues for estate planningprofessionals. Even if an attorney representedonly the spouse with the secret second familyand was required by the ethics rules tomaintain the confidential information, thesurviving spouse is likely to be angry andpossibly litigious following the post-deathrevelation of the spouse's deception.

At present, the traditional definition of"relationship" rarely describes what trulyexists. Planning for polyamorous relationshipspresents both typical and unique legal, tax,and psychological challenges that warrantspecial consideration.

Overview of Parentage Issues

Marriage and romantic relationships are notthe only family situations to see legal changesover time. A hundred years ago, the questionof whether someone was a descendant ofanother person was a simpler question than itis today. While paternity may have been atissue, there were no issues with a biologicalchild of a person being born more than ninemonths after his death. Use of genetic



material of a decedent to create additionaldescendants after the person has died is aproblem the courts are only beginning totackle. It does not take much creativity to thinkof a scenario where the children of a firstmarriage sue to prevent their father'ssurviving spouse, who is approximately thesame age as the children from the firstmarriage, to prevent a surviving spouse fromusing the deceased father's sperm to createadditional posthumous descendants thatwould water down their share of the estate.

In the past, illegitimate children were treateddifferently because their parents wereunmarried. Illegitimates would not be deemedas legal heirs or the children of a father whowould not recognize them. As societal normshave changed regarding pregnancy outside ofmarriage as well as the development ofpaternity tests to conclusively proveparentage, the law has come to treatillegitimate children the same as legitimatechildren for inheritance purposes. However,children born out of wedlock (or their mothers)may still have to prove paternity to determinecertain legal rights. Some states allow certainstatutes of limitations to run regardingchallenging paternity to avoid descendantsmaterializing generations down the line.Paternity and heirship determinations still varyacross the states, as evidenced by thefollowing cases.



In Labine v. Vincent, 20 the U.S. SupremeCourt held that a law precluding an illegitimatechild from inheriting as an intestate heir wasvalid. Ezra and Lou Bertha had a baby girl,Rita, while they were living together butunmarried. Rita was acknowledged by Ezra,but at the time acknowledgement did notautomatically make them an heir; the parenthad to take action to create a formalacknowledgement to legitimate the child.Under Louisiana law at the time,acknowledging an illegitimate child did notgive her the same rights as a legitimate child,but did allow the child to claim support fromsuch parent and allowed her to be a "limitedbeneficiary" under the parent's will. At thetime, however, an illegitimate child would notbe deemed an heir for intestacy purposes. 21

Ezra died without a will. Ezra's relativesargued that they were the rightful recipients ofEzra's property under the law because Ritahad not been formally acknowledged,whereas Rita's mother argued on Rita's behalfthat she was his rightful and sole heir. Rita'smother argued that the law disinheriting Ritawas a violation of the Equal Protection andDue Process clauses. The Court, however,held that it could not usurp the determinationof the Louisiana legislature to treat illegitimatepeople differently.



The Court also focused on the argument thatEzra could have included Rita in a will(although she would have been allowed onlyto take up to one-third of his property),legitimated Rita by stating expressly that hewished to be an heir, or simply marrying Rita'smother to legitimate Rita. Therefore, the Courtheld in favor of the other relatives. WhileLouisiana law has come to treat legitimatechildren and illegitimate children the same forinheritance purposes, 22 Labine v. Vincenthas never been overturned by the SupremeCourt.

In Clark v. Jeter, 23 the Supreme Court struckdown a six-year statute of limitations inPennsylvania that forced a child or the child'smother to bring a lawsuit to establishpaternity, as such time limit was a violation ofthe Equal Protection Clause. The law alloweda legitimate child to seek support from aparent at any time, but a child born out ofwedlock only had six years to bring suit. TheCourt found that because illegitimate childrenare a protected class under the EqualProtection Clause, the law did not pass theheightened scrutiny necessary.

In a Mississippi case, Estate of McCullough v.Yates, 24 Thelma died intestate without anysurviving spouse, children, or parents. Shewas the only child born to James and Alice.James was later married to Rosetta, however,



and they had five children, one of whom wasDaniel. Daniel was the alleged father ofnumerous children and grandchildren whoargued that they were the heirs of Thelma'sestate. Under Mississippi law at the time, anillegitimate child could not claim aninheritance unless there was an action forpaternity filed within a certain period after thedeath of the purported father. Daniel's allegedchildren failed to claim paternity within thetime period following Daniel's death andtherefore the court found that they werebarred from alleging their status as heirs ofThelma's estate.

In another case, a court upheld a presumptionthat a child born during the marriage of acouple was the biological child of the couple.In Matter of Estate of Nelson, 25 thedecedent's heirs were deemed to be thechildren of Mattie Della Shaw and John L.Nelson, the mother and father listed on thedecedent's birth certificate. However, twoother sets of individuals came forward toargue that in fact the decedent had a differentbiological father than what his birth certificatestated, and in fact his real father was thesame father as such sets of individuals (eachgroup had a different father and were arguingfor their father to be deemed the father of thedecedent). Each group requested that thecourt do DNA testing to determine who wasthe biological father of the decedent, and in



the event the decedent's father listed on hisbirth certificate was determined not to be hisfather, that the court distribute the decedent'sestate to the children of the newly discoveredbiological family.

