Now that the dust of the whirlwind marriage-equality decision has settled, I want to do a check-in before we head into the end of the year and make sure that everyone has followed through on their “marriage-equality” resolutions!
Estate planning
If you have prepared estate-planning documents, the firm you executed them with understood the unique needs of LGBT individuals and likely drafted your documents in light that you were not married. Married couples have always enjoyed impactful and robust privileges and benefits in estate planning and, as such, your “pre-marriage-equality” estate plan needs an overhaul. If nothing else, I recommend re-executing your estate-planning documents so the definition used in the documents reflects your legal relationship: spouse, husband/husband or wife/wife. And for those with more complicated needs, you should review what new benefits are available to you and take advantage of them.
Lastly, just because marriage is legal nationwide does not mean you don’t need estate-planning documents. Gay or straight, everyone in this country needs these basic legal protections. I became passionate around estate planning after the Terri Schiavo case. The case was a legal struggle over end-of-life care involving a woman in an irreversible vegetative state from 1990-2005. Schiavo and her husband were legally married and had all of their estate-planning documents in place, as well as her husband being her legal guardian and health-care power of attorney. Shockingly, despite those protections being in place, Schiavo’s husband could not end her artificial life support because her parents argued in favor of continuing artificial nutrition and hydration and challenged Schiavo’s medical diagnosis. The highly publicized and prolonged series of legal challenges presented by her parents, which ultimately involved state and federal politicians up to the level of the one and only President George W. Bush, caused a seven-year delay before Schiavo’s feeding tube was ultimately removed.
Moreover, full equality does not equal full acceptance. Just because you’re married doesn’t mean that you won’t face discrimination at a crucial moment. Imagine you’re driving to Key West, Fla., and you’re in an accident in Tennessee and the front-desk clerk requires your marriage certificate before you’re let into the hospital room. You may have a great lawsuit, but wouldn’t you rather be in the hospital room? I provide my clients with Hospital Visitation Authorization (HVA) forms, which I shrink down and laminate, and you carry them around like a credit card. It’s a contractual agreement that, regardless of lineage or next of kin, the holder of the HVA is allowed in your hospital room.
The moral of the story is, even if you have these documents in place, your wishes could go disrespected, so imagine how vulnerable you are if you don’t have them.
I recommend strongly the following documents:
• Will is necessary for everyone — regardless of age, sex, orientation, race, religion, etc. If you have loved ones, you need to make sure they will be properly cared for after your passing.
• Durable Power of Attorney to allow someone to make financial decisions for you when you are unable to do so
• Health-Care Power of Attorney that includes a HIPAA Waiver to allow someone to make health-care decisions for you when you are unable to do so
• Living Will to let your Health-Care Power of Attorney know your wishes if you are in an end-stage medical condition
• Hospital Visitation Authorization to allow your spouse or chosen family to visit you in the hospital
• Agent for Disposition of Remains to declare what you would like to happen with your remains if you pass away
• Pet Care Directive to nominate the person who will take any of your furry companions when you pass away
Where/when/how can I get married?
LGBTQ couples call me weekly and literally just want to know how to get married. You can apply for your marriage license immediately at your nearest Register of Wills Office. There is a mandatory three-day waiting period in Philadelphia before you are considered legally married. Please note, the three-day waiting period includes weekends, so couples who apply on a Thursday or Friday can be eligible to get married on Monday. See this link to obtain your marriage license in Philadelphia: http://secureprod.phila.gov/wills/marriagelicense.aspx.
Real property
If you and your partner own property jointly, you must retitle your deed to “Tenants by the Entirety,” which had previously been unavailable to LGBT couples. “Tenants by the Entirety” is a special type of joint ownership of property with rights of survivorship only allowed between spouses. When one spouse dies, the surviving spouse immediately becomes the sole owner of the property and the property passes outside of probate and it is completely creditor-protected.
Lastly, if you and your partner own property in multiple states, it is highly recommended that you obtain a Revocable Living Trust to avoid passing through probate in each state you own property. This can save you several thousands of dollars in probate fees and months and months through the probate process.
Just say I don’t!
The average marrying age is 27-29 between women and men; the oldest it has been in over 100 years. Maybe you don’t want to get married, and that’s absolutely fine! You just need to make sure you have a cohabitation agreement (aka pre-pre-nup) and your estate-planning documents.
The Big D!
With marriage comes divorce — and that’s just reality. As with all divorces, the first aspect to determine is whether or not it will be contested. A couple should always mediate if possible; the only people who stand to win in a contentious divorce are lawyers. But regardless of whether it will be a simple or contest divorced, contact a lawyer and he or she will assist you in charting this new territory so that you can move forward with new relationships in your life.
As with every civil-rights movement, there are moments where people should take a moment and applaud their achievements. Congratulations everyone; now get to work!