Legal Question in Wills and Trusts in North Carolina

Does the recently passe NC marriage ammendment (constitutional) affect existing wills or powers of attorney (durable & medical) for gay persons?

Asked on 9/12/12, 12:19 am

2 Answers from Attorneys

Jay Mills Burns Day and Presnell, P.A.

My understanding of the amendment is that it should not impact these documents. However, to offer a formal opinion of that, I would need to see the specific documents to make sure there is no language in there that would be impacted.

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Answered on 9/12/12, 5:39 am

I agree with Attorney Mills. The amendment only pertained to the fact that civil unions and same-sex marriages will not be recognized here in NC. That does not affect a will or power of attorney. Regardless of whether you are gay or straight or living with a domestic partner of the same or opposite sex, you can still make the person a beneficiary or personal representative under a will or an agent under the the power of attorney.

A problem might arise if you made the will or power in a state that did recognize gay marriage or civil unions and then you moved to NC. In such case, perhaps the surviving partner would not have the same rights as accorded a spouse.

As noted by Attorney Mills, an attorney would actually have to review the documents in question in order to render an opinion. If you have doubts, I would pay for such review by an estate planning attorney. If you moved to NC from a state where gay marriage was recognized, then I would definitely encourage you to have your will and other documents reviewed as it may be necessary to revise or make new documents.

Even if you do not want to have such review now, you don't indicate when the documents were made. If it has been awhile and certainly if there has been any kind of a life-changing event (birth, marriage, death, divorce, relocation or transfer/acquisition of real or personal property) it presents an excellent opportunity to have your will/estate planning documents reviewed and see whether they still meet your needs.

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Answered on 9/12/12, 11:23 am

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