Based on Minnesota law, the court found that"if a father-child relationship is establishedunder the paternity presumption under theparentage act, only that father can be thechild's genetic father. Thus, even if anheirship claim is not based on the paternitypresumption, the paternity presumption stillapplies to that claim if a father-childrelationship is established under thepresumption and the claimant seeks toestablish a genetic relationship between theclaimant and decedent through decedent'sfather." The court did not allow the purportedhalf-siblings to do the DNA test and movedforward with the decedent's heirs being thechildren of the parents listed on thedecedent's birth certificate.

In still another case, Regalado v. Estate ofRegalado, 26 Joseph received a largesettlement and subsequently died without awill. Pursuant to the laws of intestacy, hisheirs were deemed to be his survivingparents, brothers, sisters, and the issue ofany deceased siblings. During Joseph'slifetime, his father married Paula's mother, 35years after Paula was born. Shortly after



Joseph's death, the marriage between hisfather and Paula's mother was annulled. Afterthe annulment in 2005 (subsequent toJoseph's death), Joseph's fatheracknowledged Paula as his biological child,and Paula therefore claimed to be a survivingsibling of Joseph. Naturally, another survivingsibling of Joseph disagreed with Paula andchallenged the decision by the lower courtthat Paula was deemed an heir of Josephsimply by Joseph's father acknowledging heras his daughter.

Paula's argument relied on Indiana Codesection 29-1-2-7(b) which provided that "achild born out of wedlock shall be treated as ifthe child's father were married to the child'smother at the time of the child's birth if theputative father marries the mother of the childand acknowledges the child to be his own."While the court did not determine heirshipultimately, it did find that Paula needed toshow that she was born out of wedlock beforesuch statute applied and further that Joseph'sfather's acknowledgement of Paula did notbar Joseph's father or the other heirs fromchallenging Paula's paternity.

In Mathews v. Lucas, 27 the mother of twochildren applied for survivor benefit underSocial Security for her children, who wereborn during her 18-year cohabitation with thedecedent. Under the laws governing Social



Security, dependent children of a decedentare entitled to seek survivorship benefits.However, illegitimate children have a furtherhurdle to prove. Under the law, "a child,unless adopted by some other individual, isentitled to a presumption of dependency if thedecedent, before death, (a) had gone througha marriage ceremony with the other parent,resulting in a purported marriage betweenthem which, but for a nonobvious legal defect,would have been valid, or (b) in writing hadacknowledged the child to be his, or (c) hadbeen decreed by a court to be the child'sfather, or (d) had been ordered by a court tosupport the child because the child was his."

Unfortunately for the children in Mathews v.Lucas, they did not fulfill any of therequirements under the law, and challengedsuch standards on the grounds that theyviolated the Due Process Clause becausethey treat illegitimate children differently thanlegitimate children. The Supreme Court,however, found that the classifications werepermissible as they were reasonably relatedto the government's purpose of administrativeefficiency in determining survivorship benefits.Presumably the Court reasoned that the linehad to be drawn somewhere.

Spousal Rights



Many individuals see no reason to be legallymarried to their partner as a committed,cohabitating relationship is sufficient for them.However, legal marriage still offers numerousbenefits of which those who are not marriedcannot take advantage. For example:

Unlimited gift and estate tax deductionsfor transfers between citizen spouses.

1.

Filing of joint income taxes may lead to areduction in income taxes.

2.

A surviving spouse can roll over his orher deceased spouse's IRA. If thesurviving spouse is younger, he or shecan take the distributions out over thesurviving spouse's lifetime, instead of theolder spouse's life expectancy.

3.

A non-employed spouse can use his orher working spouse's income tocontribute to a spousal IRA.

4.

A surviving spouse can receive survivorbenefits from Social Security.

5.

A spouse is the default agent to makemedical decisions in many states.

6.

Surviving spouses have certain rights toa deceased spouse's estate that a non-married partner would not have, such asspousal forced share rights.

7.

Spouses typically have easier access tomedical records and making medicaldecisions on behalf of their spouse. Marriedspouses have preference in acting as theestate representative. If there is a legal



spouse and a non-marital partner or a secondfamily, the legal spouse in many cases couldkeep the non-marital partner from visiting thesick individual in the hospital, from obtaininginformation about how or why an individualdied (protected medical records), and possiblyeven from knowing where the remains havebeen laid to rest.

Nonetheless, it is important to note that non-spouses have more rights than before.Previously, non-spouse beneficiaries couldnot roll over inherited retirement plan benefitsto an IRA tax-free if the beneficiary wasanyone other than a spouse. The PensionProtection Act of 2006, 28 in section 829,allows a non-spouse beneficiary to directly rollover qualified retirement plan benefits to aninherited individual retirement account.Further, the Worker, Retiree and EmployerRecovery Act of 2008 (WRERA) 29 maderollover of a plan mandatory by the non-spouse recipient. After 1/1/2010, all qualifyingplans were required to allow non-spousebeneficiaries to roll over inherited retirementbenefits received as a lump sum to aninherited IRA on a tax-free basis. 30

While there are still legal benefits to gettingmarried, the focus of marriage has shiftedmore to simply finding a suitable life partnerthan producing multiple children and marryingto increase landholdings. Because of this



societal shift and due to more acceptance of"nontraditional" relationships, fewerindividuals are getting married and more areliving in open relationships and living withmultiple partners. The rise of multi-personrelationships as opposed to the two-personlegally married couple creates issues inplanning that must be considered.

