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ОглавлениеFIRST THINGS FIRST: LEGAL ADVICE
While married heterosexual couples can assume that they will receive the rights and responsibilities that come with a marriage certificate, most gay and lesbian couples can make no such assumptions. It will take work on your part to obtain similar protections. As of this writing, only one state in the United States (Massachusetts) allows full legal marriage for homosexual couples. While other states have a variety of other protections (or none at all) for same sex couples, no other states give the full benefits of marriage and no samesex marriages are recognized at a federal level. (See Appendix 1 for more information.) Ongoing litigation in several states is challenging the status quo. For the time being, though, it is critical for gay couples to do everything they can to protect their growing families.
Unfortunately, there isn’t one single thing or one individual document that a same-sex couple can fill out to gain all of these protections. Gay and lesbian couples have to put together these protections in a piecemeal manner. The exact requirements vary depending on one’s state of residence. Even if you live in a relatively liberal state, it is important to get the fullest possible legal protection in writing, just in case there is a medical or other emergency while you are traveling in a more conservative state or country.
It can be awkward to think about legal rights, because most are for worst-case scenarios such as serious illness or sudden death. In the first blush of a new relationship, this may be the last thing a couple wants to think about! With a more long-term established relationship, the partners may think these protections are unnecessary and should be taken for granted. However, never underestimate the greediness of distant relatives or the discrimination of our medical and legal system. Nobody wants to end up in the hospital, arguing with an emergency room physician over the right to visit a critically-ill partner. Even for couples who aren’t planning on having children, and especially for couples who are considering starting a family, it’s very important to have all legal rights and paperwork in order before proceeding.
WILLS AND TRUSTS
Planning for one’s own death is rarely a cheery proposition. However, it’s one of those “adult things” that has to be taken care of at some point, so why not sooner rather than later? If you were to die without a will or any sort of legal document indicating your wishes, your property would be distributed to your legal heirs (i.e. blood relatives) by the court system.
In most states, except for those with same-sex marriage, civil union or full domestic partnerships, your domestic partner will not be considered a legal heir for the purpose of inheriting. This can lead to an awkward situation; relatives of your partner, possibly people you’ve never met, may lay claim to the house you and your partner shared, your car and any other worldly possessions that you cannot prove were owned solely by you. Don’t expect such individuals to respect your relationship when it comes to money. Even the best of intentions will often be forgotten when the law is not on your side.
JANE AND DEBORAH: A WARNING
Jane, who had been Deborah’s partner for thirty years, died suddenly and without a will. The two women had a long, trusting relationship and never had much interest in paperwork. The deed to the house that they shared together was only in Jane’s name; her surviving partner, Deborah, therefore had no legal ownership of it. Jane’s name was also the only one on the car title, since in the beginning Deborah only used the car to go to the store and back. As they grew older, though, Deborah used the car more and more to shuttle Jane back and forth to medical offices and pharmacies.
After her death, Jane’s blood relative (a nephew she barely knew) showed up to claim her body. He did not have any understanding of Jane’s relationship with Deborah, and didn’t particularly care to listen. He did not listen to Deborah’s input for the funeral and, following the ceremony, he proceeded directly on to “his new” house. He emptied it of the priceless treasures and emotional keepsakes that Deborah had wanted to keep because, legally, the house belonged to his aunt and not to Deborah. Without legal standing, Deborah found herself homeless and was forced to move. Since the bank accounts were also only in Jane’s name, she lost her share of their money and other investments.
BE CLEAR NOW, AVOID TROUBLE LATER
The importance of stating one’s wishes in terms of property inheritance cannot be underestimated. By drafting a will, it is possible to designate exactly who should receive your property, as well as when they will receive it. You will also be able to name a person to be in charge of distributing your assets. This person is known as the “executor” of the will. His or her consent will need to be obtained first, since it’s not the kind of thing someone would want to be surprised with! This person should be made aware of your will and its location, so that he or she can access it if it ever becomes necessary.
In a will, it is appropriate to make provisions for the type of funeral you want, including who will have control over its content and format. Other funeral arrangements can also be specified. You can state your wishes about whether you want to be cremated or buried, and whether you want a funeral service in a particular religious tradition or a non-traditional memorial service of some sort. It can be a comfort to your partner and other relatives to know that your wishes are being carried out after your life is over, and can remove a significant burden during a very difficult time.
