Legal Tips for Committed GLBT Couples

Last fall, voters in South Dakota, Arizona, Wisconsin and several other states didn't make life any easier for committed GLBT couples with the passage of state constitutional amendments prohibiting gay marriage or even the recognition of "quasi-marital relationships."

Nonetheless, while now often prohibited in state constitutions as well as in state law, there do not appear to be any reasons why GLBT couples can't still use existing law and legal planning to strengthen and protect their family and financial assets.

Before setting off to use the many existing legal protections for their relationship, GLBT couples need to consult an attorney licensed in their jurisdiction for advice. Frankly, given the diverse nature of the legal issues involved-ranging from name changes to adoption to property ownership to estate planning, you might actually need to talk to a couple different lawyers with specialties in these areas. Or, you could consult a law firm that attorneys specializing in these diverse areas.

Here is a list of potential issues that a GLBT couple may want to consider and deal with legally:

• Changing the couple's last name.
• Adopting minor children.
• Transferring ownership of property to joint tenancy or other arrangements.
• Drafting durable powers of attorney for health care and mental health care.
• Considering what the new "marital" estate will look like and how best to protect it through estate planning.
  

Some couples may wish avoid this rigmarole and consider marriage in one of the few American states that recognize gay marriage or civil unions. Unfortunately, with the passage of these anti-gay marriage amendments, states like South Dakota and others may not give full faith and credit to these marriages as they do to heterosexual marriages performed in other states or even other nations. A couple contemplating this must realize that their state might not recognize the union.

Here are some additional tips:

• Some GLBT couples who have gone through the above process note that it is vitally important that relatives, children, and anyone who might be concerned with the couple and its property upon the death of one of the significant others be informed of what is in the legal works or has been done. They even suggest videotaping such meetings as later evidence if there is a challenge to a will or trust.
• With all important documents, make sure someone knows were these documents are in case of accident, illness, or death. These documents need to go to lawyers, health care providers, and others so the couple's wishes can be carried out.
• Without a will, your significant other will have not right to inherit from you.
• In most states, merely "living together" as a GLBT couple will convey no additional legal rights.
  

As most GLBT couples know, heterosexual married couples obtain many of these legal protections and benefits automatically upon marriage, or they obtain them more easily. Still, with persistence, a good lawyer or lawyers, and spending some money on attorney fees, court costs, and filing fees, a GLBT can at least begin to approach these protections.

LEGAL RESOURCES TO CONSULT TO HELP EDUCATE YOU ABOUT THE ISSUES YOU MAY FACE:

• "Life Lines: Documents to Protect You and Your family in Times of Trouble," National Center for Lesbian Rights
• "Legal Planning for Same-Sex Couples: Preparing for the Unexpected," Gay & Lesbian Advocates & Defenders
• "Protecting LGBT families," Human Rights Campaign
• "Questions about Gay and Lesbian Legal Documents, " Rainbow Law
• "LGBT family Rights Resources," ACLU

About the author: Todd D. Epp is an attorney licensed in South Dakota. In the fall of 2006, he was the legal and media consultant for South Dakotans Against Discrimination, the ballot issue group that nearly defeated the anti-gay marriage ban in South Dakota.