HOME

EMAIL ME

ABOUT ME

LAWYERS GENERALLY
Specialist v. Generalist
Costs of a Lawyer
Billing
Big Firm/Small Firm

INTERNATIONAL MATTERS

DISPUTES & LITIGATION
Mediation
Arbitration
Commercial Litigation
Bankruptcy Litigation
Estate / Will Contests

ESTATES
Probates
Will Contests
Estate Taxes

WILLS & ESTATE PLANNING
Simple Wills
Testamentary Trusts
Inter Vivos Trusts
Health Care Proxy
Living Wills

REAL ESTATE

BANKRUPTCY
Debtors
Creditors
Bankruptcy Procedures

CORPORATE
Executives/Employees
Compensation and Stock Options
Non-competition Agreements
Buy/Sell Agreements
Entrepreneurial Ventures

GAY & LESBIAN RIGHTS
Marital Rights
Buying property together
Being in business together
Wills & Estate Planning
Burial Rights
Health Care Proxy
Tenant Apt. Succession
'Divorce' & Splitting up
Burial Directives


BRIAN M. DELAURENTIS Attorney at Law
36 West 44th Street, Suite 911 | New York, New York 10036 | tel 212.354.6300 fax 212.954.5081 | Brian@DeLaurentisLaw.com
Gay & Lesbian Rights

Gay & Lesbian Rights
[as of February 2013]

As a member of the LGBT community, issues relating to sexual orientation have always been an important part of my practice. One of my core strengths over other attorneys is that I "get it" when we are discussing the legal issue at hand. My own personal life experiences enable me to better empathize with your situation and guide you toward the best course of action.

The world is not going to give the LGBT community equality - equality must be won day in and day out through the assertion of our current rights and advocacy (both political and legal) for advancing toward equality. To succeed, we need strength, integrity, consistency and verve to achieve the paramount goal of equality.

Today, structural equality within the law has been almost entirely achieved in New York. Same sex couples can marry and LGBT individuals have legal protection against job, housing and public accommodation discrimination. And, members of our community can openly raise children or join the military.

However, although New York law now has given us a level legal playing field, these hard won rights must be applied in the day to day context in dealing with ourselves, landlords, employers and out-of-state matters.

Consequently, in representing fellow LGBT community members with their needs, I endeavor to use the full array of legal rights to achieve your goals. In this way, day in & day out, and client by client, acceptance of legal equality for the entire LGBT community becomes a more commonly accepted reality for all of society.

Marital Rights
Marital Rights - New York
In 2011, New York law was changed to allow same sex couples to marry with the full benefits the state can bestow on any married couple. This victory makes both life and law easier for LGBT couples.

The law assumes that most people marry young without any assets. During a marriage, each spouse has a right to share in the collective financial rewards achieved while married, the right for the other spouse to support him/her where needed, and the right to inherent. These are the major benefits/obligations. These are also the elements of the 'economic partnership' aspect of a marriage which don't end simply because the relationship does at some point in time.

Typically, same sex couples enter marriage from a different point in their lives than the law assumes. Fortunately, New York allows married couples to adjust their marital rights to best suit their particular situation.

Setting up the marriage the way you want it to operate is the purpose of a pre-nuptial (or antenuptial) agreement. You are free to alter how assets are owned, shared, or disposed of if the marriage ends as well as provide for a set amount of support if the less moneyed spouse needs time to fully re-enter the workforce. You can make your own arrangements regarding inheritances as well.

Finally, if you're already married, you can also have a post-nuptial agreement that addresses these same areas. Don't worry, you're not too late.

I have represented many couples (same sex and opposite sex) regarding pre-nuptial agreements, and would be happy to assist you with yours.

Gay Relationship Building - Buying real estate together or going into business together
Same sex couples who buy real estate together can own the property in one of three ways - as tenants in common, as joint tenants with rights of survivorship, or for married couples, tenancy by the entirety.

Tenants in common can own unequal shares and the interest in the property passes through the will while joint tenants with rights of survivorship must own equal shares that pass automatically to the co-owner on the death of the other. Tenancies by the entirety automatically pass to the survivor outside of the will, are protected from creditors and have no set percentage ownership.

Different couples rightly use what works best for them under the circumstances. I can advise you on what is best for your situation when we meet as well as discuss the best way to handle the carrying costs of the property such as mortgage, maintenance, property tax and insurance.