Issues Typical to Marriages

Married individuals are more likely toencounter the estate planning issuesdiscussed below.

Spouses. Determination of who is a spouseand who is a descendant typically is reservedto the state legislatures and judiciaries. Whilethere are many consistent rules across thevarious jurisdictions, the typical differencesseen in statutory and common law among thestates can create an inconsistent landscapethat can produce different answers for thesame couple depending on who is asking thequestion, "Is this your spouse?" Severalstates offer couples the alternative of adomestic partnership, and a few states stillhave common law marriage. 31

In Yager v. Gregory Cattle Co. the SupremeCourt of Mississippi determined that thesurviving life partner of a deceased worker



was not entitled to his Worker'sCompensation benefits because they werenot legally married. 32 The couple had beenmarried for 25 years and then divorced. Afterthey divorced, the pair reconciled andresumed living together as husband and wife.The court found that "many of the indicia of amarriage were present," including filing of jointtax returns, cohabitation, and naming eachother as insurance beneficiaries. 33 A legalspouse requires an actual marriage, however,and the survivor here did not meet thatdefinition.

Similarly, in Crescionne v. Louisiana StatePolice Retirement Board, 34 the courtanalyzed the meaning of "surviving spouse."In this case, however, a legal marriageexisted but the parties were legally separated.The decedent was a state trooper who died inthe line of duty. He had children by a priormarriage, and so those children would beentitled to survivor benefits if there were nospouse. The court ultimately ruled that aspouse who is legally separated from thedecedent at the time of death is still thesurviving spouse and under statute, the solebeneficiary of the survivor benefits.

These cases demonstrate that even in a moretraditional relationship with just two parties, itis important to consider and provide adefinition in the estate plan that indicates



when the status of "spouse" begins and ends.Depending on the type of planning and thefamily structure, a client may wish to definethe term "spouse" so that it ceases to applywhen divorce proceedings are initiated, ratherthan waiting until an order is entereddissolving the marriage. When a personceases to be a "spouse" upon initiation ofdivorce proceedings, it is important toconsider that such processes are sometimesstarted in the courts and then withdrawn.

Another common problem area in estateplans in traditional marriage situations occursparticularly when there are divorce andremarriage situations. Children of a priormarriage who are waiting for a stepparent'sdeath to inherit will often hang on every actionby the trustee to ensure that a stepparentdoes not receive a penny more (andpreferably a penny less) than that to which heor she is entitled.

The traditional structure that specifiesdistribution of all income to a surviving spouseand possibly allows for invasion of principal inthe trustee's discretion often affords fewerparameters than what is truly necessary toreduce the chance of arguments. Providingfor a unitrust distribution or specifying howcertain typically contentious items will be paidcan help reduce the likelihood of litigation.Some of the more frequently litigated items



among parents/children orstepparents/stepchildren include the following:

Real estate taxes on any residenceowned in a trust.

1.

Routine maintenance and repairs on theresidence.

2.

Major capital expenditures (such as anew roof) for the residence.

3.

Medical expenses and health insurance.4.Utility bills.5.Insurance on a residence, artwork, orother valuables.

6.

Income taxes on the distributions fromthe trust.

7.

Vacation travel.8.Caregiver expenses as the survivingspouse ages or becomes ill.

9.

Automobiles and auto insurance.10.

While there are many reasons to grantdiscretion for the care of a spouse, carefulconsideration of an appropriate budget inblended family situations can protect allinvolved. Being more specific does notnecessarily reflect a lack of trust or lessaffection for the surviving spouse, but rather,it reflects a caring and thoughtful approach toprotect the spouse from having everydistribution challenged. In addition, solidboundaries can afford the remainderbeneficiaries with the peace of mind thatdistributions are not being abused, and itclarifies the grantor's intent through specificity.



Children. The Crescionne case, discussedabove, also reflects the issue of biologicalanimosity that can arise in traditional romanticrelationships. Subsequent spouses versuschildren of a prior marriage is not anuncommon controversy in estateadministration. Providing for a child born priorto or during the marriage out of wedlock oftenis not the first priority of a surviving spouseeither. And, parents are even known toengage in lawsuits with their own childrenover insurance benefits, retirement benefits,and other assets distributable upon death.

An example of this is in In re Martin B. 35 outof the Surrogate's Court of New York. TheGrantor created several trusts while his sonwas living, which trusts were for the benefit ofthe grantor's "issue" and "descendants." Theson died of Hodgkin's Lymphoma shortlybefore the grantor. The deceased son's wifeunderwent in vitro fertilization usingcryopreserved semen three years after herhusband's death and gave birth to a boy. Thewife underwent the same procedure againshortly thereafter, giving birth to a second sonless than two years after the first birth.Looking to several treatises and the existingNew York laws, the court found that absent anexpression otherwise in the governing



instruments, the posthumously conceivedchildren were to be treated as "issue" and"descendants" for purposes of the trusts,mostly because the legislature could not evencomprehend posthumous conception when itdrafted the applicable law.

And even if the child is not biologically related,equitable adoption allows nonbiologicalchildren in some states to claim the status ofan heir. Of the states that do recognizeequitable adoption, some require theexistence of an express or implied contract toadopt and some do not.

