Last week, I mentioned that a client wrote to me concerned about the future of same-sex marriage and the possibility that the Obergefell decision could be overturned. My client isn’t alone. Almost 80% of married same-sex couples reported the same concern in a recent study conducted by UCLA’s Williams Institute and reported in the Los Angeles Times.
Marriage changed couples’ lives in all kinds of positive ways – they had increased feelings of safety and security, increased financial stability, legal protections, enhanced ability to share work and home responsibilities, increased stability for their children, and caretaking when one or both partners have a disability. That’s not to say that marriage is always a great idea for everyone – I’ve certainly done my share of same-sex divorces! But clearly, same-sex couples should have the same legal rights that heterosexual couples have. And the children with 2 moms or 2 dads should have the same security and stability that the children of heterosexual parents have.
Hopefully, same-sex marriage is here to stay. But in this crazy country where the unimaginable seems to happen every day, we ask, what ARE the ways that an LGBT family can maintain stability and security if same-sex marriage is no longer an option? Two main areas need legal protection – parenting and estate planning. So here are a few ideas:
- Obtain a second-parent adoption or a judgment of parentage for each child. Make sure that both parents have a legal relationship with each child, as well as an emotional bond. The judgment of parentage is a less expensive, less intrusive, and streamlined process, but speak with your attorney to determine which is best for your family.
- Be sure to name your spouse as your children’s intended guardian in your will, especially if you haven’t completed the adoption or judgment of parentage.
- Write a will. Your will determines what happens to your accounts, belongings, real estate, etc. after you die. This will ensure that your spouse will inherit from you and perhaps be your executor. If you die without a will, the State will write one for you. If you have a will that is out of date, remember to keep it up to date!
- Think about creating a trust. There are different kinds of trusts – some that start while you are alive, some that start after you die. There are pros and cons to each of them. Speak to your estate attorney about your needs.
- Write a Health Care Proxy. The health care proxy tells your medical providers who you want to make decisions on your behalf if you are unable to make them yourself (e.g. if you are unconscious). Keep this updated, make sure your spouse has a copy and that there is a copy in your medical chart.
- Write an Advanced Directive (also known as a Living Will). This gives guidance to your Health Care Proxy and to your medical providers about choices at the end of life if you are unable to communicate. In other words, where the Health Care Proxy specifies WHO will make the decisions, the Advanced Directive specifies WHAT you want them to decide. Give this document to your Health Care Proxy, but it doesn’t have to go to your doctor.
- Write a Power of Attorney. The Power of Attorney gives another person (your POA) the right to manage your finances in the event that you are alive but are unable to manage them yourself. It gives your POA the authority to pay bills on your behalf or to collect and transfer funds. This can be very helpful if there are assets in your name alone, but obviously, it should be used very carefully.
- Name an Agent to Control the Disposition of Remains. This is a simple document where you can name your spouse as the person who will make decisions about what happens to your body after you die.
- Update your beneficiary designations. Each of your retirement accounts, insurance policies, and many of your brokerage accounts, will ask you to name a beneficiary or beneficiaries. Make sure these are up to date and that they say what you intend. If you haven’t looked at them in a while, this is the time to check up!
- Check the ownership on your legal documents. Check your car title, the title of your home, and your mortgage. Is your spouse on them? Do you own the real property as Tenants by the Entirety or Joint Tenants With the Right of Survivorship? These will both ensure that your spouse or partner will inherit the property without having to go through probate.
These are all important documents to have and to keep updated on whether you are married or not. The estate planning documents are important to update whenever you have a major life change, like getting married, getting divorced, or being widowed.
I can help with the parenting orders. Write to me if you’d like a referral to an estate planning attorney for the other documents.
