Monthly Archives: February 2014

Chief Justice Moore Stands for Law

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Chief Justice Roy MooreChief Justice Roy Moore has once again taken a stand for the law in both reaffirming the basis for standing against homosexual “marriage” as well as calling for action by the states to take a unified stand against the same. In his letter, republished below, Chief Justice Moore outlines the need as to why at least 2/3 of the states need to call for an Article V Convention of States to ratify the U.S. Constitution. Although the individual state legislatures can each take a stand by passing laws prohibiting same-sex marriage, the trend has been in the last few decades (and some will argue the past few centuries) to continue to whittle away state sovereignty. Thus, a federal amendment would help prevent the gradual etching away of what Alabama has decided to legislate.

The Alabama Sanctity of Marriage Amendment was approved in 2006 by an 81% vote. The amendment provides that:

  • Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
  • Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.
  • No marriage license shall be issued in the State of Alabama to parties of the same sex.
  • The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.
  • The State of Alabama shall not recognize as valid any common law marriage of parties of the same sex.
  • A union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state as a marriage or other union replicating marriage.

Chief Justice Moore wrote the following letter to each governor of the United States:

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Dear Governor Robert Bentley,

The moral foundation of our Country is under attack. In 2003, Justice Anthony Kennedy, writing for a 6-3 majority of the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), struck down a Texas statute criminalizing sodomy. In that case, Justice Kennedy stated that the case did not “involve whether the government must give formal recognition to any relationships that homosexual persons seek to enter,” but that a “right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.” Id. at 578.

Just 10 years later in 2013, Justice Kennedy, writing for a 5-4 majority of the Court in United States v. Windsor, 133 S. Ct. 2675 (2013), decided that the time had come to give “formal recognition” to the “marriage” of two persons of the same gender from the state of New York. Striking down the Defense of Marriage Act (DOMA), passed by Congress in 1996 to preserve the definition of marriage for federal purposes as one man and one woman, Kennedy stated that DOMA violated “basic due process and equal protection principles applicable to the Federal Government.” Id. at 2681.

However, prior to 2003, neither our history nor Supreme Court precedent had ever recognized a “right” to commit sodomy or a “right” for homosexuals to enter a same-sex “marriage” relationship, nor any “liberty” associated therewith secured by “due process” under the Fifth and Fourteenth Amendments.

In fact, as recently as 1986 in Bowers v. Hardwick, 478 U.S. 186 (1986), the Court declared that the United States Constitution did not confer a fundamental right upon homosexuals to engage in sodomy. Recognizing a long and well- established prohibition against sodomy by the several states, the high court stated that,

“There should be, therefore, great resistance to expand the substantive reach of [the Due Process Clauses of the Fifth and Fourteenth Amendments], particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.” Id. at 195.

As a matter of fact, Justice Anthony Kennedy and four members of the U.S. Supreme Court have done exactly what the Court in Bowers predicted would occur when courts redefine rights deemed fundamental: they are governing the Country without express constitutional authority. Their willingness to expand the substantive reach of the Due Process Clauses of the Fifth and Fourteenth Amendments to encompass same-sex “marriage” is dangerous and will ultimately lead to the total destruction of our moral foundation and our Country.

Already, proponents of same-sex “marriage” are working to bring yet another case before the Court which is poised to declare unconstitutional all state statutes and constitutional amendments which preserve traditional marriage.

The time to act is upon us if we mean to preserve the basic foundations of marriage and family upon which our Country rests, which the U.S. Supreme Court has referred to as the“union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement,” Murphy v. Ramsey, 114 U.S. 15, 45 (1885), quoted in United States v. Bitty, 208 U.S. 393, 401 (1908).

Article V of the Constitution provides for amendments to the Constitution “on the Application of the Legislatures of two thirds of the several States,” in which case Congress “shall call a Convention for proposing Amendments,” which shall become a “part of this Constitution” when ratified as set forth in the Article.

This manner of amending the Constitution was suggested by Col. George Mason, Father of our Bill of Rights, shortly before the conclusion of the Constitutional Convention to provide a manner in which the people would be able to propose amendments “if the Government should become oppressive.”

Please find enclosed a proposed Joint Resolution of the Legislature of your state for your consideration.

Your assistance in securing a Resolution from the legislature of your state to the United States Congress in both Houses is a first step toward the preservation of marriage and the moral foundation of our Country.

Sincerely,
Roy S. Moore
Chief Justice
Alabama Supreme Court

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See Chief Justice Roy Moore’s Letter to Governor Bentley.

