Though New York now recognizes same sex marriage, most states and the federal government do not. While a valid marriage confers a number of legal rights upon a lawfully wed couple, if the parties find themselves in a jurisdiction that does not recognize same sex marriage, they may not be accorded the rights accorded a heterosexual couple.
Like heterosexual couples, same sex couples will inevitably have to deal with issues addressing divorce, death, illness and child custody. As a lawyer, I am always mindful of things that can be done now to prevent future problems. With that in mind, I present the four tips to protect same-sex couples:
- Sign a Pre-Nuptial Agreement
A pre-nuptial agreement in its most basic form, defines the parties’ respective rights when the marriage ends in either the case of divorce or death. The agreement could address issues of the distribution of property, maintenance and inheritance rights. It the parties are already married, the parties could consider entering into a post-nuptial agreement.
2. Prepare a healthcare proxy for each family member.
A health care proxy enables a designee to obtain medical information to make medical decision on behalf of his/her loved ones. Since not all states recognize same sex marriage, it is uncertain what rights would be afforded to a same sex spouse if the other becomes ill in a jurisdiction that did not recognize the validity of the marriage. To ensure that your spouse will be entitled to your medical information and to make medical decisions should you be unable, provide him/her with a health care proxy.
3. The non-biological parent should adopt the children of the marriage.
Child custody laws involving same sex marriages are, no pun intended, in their infancy. Should the non-biological parent (or in the case of adoptive children, the non-adoptive parent) be not deemed the “legal” parent of a child, the party could be denied parenting time, custody or visitation, with children of the relationship.
4. Develop an estate plan; draft a will.
In order to ensure that your spouse inherits from you, no matter your jurisdiction, draft a will and all necessary trust documents to ensure that your wishes are respected in the event of your death.
While many of these same concerns are relevant to heterosexual copies as well, because of the conflicts between the states regarding the rights of same sex couples, it is more important for you to take the necessary to adequately protect your rights.
