Q Legal: Planning for same-sex partnership in an unequal world

These are exciting times for those of us in the LGBT community. More and more of the legal inequities we suffer are being corrected. Some of the hurdles we’ve had to jump in order to share meaningful lives with our partners
are being removed.

We still have a long way to go to reach true equality, but the past year or two have seen progress on several fronts.

Last June, President Barack Obama signed a memo permitting same-sex partners of federal employees to use the government’s long-term care insurance and other fringe benefits. Recently, the President signed an order ensuring that same-sex partners have the same hospital visitation rights and recognition of Advance Health Care Directives as other couples and families.

And a few days ago, Obama extended additional benefits to the same-sex partners of federal employees. In most agencies of the government, partners may be eligible for child-care services and subsidies; more flexibility in family leave benefits; relocation benefits; credit union membership; and status as “family members” when federal appointments are made.

The other day, I was thinking about relationships and what makes them strong and enduring. Every couple needs a solid foundation of legal and community support and recognition. In this stable environment, personal relationships can be firmly established and grow over time.

For heterosexual couples, laws and community acceptance have been firmly established over the generations. Everyone knows what to expect and to plan for when a man and a woman marry, mate or cohabit.

Unfortunately, the LGBT community doesn’t yet have the solid foundation of laws and broad social supports that make relationships predictable and comfortable.

Every new extension of rights and benefits helps, but we are still missing the major pieces, such as the right to social security benefits, the right to file joint income tax returns, the right to serve openly in our armed services, and the right to marry any person of our choosing.

This means that same-sex partners need to give a lot more thought to their relationships, and have a lot more homework to do to make their lives comfortable, than the typical heterosexual couple. Let’s take a brief look at the options available to same-sex partners, and the kind of prudent planning that is needed to make partnerships solid.

Marriage: Same-sex marriage is now permitted and/or recognized in 6 states and the District of Columbia. California, while no longer permitting same-sex marriage, does recognize marriages performed in the state during the short period when it was legal in 2008. And California continues to recognize any marriage performed in any other country, state or jurisdiction where it is valid.

Same-sex couples in California who wish to marry can do so in one of the other valid locations, and the marriage will be recognized here, bringing with it all of the benefits, responsibilities and obligations of marriage that apply to heterosexual couples in this state. However, California will not call that legal bond “marriage.” That term is reserved for our opposite friends only.

Basically, a same-sex marriage performed outside of California will morph into the equivalent of a Registered Domestic Partnership here. I know, I hear you, what a tangled web we weave.

It might seem that committed partners who want to share their lives can marry elsewhere and live in wedded bliss in California forever after. But it is very important to remember that the marriage is only recognized in California and the handful of other states where it is legal. A majority of states do not recognize any same-sex marriages at all. If we travel or work in any of these states, it is likely that many of the protections of marriage will not apply.

Good planning requires that married same-sex partners have Wills, Advance Health Care Directives and Powers of Attorney to ensure the rights of partners to protect and care for each other, wherever they might be.

Both heterosexual and same-sex marriages can be dissolved through a divorce or dissolution action in Family Law Court in the county of residence.

Registered Domestic Partnership: In addition to states that recognize same-sex marriage, several other states permit and/or recognize registered domestic partnerships. In California, registering is easily done by completing a simple, one-page registration form and submitting it to the Secretary of State.

In most instances, registered domestic partners are treated as “spouses,” just as if they were married.

This means that all of the benefits and obligations of marriage apply to the registered couple. As with same-sex marriage, not all states recognize registered partners, so all of the legal documents and safeguards are still needed to protect partner rights when traveling or working out of state.

Registered domestic partnerships are legally terminated in the same way marriages are dissolved – through action in Family Law Court in the county of residence.

Other Partnership Arrangements: Often, same-sex couples refer to themselves as “life partners.” Some, like many I have met over the years, have been together for 30, 40 or even 50 years.

They built an enduring relationship through the years when almost no protections of any kind existed for gay or lesbian people in the United States. It is likely their only support was found in small (and often hidden) enclaves of the LGBT community.

Life partnerships and other committed partnerships are not legally recognized in any way.

They are no different from the relationship of a heterosexual couple who decide to cohabit, but do not marry. If same-sex or heterosexual couples want to protect each other and themselves, and don’t wish to marry or register as domestic partners, they can’t rely on laws or regulations relating to marriage or domestic partnerships to do it.

An agreement or contract spelling out the respective rights and obligations of each partner is essential in the beginning, in case financial and personal assets become an issue if they ever separate. This is in addition to the usual Wills, Advance Health Care Directives and Powers of Attorney that married or registered same-sex couples need.

If the couple separates, the contract will clarify how assets and personal property are split up. The document can be enforceable in court, if there is any disagreement about how to divide the assets.

Without such a contract, there is little one partner can do to force the other partner to cooperate in an equitable division of property. The term palimony is a popular, not a legal, term coined to describe court actions that handle property or asset issues between partners who are not married or registered domestic partners. In many or most cases, it may be impossible for the partner bringing the action to prove that he or she is entitled to a share of the other partner’s assets.

Planning ahead is something all same-sex couples must do if they want protection, security and comfortable relationships through the years. And in my experience working with clients, planning ahead takes far less time and money than picking up the pieces after a relationship is shattered by a crisis in their lives.

This article is part of an ongoing series of articles pertaining to legal issues in the LGBT community.

Previous articles can be reviewed at www.heritagelegal.com . This information is intended for general information purposes only, and is not intended to provide legal advice. Christopher Heritage is an attorney in Palm Springs, and San Diego, CA, who focuses on LGBT estate planning, domestic partnerships, same-sex marriage, probate, trust administration, and consumer bankruptcy. He welcomes questions and comments, and can be contacted at 760.325.2020, or by email: chris@heritagelegal.com