More from the Daily Press:
…[T]oday, the majority of assets owned by Virginians are subject to private contracts and agreements and do not pass to loved ones under their wills or probate. Most of the assets we have today are owned – and will transfer upon our deaths – based on private contractual arrangements that we make during life. These contracts include beneficiary designations (such as you have on life insurance, IRAs, 401(k)s or retirement plans) and depository agreements with your bank or credit union (when you decide how to “title” your account as joint, with survivorship or “payable on death,” for instance). These are all private contracts…
…What if two friends or roommates name each other – each a non-spouse – as an insurance or IRA beneficiary, or as survivor on a bank account? Who’s to say whether they intended, by these private, contractual arrangements, to approximate some elements of the significance or effect of a marriage? A next of kin could claim that the reciprocal naming of beneficiaries was evidence of an implied agreement that approximates marriage.
Spouses make reciprocal arrangements all the time. In fact, with employer-related plans, spouses need each other’s permission to do anything else. From a property standpoint, the reciprocal naming of one another as beneficiaries by unmarried cohabitants approximates marriage in violation of the proposed amendment, which could lead to challenges to the deliberate estate planning choices of unmarried persons.
And guess what? Hostile family members challenging these arrangements, or, for that matter, batterers and stalkers contesting protective orders, aren’t going to give a rat’s ass about the opinion of our Attorney General that the legislature didn’t intend for the Marshall-Newman amendment to have this reach, and neither will the judges who will be hearing these cases.
Those judges will instead look to a much more accurate source for an interpretation of that intent, the actions of the legislators themselves. When language was proposed to the amendment that would have specifically exempted certain private arrangements and domestic violence law from the scope of the amendment, the legislature resoundingly voted it down. It couldn’t be more clear that their intention was to create the broadest possible restrictions.
In fact, the more coherently and comprehensively any two unmarried people try to arrange the business and financial affairs between them, the more likely it is that their estate planning efforts will be construed as an attempt to mimic marriage in violation of the amendment, whether those parties are elderly siblings with no romantic relationship, or two seniors who are indeed romantically involved but who have specific financial reasons for choosing not to marry.
And we have another five months to watch the amendment pimps digging themselves deeper into this hole.