Similarly, same sex couples that go into business together need legal counsel. Living and working with your partner is quite a lot of togetherness. Separating the two realms is important and I can help by formalizing the business portion of the relationship so that each partner is fully aware of the respective rights, responsibilities and benefits of working and living together. In these situations, another attorney might also need to be involved to ensure that each partner has independent advice about such an important decision.

Preserving the benefits of a same sex relationship - Estate Planning & Succession
Having wills are absolute musts for same sex couples, unless you are married. Without a will, your surviving partner will be left only with what is in his or her name. Your surviving partner can lose literally everything if you should suddenly die without a will - you, the house, the savings, all of it - if everything is in the name of only one partner. There are hundreds, if not thousands of such cases across this country. Even if you are married, a will is still important because it communicates to your survivors your wishes instead of the law's presumptions.

Example: Client B and his domestic partner had been together for over 30 years. Client B brought me what he (and his partner) thought was a valid will protecting Client B, because all of the assets were in the partner's name.

I realized that the will was defective, and that the $3 million estate would not be distributed to who was supposed to receive it. I drafted and oversaw the execution of a new will that met the wishes of Client B and his partner. Shortly thereafter, the partner died.

An immediate crisis sprang up because there was no cash to operate the rent-stabilized apartment house, and the new will was bitterly challenged by two wings of the partner's family.

I successfully negotiated a sale of the apartment house, funded the estate with the proceeds, defended the will, retrieved assets in Switzerland and Germany and thus, preserved the lifetime financial security of Client B.

Burial Rights
New York permits you to designate who has authority to make your burial or cremation arrangements. You can make this designation in either your will or a burial proxy. I highly recommend unmarried same sex couples take advantage of this provision to avoid any disputes in the deeply emotional time that immediate follows the death of a life partner.

Rent Stabilization/Control Succession Cases
In general, I do not take landlord tenant cases because the economic efficiencies are too difficult. However, I make an exception for "succession" cases where a client who is not on the lease continues to live in a rent controlled or rent stabilized apartment in New York City after the tenant of record who was on the lease leaves, dies or abandons the apartment. I have handled many of these cases with highly successful results, particularly for surviving same sex partners trying to keep their homes after their loved one has passed away.

Ending Long Term Relationships, Married or Unmarried
Sometimes long term relationships end for good, bad or even unknown reasons. In addition to the emotional trauma of ending the relationship and the practicalities of moving on with life, there is also the significant issue of dividing joint assets acquired by the couple during their relationship. Usually, each wants what is fair but that is the problem - fairness to one is not fairness to the other. My extensive experience in this area has taught me that fairness is a range and not a point on a line.

Unquestionably, the best policy is to resolve these asset divisions without going to court and I always strive to do so. However, there are times when you must go to court to obtain a fair division because one party is simply being unreasonable.

Currently, the law's view on the dissolution of unmarried same sex relationships is similar to what divorce was in the before the 1980's when "equitable distribution" became the paramount divorce guideline. Same sex couple dissolutions start with analysis of what asset(s) are in whose name and then follow with who paid what during the relationship. Typically, these assets are real estate, bank accounts, stock portfolios, etc. From there, counsel or the court would analyze the relative economic circumstances and needs of each partner in evaluating a particular case but these last factors do not carry the same weight given to divorcing married couples. Hopefully, the analysis produces a fair result but there is no guarantee of that as there is in the equitable distribution context.

One of the law's other failings in this context is certainty. Because what will happen is not often clear, "rolling the dice" can become a viable option. Results can vary widely and I have learned that once court is required, an aggressive and swift strategy is usually the best position to adopt in the course of the litigation. Finally, unlike married couples, unmarried same sex couples often can require that a jury (rather than a judge) make the division decision. This, however, adds more uncertainty and cost to the process.

For married same sex couples, the law essentially leaves the matter up to the judge under the rules of "equitable distribution." Equitable distribution disregards who is the record owner of a particular marital asset and assesses what is the fair thing to do given the length of the marriage, the economic needs of the less fortunate spouse and what each brought to the marriage.

Usually the most important asset to be divided is real estate, followed by bank, stock and retirement accounts. Quite obviously, you should consult experienced counsel to ensure that your financial security is not unwittingly compromised while you are in an emotionally prone state.

