Partners Task Force for Gay & Lesbian Couples
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Legal Precautions to Protect Your Relationship
What to do until legal marriage becomes available to all citizens
© August 15, 2010, Demian


In most of the American states, same-sex couples have none of the automatic legal protections that are routinely conferred on married couples. Only Massachusetts offers full, legal marriage. The states of California, Connecticut, Hawaii, Maine, and New Jersey offer various forms of registration that allow varying degrees of relationship protection.

In all other states, no matter how long you have been living together as a couple, in the eyes of the law, you are legal strangers. This means that courts have no compelling reason to grant you and your partner any of the rights automatically available to opposite-sex couples who are allowed to marry.

To grant some degree of protection, you need to go to extraordinary legal lengths.

Generally speaking, a will can ensure that your wishes are carried out in the event of death. With powers of attorney, you can assign your partner the right to act on your behalf under specified circumstances, such as incapacitating illness. Relationship agreements allow you and your partner to record the ground rules of the relationship, including how it will be dissolved, if necessary.

Despite the importance of taking these legal precautions, Partners’ 1990 National Survey of Same-Sex Couples revealed that many gay and lesbian couples had not done so. Only 43 percent of the couples had executed at least one of these legal documents, and just 5 percent had completed all three.

The following provides more information on these and other legal precautions you can take to define and protect your relationship. Most documents need to be notarized (your bank may offer this service for free), and some need to be signed by witnesses.

For specific information and counsel, we recommend that you consult an attorney experienced with the special legal needs of same-sex partners. We can only provide general information, which should not be regarded as legal advice.

We’d recommend looking at local gay newspaper ads for supportive lawyers for making sure your documents meet state requirements. Also, every major city has a gay business association. Check their business directories for lawyers.

One last caveat, all of these legal documents are contestable in court and do not contain anything close to the protections and benefits conferred by legal marriage.

Lawyers generally recommend that same-sex couples execute the following legal documents to protect their families. The most commonly mentioned are:

Power of Attorney for Health Care
Power of Attorney for Finances
Living Wills
Medical Emergency Card
Relationship Agreements
Joint Tenants with Right of Survivorship
Wills
Funeral Arrangements
Living (Revocable) Trusts
Legal Precautions for Partners Who Parent

These governmental bodies offer protections for same-sex couples:

Governmental Legal Registration
Governments that offer Legal Marriage


—— Power of Attorney for Health Care

Attorneys widely recommend that partners assign each other durable powers of attorney for health care. Using this type of legal document, you can grant your partner the right to make health care decisions on your behalf if you become incapacitated. Without it, your partner would likely play no role in important medical decisions, and might even be prevented from visiting you in the hospital.

By executing a power of attorney document, you can empower any person to act on your behalf in the place of spouse, parent or other relative. That person, the attorney-in-fact, can:

  • Authorize medical treatment if you are physically or mentally incapacitated or otherwise unable to authorize emergency care, hospitalization, surgery, therapy, or other kinds of treatment.
  • Be given first priority in visitation should you be a patient in any institution and unable to express a preference on account of illness or disability.
  • Receive your personal property and effects recovered by any hospital, police agency or any other person at the time of your illness, disability or death.
  • Authorize the release of your body from a hospital or other authority at the time of death and to make provisions for the removal and transportation of your body.
All states recognize powers of attorney, though laws differ in details. In some states, you can also use the document to stipulate the type of care you will permit if you become incapacitated. You will most likely need to use a state-specific legal form if you reside in California, Florida, Georgia, Idaho, Illinois, Kansas, Kentucky, Mississippi, Nevada, New Hampshire, New York, Oklahoma, Oregon, Rhode Island, Texas, Utah, Vermont, or West Virginia.

While the power of attorney is the best available option, legal action may be required if it is challenged by hospital administrators or family members. Because your family could also challenge your partner’s authority, it makes sense to discuss your wishes with them in advance and give them copies of your legal papers. If they are advised, they will more likely respect and support your wishes.

If you have a primary physician or HMO, you may also have the option of signing what is usually referred to as a “physician’s directive” and having it kept as a record of your wishes.

Prepare multiple, signed originals of your power of attorney forms. A shrunken to wallet-size, laminated copy would be good to carry when you travel.

