The U-Haul pulled away from the curb years ago. Both of your family pictures adorn the wall and there’s no question of who gets what side of the bed anymore. You’ve found your true love and you’re both well on your way to happily ever after. Barring any unforeseen tragedy, you’ll both get there, too - except for the fact that as gays and lesbians in relationships, we have to plan for those “unforeseen tragedies”. Much more so than our straight counterparts, the onus is on us to be aware of the legal issues that face our families and come up with creative legal ways to protect our homes, families, and rights. Because, let’s face it, if we don’t no one else will.
The laws of the United States are certainly less than hospitable to alternative families, and many of the things that our parents and siblings just take for granted are in no way guaranteed to GLBT couples. If, like me, you also happen to live in one of those scary “red” states, the legal air can be down right frigid when it comes to protecting those we love. Every year we seem to hear about more fear-based laws and amendments to state constitutions that chip away at our personal freedoms all in the name of protecting families. For these reasons and more we owe it to our families to take on the burden of protecting ourselves to whatever extent possible.
So that’s the bad news, now for some good news. Even in our current political climate, it is still possible to protect our rights in a legally binding way. But it falls to us to seek out honest, knowledgeable legal professionals who both understand the issues we are facing, and know what to do about them. There are many resources we can use to locate good attorneys with knowledge of the GLBT community (Click Here to find a free referral service), and word-of-mouth from trusted friends can sometimes be the best way. However you find them, make sure you do your homework to ensure that they know the law and have expertise in the area you are looking for.
At a very minimum there are three must-have documents that every gay or lesbian couple should have. First, make sure you have a Will that details exactly what should happen to your possessions should you pass away. We can’t rely on the court system to protect our rights, as our partnerships are not recognized the same way as marriage under the law. Second, a Power of Attorney for both financial and medical decisions should you become incapacitated in any way is a must-have. It’s easy to imagine the horror of not having designated someone to speak on your behalf when it comes to medical decisions should you be unable to do so. Trust me, even with these documents many hospitals are hesitant to disclose information and recognize the status of anyone who is not legally termed “family”. Finally, a Living Will is a document that gives specific directions as to what you would choose in the event that you are completely comatose or in the last stages of illness. Depending on where you live, it may cost you between $500-$1,000 to have an attorney draw up these documents. Don’t be fooled by these “do-it-yourself” documents that you can find in books or on the internet. Given the complexities of our legal situations, we need the expertise of a qualified attorney. Without at least these three documents, the horror of any of these situations could be magnified many times over by our surviving loved ones.
Many gay people are finding that Living Trusts offer them added measures of protection within the law, as well as giving our loved ones the benefit of not having to deal with probate should we pass. Probate is the legal process of transferring the assets of the deceased into the names of his or her heirs. The word “probate” could easily translate into “expensive” for those left behind, and could prolong the agony of the death of a partner. Believe it or not, depending on the size of the estate, probate fees can vary somewhere between about $6,000-$8,000 for an average-size estate, to $50,000 or more. When a trust is established, assets are transferred into the name of the trust while you are both still living. Thus should something happen to one, or both of you, it clearly spells out how assets, properties, etc. are to be disbursed, and title transfer takes place immediately without the need for lawyers and judges. While you are still living, you still maintain full control of your assets, and you designate exactly who should receive them after you die. Although trusts are initially a bit more expensive to establish (depending on which area you live in, they could range from $1,500 to $3,000 dollars for a basic trust package). Should the unexpected happen, however, the benefits outweigh the cost for your loved ones many times over.
When looking for a good attorney to establish these documents for you, you should look for a few things.
· Make sure the attorney tells you up front (in writing) exactly what the cost will be. It’s better to have someone bill you on a “project basis” for these documents rather than bill you on an hourly rate. Know the fee in advance, and make sure you know what you’re getting.
· Make sure your attorney specializes in “Estate Planning” and knows the law as it pertains to GLBT individuals and our special needs.
· Find out if your attorney will be doing the work him or herself, or if an associate in the firm will be doing the paperwork under supervision. Either way is ok, as long as you know up front and feel comfortable with the situation.
· If you’re establishing a trust, make sure the fee includes “funding” the trust. This means the attorney will assist you in changing the title of your assets from your individual name(s) to that of the trust. Without this step, the trust isn’t worth the paper it’s printed on.
· Make sure that you tell the people in your life of the decisions you are making. If you’re planning on naming someone as guardian of your children should you both die, tell them. Also tell other family members so that they hear from you, in person what your wishes are. It may provide added comfort and protection later.
· Review these documents regularly (at least once a year) to make sure they still reflect your wishes. Circumstances change, and as time goes on, you may wish to make changes as well. Make sure your wills/trusts reflect exactly what you want them to, because you never know when you’re going to need them.
Finally, a word about children. As of this writing, only four states have legally sanctioned second-parent adoptions. Courts in 21 other states have allowed second-parent adoptions, but there are not official laws on the books protecting them. Some states, Florida, Mississippi, and Utah for example openly block gay couples from adopting. For the children of gay or lesbian parents this creates treacherous ground when it comes to protecting our children and even providing them with basic rights. It is critical that you know the laws of the state in which you live and find out what you can do to protect your children. Applying for Co-Guardianship is one option that will at least ensure that you can get healthcare coverage for children, but still leaves open the questions of social security, disability, and inheritance. Many GLBT people are hoping that now that the U.S. Supreme Court has struck down the sodomy laws, it will pave the way for meaningful change in the legal system for our families. Many of the statutes that allowed states to treat our families as second-class citizens are rooted in the old sodomy laws. One thing is for certain, change on this front can’t come fast enough.
So even though you don’t need the U-Haul anymore, you owe it to yourself and your family to take a few hours out of your life to establish these few “must-have” documents with your attorney. If you never have to use them, all the better. It will by no means be money wasted because of the peace-of-mind you will experience once you have done your part to protect your family. Just make sure that you are the one who decides how best to take care of your family, not the state, not a judge, and not some antiquated law that exists to oppress those it professes to serve.
