September 11, 2008

Know Your Rights: Legal Advice for Same-Sex Couples who live in states where Marriage and/or Domestic Partnership is Illegal.

“I Do, Too.” Via Erica Johnson, from the Winter 07/08 issue.

With three exceptions, our 50 states’ laws currently define, and confine “marriage” to a union between one man and one woman-meaning same-sex couples do not receive any state rights attributed to spouses, or the over 1,100 federal rights that are granted to married couples. Want to be able to visit your partner in the hospital? If you don’t have time on your hands or plenty of money for legal fees, you’re up love lane without a paddle. So here’s a primer to use or share with your friends:

1. If you become incapacitated, your partner does not have the right to make financial and medical decisions for you. Use an experienced estate planning attorney to create powers of attorney designating your partner as your decision maker.

2. Update your beneficiary designations on assets such as life insurance, IRAs and 401k’s. If you have named someone other than your partner as the beneficiary, that is who will receive the proceeds when you die.

3. Ask if your employer offers domestic partner benefits for health insurance. If they do not, urge them to do so. More and more health insurance companies are offering plans that allow even small employers to offer domestic partner benefits to employees.

4. In many states, when you die your partner does not automatically have the right to decide what happens to your remains. A thorough estate plan should include a Last Remains Declaration appointing your partner to carry out your wishes, if such a document is valid in your state.

5. Married couples can do unlimited gifting from spouse to spouse. Same-sex couples cannot. Never change ownership of an asset from one partner to joint ownership between both partners without talking to a tax professional about the implications of doing so.

6. If you die without a Will or a Trust, your estate assets will pass, according to state law, to your next closest relative- not your surviving partner. Even if all you own is the tangible property in your home, your Will must state that those items are to be inherited by your surviving partner.

7. If one partner has children and the other partner is not the children’s legal parent, investigate whether a second-parent adoption is possible. Some states allow two non-married partners to both adopt a child.

8. Ask a qualified professional to help you through the unique hurdles facing same-sex couples. We don’t have to let people who refuse to recognize your legal rights win by putting them in charge of your decisions. Act for yourself.

Erica Johnson is an attorney at Ambler & Keenan in Denver, CO. Her practice emphasizes estate planning, probate and trust administration.

Read 4 Comments and Reply

Read 4 comments and reply

Top Contributors Latest

elephantjournal dotcom  |  Contribution: 45,420