Life and Estate Planning Remains Critical for Same Sex Couples Following Windsor Decision
Life and estate planning is important for everyone, but it is even more important for people in same sex relationships — even when they are legally married. Unfortunately, the Windsor decision in which the United States Supreme Court found section 3 of DOMA unconstitutional does not change this. A remaining section of DOMA states that that each state can set its marriage rules for itself, and that no state has to recognize another state’s marriages that offend the first state’s public policy. These concepts, though codified in DOMA, are really a reiteration of long-standing legal principles – states have traditionally been able to set their own rules about who can marry, and have not had to recognize each other’s marriages. (Thanks to Loving v. Virginia this is no longer is true for interracial marriages.)
In the absence of documents stating otherwise, a same sex partner or spouse may have no rights vis-a-vis his or her partner’s property or in making an important medical decision on his or her behalf. In jurisdictions that do not recognize same sex marriages and in all jurisdictions when a same sex couple is unmarried (regardless of how long they have been together) courts by default turn to biological family when one dies or becomes incapacitated, no matter how long a couple has been together.
It is particularly crucial for same sex couples with children to consult with an attorney experienced with the legal issues facing same sex couples. Even married same sex couples, for example, should consider second parent adoptions of their children. While a child born to a married same-sex couple in Connecticut is presumed to be the child of both members of the couple and both should be listed as parents on the birth certificate, another state might not respect that presumption if the couple moves or if they separate or divorce and one party relocates. Adoptions, however, are court orders, which all states are required to recognize under the Full Faith and Credit Clause of the United States Constitution. As a result, an adoption by an “LGBT parent should be recognized in every state, even if that state’s own laws would not have allowed the adoption to take place.”
Documents and legal steps to consider include wills, advanced healthcare directives (sometimes referred to as health care proxies or medical powers of attorney), durable powers of attorney, joint tenancy agreements, burial instructions, cohabitation agreements, second parent adoptions, and prenuptial agreements as they relate to same sex couples and their families.
Meghan Freed and Kristen Marcroft publish the Connecticut LGBT Law Project as a resource of legal news and commentary for the Connecticut lesbian, gay, bisexual and transgender community and their friends, families, and allies.
At their law firm, Freed Marcroft LLC, Kristen and Meghan practice estate planning, family, real estate, litigation, business and non-profit planning, and immigration law in the historic Linden building on Main Street in Hartford, Connecticut. The attorneys’ practice is welcoming to all Connecticut individuals, families, and small businesses, especially including same sex couples and members of the lesbian, gay, bisexual, and transgender communities.
