Posts tagged Estate Planning
It is important for all couples to do legal planning to ensure the safety and security of family and children, but it is especially important for same-sex couples who may face unique challenges from unsupportive family or when traveling through states that may not recognize their relationship status or that don’t have anti-discrimination laws. We have all heard of the situation where someone has a car accident in an unfriendly state and their partner, or even their spouse, is kept out of the hospital room, or where a couple breaks up and the person who is not the biological parent of the children is suddenly barred from seeing them. No one thinks this will happen to them, until it does.
Here are some documents that you should have to make sure your family is protected:
- Advance Health Care Directive.
An Advance Health Care Directive lets you choose who will make major medical decisions for you if you are disabled or in an accident, and will also control what those decisions are. In Maine, it can also let you choose who you do not want to make those decisions for you.
- Financial Power of Attorney.
A financial power of attorney lets you choose who will take care of your finances, manage your accounts, and pay your bills if you become disabled or are in an accident. Make sure your spouse or partner gets to make those decisions.
A will sets forth how you want your property to be distributed after your death.
- Adoption Documents.
Do you and your spouse or partner have children? Have you done a second parent adoption? If you haven’t, you should, even if you are married. Some states that will not recognize your marriage will recognize your second parent adoption. An adoption also makes sure that both parents legal rights and relationship with the children are recognized even if you separate or if something happens to one parent.
- Co-Parenting Agreement.
If you don’t want to adopt or can’t for some reason, you and your spouse or partner can also draft a co-parenting agreement. This is an agreement between you and your spouse our partner that both of you are parents of your children and sets guidelines that both of you will follow.
- Property Agreement.
Were you and your spouse living together for a long time before you were able to get married? Or do you have property together but don’t want to get married? You should consider a property agreement to memorialize what happens with your property
- Donor Agreement
If you have questions about any of these documents, please contact us today to set up a time to speak with a lawyer about what is best for you and your family.
If you are thinking about getting married to your partner, or you were married in another state or country, there are some things that you should know about Maine’s marriage law.
How to get married.
A couple who wants to get married in Maine must apply for a marriage license and pay a fee. You can apply at the town hall or city clerk’s office in the town where you live. If you don’t live in Maine, you can apply at any town hall. You can see what an application for a marriage license looks like here so that you can be prepared with the necessary information.
Some town offices will perform marriage ceremonies, and some do not because of staff or time issues. It is best to call ahead and ask.
What if you are already married or in a civil union?
If you are already married, you cannot marry someone else until you dissolve your prior marriage. This is true even if your marriage was not recognized by Maine until the passage of this new law. Maine now recognizes same sex marriages entered into in other jurisdictions. If you don’t dissolve your first marriage before entering a new one, the new marriage will probably be void. Because Maine now recognizes marriages from other states, you can file for divorce from your same-sex spouse in Maine.
What if I wasn’t married, but was a party to a civil union?
Even if you entered a civil union, and not a marriage, you may be married. Civil unions entered into in some states have been automatically turned into marriages even if you did not take any action. In other states, your civil union might not have turned into a marriage automatically. Even if it didn’t, some states might consider it to be a marriage. We don’t know if Maine will consider a civil union to be the same as a marriage yet, but if it does, if you get married without dissolving a civil union to a different person, your marriage might be void. You should consult a lawyer to figure out how to dissolve your civil union before getting married.
What about federal taxes and federal benefits?
The federal government does not recognize same sex marriages as of the date of this post because of the Defense of Marriage Act. That may change, depending on several lawsuits currently pending in various federal courts. Although the State of Maine will recognize your marriage, the Federal government will not. This means that, even if you are married, you and your same sex spouse cannot file joint federal tax returns, receive social security survivor benefits, take advantage of a Health Savings Account, receive military spousal benefits, or receive fair treatment under many other federal laws.
What if we travel to another state?
Other states may not recognize your marriage. Some states have laws that say they will not recognize same sex marriage. Some states have constitutional amendments. Some states do recognize same sex marriages. Because of the way that other states may treat your marriage, we recommend that you and your spouse should take some additional steps to protect yourselves.
What steps should we take to make sure we are legally protected?
1. Make a will, powers of attorney, and healthcare documents. All couples should have these documents, but it is critical that same sex couples have these documents. Even if you don’t believe you will ever even travel to a state that does not recognize your marriage, these documents can make sure that decisions are already made if something happens to you or your spouse.
2. If you have joint children, you should do a second parent adoption. Although Maine law has a presumption that children born during a marriage are the children of both parties to the marriage, you and your spouse should still consider a second parent adoption of your children. Although it may not seem fair to adopt your own children, going through this process will make sure that there is an order in place that says that your child is your child, even if you are not biologically related. You should not take chances that someday someone may say that your child is not your child just because you not a biological parent. Some states that will not recognize your marriage will recognize a same sex second parent adoption, and it is far better to safeguard your legal relationship to your children ahead of time then to have to fight, and maybe lose, a custody battle.
3. Consider a prenuptial agreement for property issues. If you and your spouse have been together for many years before same sex marriage became legal in Maine, you might want to draw up a contract about what property belongs to whom. If you and your spouse ever divorce, Maine courts will probably consider anything acquired before your marriage to be non-marital and separate property, including things like retirement accounts. If you and your spouse have been together for years but haven’t been able to legally marry, then it is probably beneficial to have a document showing what you have that is yours together and what is not.