The concept is discussed at length in DeHartv. DeHart, 36 decided by the Illinois SupremeCourt in 2013. In DeHart, James DeHart fileda complaint against the executor of DonaldDeHart's estate. James alleged that he waseligible to inherit from Donald under thedoctrine of equitable adoption, but the estateargued there was no valid claim becausethere was no contract to adopt. The courtfound that, in Illinois, the requirements andcircumstances surrounding equitable adoptionare unclear. The court adopted the holding inIn re Estate of Ford, 37 a case heard by theCalifornia Supreme Court in 2004.

The Illinois Supreme Court held that thealleged child must prove that the decedentintended to adopt him or her and consistently



acted as if that were the ultimate intention.There must be evidence demonstrating thatthe decedent's intention was to maintain a"close and enduring familial relationship" withthe child. 38

Williams ex rel. Z.D. v. Colvin 39 involved anappeal to the U.S. District Court for theNorthern District of Texas after a denial ofSocial Security benefits. It found that Z.D. wasnot the equitably adopted child of Williamsand, therefore, was ineligible to receive child'sinsurance benefits. The Social SecurityAdministration rules provided that "anindividual is entitled to child's insurancebenefits on the earnings record of one who isentitled to disability benefits if the individual 1)is an insured person's child, 2) is dependenton the insured person, 3) applies for child'sinsurance benefits, 4) is unmarried, and 5)meets certain age requirements."

In order to meet the first requirement, thechild must fall into one of the followingcategories: biological, legally adopted,stepchild, grandchild, stepgrandchild, orequitably adopted child. Texas law mandatesthat there must be a clear and convincingagreement to adopt for equitable adoption toapply. In this case, the evidencedemonstrated that Z.D.'s natural mother wasnot willing to enter into an agreement to adoptwith Williams and had sought to obtain



custody. Because abandonment was notapplicable and there was no agreement toadopt between the biological mother andWilliams, the court found that Z.D. was notequitably adopted.

In re Estate of Fairhurst 40 involved a slightlydifferent take on the use of equitableadoption. In this matter, the alleged parentsought to file a wrongful death action onbehalf of the deceased minor's estate. Thepetitioner alleged that he had standing tobring the suit. The court found that theconcept of equitable adoption was created tobenefit the child, and that the concept allowsthe court to use its discretion only in awardinga child rights to inherit. Because equitableadoption (in New York) does not create alegal relationship between the two parties, thecourt held that the petitioner lacked standingin order to commence the action.

The fact that even in traditional relationshipsthere are so many ways to create extra poolsof "descendants" presents a compelling casethat defining terms such as "child" and"descendant" in estate plan documents is animportant step to close gaps in the law andreduce the likelihood of litigation. At aminimum, attorneys should consider includinga paragraph that identifies by name the familymembers intended to benefit from thedocument.



Despite the changing definitions of marriage,it seems long-accepted that a child can haveonly two legal and biological parents.However, this "fact" is now changing as well.There are currently instances of a child havingthree legal parents in certain countries as wellas a child having three biological parents.

Multiple states throughout the country areallowing three people to have parental rightsto a child. These situations can be happy andagreed-upon relationships in which threepeople choose to raise a child together. 41Courts also have recognized legal rights forcertain individuals in contentious situations. Inone case, Kitty was living with Darren and hisboyfriend, Sam, on the East Coast. 42 Kittyand Darren decided to have a child together,and they gave their child Sam's last name.Eventually, Kitty decided to get married andmove with the child to California. Darren andSam objected.

A New Jersey court found that Sam was a"psychological parent" and ordered that Kittycould not take the child. Kitty canceled hermove, and the three maintain a co-parentingrelationship. Equally complicated, science isnow able to mix DNA from multiple parties,allowing the potential for more than twobiological parents. 43 This technique has notbeen used in the U.S. yet, but has been used



in other countries. Because U.S. courts havealready recognized three legal parents, andwith advances in DNA technology, it is likelythat more and more three-parent situationswill be seen as time goes on. Because courtsare allowing more than two parents, it is notinconceivable that someone could have morethan three parents.

No matter the number of parents, ideally allparties should coordinate the naming of aguardian in their estate plans to avoidconflicts. Considering parties that may notagree with the family arrangement and theirpotential objections in court in the event of thedeath of one or more of the parents may alsohelp avoid controversy. Including language ina will or having a detailed letter of wishes inthe safekeeping of the attorney or othertrusted party may help ensure the wishes ofthe parents are known to and followed by thecourt.

Issues Typical to Non-married Persons

There are many ways that non-marriedindividuals decide to live together. Simply,some do not wish to or choose not to marryanother person. They live in a committedrelationship for their entire life without beinglegally married. These non-marital committed



relationships also can happen in situationswhere a person is already married to anotherbut no longer resides with his or her legalspouse. Each married spouse may go on tocreate a long-term relationship with anotherperson and live in a marriage-like relationshipwithout the legal marriage. Still others wish tocohabitate with multiple individuals, all orsome of whom are in romantic relationships.This last group can present particularchallenges for estate planning to establishlegal rights and avoid claims for support andother conflicts.

As previously discussed, married spouseshave certain legal rights under the law uponthe first spouse's death. In Illinois for example,if a spouse dies intestate, his or her survivingspouse receives the entire estate if there areno children and one-half of the estate if thedecedent has descendants. 44 If an Illinoisspouse dies testate, the surviving spouse hasthe right to elect against the will and take one-third of the probate estate even if there aredescendants.

