SAME-SEX COUPLES CAN LEGALLY MARRY, BUT MANY REMAIN UNMARRIED
In 2015, same-sex marriage was legalized in all 50 states and Washington, DC. But today, only about half of all same-sex relationships are legal marriages.
Prior to the decision, the obstacles faced by same-sex partners were far reaching, involving issues with:
· Child custody
· Social security benefits
· Survivor benefits and inheritance
· Recognized decision-making
· Family medical leave
· Healthcare coverage
· Social security benefits, and
The legalization of same-sex marriage has provided equal protection and access to these basic important federal and state benefits.
UNMARRIED LGBTQ+ COUPLES ARE STILL VULNERABLE, BUT ESTATE PLANNING MIGHT BE THE ANSWER
Despite the passage of marriage equality laws, many same-sex couples remain unmarried and
therefore are still vulnerable to the obstacles faced before the 2015 landmark decision. Legal marriage protects all couples, different-sex and LGBTQ+. But, for those who have yet to legalize their unions, turning to estate planning can be an effective strategy for many people in reducing some of these burdens faced by same-sex couples. When same-sex couples have minor children, it’s especially critical to get a good strategic plan in place in advance to determine what legal steps they can take to preserve the family unit as well as their resources in case either parent, whether biological or non-biological, gets sick or passes away.
HOW UNMARRIED SAME-SEX COUPLES CAN USE ESTATE PLANNING TOOLS TO PROTECT THEIR FAMILIES
Everyone needs an estate plan. But, why? What exactly is estate planning and what specifically can an estate plan do for same-sex couples, whether unmarried or married?
At its core, an estate plan is really just a legal action plan that an individual or a couple creates for the purpose of preserving and protecting their rights in their being, their children and their property. An estate plan functions to inform others about decisions that individuals and couples make for their own medical treatment in the event of illness; it determines who should care for their loved ones if they can’t; and outlines actions to be taken for the transfer of property and handling of other affairs.
All families are fully exposed when there is no plan set firmly in place to address these key issues. But, for same-sex couples, it is even more paramount to be proactive and get the estate planning done to avoid the insecurity and exposure that having no plan will surely bring. Even with the passage of marriage equality laws, same-sex couples often still grapple with unique and sensitive family dynamics, such as questions about the level of support and acceptance by extended families, and the issue of non-biological parental rights.
LGBTQ+ couples have access to the same estate planning tools as different-sex couples, but many are unaware of how estate planning can help them. Legal devices such as guardianship authorizations, financial powers of attorney and other testamentary or trust planning tools are perhaps even more necessary for LGBTQ+ families.
These are the four most critical areas where same-sex couples should focus their planning to prepare for incapacity or death:
UNMARRIED NON-BIOLOGICAL PARENTS MAY BE BLOCKED FROM HAVING PARENTAL RIGHTS TO THE CHILDREN THEY HELPED RAISE
Perhaps the most devastating reality for an unmarried partner in a same-sex relationship is the lack of rights to the child. To have parental rights after the death of a biological-parent spouse, the surviving parent must be a legal parent under the law, which means that they are either a biological or adoptive parent.
The death of a biological parent in a same-sex relationship raises extremely difficult issues for everyone involved, including the child, the surviving parent, and the respective grandparents. Where there is no legal marriage, courts will likely grant custody of children to the biological family members of the deceased biological parent, such as to grandparents. This means that the surviving partner will not have custody and possibly even access to the children they’ve co-parented and who know them as mom or dad.
A critical component to estate planning is having a last will and testament that nominates a legal guardian in the event of death. Appointed guardians are granted custody of minor children and are legally empowered to make medical and educational decisions on behalf of the minor children. A biological parent in a same-sex relationship can designate their partners as the primary guardian for their children who they already co-parent. Wills also provide the vehicle for same-sex partners to nominate back-up guardians and often choose the biological grandparents or other family members such as aunts or uncles to serve in this role.
A similar authorization can be made for temporary guardianship if here is a period of incapacity of a biological parent in a same-sex relationship. This can be useful for minimizing possible disruptions for the children and avoiding having them go to their grandparents or other family relations when the non-biological co-parent can easily maintain their daily parental duties.
