Bad things happen to good people who don’t plan
Laws on same sex marriage are more complicated than you might think. Without taking formal legal precautions, the law treats you and you partner as unrelated strangers. In other words, for financial and legal purposes, you and your partner are treated as two separate, unconnected individuals – not as a unit. Only civil marriage, civil unions and some state-sponsored domestic partnerships automatically confer an enormous edifice of legal protections and responsibilities on committed couples. Therefore it is important that you take the time to create legal documents that identify who you consider your family. In the absence of legal documents that articulate your personal choices, the law generally gives preference to your legal heirs or relatives in a broad set of arena (medical and financial decision-making, funeral arrangements, inheritance). Many states do not consider same-sex partners legal heirs or relatives.
Even if you do have your relationship recognized by one of the states that allow gay marriage, your work is only just beginning. Given the patchwork of state laws and the federal Defense of Marriage Act (DOMA), same-sex couples do not have access to the same protections as heterosexual couples. It is imperative that couples take measures to protect themselves and their loved ones. This is true even if you have a legal marriage or registered domestic partnership.
LGBT law is a relatively new field, and there are countless laws that may come into play and yet have no precedent in case law. As such, it is imperative to seek professional legal advice when getting your documents drafted, and to review your estate plans every few years as the legal landscape is changing rapidly.
Couples who should consult legal counsel before getting married/RDP’d
- Binational couples (in which one of the partners is not a United States citizen and is in the United States either without documentation or on a non-immigrant visa);
- Couples in which one or both of the partners are receiving government benefits (e.g. Social Security Insurance)
- Individuals considering adopting a child from another country
Why is it so complicated?
- Recognition affords privileges and protections – in the absence of recognition, you will have to enter into legal contracts to replicate those privileges and protections.
- State and Federal laws are not in agreement – There are rights that are conferred by the states, and those conferred at the Federal level.
DOMA has 2 major provisions which contribute to the confusion.
- Section 2 – Your rights are not portable. States don’t have to recognize marriages recognized by other states (The medical visitation rights granted by your California Domestic Partnership do not have to be recognized when you go to Disneyworld in Florida with your family.
- Section 3 – The federal government does not recognize your relationship. Codifies the non-recognition of same sex marriage for Federal purposes (e.g. Social Security benefits, government employee benefits, the filing of joint tax returns)
Why is planning so important?
It often comes down to death and taxes (and don’t forget about sickness!). Planning is essential to ensure that:
- You have the person you love making the medical decisions for you when you’re incapacitated
- The people you love get the assets you want them to
- You don’t leave your heirs with a larger than necessary tax bill
Basically you are trying to protect yourself and your loved ones in times of sickness and death.
Check out our tool for more information on the legal documents that can help articulate your choices and protect your family.