Worried About the Future of Same-Sex Marriage? Take These Steps Today
Secure your future with these estate planning tips.
It’s often only when we’re afraid that we finally make better decisions. When diagnosed with heart disease or Type II Diabetes, people start to exercise and eat better. When threatened with bankruptcy, people start to pay off debt. And after the Republican party consolidated power in the 2016 election, many in the LGBT community are now concerned about the future of same-sex marriage and queer civil rights. If you’re one of them, what actions should you be taking?
What’s at Stake
While the 2015 passage of same-sex marriage didn’t mean the end of the struggle for full and equal rights, nor should queer Americans fear that the legalization of same-sex marriage will be repealed. On that matter, at the federal level, we should feel safe.
That said, much of the fight for queer equality has migrated to the state-level. With Republicans holding so many seats in state houses and governorships across the country, it will be harder to continue the same momentum of achieving the equality that we had in the previous eight years. Religious freedom bills, overcoming precedence, and the updating of outdated language on state constitutions are hurdles that will take longer.
And that means that same-sex couples need to make sure their financial and legal houses are in order.
“It's more important than ever for same-sex married couples to make sure that they are on the same page financially and have a solid plan in place,” says Brian Thompson, a Certified Financial Planner with BT Financial. “With so much uncertainty as to what the future holds for our marriage and civil rights, you need a comprehensive plan that reflects your family's values and goals.”
So if you’re concerned that your marriage can be canceled, denied or annulled without your consent, there are legal steps you can take to tie your partner as close to you and your assets as possible — as if marriage weren’t an option. Most of these steps involve your will, estate, and trust.
Unfortunately, many same-sex couples have not taken these steps. According to MassMutual’s 2016 Lasting Legacy Survey, 6 in 10 queer adults do not have a will, and 2 in 5 admit that they have not documented important financial information, such as beneficiaries, healthcare proxies, and locations of wills and trust documents.
Here are a few legal documents and moves you can make.
Joint Tenants With Rights of Survivorship
Put your assets in a Joint Tenancy With Rights of Survivorship, also known as Joint Tenancy. Joint tenancy means that when one spouse passes away, the other spouse automatically and fully owns of all their assets. This provides legal protection from other parties’, such as parents or siblings, claims to your assets.
Failing to do so could have huge consequences for the surviving partner. Because the proper legal measures — including marriage — weren’t taken, Tom Doyle may be kicked out of the West Village home where he and his partner, Bill Cornwell, lived in for 55 years. Doyle and Cornwell neglected to properly sign the legal documents that would’ve made both equal owners of Cornwell’s house, and now Cornwell’s nieces and nephew are trying to take possession of their home.
Common law marriage may save Mr. Doyle, as marriage would have, but a Joint Tenancy would’ve been an added layer of protection against such claims.
Each spouse or partner should draw a will that spells out the owner of your assets should you pass away. Unless you come to another agreement, your wills should inherit your assets to each other. In the unfortunate event that you both pass away at or about the same time, include a per stirpes clause, which outlines the sequence of inheritors should the original heir not be alive. This is especially helpful when merging families with children from different marriages.
Your wills should designate an executor, likely each other, to manage or oversee the division of your estates. If you have children, you’ll want to designate non-biological parents as the guardian of those children. This is an added layer of protection even if non-biological parents legally adopted and are listed as second-parents on your children’s birth certificates.
These steps are especially important in states with outdated constitutional language that doesn’t permit two people of the same sex being on one birth certificate.
Update all the beneficiaries on all your accounts to be in line with your will unless you and your spouse agree otherwise. It’s important to note that beneficiary designations supersede wills. This technicality catches lots of people by surprise.
It’s too common for people to not update beneficiaries as their relationships change. If you leave your ex-partner or ex-spouse, whether same-sex or opposite sex, as a beneficiary on any of your accounts, they have the legal rights to those assets in those accounts when you pass away. Your will designating your current partner or spouse as the heir does not supersede beneficiary designations you assigned prior to your current relationship.
This is not a sexual orientation-specific problem. Cases come up regularly that could’ve been avoided had a deceased spouse updated their beneficiary. For this reason, we recommend verifying and updating your beneficiaries as necessary every year when you file your taxes.
Second Parent Adoptions
If you have or plan to have children, non-biological parents should legally adopt and be listed on those children’s birth certificate as the second parent. This may be challenging for same-sex couples in some states. The language of many state constitutions has not yet been updated to allow two people of the same sex on the same birth certificate.
Cases that involve children can be highly charged. Therefore, surviving family members of a queer individual may assume if all precautions aren’t taken that it’s in the surviving child’s best interest to be raised by them rather than the surviving same-sex spouse. Luckily, there have been successful legal challenges that are changing that.
Power of Attorney
Designate each other as both financial and medical power of attorney. The financial power of attorney designates an agent to handle your financial matters. The medical power of attorney designates someone to handle your medical needs.
In both cases, choose a standard durable power of attorney or a springing power of attorney. A standard durable power of attorney authorizes an agent to immediately act on your behalf, including if you become temporarily or permanently incompetent or incapacitated. The standard durable power of attorney authorization ceases when you pass away.
A springing power of attorney authorizes an agent to act on your behalf and only goes into effect if you become permanently incapacitated, as authorized by a medical doctor. It, too, ceases when you pass away.
Both spouses should establish living wills. Living wills outline medical wishes, including end-of-life wishes, if you can no longer speak for yourself. Such wishes should include whether you want to be resuscitated or designate DNR or “do not resuscitate” instruction. Include specifications on the use of feeding tubes, respirators, dialysis, and blood transfusions.
As same-sex marriage isn’t recognized around the world, it’s important for same-sex spouses to draft and carry with them such documents when traveling outside of the U.S. Even when traveling within the U.S., there are jurisdictions that haven’t made all the adaptations necessary to recognize same-sex marriage. These legal documents are the protections same-sex spouses need.
As a favor to your spouse, complete a living will. Gifting them clarity on your end-of-life wishes will make any end-of-life decisions they must make a little easier.
Even though there may be some overlap, create a list of important contacts and their contact information should you become incompetent or incapacitated. This list should include, but not be limited to:
- Financial Advisors
- Power of attorneys
- Family members (spouse, parents, siblings, and children and other heirs)
All these legal documents don’t help if no one can find them. Save your spouse and the rest of your family added distress by archiving all your documents in a logical and accessible location.
Attorney Liz Schwartz suggests using DocuBank. As Schwartz says, “DocuBank electronically stores all official and legal documents, including healthcare directives and emergency medical information, on a card to keep them accessible from anywhere in the world at any time of day.”
Another electronic storage solution is Carbonite for Home. Carbonite distinguishes itself from peers such as Dropbox because of the encryption it offers and its proprietary Carbonite File System (CFS) software.
These tools are helpful in situations when you need to access information on the fly, such as if a medical professional questions the validity of your same-sex marriage (and, therefore, your rights to visit your spouse in an emergency room).
Even if some of the legal steps we’ve listed here are redundant, they can provide added protection in case the legality or validity of our marriages are questioned. As CFP Cathy Pareto says, “Hopefully you never need it, but having your ‘war chest’ organized is prudent.”