While marriage equality and the fight for LGBT rights continues, many couples have found themselves in the difficult position of needing to pull together a variety of legal agreements in order to protect their relationship status – and their lives together – regardless of which state they live in. Although many feel federal recognition is right around the corner, the news is full of tragic stories of couples who didn’t protect themselves and then found out the hard way that they should have put something in place before they needed it. Dealing with the legal issues surrounding marriage is complex and no combination of legal agreements and contracts can fully mirror the rights and benefits afforded to couple who can simply get married, but these documents will help to protect your family should the unthinkable happen.
A Will
The younger the person, the less likely they are to have a will. It’s natural to postpone thinking about what you want to happen to your things once you shuffle off this mortal coil but an LGBT couple needs to be proactive. Drafting a Will protects not only your assets after you’re gone, but gives you the opportunity to leave clear and explicit instructions on what you want to happen in terms of funeral and burial. For LGBT couples this includes everything from the name to be used in their obituary and on any grave markers to what they want their partner to have in terms of money, real estate, other assets and personal possessions.
Living Will / Health Care Proxy / Durable Power of Attorney / Advance Directive
This document goes by many different names but its purpose is simple and to the point: It gives the person you name the power to make medical decisions on your behalf should you become unable to do so. You can also stipulate who you want to allow to visit you in the hospital. Without this in place, your medical decisions could be made by your next of kin or even the local authorities.
Power of Attorney
A Durable Power of Attorney allows someone to take care of medical issues on your behalf and a regular Power of Attorney gives them the power to handle decisions regarding other areas of your life such as paying your bills or managing your finances. Sometimes the handling of financial issues is included in a Durable Power of Attorney so be sure to read through the wording carefully if you choose to fill out boilerplate forms.
Custodianship Agreement
If you have or plan to have any children, you’ll definitely need a custodianship agreement. Getting this agreement in place is absolutely vital in order to protect your family unit. When my wife and I got married, we had one drawn up and ready to enact the moment our daughter was born. All we needed to do was fill in her name and date of birth and then file it with the court. The kind of documents you need can vary widely from state to state so LGBT couples should seek out advice from local LGBT organizations.
Joint Tenancy Agreement / Co-Tenancy Agreement
In order to protect your joint assets, such as real estate, bank accounts, cars and investments, LGBT couples need to establish a Joint Tenancy Agreement. This establishes each partner as a “joint tenant” in possession of everything listed. In the event of one person’s death, the property listed is automatically transferred to the surviving “tenant” without having to go through the probate court.
It’s worth noting these documents don’t come close to replicating the rights and benefits marriage automatically bestows on a couple. They don’t, for example, allow for one partner to receive the social security or military benefits of the other after their death. Nor do they allow for partners to take a leave of work under the Family and Medical Leave Act (FMLA) should one of them become ill or give LGBT couples access to the same family rates for things such as health, life and home insurance. In short, they offer a piecemeal kind of bare bones protection which allows LGBT couples to protect themselves both individually and as a couple. But they also offer the ability for LGBT couples to begin building their life together, even if they’re still waiting for the law to catch up.
