Dear Protector of GLBT Legal Rights,
Any rights you would expect to have as a married couple, you will need to re-create via legal documents. Although domestic partnerships or civil unions are recognized by some states, the federal government is blind to your union.
Below are minimum legal maneuvers that will protect you, your partner and your children in case of accidental death, health emergencies and other unexpected life contingencies. Whatever you do, put it (all) in writing, even if you register as domestic partner. Don't leave things to chance. Otherwise, you are stuck with what the state tells you you're stuck with.
• Advance health-care directive; health-care-authorization proxy; durable power of attorney for health care: these documents appoint an agent, your partner, to make medical decisions on your behalf should you become incapacitated. They also will allow visitation, which can be denied unless you're a spouse or family member. Also consider giving your partner Health Insurance Portability and Accountability Act authorization, a document that will authorize your insurer to release medical information to your partner.
• Durable power of attorney for finances: This document designates an agent, whether it's your partner or an adviser who will keep your partner's interests in mind, to make financial decisions if you're incapacitated.
• Domestic partner agreement: Much like a prenuptial agreement for married couples, this document, also called a living-together or property-sharing agreement, spells out who gets what in the event of a split or death.
• Mortgage or deed papers: Used to keep property out of probate and provides legal documentation of property rights.
• Parenting agreements: Same-sex couples should visit with an attorney if they have or are planning to have children, because every situation is different. Depending on your circumstances and where you live, you might consider joint-custody agreements or second-parent adoption.
• Beneficiaries: Be sure to review your beneficiary designations on retirement accounts, stock options, life insurance and any other assets. Is your partner listed as a beneficiary on all payable accounts?
• Domestic-partner registration: In certain states, couples can register as domestic partners and will be afforded state spousal rights, such as the right to inherit without a will. But even if you can and do register, experts advise documenting everything, no matter what your status.
A trust may be appropriate for anyone with assets that are hard to liquidate, such as real estate, a business or art collection. A trust could put conditions on the beneficiaries’ property, such as children who will receive money only after completing college, or the need to care for a disabled child even after he or she turns eighteen or children from a previous marriage.
There are two types of trusts:
• Living trusts, which are funded by the founder of the trust with his or her own assets; and
• Testamentary trusts, which take effect upon the death of the founder who created the trust that can be funded with assets from the estate or a life insurance policy.
Wills and/or revocable living trusts and pour-over wills: Without a will or revocable trust, you risk having your assets pass to family members instead of your partner. It also allows you to name a guardian for minor children. A living trust also keeps your affairs private because it avoids probate, unlike a will, which becomes part of the public record.
After Gertrude's death Alice lived another 21 years. In her 80's the art collection that had been left to care for Alice was seized and put under lock and key. Alice depended upon the charity of friends for food and other necessities. Don’t let this happen to your Alice B. - protect your assets legally and never underestimate your relatives after your death, especially if you have original Picassos and Matisses.