A hot legal issue these days is whether same-sex couples should have the right to marry. It seems that each new day brings another court case, legislative action, or popular vote on the issue. The rights that “straight” couples take for granted (the right to inherit a spouse’s property, the right to make medical decisions when loved ones are unable to, the ability to manage financial matters when the partner is incapacitated) are changing. for gay couples. . Some states have wholeheartedly endorsed same-sex marriage, either through legislation or a court decision; others have banned same-sex marriage, through legislation or referendum. In states that do not allow same-sex couples to marry, there is a hodgepodge of laws that may allow same-sex “significant persons” recognition in some areas, but not others; And even in the most negative places, there are laws that same-sex couples can use to protect themselves and their loved ones.
In my humble legal opinion, if we are honestly interpreting the US Constitution, the government (“state action”) cannot deny fundamental civil liberties (for example, the right to marry) to a “shady class” ( constitutional law jargon for a class of people who have historically been discriminated against, which also includes women, minorities, the disabled, and many other groups). On the other hand, religious institutions, to which the Constitution does not apply, can do whatever they want and refuse to marry same-sex couples. But the government simply cannot discriminate.
I have high hopes that this legal quagmire will be resolved in favor of gay couples in the near future, and that gay couples will be given the same rights and responsibilities that heterosexual couples have always had. (And that is why the world will not end, as some histrionics claim). However, until this is finally and uniformly resolved, it is imperative that same-sex couples take precautions so that they and their loved ones are protected in the event of calamity. In my legal practice, I have seen cases where the surviving gay couple was pushed aside when the family came in and took the decedent’s assets, because the one who died did not have a will. I have seen instances where one partner was unable to assist in the sick member’s medical decision-making because there was no health care proxy or medical power of attorney. And I have seen guardianship proceedings that resulted in fierce infighting between the incapacitated person’s family and the long-term lover over who is best suited to make decisions.
Not only is it important to protect yourself against such unseemly scenarios, protecting yourself and your partner is even more important now that the laws regarding same-sex couples are changing. What is the effect of a gay couple’s marriage if they move or live in another state? What is the effect of being in a domestic partnership registry? Which states have which rights and protections? What happens if you get divorced? What if there are children involved?
Quite simply, same-sex couples can avoid these problems by planning ahead with the right professional. A properly prepared and executed will to designate heirs speaks loudly to the court system, including how children should be handled. Properly executed advance directives (powers of attorney, health care proxies, living wills, and medical powers of attorney) avoid the messy scenarios described above. These legal documents, which should be part of each individual’s estate plan, should be prepared by an attorney who practices in this field of law, someone who can ensure that your wishes are followed, especially as this area of the law continues to be in flux.