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As a construction subcontractor, you need to be careful about how your contracts are written, or you could expose yourself to substantial risk of non-payment. One particular clause to watch out for when signing a subcontractor construction contract is the clause which specifies the circumstances of payment, also known as a payment contingency clause. This provision may take the form of either “pay when paid” or “pay if paid,” and there is a meaningful legal difference between the two.

What Is a “Pay When Paid” Clause in a Construction Contract?

It is a generally accepted practice in the construction industry that a subcontractor gets paid only after the general contractor gets paid by the property developer. If a project developer fails to pay the general contractor on time or at all, the subcontractor is also at risk of being paid late or not at all, depending on how their contract is written.

Most state courts, including Illinois, have ruled that a “pay when paid” clause does not excuse the general contractor from paying subs in the event that the property developer does not pay the general contractor. Rather, a “pay when paid” clause may be interpreted as merely specifying an approach for the timing of payments, i.e., the number of days between the time when the general contractor receives payment from the property developer and distributes payments to subcontractors.

In contrast, a “pay if paid” clause is interpreted by the courts as meaning that subcontractors will not be paid unless and until the general contractor is paid by the property developer. This shifts the risk of non-payment from the general contractor to the subcontractor. As long as the contract language is precisely written and makes it clear that the subcontractor accepts the risk that they will not be paid if the general contractor is not paid, the courts will enforce a “pay if paid” clause. If there is any ambiguity, the courts could order payment to a subcontractor even if the general contractor is not paid.

Why Should Construction Subcontractors Object to “Pay If Paid” and “Pay When Paid” Contracts?

Because the general contractor controls access to the work, they often have the leverage to demand that subcontractors accept contingent payment clauses in their contracts. However, if you are a subcontractor, it is not in your best interests to accept a “pay if paid” or “pay when paid” clause in your contracts. You are legally obligated to pay for all of your equipment and labor expenses, so you need to protect your right to be paid by the general contractor in a timely manner. 

Because they are in direct contact with the property developer, the general contractor has a greater ability than a subcontractor to assess the property developer’s finances and ability to pay. Therefore, it is only right that the general contractor should bear the risk of late payment or non-payment by the developer.

Contingent payment clauses can make it harder for you to obtain payment if the property developer breaches their contract with the general contractor. Because your contract is with the general contractor, you have no standing to sue the property developer for failure to pay. Your only recourse is typically to secure a mechanic’s lien against the property developer. The Illinois mechanic’s lien act, 770 ILCS 60/21(e), specifically protects your right as a subcontractor to file a lien even if your contract with the general contractor has a payment contingency clause. 

Consult a Palatine Construction Contracts Lawyer

It is far more cost-effective in the long run to have a lawyer review your contracts before you sign them rather than to sue someone for breach of contract after a deal goes bad or to go after money owed to you by obtaining a mechanic’s lien. Call an experienced Arlington Heights civil litigation attorney at 847-934-6000 for a free initial consultation about your current legal needs. At Drost, Gilbert, Andrew & Apicella, LLC, we have the experience in both contract law and real estate law to support a wide range of legal needs for real estate developers and construction companies. 

Sources:
https://www.constructconnect.com/blog/construction-law/legally-speaking-construction-contracts-pay-if-paid-pay-when-paid-clauses/
http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=077000600K21
https://www.natlawreview.com/article/construction-group-news-extremely-clear-pay-if-paid-clause-enforced

As recently as 20 years ago, if someone was struck on the head hard enough to become confused or unconscious, they might not even visit a hospital emergency room. A concussion was considered a relatively minor injury with only mild, short-term effects, such as a headache for a few days. Today, a concussion is considered a traumatic brain injury (TBI), and the potentially severe and long-term consequences of these injuries are much better understood. 

These consequences can include severe headaches, balance problems, cognitive difficulties, seizures, sleep disorders, and an increased risk of developing brain disorders such as Alzheimer’s and related forms of dementia, Parkinson’s disease, and Chronic Traumatic Encephalopathy (CTE). As a result, if you have suffered a head injury as a result of another party’s negligence, you may be entitled to substantial compensation.