If you have children, you can nominate a guardian for your children in your will. This doesn’t have the legally binding nature of an adoption, but in most cases, depending on what state you live in, the court will respect a designated guardian if there are no other challengers. Again, be sure that you speak to any potential guardian ahead of time, obtain his or her consent, and if your children are old enough, discuss it with them.
Jing and his partner Mark adopted a baby boy, with Mark as the legal parent of record. Where they lived, domestic partner adoptions were not an option, so the two men created a guardianship agreement in which Mark specified that Jing should have legal guardianship of their son, should anything ever happen to him. Sadly, Mark was killed in a car accident; Jing had enough to worry about, without having to think about losing custody of their son.
Unfortunately, the story didn’t end there. Mark’s parents never approved of his relationship, and they didn’t want their grandson being raised by a “stranger.” They filed for adoption of the baby and won their petition in court. Jing’s lawyer appealed the decision, and the case was resolved by the judge’s decision that Jing should be allowed supervised visitation with his son. The solution here was far from optimal, to be sure, but without the guardianship agreement, Jing might not have won even that small victory.
In most cases of same-sex couples (with or without children), two contingencies need to be considered when drawing up wills. One is what happens if one partner dies before the other. The other is what will happen if both partners die at the same time (as in a car crash, etc.) In the first case, most partners would usually leave all or most shared asserts to the surviving partner. If you have any particular heirlooms from your family that you want to pass on to brothers, sisters or other immediate relatives, you should also indicate that.
In the second scenario, if you do have children or if you intend to have any in the near future, place the appropriate contingencies in your will. Example: say that John dies, leaving behind minor children. John wants them to inherit his possessions and assets. He may want to stipulate that his children’s living expenses will be paid for, and that the rest should be held in trust until the children reach legal adulthood or enter college. The situation of parents dying and leaving behind minor children is of course a very difficult one to contemplate; it is, however, important to take care of these things. Knowing that your children will be taken care of were anything to happen can provide a sense of security.
LIVING TRUST
Depending on your state and particular distribution of assets, instead of a will you can choose to use a revocable living trust to indicate who will get your property in the event of your death. A living trust functions much like a will. The main difference is that a will must be settled by the court system, while a living trust can transfer property directly upon your death. The court probate process can sometimes take up to a year, especially if you have debts that must be settled first or if the will is challenged. Also, depending on your particular circumstances, sometimes using a living trust can keep your heirs from having to pay certain taxes on received property, so there may be financial benefits to going with this method.
A trust differs fundamentally from a will in that once a trust is executed, you actually legally transfer the ownership of your assets to the trust. You still will have complete control of your assets during your lifetime, but the trust will technically own your property. Because of some state and federal tax laws, in some cases property left by one partner to another in a will may be subject to much higher tax rates than a comparable situation in which a wife leaves property to her husband. For this reason, especially if you have sizeable assets, it may make sense to use a living trust instead. If you think this situation applies to you, always speak with an attorney who’s familiar with the particular situation for same-sex couples in your state.
As of this writing, the states of California, Hawaii and Vermont allow same-sex partners to inherit without wills. Massachusetts also allows for this inheritance, but that is because same-sex couples can legally get married there.
To take advantage of these rights:
• In California, you need to be registered domestic partners.
• In Vermont, you need to have completed a civil union.
• In Hawaii, you need to be reciprocal beneficiaries.
There is a caveat, though. Even if you live in one of these states, your property may be distributed between your partner and any other legal living heirs if you didn’t prepare a will. The bottom line: no matter where you live, write a will or living trust.
DURABLE POWER OF ATTORNEY FOR FINANCES
A Durable Power of Attorney for finances can be used to ensure that your partner has full control over joint assets should you be incapacitated. This document lets you give a particular person full access to your finances without relinquishing any of your own control. In such a situation, this person would be able to pay your bills, cash your checks or receive various other benefits in your name. Obviously, this sort of document gives another person serious control over your money. Remember that you’re basically giving someone else the ability to empty out your bank accounts, sell off your assets and drain your 401k plan. Don’t take this decision lightly!