No Recognition of Power of Attorney
It has all too often been reported that hospital medical workers have refused to recognize a power of attorney. They insist that only the next-of-kin may be informed of a patient’s critical condition, or be allowed to make medical conditions — even when the partner would be the best source for the recent history and medications a patient would be taking.

Yet these same hospitals, and medical workers, often do not hesitate to require a life partner sign documents agreeing to assume the financial responsibility for those areas that insurance does not cover.

Many American hospitals are accredited by the Joint Commission on Accreditation for Healthcare Organizations. States renew the license of a hospital based on this accreditation, and health insurers continually scrutinize reports of violation of these standards.

The Joint Commission standards require hospitals, nurses and doctors to honor each patient’s identification and designation of family — whoever that might be, regardless of legal kin status.

Any violation of this standard is significant and could jeopardize a hospital’s accreditation, license and payments from insurance companies. No hospital wants the Joint Commission investigating a complaint of this nature, nor would they want press coverage of such an issue.

Joint Commission on Accreditation of Healthcare Organizations
To report complaints to the Joint Commission: 800-994-6610


—— Power of Attorney for Finances

This type of document can grant your partner the right to make financial decisions on your behalf if you become incapacitated. Without it, your partner would have no say in important financial decisions.

Executing a power of attorney for financial affairs empowers the attorney-in-fact to:

  • Authorize payments.
  • Run your business.
  • File taxes.
  • Draw checks.
  • Apply for insurance requests and benefits.
  • Act on any other financial affairs you specify.
You can specify use of certain accounts and not others. You can also make limitations on the attorney-in-fact’s authority in terms of the power to sell your home, etc.

All U.S. states permit a general form for durable power of attorney for finances; however, it may be advantageous to use specific forms in Alaska, California, Colorado, Connecticut, Illinois, Indiana, Minnesota, New Jersey, New Mexico, New York, North Carolina, Pennsylvania and Tennessee.


—— Living Wills

While the power of attorney allows your partner to make medical decisions on your behalf if you are seriously incapacitated, it doesn’t necessarily empower her or him to stop life support systems should you be terminally ill and on the verge of death. For this you need a living will.

Most state legislatures have enacted Natural Death Acts that allow a person to specify certain circumstances under which she or he will not be kept alive by artificial means when terminally ill. Most allow for the discontinuance of artificial life support systems only for a terminally ill person whose death is imminent.

If you have a primary physician or HMO, you may have the option of signing what is usually referred to as a “physician’s directive” and having it kept as a record of your wishes.


—— Medical Emergency Card

We also recommend that gay men and lesbians in committed relationships prepare for emergencies by carrying a card that identifies their partner. Medical emergency teams typically search trauma patients for information on emergency contacts. Same-sex couples need to make explicit their partner’s role in handling an emergency.

A medical emergency card doesn’t replace the power of attorney. Rather, it directs health care workers to alert your partner (or another individual), who can then invoke the authority to act on your behalf, if necessary. It also makes sense to carry a reduced photocopy of the power of attorney form in your car or travel luggage. Only a signed original has the power of law, but a copy will alert care givers to your intentions.


—— Relationship Agreements

Marriage is essentially a contract in which partners agree to a predefined set of privileges and obligations. While American same-sex partners cannot yet marry outside of Massachusetts, we can write our own contracts, selecting the terms and conditions we prefer, within the limits prescribed by law.

While no contractual agreement can provide access to Federal benefits, such as social security for a widowed partner, or any other benefit derived from legal marriage, a relationship agreement — like a prenuptial agreement — can be tailored to fit your individual situation and needs, especially regarding property ownership. For instance, it can allow for:

  • A total separation of money and property.
  • A total merger of affairs.
  • Holding some property separately and some jointly.
Known variously as relationship, partnership, or living together agreements or contracts, the practical purpose is to put into writing the expectations of both partners to prevent potential misunderstandings or disputes. For example, the agreement can:
  • Clarify ownership of property owned before living together, bought during the relationship, or inherited or received by gift during the relationship.
  • Establish how household expenses are to be paid.
  • Provide guidance for dividing property in the event of separation.
  • Allow for a cooling off period, or counseling, if a conflict threatens to drive you apart.
  • Specify a dispute resolution mechanism, such as arbitration or mediation, to avoid the slow, costly process of litigation.
Further, while this particular contract may be hard to do — because of its complexity and sensitive topics — it is well worth the work because it helps couples think about many facets of a relationship otherwise often unexplored.