Incidence and Causes of Traumatic Brain Injury

The U.S. Centers for Disease Control and Prevention (CDC) is a government agency charged with studying and making recommendations about serious health issues such as TBI. The CDC is still working on the development and implementation of a system to accurately measure the incidence of TBIs in the U.S., so the data available is currently rather limited.

During the years 2001 to 2010, the rate of emergency department (ED) visits for TBIs jumped substantially from 421 ED visits per 100,000 people in 2001 to 716 visits per 100,000 people in 2010. ED visits rose most dramatically after 2007, presumably due to increased media attention given to the long-term effects of concussions suffered by pro football players and members of the military. 

An estimated 1.7 million people suffer a TBI in the U.S. each year, while 5.3 million Americans currently live with a disability caused by a TBI. The leading causes of TBI are motor vehicle crashes, falls, and blows to the head involving an object or another person. Many falls and blows to the head result from sporting activities, and some are due to criminal assaults. Falls are most serious among people age 60 and older.

Compensation for Traumatic Brain Injury Caused by Negligence

In order to obtain compensation for a TBI, you must be able to show that you suffered serious injury as the result of an accident or event that can be directly attributed to someone else’s negligence. You generally must file a personal injury lawsuit within two years of the date of the accident (735 ILCS 5/13/202).

Here are a few examples of situations in which you might have a valid claim for damages resulting from a head injury:

- You sustained a concussion in a car crash caused by a drunk driver, and you have suffered lasting effects, such as severe headaches and memory issues.

- You suffered a TBI in a fall in a store, and the main reason you fell is that the store was negligent in maintaining safe conditions for their customers.

- You suffered a blow to the head during a fight in a bar in which the person who struck you behaved recklessly and intentionally.

Consult an Arlington Heights Head Injury Attorney  

If you have suffered a traumatic brain injury in a fall, collision, or other event caused by someone else’s negligence, it is important that you seek immediate treatment and diagnosis, as well as long-term care to document the full extent of your injuries. In order to file a claim for compensation from the negligent party, you will need evidence of their negligence as well as documentation of the specific injuries you sustained. 

To determine if you have a valid claim, consult with a knowledgeable Palatine personal injury lawyer. The law firm of Drost, Gilbert, Andrew & Apicella, LLC can help you obtain full and fair compensation for your injuries. Call 847-934-6000 to schedule a free consultation.

About the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Sources:
https://www.cdc.gov/traumaticbraininjury/get_the_facts.html
https://www.aans.org/Patients/Neurosurgical-Conditions-and-Treatments/Traumatic-Brain-Injury

If you have suffered severe damages as a result of someone else’s negligence or malfeasance, you have the right to file a personal injury lawsuit to recover compensation from the at-fault party. In order to win your case, however, your lawyer will have to develop a strong set of facts and arguments through a legal process known as discovery. 

For example, if you are injured in a collision involving your car, an SUV, and a large commercial truck, some of the questions that will have to be investigated and argued include:

- What percentage of the fault for the collision should be attributed to each party involved in the crash, including the company that owns the commercial truck and employs its driver? 

- Exactly what physical injuries did you suffer as a result of the collision? 

- What are your reasonable medical expenses to recover from those injuries?

- Did the accident leave you with any permanent disfigurement or disability? 

- What other damages did you suffer, such as emotional trauma requiring psychotherapy or lost income from being unable to work?

The legal process through which the parties to a lawsuit exchange information and answer questions such as these is called discovery. Discovery has two phases: sharing of written documents and oral interviews known as depositions.

Written discovery typically involves three types of documents:

- Interrogatories - These are essentially questionnaires submitted by one party in the lawsuit to be answered in writing by another party. The questions may be as simple as asking for names, contact information, and relevant insurance information for everyone involved in the accident.

- Requests for production of documents - The other side may request documents such as your medical records, medical bills, records pertaining to your vehicle, and any photographs you may have of the accident scene, your vehicle, and your injuries. Your lawyer may, in turn, request such information from other parties to the lawsuit.

