New Book Offers Legal Advice to Same-Sex Couples
The labyrinth of laws at the local, state and federal level, along with the rapidly evolving landscape of gay relationships, has forced us to become informed to a much greater degree than those in heterosexual marriages. If the legal landscape seems intimidating, that's because it is. Which makes a new book, "Same-Sex Legal Kit for Dummies," so necessary.
Weighing in at 384 pages, this comprehensive guide, with the accompanying CD, covers every aspect. At $35, this may be the cheapest legal advice money can buy. It is also chock-full of personal advice.
The following edited excerpts give only a tiny sampling. I strongly suggest anyone who is in, about to enter or even contemplating a committed relationship get this book, which is available online, at bookstores and even at WalMart. All excerpts courtesy of John Wiley & Sons, the publisher.
If you’re renting and only one partner signs a lease, you need to make sure the agreement clearly states your ability to let the other partner move into the unit with you. If you live in a marriage-equality state or municipality with legal rights for LGBT partners, only one partner may be required to sign the lease.
If you’re the legally recognized partner of a tenant and your partner moves out or dies, you may be able to stay in the rental unit.
If you’re buying a home, consider a "joint tenancy with right of survivorship." Both partners own an interest in the property. When one partner dies, that interest automatically passes to the surviving partner rather than the deceased partner’s family.
With "tenancy in common," both partners own an interest in the property. When one partner dies, that interest doesn’t automatically pass to the surviving partner but rather to someone the deceased has named in his or her will or to the deceased’s next of kin.
Shares can be unequal, but in most states, even if you own property 50-50, unless you use the magic words "with rights of survivorship," a deed will automatically create a tenancy in common. But that is subject to probate because your share of the property doesn’t pass automatically to your partner.
Instead, it will transfer to whomever you’ve named in your will as beneficiary; if you have no will, your share will go to your next of kin.
About a third of U.S. states offer transfer-on-death, or beneficiary deeds, as a means to pass property to a partner or other loved one outside of a trust and still avoid probate. Transfer-on-death doesn’t take effect until the homeowner dies.
Thanks to the Defense of Marriage Act, LGBT couples can’t file joint federal tax returns. If you own a house together, you need to figure out how you’re going to handle mortgage interest and property tax deductions. You can split them 50-50, but a partner who makes a lot more money should probably claim the entire deduction and compensate the other partner in another way.
Be sure to keep accurate records showing what each contributed to mortgage payments and taxes, or the IRS may determine that the deceased partner was the sole owner, which places the entire tax burden on the survivor.
Unless you live in a marriage-equality state, you won’t have any legal guidelines to aid in separating your jointly held assets. If your partner defaults on a joint loan or fails to make payments on jointly owned property, you’ll be responsible for 100 percent of what is owed.
It’s important to draw up an estate plan that details how you want assets to be managed while you’re both alive and in case of death. Be sure to spell out in your will how your assets will be distributed. You will need two witnesses present when you "execute" (that is, sign) your will. Make sure they aren’t named in the will. Select a heterosexual where LGBT relationships aren’t recognized. Otherwise, a disgruntled relative may convince a probate court that the LGBT witness coerced you into naming your partner as the principal beneficiary.
There are advantages to sharing a last name. It creates an identity as a familial relationship. Anyone can change his or her name.
You may be able to get around DOMA by filing a federal tax return as head of a household and claiming an unemployed partner as a dependent. He or she must earn less than $3,700 in all income (for 2011); have received more than half of his or her support - food, shelter, medical expenses, etc. - from you; be a U.S., Mexican or Canadian citizen or resident alien; and not be claimed by anyone else as a dependent that year. Also thanks to DOMA, you can forget about getting a deceased partner’s Social Security benefits.
If you’re in a legal marriage, civil union or domestic partnership, you can adopt your kids jointly. Otherwise, the rule is no rule about joint adoptions! Many state laws don’t say whether unmarried couples can adopt jointly; sometimes, the answer can vary from judge to judge.
But even if you can’t jointly adopt, the parent who didn’t formally adopt may be able to become a legal parent through a second parent or step-parent adoption. You should try to do this, because otherwise the second parent will be a legal stranger to the child. If there’s a child from a previous straight relationship, the other biological parent must consent (unless that person’s parental rights were terminated).
The rules about surrogacy vary widely. Either it’s illegal; not illegal, but contracts can’t be enforced; one or both partners will have to adopt the child; or no rule exists.
There are agencies to act as middlemen between the couple and the surrogate that can make it easier. Getting both partners on a birth certificate is important.
Even if both partners can’t be legal adoptive parents, enter into a co-parenting agreement that details how you will share responsibilities, custody, support and visitation if you break up. Courts in many states, however, won’t enforce these agreements, but they’re still valuable - for example, if one partner wants to prevent visitation after a breakup.
Even if you nominate your partner as a child’s guardian, unless the child was legally adopted by a second parent, a court will ultimately decide if it’s in the child’s best interest to be raised by your partner. Some judges may use "lifestyle" as a factor. You also need to ensure that, if both partners die, the child has adequate financial resources.
The best way to accomplish that is by setting up a trust, which means the funds can be used only for the benefit of the child while the rest of the investment stays in an interest-bearing trust account.
LGBT couples especially need a living will to give instructions about medical treatment. You should select your partner as your health care proxy and give him or her medical power of attorney to make medical decisions if you are can’t. New rules from the Obama administration should help put a stop to challenges by health care providers.
At any facility accepting Medicare and Medicaid, LGBT patients can determine who can visit and who can make medical decisions. If you run across a biased provider, supply a copy of your partner’s advance directives; failing that, a copy of the federal rule that allows access; contact the media; and, as a last resort, report a violation.
Courts in states that have their own DOMA almost certainly deny same-sex divorce proceedings. You may not be able to get divorced in the state where you were married because that state doesn’t have jurisdiction to grant divorces to nonresidents. A divorcing couple can, however, ask the court for equitable relief, a judgment based on what is fair and necessary when a legal remedy doesn’t exist.
If you can’t get married, you should still have a written "living-together agreement" covering division of living space, money and property if you break up. You need to make a checklist of how you will handle monetary matters, including buy-out provisions. Both partners should sign the LTA in front of two witnesses and a notary.