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 people’s vote on the issue. The rights that “heterosexual” couples take for granted – the right to inherit property from a spouse, the right to make medical decisions when loved ones cannot, the ability to handle financial affairs when a partner is incapacitated – are changing. for gay couples. Some states have unconditionally endorsed gay marriage, either through legislation or court decision; others have banned gay 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 recognition of same-sex “loved ones” 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 interpret the United States Constitution honestly, the government (“state action”) cannot deny fundamental civil liberties (for example, the right to marry) to a “suspicious class” (slang for the constitutional right 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 as they wish 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 straight couples have always had. (And the world won’t come to an end as a result, as some histrionics claim.) However, until this is finally and uniformly resolved, it is imperative that same-sex couples take precautions to ensure that they and their loved ones are protected in the event of calamity. In my law practice, I have seen cases where the survivor of a gay couple was separated when the family entered and took the deceased’s property, because the one who died did not have a will. I have seen episodes where a partner was unable to assist the sick partner in making medical decisions because there was no health care power of attorney or medical power of attorney. And I have seen guardianship proceedings that resulted in vicious internal fights 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, as laws regarding same-sex couples are constantly 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? What states have what rights and protections? What if you get divorced? What if there are children involved?
Simply put, same-sex couples can avoid these problems by planning ahead with the right professional. A properly prepared and executed will naming heirs speaks loudly to the court system, including how children should be treated. Properly executed advance directives (powers of attorney, health care powers, living wills, and medical powers of attorney) avoid the confusing scenarios described above. These legal documents, which should be part of each individual’s estate plan, should be prepared by an attorney practicing in this field of law, someone who can ensure that your wishes are followed, especially as this area of the law remains in the process of change. .