The Supreme Court has held, twice, that so long as you are married to your partner, you should have the same rights as a cis-gender, heterosexual married couple. This “constellation of rights” are:
· Child support, custody and visitation issues
· Inheritance rights
· Adoption rights
· Hospital access
· Medical decision making authority
· Health insurance
· Taxation
· Spousal privilege in the law of evidence
· Rights and benefits of survivors
· Birth and death certificates
· Professional ethics rules
· Campaign finance restrictions
· Worker’s compensation benefits
However, that right was given by a 5-4 majority vote. With the affirming judges retiring, the Court’s personnel is changing. Ginsberg, Kennedy and Scalia are all gone. Gorsuch has already written an opinion in a companion case (Pavan - lhat disagrees with the holding of Obergefell. Meanwhile, state courts and legislatures have doubled down with attacks on transgender and LGBTQ+ families, with dozens of bills proposed and numerous state court decisions coming down monthly that undermine family rights.
Bottom line: LGBTQ+ families cannot count on your rights being upheld in the long term without taking personal action.
State law governs most family decisions and that law has not kept up with the make-up of modern families. It’s up to you to actively protect your family. You need to create life planning documents and strategies to help your family dodge ugly arguments if you are hospitalized and unable to make decisions for yourself, expensive and ugly custody battles, and stressful will contests after you or your loved one dies. Here is a list of the four basic estate planning documents you need:
A Living Will: This document tells your healthcare providers and family members your basic healthcare wishes if you are not able to articulate your own wishes at the time.
A Healthcare Power of Attorney: This document tells your healthcare providers and family members who gets to make a final decision about your healthcare if you are unable to make a decision and your living will is not clear under the circumstances.
A General Power of Attorney: This document enables your partner to make decisions to manage your money and property if you are not able to articulate those decisions yourself.
A Will: This document tells the world who you want to get your stuff – anything from your life insurance policy, your house, your bank accounts, and your personal possessions, and who you want to take care of your minor children after you die. It can also direct how you want your remains to be treated.
That’s the basics. But there is still more to do:
1. Even if you are married, state law does not guarantee non-genetic parents the right to custody or visitation of the children of that marriage unless you adopt. While same-sex and transgender marriages typically are more stable than cis-gender and heterosexual marriages, you still have roughly a 20% chance of getting divorced. If that divorce ever turns bitter, the non-genetic parent has been repeatedly found by Tennessee courts to have no rights. Adoption is the only way to protect your relationship with your non-genetic child.
2. Hold title to property as “joint tenants” and/or “with right of survivorship.” By titling your property this way, you greatly improve the chances that your spouse will inherit the property and/or have the right to manage your property if something terrible happens to you.
3. Mark all of your bank accounts as “payable on death” to your partner. This means they will be able to access your cash in the bank if you die – and that money is essential to pay for everything from funeral expenses to lawyers if things go crazy.
4. Make your partner the beneficiary of all life insurance policies. Here again, you are protecting your assets from creditors if you die and giving your partner the money they need to pay the bills and financially recover from your death and to care for your children and property.
At Held Law Firm, we are proud to fight for LGBTQ+ families. Visit heldlawfirm.com for answers to your questions or schedule a consultation if we can help you.