- Requests for admission - This document spells out certain facts of the case and asks that the other party admit or confirm that these facts are

true, so that these facts do not have to be further investigated or proven in court. For example, in an auto accident case, the request might seek to confirm the details of a negligent party’s personal liability insurance coverage, obtain an admission that they were not carrying out duties for an employer at the time of the accident, and seek an admission that it was their negligence that caused the crash.

The purpose of the written discovery phase is to lock down all possible evidence related to your case, including any evidence that the opposing parties may use to support their position. For example, there is typically an insurance company involved, and their objective will be to minimize the scope of your damages and thereby minimize the compensation they have to pay you. 

Depositions

Once written discovery has been completed, your legal team will use that information to ascertain the questions they want to ask in the oral interrogation phase known as depositions. Depositions are expensive, so your legal team will want to prepare a very focused list of questions to ask in each interview. Depositions are made under oath and are generally video-recorded and transcribed. 

You may be surprised to learn that the discovery process in a personal injury case can take as long as six months to a year. While this may seem like a long time to wait for a settlement, a thorough discovery process is crucial to prove who was at fault and demonstrate the full extent of your damages. Most cases are won or lost in discovery, and most cases are settled based on the information that comes out of the discovery process, saving you the additional time and expense of a trial.

A Schaumburg Personal Injury Attorney

  
If you have been injured in a car crash or other accident that was not your fault (or at least less than 50% your fault), be sure to select a Palatine personal injury lawyer who has the skill and experience to handle the discovery process for your type of case and advocate vigorously on your behalf. Contact us at 847-934-6000 to schedule a free consultation.

About the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Sources:
http://www.illinoiscourts.gov/SupremeCourt/Rules/Art_II/ArtII.htm#206

If you wish to leave a legacy to your children or other beneficiaries after your death, it is imperative that you have an estate plan that will ensure prompt and accurate distribution of your assets. Many people think that writing a will is the best way to do this. However, while a will is important, putting your assets into a revocable living trust can provide several additional benefits.

Avoid the Illinois Probate Process 

In order to distribute assets according to the terms of a will, the will must go through the probate process. This involves filing various court documents required by law to establish the value of each asset and to re-title each asset from the deceased’s name to the recipient’s name. This can be a long, drawn-out process.

Secure Adult Heirs’ Immediate Access to the Estate

One of probate’s most serious drawbacks is the freezing of assets. Specifically, any assets that are held solely in the name of the deceased are frozen upon their death. Imagine a married couple who amassed several large investment and retirement accounts and multiple pieces of real estate during their lifetime. Upon the death of both spouses, their children cannot touch any of the assets until a probate court judge approves the will and appoints a Personal Representative to handle the estate. Leaving large investment accounts without active management can be risky.

By comparison, imagine that all of the couple’s assets had been placed in a living trust, meaning that the assets are titled in the name of the trust rather than in the name of any individual. Upon the death of the trust-maker, their designated successor has immediate access to the assets of the trust.

Secure Assets for the Long-Term Benefit of the Family

Imagine our married couple has three children and has a will. Upon the death of both spouses and probate action, the assets of the estate must be divided amongst the named heirs. Assuming the estate is to be divided equally among the three children, the inherited assets are now at risk to creditors, bankruptcy, a lawsuit, or a divorce. 

Creditors. If the married couple had all of their assets in a trust, ownership of those assets can remain titled in the name of the trust indefinitely. Because the assets are not titled in the individual children’s names, the assets are protected from creditors, even if one child files for bankruptcy or gets divorced. The beneficiaries named in the trust will have access to the assets in accordance with the directions specified in the trust documents. 

Heirs with disabilities. Upon the death of the spouses, one child (or an objective third party such as a bank) could be named as the successor trustee with directions to manage the trust in a certain way. This approach can be used to ensure that the use of the assets is prioritized in some way, such as to meet the basic needs of a child or grandchild with a disability. Keeping the assets in the trust can also serve to protect the right of a disabled heir to receive needs-based government benefits.