To whom should you give this sort of power? If you and your partner already have mingled finances, a durable POA for finances can allow your partner to continue paying bills and have access to money that may be listed only in your name, but has become de facto joint property.
Mark and Jing, the couple we discussed earlier, never filed a Durable Power of Attorney and, as a result, Mark’s parents claimed most of their joint assets upon their son’s death. Jing says, “In retrospect, I can’t believe we didn’t deal with this years ago, but it never seems like you need to, you know? But then, if you don’t deal with it, it may be too late.”
If you don’t want to give someone a complete Power of Attorney for finances, you can instead draw up a Limited Power of Attorney for finances. This version gives your designee the same powers, but only for a specific amount of time. For example, if you know that you’ll be going into the hospital for scheduled surgery and will be recuperating and unable to manage your finances, it may make sense to give your partner control over your assets (and debts) for the duration of your absence. You can also limit the designee to specific functions; for example, you could allow this person to pay your bills, but not empty your bank account. It’s something that would be taken for granted in a typical heterosexual marriage, but is an example of an extra precaution that gay and lesbian couples need to take in order to achieve the necessary protections.
The Power of Attorney for finances should be filed with your bank and any other financial institutions you might deal with (such as brokerage accounts or mortgage companies). Some banks will have their own versions of this form that you’ll be required to use, so be sure to check with your specific bank before preparing this document.
CHOICES IN MEDICAL CARE: JIM AND DONALD
One of the nightmares of being in a non-married relationship is what may happen in the event of sudden medical illness. Donald and Jim had been together for years when Donald was seriously injured in a car accident on the way home from work. They lived in a state without a domestic partner law, and had never thought that they needed any sort of permission to make decisions for each other.
When Jim arrived at the hospital, he discovered that Donald was on a ventilator. There were some major decisions to be made regarding Donald’s course of treatment, and Jim made a point of speaking to the surgeon in charge. He expected the doctor to discuss the alternatives and help him arrive at a decision for his partner’s care. He found out his input was not considered valid, though, when Dr. Carlson asked, “Who are you?” Jim responded, “I’m Donald’s partner.” The doctor looked confused, asking if he was Donald’s business partner or if they worked together in a law firm. Jim patiently explained that no, they were life partners, and had been for some time. The doctor shook his head and said, “I can only discuss Donald’s medical situation with family members. Does he have any in the area that you can call?”
Jim couldn’t believe what he was hearing, and tried to explain their living situation to the doctor. His pleas fell on deaf ears; the doctor would only talk about Donald’s care with a wife, parent or other relative. Jim finally asked to go in and see Donald; surely they could sign some sort of form or document to clear this up. However, he wasn’t allowed into the Intensive Care room because according to hospital policy, visitors were restricted to “relatives only.” In this gravest of times, Jim was relegated to the status of stranger and had no power in the situation.
There are two ways around this problem. The first is to create and carry a document sometimes called a Living Will. This document states your desires for various medical procedures, in the event that you are unable to make such decisions for yourself. Depending on what state you live in, the document that you produce will have any one of a number of names. It can be called a Living Will, a Healthcare Directive, a Medical Directive, a Directive to Physicians or a Declaration Regarding Healthcare. This document clearly states your wishes for a variety of different scenarios regarding your own medical care, including whether you would want heroic measures to artificially extend your life. It also includes whether you want to be an organ donor. This document is considered legal proof of your preferences, and makes them very clear. The form for this document varies from state to state, and you need to use the form accepted in your state.
The second solution is to produce a durable power of attorney for healthcare. Depending on your state, this form can also be called a healthcare proxy. This document designates another person to make medical decisions for you if you become unable to make them yourself. For gay and lesbian couples, this document is crucial because it can be the only way a hospital will listen to your partner, rather than calling in some distant relative if you are injured in an accident. The durable POA should be filed with your particular health insurance carrier. If you’re traveling, though, carry a copy of it with you at all times. It is an important document to have in addition to a living will because there may be situations which you’re unable to anticipate while creating the living will; a durable POA covers all your bases by designating your partner to make decisions in your best interests.
