Protecting Our LGBT Relationships
If you’ve read the article about marriage, you will understand that neither marriage nor the protections of civil union or domestic partnership are available to most same-sex couples. Because of this, it is essential that same-sex couples (as well as single LGBT people) ensure that you do all that you can to protect your relationships to one another and to your children. There are a number of important documents you should consider having prepared for you.
Every state has different statutes that govern the validity of documents such as Wills and Health Care Proxies. It is important that you consult an attorney who is knowledgeable about both estate planning and lesbian and gay relationships. A well-meaning but uninformed attorney may not be able to properly educate you about your rights or properly prepare the documents you need to protect your relationship. Often, LGBT attorneys have professional organizations with referral services or a directory of attorneys. You can also contact the larger regional and national gay legal organizations for assistance in locating an attorney.1 You can be sure that there are lesbian and gay attorneys in every state and you can probably find them; if you can’t find someone, that well-meaning but uninformed attorney can contact one of the national legal organizations for assistance.
In consultation with your attorney, you can determine which of the following documents are necessary for you to have.
Health Care Proxy or Durable Power of Attorney for Healthcare
A health care proxy or, in some states, a durable power of attorney for healthcare, is a document in which you determine who will make medical decisions for you if you are unable to do so for yourself. If you do not have a health care proxy, it is quite possible that your partner will be prevented not only from making decisions about what kind of medical intervention you receive but also may be prevented from even being with you in a hospital.
Power of Attorney
A Power of Attorney is a document in which you identify the person who will manage your financial affairs if you are unable to manage them yourself. For example, if you are the breadwinner in your family and all or even some of the bank accounts are in your name and something happens to you, appointing your partner as your “attorney” means that s/he can access the funds needed to care for you and your family.
Living Will
A Living Will is a document, sanctioned by statute in some states but not in others, that explicitly states your wishes with respect to your intention to refuse medical treatment, discontinue life support or artificial hydration and nutrition if you are terminally ill with no chance of surviving. A Living Will can be very helpful to your partner because s/he will know what you would want when you are no longer able to tell him or her. Without a Living Will, disputes about your care may arise between your partner and your family.
Will
A Will is the document in which you state your wishes with respect to how your property is to be distributed upon your death. If you die without a Will (this is called “intestate”), your estate will be distributed to your “heirs at law,” who are your relatives. For example, if you are partnered and have children who are not legally related to you and you die intestate, all of your estate will go to members of your family and not to your children or your partner.1 If this is not what you want to have happen, then you must have a Will. If you have minor children, the Will should contain an appointment of a guardian for your children. This is especially important if you live in a state where it is not possible to create a legal relationship between your partner and the children you are raising together. If you do not name the other parent as the guardian of the children, it is very possible that guardianship will go to someone who is related to the children by blood.
Trusts
It may also be necessary or recommended that you create a Trust, which can give you more flexibility about distributing your estate and may also offer some other economic protections to your heirs. There are several different kinds of trusts, designed to address specific situations; it is essential that you consult with a knowledgeable attorney to determine whether this is a document you need.
PARTNERSHIP AGREEMENTS
Many attorneys recommend that same-sex couples create Partnership Agreements which are contracts between you and your partner that define, for example, the terms of property ownership, how you manage your financial affairs, and how you would handle the division of assets if your relationship were to end. An Agreement between members of a same-sex couple is a legal contract that, at least in some states, can be enforced by a court of law. Again, it is essential that you consult with a knowledgeable attorney who can tell you what the law is where you live and how you can best protect yourself. Without a Partnership Agreement, the legal process involved in enforcing your rights can be quite cumbersome, expensive and often unsuccessful unless you have strong facts on your side and good documentation of your financial contributions. In fact, one of the benefits of marriage, civil union, and domestic partnership is that, if your relationship ends, there is a legal process through which couples can resolve their disputes, not only about property, but also about child custody and support.
Until the time arrives when we all have access to the same legal protections that other families have, we owe it to our partners and to our children to create the legal framework necessary to safeguard our relationships. What is most important is that you do whatever you can do to protect the relationships you treasure. Contact a knowledgeable attorney in your area and put these protections in place.
© Joyce Kauffman 2006
Notes
1 In Massachusetts and for other New England states, contact www.mlgba.org or www.glad.org. Nationally, contact www.nclrights.org; www.lambdalegal.org; www.aclu.org/lgbt; www.nlgla.org/affiliates.html. You can also check websites such as www.gaylaw.net and www.gay.com.
2 If you own property jointly with your partner, in most circumstances, your partner will automatically inherit that jointly-owned property.
Information published on The Rainbow Babies website is not a substitute for proper medical advice, diagnosis, treatment or care. Always seek the advice of a physician or other qualified health providers with any questions you may have regarding a medical condition.
Disclaimer: The Rainbow Babies provides sample contracts and legal/social health articles for informational purposes only—please do not consider it as legally-binding advice of any kind.