In Florida, the surviving spouse is entitled tothe entire estate if there are no descendantsor if all of the descendants of the decedentare descendants of the surviving spouse;otherwise the surviving spouse is entitled toone-half of the estate. 45 The rights of asurviving spouse differ throughout the 50



states. 46 The important point is that only asurviving spouse can take advantage of theselegal rights.

In Blumenthal v. Brewer, 47 an Illinoisnonmarried couple who had split up suedeach other for certain "marriage-like" propertyrights upon the break-up. The court, however,held that public policy kept it from treating therelationship like a marriage. The court ruledthat one partner was arguing to treat therelationship as a common law marriage, andthat such argument was therefore barred bythe Illinois statute prohibiting common lawmarriage.

Advisors often see issues that arise betweenchildren of a prior marriage and the newspouse, and between half siblings orstepsiblings These issues may intensify whenthere are multi-partner relationships in whichthe half siblings or stepsiblings are living fullor part-time with their parent's current partnerwhile maintaining a relationship with the otherbiological parent. In unmarried adultrelationships, there may be biologicalanimosity among the children and theirrespective parents and non-parents. Asdiscussed in greater detail below, creatingparenting and visitation agreements to ensurethat the right adults have access andinvolvement in each child's life may easethese tensions.



Issues Particular to Intersection ofMarriage and Another Relationship

In a multi-person relationship where only twoof the partners can be married at a time, onlythose individuals can take advantage of themarital deduction. The other partners may bereliant on the married couple to protect thewealth, but there must be an extreme amountof trust. For example, A, B, C, and D are in arelationship. A and B are married, and A hasthe majority of the wealth to support the quad.Assuming A dies first, B can receive all of A'sassets estate tax free. If that is done,however, the quad must trust that B willcontinue to support C and D. Further if theremaining partners wish to ensure the assetscontinue to pass tax free, B may choose tomarry one of C and D. The remaining partneris again reliant on the survivor for support.

The increase in the federal estate taxexemption effective 1/1/2018 affords moreopportunity for the wealthy party to provide fora non-spouse, however, the looming sunset ofthat tax provision leaves reliance on theexpanded exemption as an uncertain result.Tying planning for such a couple purely to thevagaries of legislatively determined exemptionamounts, therefore, may not be the rightstructure for such polyamorous families.



Merriam-Webster online dictionary defines"polygamy" as a "marriage in which a spouseof either sex may have more than one mate atthe same time." Polygamy in the U.S. has along history and was popular in certainMormon populations in the 1800s. Reynoldsv. U.S. 48 addressed the constitutionality ofthe Morill Anti-Bigamy Act, which was signedinto law by President Abraham Lincoln in1862. The court upheld the law against theconstitutional challenge, finding that lawscannot regulate religious beliefs, but they mayregulate religious practices or actions.

Plural marriage remains illegal in the U.S.,although some scholars argue that the recentsame-sex marriage cases have opened thedoor to polygamy by rolling back some of theprior restriction based on social norm.Regardless, polygamy and polyamorycontinue in the U.S. today; however, theserelationships do not always stand out asunusual in modern society.

For example, Bob and Sue are married andhave three children. After the children are outof the house, Bob and Sue decide they arenot satisfied in their relationship anymore.They are still friends and enjoy their mutualfamily, social status, and group of friends, sothey do not wish to divorce. Instead, Bob andSue agree that they will remain married but



will agree to discreetly see other people. IfSue establishes a long-term romanticrelationship with another person, she is in apolyamorous relationship.

In 1921, the Supreme Court of Fulton County,New York, was faced with a situation where acommon law marriage existed and thenJames Procita married another woman. 49The common law wife sued for spousalsupport and to have the subsequent marriageannulled. The court sided with the first wifeand ordered $200 in legal fees and $7 perweek.

Cases dealing with multiple marriagesituations, however, are not a thing of thepast. In 2008, the Missouri Court of Appealsdealt with the estate of George Davis and histwo "wives." 50 George married Agnes in1903 and had eight children. He neverdivorced Agnes, but began a relationship withEvelyn Rishovd no later than 1943, as theirson, Thomas, was born in February 1944.George, Evelyn, and Thomas lived togetheras a family and lived in a home owned byGeorge and Evelyn as tenants in common.George and Evelyn held themselves out ashusband and wife, and took title to their homein 1955 as "George S. Davis and EvelynDavis, his wife." Thomas died intestate in2003, resulting in a dispute between theGeorge/Agnes descendants and Evelyn's



family about who would inherit. The courtupheld the lower court's finding that theGeorge/Agnes descendants established theirrelationship in accordance with the legalrequirements.

It does not take much imagination to think ofscenarios where common law marriages,marriages that have not been properlydissolved, or marriages that are ignored byone party who subsequently enters intoanother marriage could create problems evenin the estate of a testate decedent. Asdiscussed below, the distinction betweenchildren born out of wedlock and those bornduring wedlock has been largely eliminatedexcept as to statutes requiring that paternitybe proved during the lifetime of the father, orsimilar requirements under state law thatrelate to a legitimate state purpose. Ratherthan leaving such determinations to chanceand the variations in state law, drafters maywish to consider identifying the names of thespouse and children of the testator to helpavoid arguments about who is intended tobenefit under the estate plan documents.

Polyamory also presents a special set ofproblems for individuals residing in Arizona,California, Idaho, Louisiana, Nevada, NewMexico, Texas, Washington, or Wisconsin,which are the community property states.Alaska residence, with its community property



opt-in regime, may also raise issues if thespouse with one or more non-marital partnershas opted into community property with thelegal spouse.

