Legal Guide

The will is the most common of the various methods for distribution of property after death. The North Carolina Intestate Succession Act provides that if a person dies without a will, that person's property will be distributed along traditional family lines (that is, giving preference to spouse and children, other lineal descendants, parents, grandparents, brothers and sisters, aunts and uncles, roughly in that order). If no close or distant relatives can be found, the property goes to the state.

A written will allows a person to leave his or her property to whomever he or she chooses. The will is not invalid simply because it directs that property be distributed to friends or lovers rather than blood relatives. But it should be noted that the legal system strongly protects the interests of a deceased's close relatives ("the natural objects of his bounty," as they are called in the cases), and for that reason wills that vary from the norm may be subjected to stern scrutiny for technical or other deficiencies if challenges arise.

A lawyer's participation may not be necessary if a small amount of property is involved and the distribution scheme is conventional. However, any bequests to people other than a spouse or a family member make a will unconventional, and we strongly recommend that all gay and lesbian people have their wills drafted and signed in a lawyer's office. On the other hand, for gay men and lesbians any will is usually better than no will at all, and in an emergency it might be advisable to write a handwritten will (entirely in your handwriting, with no printed material whatever on the page) or to use a will form available from an office supply store -- but only until a lawyer can be consulted.

For a will to be declared legally valid in North Carolina, a court must determine that it was made by a person who had the mental capacity to do so. The standard for capacity to make a will is relatively easy to meet (basically that the person knew what he or she had and what he or she was doing). And the law presumes that everyone has the mental capacity to make a will. But challenges might arise, particularly if the gay or lesbian person was terminally ill when the will was signed. Thus, it is especially important for gay men and lesbians not to put off drafting and signing a will.

A more serious hurdle may be the charge that the person made the will under the undue influence of someone else, so that he or she was not acting as a free agent. Here, too, terminal illness might be a factor in a court's deciding that the person was susceptible to undue influence. The N. C. Court of Appeals has listed several factors to be considered in determining if the person was unduly influenced, including the following ones that could work against a legitimate bequest to a same-sex lover:

In drawing an unconventional will, a lawyer might take steps to show that the person was not under undue influence: steps such as having interviews with the client separately from his or her lover (often they will be making mutual wills leaving everything to each other) and asking them not to arrive at the law office in the same car. The lawyer might even make, and keep copies of, a succession of wills over a period of years that say basically the same thing. The purpose would be to show that the person was not subject to the temporary sway of someone else and, incidentally, to make a challenge to the last will less likely.

Aside from capacity and undue influence, a poorly worded will may be vulnerable because of technical mistakes. North Carolina has a rule that the same person cannot be one of the two required witnesses to the signing of the will and also a beneficiary of the will. So, if for convenience's sake a person enlists his or her lover to witness the will and also leaves property to the lover, the lover's gift will be stricken from the will at probate. If a wife or husband were in a similar predicament, he or she would have the power to dissent from the will and take a substantial share of the spouse's estate.

Many gay men and lesbians are concerned that they be able to control their own funeral and burial arrangements. The law was unclear in North Carolina until 1984, when the state Court of Appeals held that the wishes of the decedent in his or her will concerning burial take precedence over those of the next-of-kin (despite the apparent mandate of N.C.G.S. § 90-210.25), and that the will's funeral plan can be put into effect before the will is probated. See Dumouchelle v. Duke University, 69 N.C. App. 471, 317 S.E.2d 100 (1984). Of course, the will-maker will need to cue someone (perhaps the "personal representative" who will administer the estate) as to his or her wishes and the whereabouts of the will so that the desired funeral plan can be put into effect.