IOWA MARRIAGE EQUALITY


The Supreme Court of Iowa recently handed down a decision regarding Iowa marriage equality. This brings to mind the rights and protections established by the Iowa legislature which Iowans enjoy because of their status as a spouse. Many of these protections relate to elder law issues, but they are actually pervasive throughout Iowa law. Some of these are as follows:

• If a married Iowan dies without a will, the surviving spouse is automatically entitled to a share of the net estate by reason of the laws of intestacy. Even though a spouse is not an "heir" the law provides special protection status to a spouse.

• If a married Iowan dies with a will that leaves no provision in favor of the
spouse, or a legally insufficient share, the surviving spouse can make an
"election" to take against the will and receive a share that is established by
statute. The law does not allow one spouse to cut the other out of their will.

• A surviving spouse is exempt from paying Iowa Inheritance Tax.

• If an Iowan has not executed a declaration for the withholding of life sustaining procedures, and if there is no appointed attorney-in-fact or guardian, the law establishes a hierarchy with respect to who may make decisions to withhold or withdraw life sustaining procedures. A spouse has the first priority to make such a decision.

• The law contains provisions to protect a spouse from impoverishment, if the other spouse needs to qualify for Medicaid to obtain nursing home or other care.

• In Iowa, a homestead is generally exempt from claims of creditors. The law offers
several protections to spouses, with respect to homestead rights.

ALZHEIMER'S DISEASE AND LEGAL CAPACITY

Mom has been diagnosed with Alzheimer's disease. She does not have a will, a financial power of attorney, or any advance directive for medical decisions. Is it too late? Not necessarily.

In order to effectively sign a will, power of attorney or advance directive, one must have the legal capacity to do so. Generally, this means that the person understands the nature and effect of the document they are signing. For example, to be legally competent to execute a will, a person must have an understanding of what property they own, the identity of the persons they would logically leave their property to and understand they are leaving the property to the persons named in the will.

Alzheimer's Disease is a progressive disease. Although a person's memory may be fading and they may be confused from time-to-time, they may nevertheless be perfectly competent to sign necessary documents. However, as time passes and the disease progresses, there comes a point where that competence is permanently lost.

It is important to address theses issues promptly after the diagnosis is received. At that time, family members should also make sure they understand the location of other financial records including bank statements, retirement account statements, life insurance policies, etc. They also should be familiar with the location of pin numbers, passwords, etc.

Disposition of Remains

Sometimes, there are stressful situations if family members can't agree on the disposition of the decedent’s remains or other funeral arrangements. Iowa law now allows one to sign a declaration that designates a person to have the sole responsibility for making decisions concerning final disposition of remains (e.g. burial, interment or cremation) and the ceremonies to be performed after death.

The authority of the person designated does not override the rights of a person to whom an anatomical gift was lawfully made during the decedent's lifetime. One may also designate in the declaration the location of any pre-paid funeral contracts or the location of cemetery lots.

These declarations are executed in the same manner as a medical power of attorney and the declaration must be included within a medical power of attorney or be attached to a medical power of attorney that was previously signed. It can always be revoked or changed and only becomes effective upon death.

The fact that there is a declaration in effect doesn't prohibit other family members from conducting a separate ceremony at their own expense to commemorate the decedent in order to assist in the bereavement process. The law provides that the designated person’s authority can be forfeited under certain circumstances, including the failure to make necessary decisions within a very short timeframe specified in the law. Finally, if there is no declaration in effect, the law now provides a list setting forth the order of whom has the right to control the final disposition of remains, starting with the non- legally separated spouse, then children, etc.