Title is not determinative of ownership in acommunity property state, and therefore asurviving spouse may have rights to property,even if the decedent specifically bequeathedthat property to a non-marital partner.Although there is some variation under statelaw, the general rule in community propertyjurisdictions is that the surviving spouse ownsan undivided one-half interest in eachcommunity asset at the first spouse's death.So, if a decedent owned a house that isoccupied by the non-marital partner, and thehouse was acquired with the decedent'sincome during marriage, then upon thedecedent's death, the surviving spouse andsurviving non-marital partner likely aretenants-in-common for that residence. If thedecedent purchased the residence withincome earned during the marriage but placedthe residence in the name of the non-maritalpartner, the result may be the same.

In general, the community can only besevered by agreement of both spouses.Therefore, unless the spouse consented, thesurviving spouse has a one-half undividedinterest in the residence occupied by non-marital partner. In either case, particularly if



spouse did not know about the non-maritalpartner, this result is a recipe for estatelitigation.

In community property states, thepresumption generally is that property ownedby either spouse is community property. Theburden to prove that the property is notsubject to the rules applicable to community ison the party seeking to demonstrateotherwise. An attorney advising a client in acommunity property state regarding planning(gifts or bequests) for a non-marital partnerwith a consenting spouse can help to avoidlitigation by having the client and his or herconsenting spouse execute an agreementsevering community property rights from theassets intended to pass to the non-maritalpartner.

For legally married couples, premaritalagreements generally become effective uponthe date of the marriage and suchagreements will have no effect if the marriagedoes not take place. However, cohabitationand parenting agreements typically will beeffective upon execution and will terminateupon a party's death or the termination of therelationship, which timing may be harder todefine than with a legal dissolution. For multi-partner relationships, defining termination ofthe relationship and rights upon terminationcan help avoid controversy by creating a set



of rules where no statutory framework existsto otherwise assist the parties.

Without a written agreement, many courts donothing to enforce one partner's claim againstthe other, despite the usual inequity resultingfrom the lack of legal protection for the partiestrying to exit the relationship. In Hewitt v.Hewitt, 51 a woman brought suit against theman with whom she had lived, unmarried, for15 years. The woman claimed that the manorally promised to "share his life, his future,his earnings and his property" with her and,therefore, that an implied contract entitled herto a share of the property accumulated duringtheir "family relationship." The IllinoisSupreme Court refused to enforce the parties'oral agreement because their livingarrangements violated public policy. To holdotherwise, according to the court, wouldencourage the formation of "illicit"relationships.

Many courts, however, will infer and enforcean agreement based on either the conduct ofthe parties or principles of equity. 52 Theleading case, Marvin v. Marvin, 53 wasdecided by the California Supreme Court in1976. In Marvin, actor Lee Marvin and theplaintiff, an entertainer and singer, orallyagreed that the plaintiff would "give up herlucrative career as an entertainer," to devoteher time to the defendant as "companion,



homemaker, housekeeper, and cook" inreturn for "financial support and needs for therest of her life." At the dissolution of therelationship, Lee Marvin had title to most ofthe assets. The court held that the plaintiff'sclaim stated a valid cause of action for breachof an express contract. Moreover, the courtagreed that recovery could be based on thedoctrine of quantum meruit, or equitableremedies such as constructive or resultingtrusts.

The court further held that, in the absence ofan express contract, the courts should"inquire into the conduct of the parties todetermine whether that conduct demonstratesan implied contract, agreement of partnershipor joint venture, or some other tacitunderstanding between the parties." The courtdetermined that a promise to performhomemaking services was a lawful andadequate consideration for a contract, and theagreement would be unenforceable only tothe extent that consideration consisted ofsexual services.

In order to avoid the public policy issuesurrounding claims being considered asbased on sexual services, claims innonmarital "divorce" cases generally shouldbe based on economic rights substantiallyindependent of the nonmarital relationshipand should not be based on rights arising



from the cohabitation or the performance ofdomestic services. 54 For example, inSpafford v. Coats, 55 an unmarried woman,who lived with an unmarried man, sued toimpose a constructive trust on cars acquiredduring the couple's cohabitating relationship,and for which the plaintiff had furnished mostof the consideration. The court held that thewoman's rights were "substantiallyindependent" of the cohabitating relationshipand were not based on rights arising fromcohabitation. The court stated, "[W]here theclaims do not arise from the relationshipbetween the parties and are not rights closelyresembling those arising from conventionalmarriages, we conclude that the public policyexpressed in Hewitt does not bar judicialrecognition of such claims."

Spafford was followed by Ayala v. Fox. 56 InAyala, upon break-up of the cohabitationrelationship, Ms. Ayala sued Mr. Fox forrecovery of payments made with respect tothe couple's home, which was titled in Mr.Fox's name despite his promise to place titlein both names. In reliance on that promise,Ms. Ayala jointly took out the mortgage, paidthe majority of mortgage payments, themajority of the taxes, and insurance (includingall amounts during a four-year period whileMr. Fox was unemployed). Mr. Fox refused totransfer title or money upon the break-up. Thecourt found for Mr. Fox, and distinguished



Spafford on the grounds that Ms. Spafford"did not seek recovery based on rights closelyresembling those arising from a conventionalmarriage or on rights founded on proof ofcohabitation...." If co-owning a home lookedtoo much like marriage for the court, a writtenpartnership agreement may have granted anenforceable right to the plaintiff in Ayala.