Underage heirs. Keeping the trust open with a successor trustee can also be beneficial for heirs who have not yet reached adulthood. When a will leaves assets to a minor, the probate court must appoint a conservator to manage the minor’s assets. Once our fictional married couple has died, there is no telling who that conservator might be and what decisions they might make. In contrast, assets left in a trust can be managed according to specific directions written into the trust. Thus, the maker of the trust can dictate when and for what purposes a youthful (or even as-yet unborn) heir can access their inheritance.

If you have an elderly relative who lives in a nursing home or assisted living facility, or perhaps is staying temporarily in a rehab center, you could arrive for a visit one day and find that your loved one appears to be seriously ill or injured. There are certainly many ways this can happen through no fault of the facility or caregivers. However, if you see any signs that an illness or injury was the result of nursing home negligence, abuse, or neglect, you should consult a personal injury attorney to determine your legal options.

Examples of Nursing Home Neglect in Illinois

In one recent Illinois case, a nursing home resident died as a result of a head injury sustained during a fall. While being transferred from her bed to her wheelchair via a mechanical lift, the resident fell out of the lift, striking her head. A wrongful death lawsuit was subsequently filed seeking $100,000 in total damages based on two specific claims of negligence. First, the facility’s policy stated that transfers via a mechanical lift were to be performed by two trained staff members. However, in this case, it was alleged that only one staff member was present. The lawsuit also alleged that the facility failed to act with appropriate care in response to the resident’s documented status as “high risk for falling.”

Another recent lawsuit alleged that a nursing home neglected to give appropriate care to a bedridden resident. The resident entered the nursing home specifically to receive care for pressure sores. Rather than improving, the sores grew worse and became infected. The resident’s family members alleged that the facility was negligent in failing to take appropriate action to treat the bedsores. The resident wound up needing surgery and ongoing wound care treatment for two more years, with one small, open wound still remaining at the time of the lawsuit. This case went to trial, which is unusual, because most civil disputes are resolved via pretrial negotiations. The jury awarded the resident $1.25 million, which included $475,000 for past pain and suffering, $300,000 for future pain and suffering, and an additional $475,000 for the facility’s violation of state laws designed to protect nursing home residents.

There are many ways you can be injured during the winter months in Illinois: skiing, ice skating, sledding, snowmobiling, being hit by ice falling off a roof, being in a car accident during a snowstorm, or simply slipping and falling on an icy walkway. In many cases, these are simply accidents. If you choose to participate in an activity like ice skating or skiing, you accept the risk that you could fall and get hurt. However, if your injury can be attributed to another party’s negligence, you could be entitled to compensation and should consult a personal injury attorney for advice.

Illinois Law on Hazardous Recreational Activities 

Under Illinois law, if you are injured while participating in or watching a “hazardous recreational activity” on public property, you cannot sue a “local public entity nor a public employee” for compensation (745 ILCS 10/3-109). For example, Cook County and DuPage County have numerous parks and forest preserves with hills and trails where you might go sledding, skiing, or even rock climbing in the wintertime. If you are injured while taking part in those types of activities, the park and park employees generally cannot be held liable. 

However, the law does make two exceptions, in which case you may be able to file a claim for damages. The first exception applies if your injury was caused by “an act of willful and wanton conduct” by a public entity or employee. For example, if you were cross-country skiing on a marked trail and were hit by a park employee driving a vehicle along that trail, you could have grounds for a lawsuit.  

The second exception applies if your injury was caused by the failure of a public entity or employee to provide warning about a known dangerous condition that a reasonable person would not anticipate. For example, suppose park employees dumped a pile of rocks on a sledding hill. The park knew that the snow-covered rocks were a hazard that created a substantial risk of injury and that a visitor could easily assume it was just a snow drift. If a sledder was injured by colliding with that rock pile, a court might rule that the park was negligent and should have posted signs or put up fences to warn people that the hill was not safe for sledding. However, if a sledder runs into the trees that line the edge of a sledding hill, the park would likely not be held liable for any resulting injuries, because the trees were readily visible to everyone as a hazard.