—— Joint Tenants with Right of Survivorship

This phrase — “Joint tenants with right of survivorship” — written on a property deed, makes it co-owned.

It can be used for a house, land, bank or other accounts, as well as for a car.

Upon death of one of the joint tenants, that person’s share becomes the property of the remaining joint tenant, which allows it to bypass wills and probate court.


—— Wills

If you have no will, or living trust, when you die, your property will pass to those persons named by law as intestate heirs, who are usually legal spouses, children, parents, and other relatives. As a result, your surviving partner may end up with nothing, and even lose property he or she paid for by being unable to demonstrate ownership.

Failure to plan ahead has cost surviving partners untold amounts of money in inheritance losses and litigation, as well as time and grief. If you love your partner, you should have a will or a living trust.

A will instructs your personal representative how to distribute your estate and settle your affairs after you have died. You can use a will to:

  • Ensure that your property will go to the people you choose.
  • Provide more money for your beneficiaries with less fuss.
  • Leave mementos to selected friends and relatives.
  • Designate funeral directions.
  • Donate parts or organs, or leave your entire body to science.
A will is legal if it is legal in the place where it was signed and witnessed, or if legal in the place where you normally live. (State requirements vary.) It is advisable to have an attorney draft your will. If you write your own, have an attorney review it.

Even if you don’t have much to leave, you should have a will. If you die in an accident, you may leave your estate with a large claim for your death. If your death were to be caused by negligence, the person named in your will might benefit from any award or settlement from the responsible party.

A will is even more important if you have children, because you may wish to appoint your partner as guardian. You may also wish to leave money for your children under the supervision of trustees.

A will should be revised:

  • After significant changes in personal circumstances.
  • When moving from state to state.
  • After reviewing it every few years to make sure it takes best advantage of current law.
The process through which property is transferred to the new owner is called probate. It is not as complex or lengthy as many people fear, but the existence of a will makes the process easier and less expensive.

Some property can pass outside the probate estate, such as:

  • Insurance proceeds.
  • Property held in joint tenancy with right of survivorship.
  • A living trust.
Other alternatives may be available in specific jurisdictions. None of these eliminate the need for a will, although they can lessen the time and cost of probate, particularly in those states that charge a percentage fee from estates that go through probate.


—— Funeral Arrangements

If you do not make written instructions regarding funeral and burial arrangements, nearly every state gives control to your blood relatives. Your partner can be rendered powerless to fulfill your wishes, and may even be barred from funeral services.

Written instructions let you name the burial process and who you wish to carry them out. These instructions can be included in a will, or be made separately, or both. The will is often read after a funeral, but it can be presented beforehand as an indication of the decedent’s wishes.

Keeping in mind that there is no guarantee that the funeral instructions will be followed, consider making advance arrangements with a funeral home or burial society. Doing so adds further weight to your wishes.


—— Living (Revocable) Trusts

A living (or inter vivos) trust is a legal document you can execute naming yourself as the trustee of your own properties or estate. All of your property is transferred to the trust while you are alive. As the trustee, you can dissolve the trust or take any assets from the trust at any time, retaining complete control of your property.

The trust should provide for a co-trustee — a surviving partner or trusted friend — who would only act upon your death or disability. While alive, you have the right to the income generated by the trust and use of the trust property, such as real estate and personal property. Upon your death, the trust’s assets could be distributed to a surviving partner, family and charities, or the assets could remain in the trust for the lifetime of the surviving partner, then pass to family, friends or charities.

Living trusts offer a number of estate planning benefits unavailable with wills. Trusts can:

  • Serve as the framework for the management of your assets and property if you become physically or mentally incompetent. There would be no need to appointment an estate guardian since the co-trustee could manage the assets.
  • Act like a will for the distribution of your property, but without probate proceedings and with less chance of a legal challenge by family members.
  • Avoid creditor claims, by avoiding probate. Unless the creditors can show that assets turned over to a living trust were the result of fraud, the rights of the creditors generally end at the death of the trustee. (State laws may differ on this point.)
  • Define how trust funds are to be invested or spent for a surviving partner, which might be helpful for a partner who may not be a careful money manager.
The living trust is like a will because it can be revoked at any time. It is more advantageous to some same-sex couples because, in most states, a trust need not be publicly recorded as a will must be. Consequently, it can provide some protection against contests by hostile blood relatives.


