3 Estate Planning Issues For LGBTQ Couples—Part 2

Whether you are married or in a committed relationship, Wills and Trusts planning is about much more than planning for death—it’s about planning for your life. It’s the way to ensure your loved one will be protected and provided for in the event of your death or incapacity. If you are a member of the LGBTQ+ community, Wills and Trusts planning is even more critical.

Although same-gender marriage is now legally recognized in all 50 states, long-held prejudice at both the political and family level continues to create complications for both married and unmarried couples of the same gender. For example, suppose you have family members who are opposed to your marriage or relationship. In that case, your Will and Trust could be disputed or even sabotaged by unsupportive relatives. This could mean that family members are more likely to contest your wishes. It might even result in a custody battle over non-biological children in the event of the biological parent’s death.

As we discussed last week in part one, such discrimination can create unique Wills and Trusts planning challenges. Regardless of your marriage status, if you are an LGTBQ adult in a committed partnership, you should be aware of several issues that can affect your planning strategies. Specifically, we discussed how relying on a will alone may not provide sufficient protection for your partner/spouse. We also explained why incapacity planning is particularly crucial if you want your partner/spouse to have a say in your medical treatment and the ability to access and manage your assets in the event you are hit with a debilitating illness or injury.

Here we’ll address the final issue you should be aware of when creating your Will and Trust if you are in a same-gender relationship—securing parental rights for the non-biological parent of minor children.

3. Estate Planning Offers Alternative to Adoption
   Although married same-gender couples now enjoy nearly all of the same rights as opposite-gender couples, there is one key right that’s still up in the air. This right is the automatic right to be legal parents. While parental rights are automatically bestowed upon the biological parent of a child, the non-biological spouse/parent still faces a number of challenges when it comes to obtaining full parental rights.The Supreme Court has yet to rule on the specific issue of the parental rights of the non-biological parent in a same-gender marriage. This has left a tangled, often contradictory, web of state laws governing such rights. For example, if you are a married same-gender couple, some states consider the non-biological partner a legal parent, while other states do not.

Given the conflicting nature of state laws, many same-gender couples have turned to second-parent adoption to gain parental rights for the non-biological parent. This has occurred due to the fact that the Supreme Court has ruled that the adoptive parental rights granted in one state must be respected in all states. However, it can be extremely difficult for same-gender couples to adopt a minor child. This is because 11 states currently permit state-licensed adoption agencies to refuse to grant an adoption if doing so violates the agency’s religious beliefs. In other states, the law specifically forbids such discrimination. However, given the Supreme Court’s ruling last week in Fulton v. City of Philadelphia, even those laws are susceptible to legal challenge.

In that case, the city canceled a contract with Catholic Social Services (CSS), a taxpayer-funded and faith-based foster care and adoption agency, after the agency refused child placement with LGBTQ families. This refusal was in violation of a city law prohibiting anti-LGBTQ discrimination. CSS sued the city, arguing that requiring it to follow the nondiscrimination policy violated its free exercise of religion.

In a unanimous judgment, the Supreme Court ruled in favor of CSS. The Court found Philadelphia’s contract with CSS to be unenforceable. However, the ruling was narrowly focused on specific contractual language. Further, the ruling does not create a broad free-exercise exemption from nondiscrimination laws, as many in the LGBTQ+ community feared.

That said, the Fulton case demonstrates that when it comes to same-gender couples seeking parental rights, second-parent adoption is not a solution. Fortunately, same-gender couples do have an alternative to adoption. That alternative is Wills and Trusts planning. By using a variety of Wills and Trusts planning strategies, as your Personal Family Lawyer®, we can provide a non-biological, same-gender parent with nearly all parental rights without a formal adoption.

Starting with our Kids Protection Plan®,  LGBTQ couples can name the non-biological parent as the child’s legal guardian while confidentially excluding anyone the biological parent thinks may challenge their wishes. When this is done, if the biological parent becomes incapacitated or dies, their wishes are clearly stated. This means that the court can do what the parent would’ve wanted and keep the child in the non-biological parent’s care.

Beyond that, there are several other Wills and Trusts planning vehicles we can use to grant the non-biological parent additional rights. We can also create “co-parenting agreements.” A co-parenting agreement is a legal agreement that stipulate exactly how the child will be raised, what responsibility each partner has toward the child, and what kind of rights would exist if the couple splits or gets divorced.

Experience You Can Rely On
In light of these issues, it’s vital for LGBTQ+ couples to always work with experienced Wills and Trusts planning lawyers, and avoid using generic online documents at all costs. As your Personal Family Lawyer®, we have the experience of creating plans specifically designed to prevent your plan from being challenged in court.

With the proper planning, we can ensure that no matter what happens to you, your partner and family will be protected and provided for in the exact manner you wish. What’s more, our specialized planning services can help ensure that non-biological parents in same-gender partnerships have as many parental rights as possible, without resorting to second-parent adoption. Contact us today to get started with a Family Wealth Planning Session.

This article is a service of Levi L. Alexander, Personal Family Lawyer®. We do not just draft documents. We help to ensure you make informed and empowered decisions about life and death, for yourself and the people you love. This is why we offer a Family Wealth Planning Session™. During this session, you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session for free.