When You Can Claim Compensation for Snow/Ice Injuries

In addition to the law described above, there are several other Illinois laws that limit liability for injuries related to snow and ice removal, general maintenance of streets and sidewalks, and participation in hazardous recreational activities. Also, many recreational facilities require customers to sign liability waivers.

However, any injury that can be attributed to someone’s “willful and wanton conduct” can still be grounds for a lawsuit. Willful and wanton conduct is defined as “a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.” 

For example, numerous people have been injured or killed in Chicago by large chunks of ice falling off buildings. Many of these people have received compensation for their injuries from the building owners, who were deemed negligent for failing to warn pedestrians of a known danger. 

Similarly, if you are injured by faulty rental equipment or poorly maintained facilities while ice skating or skiing, you could have grounds for a lawsuit. 

Consult a Schaumburg Personal Injury Attorney 

Serious injuries, illnesses, and deaths happen every day. In many cases, these are unfortunate events that naturally occur in our imperfect world. However, there are times when a personal injury or wrongful death occurs as the result of another party’s negligence or misconduct. For example, a drunk driver may cause a collision that kills another person, or a business may fail to take reasonable precautions when manufacturing a product. In these situations, the party at fault has a civil responsibility to compensate the injured party for their damages. 

Juries Sometimes Award Huge Sums in Personal Injury Cases

Many, if not most, personal injury cases are resolved through an out-of-court settlement negotiated by lawyers. In some cases, however, the two sides cannot agree on the amount of damages that one party should pay to the other, so the case must go to trial. The verdicts in personal injury trials are often unpredictable, and they are sometimes dramatically large, as in these recent 2018 cases:

- An Indiana jury awarded $35 million to a man who was rendered a quadriplegic in a car crash caused by a drunk driver. 

- A Georgia jury awarded $1 billion to a young woman who was sexually assaulted by an armed security guard employed by her apartment complex.

- A San Francisco jury awarded $289 million, which was later reduced by a judge to $78 million, to a man whose cancer was caused, according to the court’s verdict, by Roundup weedkiller.

How Attorneys Build a Convincing Case for a Large Verdict 

What factors convince a jury to rule in favor of an injured person and to award large amounts of compensatory and punitive damages? This is a hard question to answer definitively, but there are several factors that play a role. An experienced personal injury lawyer knows how to leverage these factors and use them to construct a compelling combination of factual evidence and emotional arguments for a jury trial.

One factor is that jurors seem to be less offended today by plaintiff requests for multi-million dollar verdicts and more willing to award them. Court-watchers speculate that American citizens have been affected by the barrage of online stories highlighting exorbitant professional athlete contracts, lottery jackpots, and the huge gap that has developed between CEO compensation and worker wages. As a result, jurors tend to believe that a corporate defendant can easily afford a large payout and must be made to feel the pain of their mistakes through punitive damages, and that the injured party deserves the compensation. 

Another factor is more widespread feelings of anger and distrust against “the elite.” Part of this stems from the growing division between the highest-paid and the lowest-paid workers in America. This has caused more anger and distrust toward the leadership of large corporations, who are viewed as getting rich at the expense of their workers. Also, with so much “fake news” going around on social media, people are becoming more distrustful in general. In some cases, jurors even distrust the injured person’s attorney and increase their award to the injured person just to “make sure they are taken care of” after the plaintiff’s attorney takes their share of an award.

Short attention spans are a third variable that personal injury lawyers must increasingly take into account when developing their trial arguments. Younger generations do not have the patience to sit through days of oral testimony by technical experts. Attorneys need to use more graphics, videos, and even virtual reality recreations of an accident scene in order to make testimony more compelling and impactful to jurors. 

Attorneys must also be sensitive to the way the injured person is portrayed and the way their story is told. Juries who are emotionally touched by a well-told story can be swayed toward one side or the other. For example, when jurors see that the injured party is part of a likeable, hard-working family that they can relate to, they are more likely to favor the injured party. The injured person’s attorney may also encourage jurors to look at the injured person and think, “What if it were me?” When such feelings are strong enough, they can cause jurors to override arguments that the defendant acted according to reasonable standards of care.