SAME SEX PARTNERS ARE OFTEN PREVENTED FROM HAVING ACCESS OR MAKING HEALTHCARE DECISIONS
In many relationships, whether same or different-sex, your partner is often the one who knows you best and likewise, knows what’s best for you. But, medical and healthcare institutions will not recognize any decisions made by unmarried partners without legal status or authority. What’s more, an unmarried partner may also find him or herself barred from even having access to their loved one at critical times after an accident or illness that causes incapacity has occurred.
What this amounts to is that during some of the most urgent times in our lives, the people we share our lives with and who are most closely aware of our wishes would have no say whatsoever in our care. One way to avoid this is to create an advanced healthcare directive, which is a document that empowers another individual to make healthcare decisions when we can’t. Same-sex partners can protect each other by taking advantage of this powerful legal device that avoids having medical personnel delegate the decision-making authority to default family members who might be estranged or with whom there are little ties.
Making healthcare decisions for another person can never be done lightly and so it shouldn’t be left up to a casual acquaintance or someone you don’t trust, even if they are family relations. Medical decisions often include whether or not to proceed with serious procedures or treatments, the weighing of certain risks and possibly unfavorable outcomes, administering medications and other therapies, the choice and degree of certain life-saving measures, quality of life issues, residential arrangements, long-term caregiving and more.
Most of us would want the people we share life with and in whom we trust the most to have this responsibility.
INCAPACITY OFTEN MEANS GREAT FINANCIAL BURDEN FOR FAMILY MEMBERS
Perhaps one of the most shocking and gut-wrenching experiences that not having an estate plan results in is being financially unprepared for when crisis strikes. Families often find themselves desperately seeking financial resources or doing last minute crowdfunding while reacting to an unfolding tragedy or life-changing medical event of a loved one. This can be devastating to the recovery and care of an incapacitated person, especially in those first moments and the foreseeable short term. When an incapacitated person has financial resources but they are legally unreachable, family members have to find money quickly in order to cover the expenses of care and even the financial obligations of their incapacitated loved ones. Unmarried people often maintain separate bank accounts, which are untouchable by their partners. In some cases, rights in real property may also be negatively impacted depending on how unmarried same-sex partners hold title to their residences. Not having the financial house in order with prearranged access to available resources can wreak terrible havoc on an already difficult situation when someone loses capacity or passes away.
To avoid causing further harm to family members already dealing with a devastating event, preparing a durable power of attorney ahead of time will allow a trusted individual to gain access to available financial resources when needed. This is a useful and common estate planning device within the overall preparedness arsenal because it remains valid and effective even when a person has lost capacity, which is precisely when such a power is needed. People should not be wary that giving financial decision-making access to others is a risky move because it can be structured in a way that limits the powers and spells out exactly which actions are authorized -- and which are not. But most importantly, it’s noteworthy that like any contract, once a person has lost capacity, that is, the ability to make their own decisions with a sound mind, it is simply too late to execute such an authorization. The alternative is to seek a court appointed conservator of the person and the estate, which is not only a complicated process, but also a costly and time consuming one.
THE LAWS OF INTESTACY DON’T FAVOR SAME-SEX RELATIONSHIPS
When it comes to inheriting property, including real property, personal items and money, the laws of intestacy might determine that the property owned by a same-sex couple during life, might after death, go to persons they wouldn’t have chosen on their own, unless 1) there is a will that describes who should get what and in what proportion, or 2) there was a marriage and the community property laws apply to some of the distributions (if the couple lived in a community property state).
In unmarried same-sex relationships, there is simply no law in the land that by default provides for a partner in case one of them passes away. In this scenario, each partner would be entitled to only what is considered their separate property. Where it gets sticky is when partners own real or personal property together as a couple who have each contributed financial resources and share in debts and other obligations. For example, a collectible vehicle purchased as a gift by one partner for the other might end up as the property of the deceased partner’s mother, father or siblings.
With some basic will planning, this is easy to avoid. Same-sex partners who are unmarried can leave in a will detailed descriptions of their possessions and name the exact beneficiaries they want to receive their property upon death. Wills also allow for the naming of backups, known as successors, to take that property in case the primary beneficiary cannot or decides to disclaim the gift.
Even though so many same-sex couples are still unmarried, the rate of marriage is gradually rising each year. For those who have yet to take the plunge, estate planning is an effective way to safeguard their future and the future of their families.