Mississippi recently determined that when aclaim is not based on relationship, the courtcan award a former unmarried cohabitant theamounts she contributed to a joint residenceon the theory of unjust enrichment. In Cates v.Swain, 57 an unmarried couple cohabitatedfor six years, and during that time Swaincontributed money toward expenses of thejointly occupied residence. After the break-up,Swain asked the court to declare aconstructive trust or a resulting trust andalleged that Cates had been unjustlyenriched. The court distinguished the factsfrom Davis v. Davis, 58 where the claim wasfor equitable division of property on the basisof a relationship. In this case, Swain was notalleging equitable division of property, butrather argued for unjust enrichment based onher contributions to property legally owned byCates.

The policy expressed in Hewitt was reiteratedin a 2006 case before the Illinois appellatecourt in Costa v. Oliven. 59 This case



involved a man suing a woman with whom hehad lived for 24 years. While the couple nevermarried, the man alleged that they had a"quasi-marital" relationship. The man arguedthat Hewitt should not "be applied as ablanket rule in every set of circumstancesinvolving unmarried cohabitants." His actionagainst his former cohabitant was for aconstructive trust over her property and anaccounting of all income and assets in herpossession. The court ultimately ruled thatIllinois public policy prevents grantingenforceable property rights to unmarriedcohabitants. 60

When there are multiple parents to a child,legal or otherwise, the parties may considerdiscussing what arrangement would be in achild's best interests, both during the marriageand upon dissolution of a relationship. Theparties can make an agreement addressingwhere the child should live, how often eachparty should have visitation, vacation andholiday schedules, and financial support foreach child in the event the adults' relationshipends. While a court will always have the finalsay in making legally enforceable provisionsregarding minor children, discussing theseissues openly when all parties are still gettingalong may facilitate a reasonable andcooperative agreement regarding the children,thereby avoiding litigation.



These types of agreements can be especiallybeneficial when certain partners in the groupmay not have legal rights to a child. In suchcases, multiple adults may be living in ahousehold and a child may have an emotionaland psychological relationship with all of theadults, not just the legal or biological parents.In the event the parents and other partners inthe relationship decide to end theirrelationships, the parties may agree that it isin the child's best interests to maintain regularcontact with all of the adults.

Legal parents will have the most legal rightswith respect to the child, and often will havethe legal right to keep an ex non-parent fromvisiting with the child.

It is important to note that parentingagreements may be considered by somecourts as void in violation of public policy. 61Nonetheless, these agreements can be usefulin establishing the terms of a parent-childrelationship that has been formed if it is latercalled into question, and the court may stillconsider enforcing such agreement or certainterms within the agreement. 62 Accordingly,the involved parents may wish to documenthow they will handle issues such as custody,visitation, and education, belief systems, etc.of the children, understanding that the court'sdetermination of the best interests of thechildren will ultimately prevail. 63



The law varies from state to state when itcomes to cohabitation agreements. Forexample, California grants rights ofcohabitants based on an implied or anexpress contract. 64 Florida allows unmarriedcohabitants to enter into an enforceablecontract that establishes rights andresponsibilities provided that there is clear,valid, and lawful consideration withoutexpress or implied agreement regardingsexual relations. 65 In Texas, "nonmaritalconjugal cohabitation agreements" must be inwriting. 66

Cohabitation agreements among multi-partnerrelationships should be entered into likepremarital agreements, although generalcontract principles such as consideration orother required elements in the applicablejurisdiction must be addressed in order tomake such contracts enforceable. Each partyshould disclose his or her assets and liabilitiesin order to avoid challenges based on lack ofinformation or unconscionability. Parties maywish to determine property ownership,especially if certain members of therelationship are married to each other. Forexample, should a married couple own themain residence as tenants by the entirety?Should the parties each own the property astenants in common or as joint tenants withrights of survivorship? Do community property



rights need to be waived?

Often, the group will not have even thought ofthe issues that may come up if a party wishesto leave the group or if a party dies. Manypolyamorous groups will say that honesty andcommunication are the best way to keep theirrelationship healthy and strong. 67 To assistthe parties in having an open discussion, theadvisor may want to provide the group with alist of issues to be discussed prior to themeeting in the lawyer's office. For example:

Wages/earnings.1.Mortgage/rent payments.2.Real estate ownership and division.3.Personal property ownership anddivision.

4.

Insurance/retirement planbeneficiaries/proceeds.

5.

Shared bank account contribution.6.Inheritances/gifts from family.7.

Such agreements can also discuss morespecific and daily issues including:

Filing of income tax returns.1.Payment of household expenses.2.Division of household duties.3.Division of childcare duties.4.Ownership, custody, and care of pets.5.Duties and obligations of a partnership,joint venture, or other businessarrangement with the cohabitant(especially if the business is operated out

6.



of the home).Division of prior, current, and future debtobligations, including upon termination ofthe cohabitation.

7.

Retirement, membership, medical, andother benefits each cohabitant has andthe division of those benefits includingupon termination of the agreement.

8.

Health, disability, property, life, and otherinsurance of each cohabitant. 68

9.

While some of these issues may seem trivialor complicated to discuss ahead of time, it isimportant, especially in a multi-personrelationship, to lay out each person'sexpectations in an effort to avoid futuresurprise.