Consult a Des Plaines Personal Injury Attorney  

If you have been injured through another person’s or corporation’s negligence or wrongdoing, you could have grounds for a personal injury lawsuit and be eligible to receive compensation for your injuries. The first step is to discuss your case with an experienced Barrington personal injury lawyer. The attorneys of Drost, Gilbert, Andrew & Apicella, LLC have decades of experience obtaining due compensation for our clients in personal injury and wrongful death cases. Contact us at 847-934-6000 to schedule a free consultation.

About the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Sources:
http://riskandinsurance.com/5-reasons-why-juries-are-awarding-billion-dolla…
https://www.theindianalawyer.com/articles/45836-recent-35m-verdict-is-among-largest-indiana-jury-personal-injury-awards
https://www.npr.org/sections/thetwo-way/2018/05/24/613964570/georgia-jury-awards-1-billion-in-lawsuit-over-girls-rape
https://www.wsj.com/articles/judge-reduces-jury-award-against-bayers-roundup-to-78-5-million-1540258899

If you regularly utilize the public transportation network in Chicago and its suburbs, there are a number of ways in which you could be injured and have grounds to file a personal injury lawsuit. Whether you ride buses or trains operated by Metra, CTA, or Pace, the potential causes of personal injuries are similar, including:

- A slip-and-fall that occurs at least in part due to the negligence of a bus or train operator. A fall attributable only to wet floors on a bus or train when it is raining outside is unlikely to qualify. On the other hand, CTA could be liable for a fall caused by an improperly trained driver who stopped their vehicle too quickly.

- Injuries attributed to faulty design or maintenance of a station platform or piece of equipment.

- Injuries sustained during a train derailment or a bus crash attributed to operator error. For example, Pace could be held liable if a bus driver causes a crash by running a red light, speeding, or being distracted by looking at their phone. However, if a collision is wholly the fault of another vehicle’s driver, Pace would generally not be liable.

- Wounds suffered by a pedestrian who is struck by a bus or train, or by parts flying off a bus or train, where it can be shown that the operator of the bus or train was at fault. If a person trespasses onto train tracks and is struck, they generally cannot hold the train operator responsible.

- Injuries inflicted by a public transit security officer who used excessive force or committed some other type of misconduct.

Time Is Critical in Chicago Public Transportation Injury Cases

If you believe you have a legitimate claim for damages against CTA, Metra, or PACE, you should contact a personal injury attorney as soon as possible. There are two reasons why Illinois personal injury cases involving public transportation are time sensitive. First, critical evidence must be protected, such as security video recordings that are typically only retained for a limited period of time before being erased or overwritten. An attorney must typically file an emergency protection order to preserve videos and other relevant evidence. Second, Illinois state law (745 ILCS 10/8-101) requires all claims against “local entities,” which includes local public transit authorities, to be filed within one year of the incident, versus a two-year timeframe for most other lawsuits. 

You do not have to wait until you die to give a loved one enough money to pursue a big dream, such as starting a business or advancing their education. You can give that gift today without paying any extra federal taxes as long as you follow a few simple rules and have a sound estate plan. During the holiday season, it is important to understand how federal gift tax affects the high-value gifts given.

Why the Gift Tax Exists 

Gift taxes exist because of the federal estate tax. If your estate is large enough that federal estate taxes will be owed upon your death, the IRS wants to make sure it collects those taxes one way or another. The gift tax ensures that people cannot avoid the federal estate tax simply by giving away their assets prior to death.

The state of Illinois has recognized civil unions of same-sex couples since 2011 and same-sex marriage since 2014. But it was not until 2015, when the U.S. Supreme Court issued its ruling in the case of Obergefell v. Hodges, that all states were required to allow and recognize same-sex marriages. These changes over the past decade have had a major impact on estate planning for same-sex couples.