There has been a lot of discussion about the potential impact of the Amendment should it pass, and I think it’s safe to say that much of it is not entirely true. This morning a client called to ask what would happen to the estate planning she and her partner had done in the event the Amendment passes.
Here’s my take: First of all, I think the Amendment is poorly worded and unnecessary. The sentence about contracts between private parties was added in the second version of the bill, and makes the Amendment somewhat less restrictive of the rights of the citizens of this state. In terms of estate planning, however, this sentence means nothing. Black’s Law Dictionary defines a contract as "an agreement between two parties which creates an obligation to do or not do a particular thing. Its essentials are competent parties, subject matter, a legal consideration, and mutuality of obligation." Clearly the standard estate planning documents – wills and powers of attorney – do not qualify as contracts. Perhaps a trust might under certain circumstances.
Nevertheless, it is my opinion that the Amendment itself would not invalidate existing estate planning documents or bar future documents naming a unmarried partner as a fiduciary or beneficiary. What I am concerned about however, is that such documents may be more subject to contest by disgruntled relatives, who would have another reason to argue why an estate planning document naming an unmarried partner should not be respected by the court. It would also make it easier for a conservative judge who disapproves of gay and lesbian (or even unmarried heterosexual) couples to side with the relatives of incapacitated or deceased partner, to the detriment of the surviving partner.
If the Amendment passes, only time will tell how these and other issues possibly affected by the Amendment will play out the courts. If I were to bring litigation to try to invalidate estate planning documents of unmarried partners, I would certainly use the Amendment as one of my arguments – "Your honor, the constitution of this state provides that this relationship was not valid, and should not be recognized in this state – if the relationship is not valid, how could any documents recognizing that relationship be valid?"
If such arguments were to be successful, that would be a travesty of justice. I believe in equal rights for all North Carolinians, and the freedom to plan with and for the benefit of whomever they choose. Let’s hope the Amendment fails.