What legal docs can do for gay couples – and what they can’t

On 8/12/11, John Culhane, Professor of Law, Widener University, posted the following on 365gay.com:

Let’s talk about what legal documents can do for you – and what they can’t.

A few days ago, 365gay editor in chief Jennifer Vanasco sent me a question from a reader asking me to “list all the legal documents same-sex couples should complete to ensure rights of beneficiary to property, benefits, etc., including provisions for children, pets, etc.” The writer also wanted to know whether designated beneficiaries are “ever challenged by insurance companies to avoid paying death benefit?”

And this got me thinking about how hard we have to work, compared to our straight counterparts, to secure the basic peace of mind that comes with knowing that those we leave behind will be provided for. And how, even when we do all we can, the law operates to fence us out of certain financial benefits.

First, an important lawyer’s disclaimer: Nothing that I’m about to write can or should be construed as binding legal advice. I’m a law professor, not a practicing lawyer, and in any case the law varies from state to state. That said…

Let’s start with the most basic legal document designed to protect your loved ones (not just your spouses) after you’re gone: the will. If you are legally married or civilly united in your state, then your spouse will be to an extent protected in the event of your death. While state laws vary, all assign a substantial share of the decedent’s estate to the surviving spouse in the absence of a will. But unless you’re sure that the law of the state in which you’re married will apply (did you move? where was the will drafted?), you might not even be protected in that case.

If your state doesn’t recognize your union then run – do not walk – to an attorney’s office and start working on a will now. Otherwise, your relationship will literally not exist as a legal matter, and the one left behind will get nada, rien, zippo, from your estate.

Of course, you should create a will in any case. The state default options are clumsy approximations of what most people would want to do. But only you know that. If you want to make provisions for everything from your pets (considered personal property) to your home to your collection of Mercury dimes, do it. Your lawyer will insist that everything be specific, and clear. (You should probably also enter into agreements about what will happen if your perfect union dissolves, too.)

While you’re there, get busy on living wills and powers of attorney documents. There’s nothing like a battle with your spouse’s parents over end-of-life decision-making to add stress to an already impossible situation. These documents, properly executed, can greatly reduce the chance that someone else will get to interpret your spouse’s wishes in this most difficult time.

A quick word on private, employer/employee plans: Typically, you get to name the beneficiary(ies). A smart employer (or the administrator of the plan) will make you do this. If you’re sufficiently clear, you shouldn’t have a problem. Remember to change the beneficiaries if your life circumstances change. For example, when we adopted kids, I eliminated my nieces as contingent beneficiaries (in case both David and I are simultaneously killed in a tragic boating accident) in favor of our kids.

So, what can’t you do? Unfortunately, lots.

At the state level, most laws still fence surviving members of same-sex couples out of wrongful death laws. There’s no getting around them, either. So if one of you is killed by the negligence (or worse) of, say, a drunk driver or the manufacturer of a toxic substance, your spouse can’t sue for that. Your parents or kids might be able to, if they can show that they lost a source of support by your death. But unless you’re in a state that recognizes your marriage, then you’re stuck. The same might also apply to any state-or local benefits, such as payments for the victims of crimes or terrorism.

At the federal level, we’ve got a bunch of nothin’. Because of DOMA, which the Obama Administration continues to enforce – though not defend – it’s still possible for the legally married spouse of a U.S. citizen to be deported. Indeed, it’s likely to happen to Bradford Wells and Anthony Makk soon. Makk, the Australian husband (married in Massachusetts) of Wells, a U.S. citizen with AIDS, has been denied a green card, and is soon to be shipped home. For medical reasons, his spouse can’t go with him.

And this is one of many, many federal benefits that DOMA denies the spouses of legally married same-sex couples. Social security death benefits and the right to file joint income taxes and petitions in bankruptcy are a few of the hundreds of others.

In case you’re wondering whether to support Obama in the next election, keep in mind that all the serious Republican challengers not only support DOMA, but favor a federal constitutional amendment against marriage equality. Have a nice weekend!

John Culhane is working on a book about civil unions and their place in the on-going national conversation about marriage.

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