Example: Client D and her ex partner lived together and co-owned property for 10 years. Then they broke up and Client D moved out, but the house remained in their joint names. Over 15 years passed without any discussion of the topic between them. Then Client D consulted with me, and I represented her in recovering her fair share of the equity and had her name removed from the mortgage.

A FEW REAL LIFE RESULTS:

NOTE: Each of these results actually occurred. However, certain facts have been obscured to maintain privacy. And, of course, prior results do not guarantee a similar outcome.

Client A came to my office at the end of his 16 year business (and domestic) partnership. Because he had 'no paperwork' to substantiate his work in the high-end retail business, he thought he had been 'just helping around the office off the books' and could only recover his $5,000 watch in small claims court.

I saw this as an entirely different case. Client A was a full blown partner in the business, and I sued in state court to recover 50% of its value of approximately $4.5 million.

A state court judge agreed that Client A had been a partner in the business and appointed a receiver at my request regarding books and records. Quickly, it became apparent that the receiver should be in charge of the entire business and I asked for the receiver's authority to be expanded. At this point, the adversary filed for bankruptcy in an attempt to avoid the receiver and the state court ruling.

Undaunted by the bankruptcy filing because of my general practice (a big advantage over specializing!), I pursued the adversary in the bankruptcy court and again put him in a position to lose the business in liquidation.

Result: Client A received between 25% and 33% of the business' value, over $1 million. Obviously, this is a much better result than the originally envisioned $5,000 small claims suit.

Client B and his domestic partner had been together for over 30 years. Client B brought me what he (and his partner) thought was a valid will protecting Client B, because all of the assets were in the partner's name.

I realized that the will was defective, and that the $3 million estate would not be distributed to who was supposed to receive it. I drafted and oversaw the execution of a new will that met the wishes of Client B and his partner. Shortly thereafter, the partner died.

An immediate crisis sprang up because there was no cash to operate the rent-stabilized apartment house, and the new will was bitterly challenged by two wings of the partner's family.

I successfully negotiated a sale of the apartment house, funded the estate with the proceeds, defended the will, retrieved assets in Switzerland and Germany and thus, preserved the lifetime financial security of Client B.

Client C and his domestic partner had also been together for over 30 years, however, Client C came to me after his partner's passing and admission of a will adverse to his interests in probate over his partner's $12 million estate.

When Client C came to me, he was facing a $300,000 cash demand to 'secure' his use of their beach home (a right to use the home for the rest of his life being all that was left to him in the will), joint accounts he had with his partner had been drained by a hostile executor and he had just re-entered his home and the beach house after being physically locked out, allegedly to "protect a valuable stamp collection".

While it was too late for me to do anything about the will, there was much other work yet to be done. A deed to their beach home giving it to Client C had been wrongly 'unrecorded' by people involved with the estate but hostile to him. The 'money trail' also had to be explored to see who was benefiting from his loss.

RESULT: The $900,000 beach house was put in Client C's name, the $300,000 cash demand dropped and those who effected this harm to Client C have been pursued in the appropriate legal channels. Net swing: $1.2 million.

Client D and her ex partner lived together and co-owned property for 10 years. Then they broke up and Client D moved out, but the house remained in their joint names. Over 15 years passed without any discussion of the topic between them. Then Client D consulted with me, and I represented her in recovering her fair share of the equity and had her name removed from the mortgage.

Client E owned and operated her own after-school child sport program and leased space for her students to learn new sports skills. When the facility abruptly cancelled her lease throwing her business into chaos at the expense of the children, I obtained a court injunction reversing the cancellation and forcing the facility to remain open to her (with police involved).

Client E owned and operated her own after-school child sport program and leased space for her students to learn new sports skills. When the facility abruptly cancelled her lease throwing her business into chaos at the expense of the children, I obtained a court injunction reversing the cancellation and forcing the facility to remain open to her (with police involved).

Client G's father had a brain tumor which his girlfriend took advantage of by having him name her as the beneficiary on an $200,000 annuity three weeks before he died. I successfully represented Client G in recovering a portion of the annuity beneficiary.

Client H was a commodities trader due $2.3 million in annual trading profits, plus a $300,000 deposit when his clearing house filed for bankruptcy. I successfully represented the trader's heir (he died during the litigation) in recovering most of the amount due him even though the clearing house was bankrupt. I then drafted a trust for the benefit of Client H's children so this money would be used for their benefit over their lives.