—— Legal Precautions for Partners Who Parent

If you are parent to your partner’s child, or are thinking of parenting with another person, you can safeguard your rights with several key documents:

  • Co-Parenting Agreement. This agreement can spell out the rights and responsibilities of each partner and require their enforcement through private mediation.
  • Nomination of Guardianship. If you are the custodial parent, you can add language to your will nominating your partner as the child’s guardian in the event of your death.
  • Consent to Medical Treatment. By signing this form, the custodial parent can allow the co-parent to authorize medical procedures for a child.
In addition to preparing these legal papers, it can help to jointly discuss your dual parenting arrangement with all workers in contact with your children (teachers, medical workers, etc.).

Fortunately, many states now allow same-sex couples the opportunity of accepting joint custody of their children through second-parent or joint adoptions. These are legal proceedings in which both partners are appointed parents of an adopted child, or in which the custodial parent agrees to share custody of the child. These are permanent arrangements that can offer long-term security for both parents and children.

Unfortunately, second parent or joint adoptions can only be applied for after one of the partners has custody. For some, this means that the couples must go through the costly and time-consumptive adoption process twice. Only New Jersey’s public adoption agencies currently allow a same-sex couple to adopt at the same time.

Please also see our article: Parenting Options



Governmental Legal Registration

Governments that offer Full Legal Marriage
Nations

    Netherlands (2001)
    Belgium (2003)
    Canada (2005)
    Spain (2005)
    South Africa (2005)
    Norway (2009)
    Sweden (2009)
    Iceland (2010)
    Argentina (2010)
    Portugal (2010)
    Denmark (2012)
    France (2013)
    New Zealand (2013)
    Brazil (2013)
    Uruguay (2013)
    New Zealand (2013)
    United Kingdom
      (England, Wales, Scotland) (2013)
    Luxembourg (2014)
    Finland (2014)
    Ireland (2015)
    United States (2015)
    Colombia (2016)
    Germany (2017)
    Taiwan (2017)
    Malta (2017)
US States & Territories

    Massachusetts (2004)
    California (2008)
    Connecticut (2008)
    Iowa (2009)
    Vermont (2009)
    New Hampshire (2009)
    District of Columbia (2009)
    New York (2011)
    Maine (2012)
    Washington (2012)
    Maryland (2013)
    Rhode Island (2013)
    Delaware (2013)
    Minnesota (2013)
    Illinois (2013)
    Utah (2013)
    New Jersey (2013)
    Hawaii (2013)
    New Mexico (2013)
    Michigan (2014) - stayed pending legal challenge
    Oregon (2014)
    Wisconsin (2014)
    

    Arkansas (2014) - stayed pending legal challenge
    Pennsylvania (2014)
    Indiana (2014)
    Nevada (2014)
    Virginia (2014)
    Oklahoma (2014)
    Idaho (2014)
    West Virginia (2014)
    Alaska (2014)
    Arizona (2014)
    Wyoming (2014)
    Kansas (2014) - stayed pending legal challenge
    Florida (2014)
    Colorado (2014)
    North Carolina (2014)
    South Carolina (2014)
    Montana (2014)
    Alabama (2015)
    U.S. Supreme Court (June 26, 2015):
      Ruling: All U.S. States must now
      allow same-sex couples the
      freedom of legal marriage.
Native American Tribes

    Coquille Tribe, Oregon (2009)
    Mashantucket Pequot, Connecticut (2011)
    Suquamish Tribe, Washington (2011)
    Confederated Tribes of the Colville Reservation, Washington (2013)
    Leech Lake Band of Ojibwe, Minnesota (2013)
    Little Traverse Bay Bands of Odawa Indians, Michigan (2013)
    Pokagon Band of Potawatomi Indians, Michigan (2013)
    Santa Ysabel Tribe, California (2013)
    Confederated Tribes of the Colville Nation, Washington (2013)
    Cheyenne, Oklahoma (2013)
    Arapaho, Oklahoma (2013)
    Leech Lake Tribal Court, Minnesota (2013)
    Puyallup Tribe, Washington (2914)
    Wind River Indian Reservation, Wyoming (2014)
    Keweenaw Bay Indian Community, Michigan, (2014)
    Colville Confederated Tribes, Washington (2014)
    Central Council of Tlingit, Alaska (2015)
    Haida Indian Tribes, Alaska (2015)



For further information, please see our article:
Media Resources: Legal Information, Advice & Opinion.


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