Some Options for Property in Estate Planning

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Estate PlanningPicture this…your wife has passed away, you’ve just finished paying off your home, and now you begin to re-assess what your plan is for when you will die.  Who will handle things for you?  Where will your possessions go?  How much will it cost my loved ones?  These are all great questions, and it is never too early to being thinking about and planning for the inevitable.

Your possessions will likely go to your loved ones, especially if you already have a will in place.  They will use your will, go to the court, and follow the court’s procedures for distributing all of your assets.  However, did you know that you can often times avoid the court systems (and the hefty fees / lawyer bills) by doing some planning in advance?  Estate planning, to be specific.

If you die without a will, the state determines where most of your possessions will go.  See our previous article on “What if I Die Without a Will“.  If you took our advice and made a will, then you still have to go to the court to “probate” the will.  This means that you will go before the judge and the court will oversee the process of making sure that the will is valid and that its instructions are carried out.  That typically means an attorney, many months of delay, and of course, expenses.  Depending on the complexity of the estate, it could run on the low end of $3000 to in excess of $10,000.  Probating a will is not cheap.

Fortunately, there are ways to bypass the probate process.  Usually, the biggest asset that people would like to have skip probate is their residence.  Because it is an asset with a deed, the only way to change the owner after the owner has passed away is through the court system.  That is, unless you plan ahead by using some estate planning techniques.

Life Estate

A life estate is not for everyone.  It is a property deed which leaves you with ownership of your house and property while you are still living.  Your property deed is what shows the world who owns your house and land.  It is a piece of paper filed with your local probate court, and typically shows who you bought it from and in whose name the property is now in.  It is very similar to a car title (but not quite).  With a “life estate deed”, when you die, the person or people you have listed in this special deed will automatically become the new owners of that property.  Instantly.  No court system required (at least after death…you should record your deed before you die, which does involve a trip to the local probate office).  The people you give the property to can’t evict you, because they are not the owners of the property until you pass away.  Thus, it remains YOUR property until your death, and then it instantly becomes THEIR property.

The biggest drawback is that once you do it, you’ve done it.  There’s no turning back.  Thus, if you have a feud with your children, and you decide later on that you don’t want them to have the house and land…there’s not much you can do.  You already gave it to them (but they don’t get it until you die).  Now, if they “want” to give their portion back to you, that’s another story (you’d need to contact us if that applies to you).

Thus, depending on your family situation, that may or may not be the right choice.  It bypasses probate, but you give up some flexibility.  Another options would be a revokable trust.

Revokable Trust

A trust is an entity that holds assets for the benefit of one or more persons, and is managed by a trustee.  Thus, you can put possessions into a trust, have the trustee watch over them, and then the trustee will do with the possessions what you direct him or her to.  So, for example, you could put your house into a trust, and direct the trustee to give it to your son, your oldest daughter, but not your youngest daughter.  And you can tell the trustee to only do that once all of your children have turned 30.  The trustee is bound to do all of that.  A revokable trust is one in which you can put the property into and then make changes, to include pulling the property out of it at any time.  Thus, if 10 years from now, you want to bless you youngest daughter whom you previously did not want to give a dime to…you can.  You can also write your son out of the trust benefits at the same time.  You can add two more houses, or take away all the houses and put in a ten dollar bill.  You have quite a bit of freedom in this regard.

Now, when you couple the power of a trust with your estate planning, you can kill two birds with one stone (no pun intended).  You can bypass the court system (probate) when you die by putting stuff into the trust.  You can also make changes to what is in and what is not, and who gets what, very easily.  Simply inform the trustee.  You don’t have to go through all of the formalities of re-drafting a will every time you want to make a change as to who gets what.  The only real drawback is the upfront cost of setting up a trust.  It will cost a bit more than simply doing a will or even including a life estate on your property.  But, you get added flexibility, and the money you save by avoiding probate will often times more than make up for the additional costs of planning.

Summary

There are lots of ways to handle passing on your real estate to your loved ones.  Hopefully this helps explains just a few.  The will ensures that it will happen as you want it to, but you will have to go through the probate court to make it happen.  The life estate option allows you to avoid the probate court, but once you establish the new deed, it is very hard to undo it.  Finally, the revokable trust is a bit more complicated, and will likely cost more than a will upfront, but the added flexibility and cost savings after you die will likely make up for it.  You may find that the added up-front costs are well worth it in the long run for your loved ones who will be receiving your hard earned assets.  This list of options is NOT exhaustive, and thus, you really need to sit down with an attorney to go over all of the possible issues with YOUR unique scenario.  Depending on the size of the estate, you will also have many tax issues to consider, too, but that discussion is for another day.