With marriage comes a number of rights that can’t be fully simulated for gay and lesbian couples who are not allowed to legally marry. A few carefully prepared documents, however, can make a big difference in protecting a couple’s rights.
While there are a number of documents that gay and lesbian couples may want to consider having prepared, two types of documents are crucial, according to the experts we contacted.
A transfer document
“Without some sort of transfer document, the only people with the right to inherit your property are your family,” said Denis Clifford, a co-author of A Legal Guide for Lesbian & Gay Couples. [The volume has since been updated many times by other authors, and the updated version is available on Amazon.]
For most people, that means a last will and testament is needed.
Property that is owned jointly should pass to the surviving joint owner upon the death of one of the owners, but that is not always the case. Without a will, a court that might not respect the rights of gays and lesbians could get in the way, but a will can make things simpler.
“If there is a will, the court has to honor it,” according to Harold Lustig, author of 4 Steps to Financial Security for Lesbian and Gay Couples: Expert Advice for Reducing Your Tax Burden, Increasing Your Wealth, and Protecting Each Other.
A partner is not legally considered family, so with no will, he or she cannot inherit property from a partner who dies.
Simply put, a will provides for the transfer of certain assets to people that the deceased person decides on before death. Wills only come into effect after death, and they can be changed anytime before death. A will doesn’t effect assets like life insurance or retirement accounts for which a beneficiary is named in advance.
Some lawyers tout a “revocable living trust” as an alternative to a will because it can save survivors from probate costs, the costs of legally processing a will. Estates may still go into probate, however, if everything is not named in the trust, so their use may be limited, according to our experts.
Clifford said people who are older, in poor health or living with HIV/AIDS could benefit from a revocable living trust, but others will do fine with a will.
Laziness is not a good course of action for any gay or lesbian person, Clifford said, because the state makes decisions when documents are absent.
“If you just want everything to go to your family members as state law requires, I guess you don’t have to do anything,” he said.
A health care document
The most important document for a gay or lesbian person, whether in a couple or not, is a durable power of attorney for heath care, according to Lustig.
“If you end up in the hospital, the only way you can survive is with an advocate in there,” he said.
That advocate needs to be someone familiar with the patient’s medical situation, and even more importantly, someone the patient trusts.
“No one except possibly some person in your family has the authority to make your health care decisions for you unless you give them the power to,” Clifford said.
When people are incapacitated and unable to make medical decisions, health care providers usually first turn to the family to determine what the patient might have wanted. Since partners are not legally relatives, they are not consulted.
A durable power of attorney for health care allows the designation of someone to make health care decisions rather than having the decision fall on a family member.
Once created, the document should be distributed widely, our experts said. That means that being in the closet can be a further obstacle on the road to having decisions honored. All healthcare providers, family members who could be called upon and, of course, the partner (or whoever is designate to make health decisions) need to get copies of the document.
While Clifford and Lustig agree that a will and a durable power of attorney for health care are the most important documents a couple can have, other documents can be useful.
A durable power of attorney for financial decisions can allow someone to make legally binding financial arrangements on behalf of their partner. The document would allow a partner to make any and all financial decisions, so it can be very powerful. He or she could change pension option or access a bank account, for example.
The term “durable,” however, means the document only takes effect when a person is physically or mentally incapable of make a decision for themselves.
A standard power of attorney is another document to consider. It allows a partner to make decisions at any time, but it is not valid if the other partner is incapacitated. Both expire at death.
A living will is also an option. People with strong preferences about whether they should be resuscitated can benefit from this document. It also takes a burden off of family who could be consulted about life support measures.
Again, partners are not consulted because they are not legally considered family.