Courts have found that a cohabitant may havea claim for "palimony" against an individual (oragainst his or her estate if the individual doesnot survive the lawsuit) when providinghomemaking services as consideration for aproperty-sharing agreement. 69 In a grouprelationship where multiple people may bedependent on one person to provide support,it is best for the parties to discuss theirsupport expectations ahead of time in theevent of a break-up. Without an agreement ora list of each party's property, upon the deathof an individual, it may be difficult to provewhose property is whose and what propertywas not jointly acquired by all of the



cohabitants.

Parties with interests in trusts or familybusinesses may wish to disclose suchinterests, especially if the parties plan to liveoff such interests. However, the wealthypartner's family may be more hesitant todisclose such information in a polyamorousrelationship.

Legal divorce is difficult enough. In apolyamorous situation where there aremultiple relationships, with or without a legalmarriage, a separation can involve extracomplications. If a triad or larger group is partof the dissolving relationship, the otherpartners may have legal claims or personalinterest in the property division. For example,say A and B are married and live with C. Band C have a joint bank account. B has beencontributing marital assets to the joint bankaccount. The bank account with C may bepart of the divorce proceedings as it wasfunded with marital assets. However, C mayhave contributed to the account as well. Thecomplications are endless consideringdifferent types of property-real estate,businesses, personal property, etc.

Furthermore, one partner may have beenresponsible for supporting the entire group. Ifthe group is breaking up, there may be certainexpectations by one or more of the parties



that financial support will continue. Having aconversation ahead of time and agreeing tocertain parameters in the event of a break-upcan save the parties time, money, andemotional stress in the long run.

Ethical Implications for Advisors

Bigamy is prohibited across the U.S. Whilestate statutes differ in their wording, ingeneral, bigamy is typically defined asintending to enter into or entering intomarriage while already married or withknowledge that the other person is married.70 However, some states' bigamy laws arestricter than others.

For example, Colorado law provides that any"married person who, while still married,marries, enters into a civil union, or cohabitsin this state with another person commitsbigamy." 71 Similarly Georgia law states thata "person commits the offense of bigamywhen he, being married and knowing that hislawful spouse is living, marries anotherperson or carries on a bigamous cohabitationwith another person." 72

Arguably, anyone who stays legally marriedbut lives with another person in a marriage-like relationship is committing bigamy underColorado and Georgia law, presumably even



if the spouse consents. Interestingly, Illinoislaw allows a second spouse, whounknowingly married a bigamist, the right toreceive maintenance pursuant to divorce lawso long as the allowance is not inconsistentwith the rights of the first legal spouse. 73

If a lawyer finds out, or is told through thecourse of representation, that a client or agroup of clients have committed bigamy, thelawyer is protected from having to report suchcriminal conduct by the Rules of ProfessionalConduct. Specifically MRPC Rule 1.2(d)provides: "(d) A lawyer shall not counsel aclient to engage, or assist a client, in conductthat the lawyer knows is criminal orfraudulent, but a lawyer may discuss the legalconsequences of any proposed course ofconduct with a client and may counsel orassist a client to make a good faith effort todetermine the validity, scope, meaning orapplication of the law."

The lawyer can counsel the individuals on theconsequences of having committed bigamy,but generally should not be required (orpermitted, depending on the state) to reportthem for having committed the crime. If amarried client comes to a lawyer and asks ifhe or she can get married again, of course thelawyer cannot aid or counsel the client on howto commit such bigamy.



Consider the following: Jean has been Alice'sestate planning advisor for ten years. Alice(who Jean knows is legally married to Barry)asks Alice to prepare or review a premaritalagreement drafted by Chris's attorney as Aliceand Chris are preparing to enter into a legalmarriage.

Clearly, Jean cannot represent Alice in thepremarital agreement. But what if Jean learnsthat Alice has hired another attorney torepresent her in the premarital agreement? IsJean required to report the other attorney tothe state disciplinary bar if the other lawyerknows Alice is married already? Should-ormay-Jean report such information to Alice'sattorney or Chris's attorney if they do notknow Alice is married already? Jean is likelybarred from disclosing such information, butJean may wish to counsel Alice that she iscommitting a crime.

Separate from the premarital agreementtransaction, can Jean continue to representAlice in her estate planning, knowing she maybe lying to both of her "spouses" about theirrights to her estate? If Alice never bringseither spouse to Jean, Jean probably cancontinue the representation in most stateswithout violating the legal ethics rules. If Aliceever wishes Jean to represent her jointly witheither "spouse," Jean will have to decline.



Changing the facts a little, what if Alice andBarry ask Jean to draft a cohabitationagreement with Chris? If Jean is practicing ina state like Georgia or Colorado that definesbigamy as marriage-like cohabitation withsomeone other than the individual's spousewhile legally married, Jean technically ishelping Alice and Barry commit a crime.Knowing the law of bigamy in the state whereone practices is important to avoid anunintended violation of the ethics rules.

Conclusion

As the world becomes more accepting of"nontraditional" families, estate planners needto consider planning for such mixed andexpanded families. It is important to create anenvironment where clients are able to discussfinancial and familial expectations during andafter the relationship openly with each other,as well as with their advisor. Understandingand advising these families about legal andtax consequences can help them to properlyplan for the good times and difficult life eventsin a way that can reduce the need for andlikelihood of litigation.

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bigger love: considerations for polyamorous clients

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