HOSPITAL VISITATION
In addition to a Power of Attorney for healthcare, gay and lesbian couples should also fill out a hospital visitation authorization. This form, available online or through a lawyer, lets you designate specific individuals who are not related to you, either by blood or marriage, to be able to visit you in the hospital if you are unable to give direct authorization yourself. While it doesn’t seem like such a form should even be necessary, it unfortunately is. Poorly-trained hospital staff, or even illegal hospital policies, may prevent your partner from seeing you in the event of an emergency, and that is the sort of situation that can be mitigated by preparing the proper paperwork ahead of time.
The form states that you authorize that if you are ever incapacitated by illness, it is your wish that a certain person or persons be given preference to visit you, whether or not there are other people related by blood or by law who want to visit you. The document remains in effect until you specifically change these instructions to your medical staff.
Imagine that you suddenly become very ill and end up unconscious in the intensive care unit, where visitors are tightly regulated. Your partner, or any children for whom you are not the legal parent, could be barred from even being able to see you. This type of policy could make a difficult situation even more heartbreaking for your loved ones. As horrible as it is to imagine, think about how your partner and children would feel if they were unable to say their last goodbyes to you. Now go fill out some paperwork!
Hospital visitation authorizations are also useful if you know in advance that you’re going to be entering the hospital, as in the case of a planned surgery. You should not only file this form with your medical insurance provider, but also call the hospital and speak to someone directly about your wishes. Talk to the hospital administrator or the community outreach department. If they fail to address your concerns, contact the Gay and Lesbian Medical Association at http://glma.org for more help.
Again, while properly documented same-sex couples in CA (and VT and HI) should already have this right, it is an excellent idea to fill out this document just in case you find yourself in a hospital out-of-state where your relationship isn’t recognized. Carry this document with you at all times.
MOUNDS OF PAPERWORK: HIRE A LAWYER OR DO-IT-YOURSELF?
Now that you have this daunting pile of paperwork ahead of you, there are two main choices for how to proceed with actually preparing and legalizing it. You can either consult a lawyer who is knowledgeable in estate planning and family protection of gay and lesbian couples or you can do it all yourself.
FINDING A LAWYER
While it may be tempting to get all of these documents in order by yourself, make sure you’re being realistic about the prospect. It will take time, initiative, research and probably some online skills to be able to locate and fill out all the necessary forms. If you’re not comfortable cold-calling various state agencies, are unable to sit on hold for long periods of time and do not enjoy speaking at lengths with strangers about your personal life, then using a lawyer may be a good option. They can do most of the research for you, and will limit the amount of direct interaction you’ll need to have with government bureaucracy.
When looking for a lawyer, it’s best to find someone who has dealt with non-traditional families before. Get referrals from other gay or lesbian couples, or consult your local gay and lesbian community center or gay newspaper for recommendations. If you live in an area without such resources, go online. Try searching for a gay and lesbian lawyers association in your state. If all else fails, find some lawyers in your area who advertise estate planning services. Call them up and ask if they’ve ever done documentation for a same-sex couple.
An excellent resource online is the National Center for Lesbian Rights, located in San Francisco, California. Their website is http://www.nclrights.org. This organization can provide information on gay-friendly lawyers in many areas of the country, as well as advice on other legal matters, for both gay and lesbian clients. The staff is very helpful, and they currently can offer suggestions via telephone and email.
Another good place to look online is Lambda Legal Defense and Education Fund. This is a national organization that helps gays and lesbians achieve civil rights. They offer all sorts of useful legal advice for a range of situations. Their helpdesk, located at http://www.lambdalegal.org, does not make legal referrals but they do maintain a list of attorneys who are sensitive to gay issues. This site is another great option to begin the process of finding a gay-friendly lawyer.
Once you think you’ve located an attorney who is willing and qualified, there are certain questions that you should ask by way of a screening process. Inquire if she has any experience with families like yours, and ask for specific references, if possible. Ask whether she has any personal doubts about equal rights for gays and lesbians – you do not want an attorney who is not really on your side. Find out if she is willing to look at sample documents produced by gay and lesbian organizations. Above all, trust your instincts – if you feel uneasy or notice that your lawyer is uncomfortable around you and your partner, keep looking.
