Marriage: Love and Legalities
Learn how LGBT couples can pursue legal rights even in states where same-sex marriage is not yet legally recognized

By Deanna Duff

The romance of weddings is intoxicating—gorgeous gowns, dapper tuxes, lush flowers and creative cuisine. However, beyond the pomp and circumstance, a marriage can also be an opportunity to legally protect your union. Unfortunately, the legal benefits are not yet automatically afforded to most same-sex couples when they say "I do," but hopefully this will change in years to come. Until then, couples should seek out what legal protection is available.

The Rev. Tony Talavera and his wife, Lou Ann, run the French Quarter Wedding Chapel in New Orleans, and he estimates that he has officiated more than 1,000 same-sex ceremonies. Since same-sex marriage is not legally recognized in Louisiana, Talavera and two attorneys helped create a “Protection Package for Non-Traditional Weddings.”

“Joining people together is a romantic time, but I try to make sure they understand the work and planning that has to happen, too. Couples who can’t get a legal marriage license need to put something together, legal paperwork, to protect themselves,” says Talavera.

Duke Morgan, a New Orleans-based attorney, and Deborah Fleming, a non-practicing attorney, advise couples on what legal protections are available.

“My inspiration for this is that I know it works,” says Fleming. Fleming and Talavera became acquainted years ago when living in San Francisco and saw too many same-sex couples devastated by a complete lack of legal rights.

“I think we’re moving slowly in the direction of legalizing marriage for everyone. I hope that this country is a great enough place that everyone can have that one day,” says Fleming.

Until then, same-sex couples need to safeguard themselves. Laws vary from state to state, but there are some general categories worth looking into. Also, be aware that protections in one state may or may not be recognized in different jurisdictions. In states where same-sex marriage is legally recognized, do not assume that any subsequent rights will be recognized elsewhere.

“I recommend people visit a local, family-law attorney and mention these things if you plan on being married,” says Fleming.

WILLS AND TRUST INSTRUMENTS Talavera has witnessed the injustices suffered when a partner passes on and there is no legal protection. “There were situations when a person died and the family took everything and kicked the partner to the curb,” says Talavera. In almost all states (except Louisiana where the details differ), a properly executed will/trust helps ensure that joint property accumulated during the partnership/marriage will be bequeathed to the surviving partner.

POWERS OF ATTORNEY Medical issues are a common and sometimes particularly disturbing example of what happens when legal arrangements are not made in advance. “We’ve known personally of situations where one partner in a couple was critically ill, hospitalized and the family of that ill partner refused to let the other partner visit or make decisions about the spouse’s health care,” says Morgan. Powers of attorney provide the right for one partner to administer the affairs of the other if they are indisposed. There are different categories including total power of attorney (encompassing all decisions) and limited powers of attorney which can designate specific situations, such as medical concerns.

PROPERTY HOLDINGS/JOINT TENANCY AGREEMENTS Many states recognize joint tenancies. “It’s like a quick-claim deed that the property, covering home and land, automatically goes to the other partner (if one dies),” says Fleming. The advantage of a joint-tenancy agreement is that property is transferred immediately and does not become a probate issue. When real estate is bequeathed via a will, it can take a considerable amount of time to resolve. In those cases, surviving partners can find themselves either temporarily or permanently dispossessed from their home.

PRE-NUPTIAL AGREEMENTS “They (same-sex couples) break up, too, and they should also have a plan and fail-safe like any other couple,” says Fleming. Pre-nuptial agreements vary case by case and can encompass whatever the couple delineates. It is equally as important for couples to properly dissolve legal agreements as it is to create them.

NAME CHANGE While a name change does not confer any legal rights, it can be an important marriage rite. “It is strictly symbolic, but also indicates a level of commitment that is important to a lot of same-sex couples,” says Morgan. “Our practice and goal is to equalize the circumstances under which gay people decide to live together as spouses.”

For more information regarding the French Quarter Wedding Chapel, visit www.frenchquarterweddingchapel.com. To contact Duke Morgan, attorney at law, visit www.dukemorgan.biz.