Education Legal

Puerto Rico, Civil Codes, and You

Wanda, you’ve got some splaining to do! Early last week Puerto Rico’s Governor signed a new, “improved” Civil Code in to law that eliminates special anti-discrimination protections on the basis of sexual orientation and gender identity… during a pandemic.

Happy Pride, everybody!

Sarcasm aside, this is actually a huge deal. My first inclination as someone living in New York City, the city with the largest Puerto Rican community in the country, is to panic. I am worried sick for members of our extended LGBTTIQ+ family who will or have experienced a death. What does this mean for those who are left behind? What can be done to proactively protect the living while preserving the dignity of the deceased?

In these times, I always return to something a colleague once said to me, “sometimes, the only way to get ahead is to play along.” We’re going to talk about easily and cheaply accessible legal tools that can be completed in a day. Until archaic policies are abolished, and homophobia is no longer a viable political strategy, the best defense will still be a good offense. 

I may not have gone to law school, but I do have access to Google and I watch a LOT of procedurals. The accumulative years of my life lost in SVU marathons and reruns of The Practice alone suggest my approximate legal knowledge is at least equivalent to Kim Kardashian’s. I also have a fixer personality, which makes me pathologically incapable of sitting with discomfort.

What I am saying is that you can trust my unprofessional opinion, provided your diet can take a little extra salt.

So, what can you do right now today?

1.) Establish an Advance Directive:

One of the most obvious places this new civil code will appear is in your doctor’s office. Don’t get caught unprepared! 

An advance directive is a combination of two items, a living will detailing your end-of-life decisions and the designation of a healthcare proxy, the person you choose to make those dreams a reality. Their powers combined form an advance directive. 

It cannot be overstated how important this one-two punch is for LGBT+ folks or anyone with tense familial relations. An advance directive ensures you receive the care you deserve from someone you can trust to have your best interests at heart.

From what my obsessive Googling and various funeral directing colleagues in San Juan can tell me, Puerto Rico does not have an official government advance directive form. However, this form from CaringInfo, a program of the National Hospice and Palliative Care Organization, meets the requirements of an advance directive in the Commonwealth of Puerto Rico. Better yet, it’s a two-fer! It includes both the living will form and health care proxy form. It must be signed by two witnesses or notarized for it to be considered valid. Read the instructions carefully!

2.) Draft a Letter of Intent:

While not legally binding, a letter of intent is a widely recognized way of articulating your post-mortem wishes. It may include information regarding burial or cremation or a specific bequest of collectibles or personal items, which can be helpful when trying to properly mode opinionated family members from beyond the grave.

3.) Start Writing a Will, and then Hire a Lawyer to Review It

Realistically, this can’t be completed today, today, but don’t let that stop you from getting a jump on it. 

Puerto Rico is a civil law jurisdiction, so the regulations regarding wills differ from the United States in that Puerto Rico has forced heirship rules. 

What the heck is forced heirship? It’s a legal concept that prohibits someone from disinheriting certain kin, usually children and/or grandchildren. Some versions of the law include other family members, in the event that there are no children or direct descendants.

Why is this not a great thing? At first blush, forced heirship doesn’t sound so bad. It actually sounds almost equitable? Which is exactly how you know it’s messed up. 

If you are domiciled in Puerto Rico (you make your primary residence there), you do not have much say when it comes to how, or to whom, most of your estate will be distributed upon your death. The biggest surprise of all is that your spouse is not necessarily considered an heir! 

Yes, you read that correctly. If your spouse or legal domestic partner dies, you, the surviving spouse/partner is not entitled to inherit dick unless there are no qualifying heirs (including the in-laws!). Keep in mind that Puerto Rico has marriage equality and domestic partnership laws. This issue cuts both ways for same-sex and hetero relationships.

Oh, also, these inheritance statutes also apply to all real property, whether the deceased is a resident or not. Oddly enough, it doesn’t touch personal property. So, you might lose the house, but you get to keep all the shit inside it.

What the fuck? Somebody call Gloria Alvarez, I need spousal support!

The only saving grace is that Puerto Rico operates in thirds. While one-third of the inheritance is automatically lost between your heirs; the second third is divvied up according to the wishes of the deceased, this is usually the portion that goes to a surviving spouse. The last third goes however you like to whomever or whatever you choose. So, potentially, your spouse could walk away with two-thirds. Not amazing, but also not a complete disaster.

Why should you get a lawyer?  Forced heirship is not something they covered in Night Court, and it is quite complex. Obviously, you want to find a way to minimize the risk your family may face. 

The reports conflict among legal bloggers writing on Puerto Rico estate law, and there are two schools of thought. Either your partner gets an equal 50% share, or the estate is divided by thirds, and you might potentially be able to get away with leaving them 67%. I would want the lawyer who knows how to get the 67%. Also, there may be a potential to redirect a portion of said estate to pass outside heirship rules as long as a separate portion is left to these heirs. In fact, the impact of forced heirship may be lessened by establishing trusts. 

A good estate lawyer familiar with practical knowledge of local regulations in Puerto Rico can make all the difference. Write down your wishes, and take them to the experts for polishing.


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