If there are worries about the cost of using a lawyer, consider how important the documentation you’ll be drawing up will be. These documents can have a major influence on the lives of you, your partner and any children you may have and need to be done one way or another. Make it a financial priority, if necessary. Costs will vary depending on your area of the country, and may also vary dramatically from attorney to attorney. Don’t be afraid to comparison shop. Call a few different lawyers and ask for estimates. While the cost of most of these documents will vary, most lawyers will charge at least $500 just for preparing a will.
Some lawyers more experienced in estate planning for lesbian and gay couples may have a complete package deal. It may include pre-drawn-up forms that can be changed for your particular situation, for a set fee. This approach could end up saving money, especially if the documents you need to file are common in your state. However, if your situation is complicated or if you’re dealing with complex trusts or other financial issues, expect to pay more in lawyer’s fees.
When using a lawyer, expect an initial consultation for which you may or may not have to pay. There will then be a detailed meeting, which can last several hours, in which you lay out your desires and personal situations, and the lawyer will guide you through what documents will be necessary to protect you and your family. Depending on how complex your situation is, you may find lawyers who will do all this over the phone, though it’s probably easier if you meet in person, especially if you want the lawyer to review financial statements or other documents. You can then expect the lawyer and/or members of her staff to prepare the paperwork. They may mail you copies to review before the final consultation. Once all papers are prepared to your satisfaction, expect at least one more meeting in the lawyer’s office to go through all the documents and have everything signed and notarized. Most law firms will have a notary public on staff who can take care of that part of the process.
Make multiple copies of each item, and have each copy notarized separately. Yes, it will add to the fee, but notarized copies are often seen as more valid than simple photocopies. The originals should be stored in a safe deposit box or other safe location. Other copies should be filed at the appropriate institutions, including banks and hospitals as outlined above. Your lawyer may also be able to keep copies on file, in case future heirs need to locate them.
GO IT ALONE
If the expense of a lawyer is beyond your means, don’t despair. You can locate and file most of this documentation completely on your own. It will, however, take sleuthing, research, perseverance and patience. While a general overview of the necessary processes is provided here, remember that the exact forms required may vary by state.
When considering drawing up legal documentation yourself, you have three major options. You can download sample wills and other forms from various websites, you can purchase a do-it-yourself Make Your Own will book or you can purchase software such as WillMaker, which guides you through the process of customizing your very own will.
Downloading sample wills from the Internet is an easy option because it can be as simple as doing an online search, locating a form, downloading it, printing it out and filling it out. The disadvantage of such a method is that any forms downloaded may or may not be legally valid in your state. Such standardized forms also may not take into account the specialized issues of gay and lesbian couples. They may only be valid for simple situations, and if your personal situation is more complicated, the generic forms may not apply.
For Medical directives and living wills, there is an excellent online resource that, fortunately, provides clear forms for every state in the country. All state forms can be downloaded from http://www.partnershipforcaring.org. Healthcare Power of Attorney forms can be downloaded from http://www.familycaregiversonline.com/legal-medical.html. These forms can also be obtained from large hospitals or from the medical association in your state. The American Medical Association’s website (http://www.ama-assn.org) contains links to websites for medical associations in all fifty states.
If online forms are unappealing, or if you’re not comfortable downloading forms over the Internet, there are several books for sale that instruct you on how to make your own will. Nolo Press (www.nolopress.org) publishes a number of particularly good do-it-yourself legal books, some of which include CD-ROMs with forms that you can fill in using a word processor. Such books will talk you through the process, providing specific advice and information for a range of situations. Make sure to get the latest edition of any book that you use, as laws change rapidly. Also be sure that any advice in the book is valid in your state.
Software provides a third way to make your own will relatively inexpensively. One popular example is Quicken WillMaker Plus (also by Nolo Press). This application includes wills, living trusts, healthcare directives, financial POA and various other documents for the executor of your will. There are many other software applications available as well, and most of them have a similar range of options.