Every couple’s circumstances are different. If you have questions about same sex marriage and your circumstances, you can contact us at West End Legal, LLC, and we can help.
Mapping it all out – protecting yourself and your loved ones with estate planning
Estate planning isn’t typically high on the list of priorities for any couple. It typically makes it onto the radar if a couple has children, is about to travel a long distance in a plane, or has had some sort of conflict with a family member and they want to insure that individual doesn’t cause a problem for their partner when they pass.
As an LGBTQ individual or couple in Maine, however, there are few things you can do to protect yourself and your partner and family from difficulties they may encounter when your life comes to an end. While filing with your city or the state as domestic partners offers your partner the benefits of inheritance, it’s not a guarantee that everything will go the way you’d like – after all, when all is said and done, you’ll be dead, and won’t be able to help your partner and family progress smoothly through the funeral and the division of your estate.
What you can do to help your family is to set up an appointment with your attorney and get your estate planning in order. There are a number of pieces to this process, including powers of attorney, advance directives, and wills. Each piece of the puzzle serves a specific role in assuring that your family will be cared for, the funeral and process after will go off without a hitch, and your wishes will be respected and honored by those who love you the most.
Usually it takes a series of noteworthy occurrences to call our attention to things we may take for granted. Perhaps this is because of the seeming recent advances in LGBT rights (or lack thereof, as the case may be). Within the last week we, as a community, have been reminded of the necessity of advance health care directives. An advance health care directive, sometimes called a health care proxy or medical power of attorney, is a document that every individual should have.
The purpose of an advance health care directive is, in part, to name your agent for health care issues and decisions. Next of kin sometimes try to interfere with the designated wishes of their family members. By creating an advance health care directive, you can ensure as best able that your family follows your health care wishes.
The President’s recent memorandum requests that rulemaking be initiated, to ensure that hospitals that receive Medicare or Medicaid comply with federal regulations, and that additional recommendations by the Department of Health and Human Services on these issues be provided to the President within 180 days of April 15, 2010. While the underlying issues and stories address and acknowledge the issues of couples and chosen, non-blood related, family within the community after the aftermath of the tragic separation of Clay and Harold, the memorandum does not create any right or new law that protects the community and its members. Despite this recent action, every individual should take steps to protect themselves by taking the time to create an advance health care directive.
In Maine, the standard advance health care directive form published by the State of Maine incorporates elements that allow you to designate your health care agents, your end of life sustaining treatment, funeral or burial wishes, a DNR (short for “Do Not Resuscitate”), and a section for other requests. These sections all provide places for you to designate your wishes for someone to act on your behalf. You can specify individuals you do not wish to be consulted about your health care decisions. You can also specify what you want your agent to do on your behalf. You can use a directive to designate visitation for the family that you have chosen in life, not just to your near and dear blood relatives. In addition, if you are transgender, you can request that your family or agent and medical providers use appropriate gender pronouns and that they provide continuing hormone or other medical treatment.
In short, an advance directive gives the individual power to say what he or she wants for treatment and who he or she wants to be able to make those decisions, if they become incapacitated. This crucial document is worth the time and thought to not only create, but to discuss with your family, loved ones, and medical providers.
If you are someone who is a member of the LGBTQI community who needs to consult with a lawyer, you should consider looking for someone who has a practice that handles a lot of LGBTQI issues or who has a lot of LGBTQI clients. Many legal issues that LGBTQI individuals face are matters that generally only affect individuals who do not have legally recognized relationships or are issues that only affect transgender individuals. Many of these individuals also face discrimination. Even if your situation is one that is not related to your sexual orientation or gender identity, it is often more comfortable to have a lawyer who is familiar with your life experience and relationship status, without extensive explanations.
In estate planning matters, the lack of legal recognition for same-sex relationships often means that attorneys must use different means to protect client’s assets or interests than for other individuals. Wills or powers of attorney sometimes require specialized language to protect assets or the interests of a surviving partner. Individuals in same-sex relationships often face tax issues, gift transfer matters, or other problems that married couples do not.
Same-sex couples also face unique situations in family law. An attorney with experience in this matters can advise you on how to protect yourself in a new relationship, or how to dissolve a relationship while protecting your rights regarding children or property. Even experienced family law attorneys without experience or knowledge of LGBTQI matters sometimes advice clients that there is nothing that can be done because of the law. Attorneys with experience in these areas know what can be done, and often use creative approaches that can resolve your legal issues. These attorneys also know how or if a marriage, civil union, domestic partnership, or adoption performed in another state or country will be recognized in the state where the attorney practices.
Finally, transgender or non-gender-conforming individuals face a host of legal issues that other people do not. These individuals often need to change gender markers on identity documents and often change their names. It is imperative that these individuals are represented by a lawyer who, not only knows what special procedures they must follow, but also treats clients respectfully and compassionately and uses the correct name and pronouns.
Members of the LGBTQI community are often treated differently by the law. In hiring a lawyer, they should make sure that the lawyer they hire is aware of the differences and has the knowledge and experience with these differences to represent them effectively.