Safeguard your relationship with expert advice and legal documents
By Sarah Rammos
When a couple decides to marry, it’s their way of telling the world that they are together, they love each other, and they are a family. But what happens to a couple if the government refuses to acknowledge that their marriage exists? Unfortunately, this is a problem that many gay and lesbian Americans face every day. The rights that straight couples enjoy beginning the moment the marriage certificate is signed do not come quite so easily to same-sex couples.
Currently, only Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and Washington, D.C. issue licenses for same-sex marriage. Only three other states recognize gay marriages performed in these states. When a crisis arises, same-sex couples who live in or move to any other state can quickly find their family on shaky legal ground. Here are some of the things you can do to protect your relationship:
GET EVERYTHING OUT IN THE OPEN
Many soon-to-be or recently married couples may not want to talk about the illness or death of their partner, but these are necessary conversations. Without a legally recognized marriage, a couple is not completely protected, even if they have children, own a house or have merged their assets in some other way.
As with most legal issues, there are loopholes if you know where to look. “Because gay individuals have little to no legal recognition for their committed relationships and marriages,” says Attorney Lynette A. Costa of Monaca, Pa., who is an expert in estate planning for the non-traditional family. “They must cover their basic needs through contract laws rather than through family laws.”
Costa recommends drafting a cohabitation agreement “while everyone is happy and working fairly together.” This document, which is similar to a prenuptial agreement, allows couples that live together to make decisions in advance regarding things such as children, property or mutual financial support.
DON’T BET THE FARM
Last wills and testaments are the proper place to determine what happens to property, such as the family home, if one or both partners die. “Partners have been locked out of their home of 30 years, because their name was not on the deed and their partner died before them,” says Costa. “Also, partners should investigate the death taxes assessed in the state where they live.” Life partners may not get the same low tax rate as married couples when bequeathing property, so Costa recommends securing funds, whether through savings or life insurance, to cover such costs. To ensure that a last will and testament is properly prepared and can withstand a legal challenge, it is best to consult an attorney.
Even couples who do not own property may have significant assets tied up in retirement accounts such as 401Ks or IRAs. These types of accounts only require that each partner designate the other as a beneficiary to the account. Life insurance policies require a designated beneficiary as well.
IN SICKNESS AND IN HEALTH
If one partner gets sick and is unable to make choices for himself or herself, the power to make medical decisions automatically reverts to the next of kin. For that reason, it is vitally important have a living will and to designate a medical power of attorney. These are legal documents that are binding and can be prepared without the assistance of an attorney (check your state’s regulations). Without prior arrangements, one partner may be denied any input at all, and may not even be granted hospital visitation.
THE KIDS ARE ALL RIGHT
When children are involved, additional provisions are necessary to ensure the parental rights of both partners. “If they adopt together,” Costa says, “they are both recognized as legal parents with all the rights associated with being a parent.” When the children are natural to one partner, however, the other should legally adopt the children in order to attain full parental rights. If not, a minor medical consent form should be executed in order to grant the natural parent’s partner the right to make medical decisions for their child.
Parents should specify in their will who they want to take care of the children in the event of their death. Again, without prior arrangements, the next of kin will automatically get custody, especially if the other natural parent is involved. “However,” Costa continued, “the Court will consider the prior living arrangements of the child and make the decision as to what is in the best interest of the child.”
Copies of all documentation should be readily available to both partners in any situation where they may become necessary. Costa suggests finding a service that, for a small yearly fee, will electronically store and deliver these documents whenever they are needed. These sorts of services come in handy, especially when traveling abroad or in states that don’t recognize gay marriage.
“If traveling abroad,” Costa says, “see if the destination country is a member of the Hague Convention.” Membership in the Convention guarantees that the country observes guidelines that protect the powers and rights of birth and adoptive families, no matter the sex of the parents.
Living in a country where your rights are not equal to those of others presents unique legal challenges that cannot be ignored. While the United States is slowly moving in the right direction, until these basic rights are guaranteed to everyone, same-sex couples must ensure that they’ve taken the necessary steps to protect themselves and their families.
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