The advantage of using legal software is that it can take you through a step-by-step process using documents and legal requirements that are specific to your particular state. You won’t need to scrutinize every page to check for your own state, because it will be an option you can select when starting to use the software. You can fill in the blanks and print out forms, and the software will guide you through exactly what needs to be filled out. You also won’t need to fill out the same thing more than once – the software will remember common entries such as your name and address and fill them in automatically for you.
Software is customizable for your situation, meaning you only need to fill out the forms (or parts of forms) that apply specifically to you. Software also allows you to make small changes to various parts of your legal documentation easily, without having to redo the entire process. On-screen help will provide links to explanations of legal terms and definitions, which will save you from having to look up unfamiliar words or purchase a legal dictionary.
If you take any of the do-it-yourself routes described here, once you’ve prepared your documents they will need to be notarized before they will be legally valid. You and your partner, along with valid identification, must go to a public notary. Notaries can be found in the yellow pages of most phone books. Places like copy and mailing centers often have a notary on staff, and many other places of business (such as your office) may have a notary.
In order to have your documents notarized, the notary public will need to verify your identification. You must then sign the document(s) in the presence of the notary. The notary will then sign and stamp the documents with her seal, making them legally valid. Expect to pay anywhere from two to ten dollars per page or document.
In addition, when using documents that you’ve prepared yourself, it’s highly advisable to have a lawyer look them over before considering them finished. Preparing documents yourself and having them professionally checked is often much more affordable than having a lawyer do all the work, plus it provides enhanced legal protection in the case that you’ve omitted something or haven’t taken into account a particular situation in your state of residence. Only a lawyer who’s well-versed in estate planning in your own state will know the detailed ramifications, including tax implications, of the decisions you might make. It is well worth a brief consultation.
Unless your state or country has ratified laws on homosexual couples’ rights, gay and lesbian couples will require plenty of documentation just to gain a few of the rights that are automatically granted to married heterosexual couples. However, until marriage is available equally to homosexual couples, it is important to do the best you can to protect your family. Simplify things by carrying notarized copies of documentation in your car, leaving them in your suitcase for traveling or sending a copy ahead when you’re planning to travel and stay with a friend. An afternoon of paperwork may save you from serious heartache down the road. Of course, it doesn’t seem fair, needing to do all this paperwork in the first place. However, with a bit of planning, some problems can be anticipated. Just think about the peace of mind you’ll achieve when all your paperwork is in order and you won’t have to worry about this stuff any more.
For more information on these processes, an excellent resource is A Legal Guide for Lesbian & Gay Couples (Nolo Press Self-Help Law Books), by Hayden Curry. This frequently updated guide helps couples anywhere in the country gain legal protection for their relationship, to the best of their ability in their particular states.
Another good resource with more information on the variety of documents discussed in this chapter is Lambda Legal’s publication “Life Planning: Legal Documents and Protections for Lesbians and Gay Men.” It is available online at http://www.lambdalegal.org/sections/library/lifeplanning.pdf. Another publication, from the National Center for Lesbian Rights, is “Lifelines: Documents to protect you and your family in times of trouble.” It is available online at http://www.nclrights.org/publications/pubs/lifelines.pdf. This document contains appendices with samples of various legal forms.
CONCLUDING ADVICE
While starting a family will be one of the most important things in your life, protecting your family is a necessary first step in parenting. Gays and lesbians need to do more than heterosexual parents do, just to obtain the same or fewer rights. Unfair as it may seem, you still need to protect your children and partner. Write up a will or living trust, set up a Durable Power of Attorney for medical and financial cases and get all your paperwork legally documented. Hopefully none of these papers will ever be necessary, but if they are, you’ll be glad to have them.
QUESTIONS FOR PARTNERS:
1. Have you and your partner registered as domestic partners, had a civil union or taken advantage of whatever level of legal recognition is available in your state, county or city?
2. Have you prepared a will or a living trust? Have you updated it to take into account recent births or adoptions of children?
3. Have you designated a third-party guardian, in the event that something were to happen to both you and your partner? Have you told your children who that guardian is?
4. Are most of your assets held jointly with your partner?
5. Have you filled out durable power of attorney forms for healthcare and finances? Have you had them notarized? Do you know where they are?
6. Have you discussed your wishes with your partner? Have you discussed your wishes with your relatives?
