Submitted by Saeed Little on
Whether you are married or not, if you are involved in a committed partnership with another
individual, estate planning is about so much more than planning for death. It’s about planning
for life and ensuring your beloved will be protected and provided for no matter what happens
to you. If you are a member of the LGBTQ+ community, estate planning is even more critical:
especially if you have complex family relationships.
Although same-gender marriage is legally recognized in all 50 states, long-held prejudices at
both the political and family level continue to create complications for both married and
unmarried same-gender couples. Indeed, while the federal government recognizes samegender marriage, there are plenty of cities, businesses, and people who still refuse to recognize
these unions. Moreover, a recent survey found that roughly 4 of every 10 LGBTQ adults say
they have been rejected by a family member because of their sexual orientation or gender
identity. https://www.pewresearch.org/social-trends/2013/06/13/a-survey-of-lgbt-americans/
As we discussed last week in part one, such discrimination can create unique estate 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, and we 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 estate plan—
securing parental rights for the non-biological parent of minor children.
Estate Planning Offers Alternative to Adoption
Although married same-gender couples now enjoy nearly all of the same rights as oppositegender couples, there is one key right that’s still up in the air—the automatic right to be legal
parents. While parental rights are of course 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.
Since the Supreme Court has yet to rule on the specific issue of the parental rights of the nonbiological parent in a same-gender marriage, there is a tangled and often contradictory web of
state laws governing such rights. If you are a married same-gender couple, for example, some
states consider the non-biological partner a legal parent based solely on your marriage while
other states do not.
Given the conflicting nature of state laws, many same-gender couples have turned to secondparent adoption to gain parental rights for the non-biological parent, since 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. In fact, 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, but given the Supreme Court’s ruling in Fulton v. City of Philadelphia, even those
laws are susceptible to legal challenges.
In Fulton, the city canceled a contract with Catholic Social Services (CSS), a taxpayer-funded,
faith-based foster care and adoption agency, after it refused child placement with LGBTQ
families 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 since working with same-sex couples would go against its religious opposition to
homosexuality.
In a unanimous judgment, the Supreme Court ruled in favor of CSS and found Philadelphia’s
contract with CSS to be unenforceable. However, the ruling was narrowly focused on specific
contractual language. It does not create a broad free exercise exemption from nondiscrimination laws as many in LGBTQ+ community feared.
That said, the Fulton case and cases like it that are sure to follow demonstrate that when it
comes to same-gender couples seeking parental rights, second-parent adoption is not a
panacea. Fortunately, same-gender couples do have an alternative to adoption—estate
planning. Indeed, using a variety of estate planning strategies, as your estate planning lawyer,
we can provide a non-biological, same-gender parent with nearly all parental rights, even
without formal adoption.
Starting with our Kids Protection Plan, LGBTQ couples can name the non-biological parent as
the child’s legal guardian for both the short-term and the long-term while confidentially
excluding anyone the biological parent thinks may challenge their wishes. In this way, if the
biological parent becomes incapacitated or dies, their wishes are clearly stated so the court can
do what the parent would’ve wanted and keep the child in the non-biological parent’s care.
Beyond the Kids Protection Plan, we have several other estate planning vehicles—living trusts,
power of attorney, and health care directives— that we can use to grant the non-biological
parent additional rights. We can also create “co-parenting agreements,” which are legal
agreements 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 were to split or get
divorced.
Experience You Can Rely On
In light of these issues, it’s vital for LGBTQ+ couples, especially those with children, to always
work with experienced estate planning lawyers and avoid using generic online documents at all
costs. As your estate planning lawyer, we have the experience of creating plans specifically
designed to prevent your plan from being challenged in court by family members who disagree
with your relationship.
With the proper planning, we can ensure that no matter what happens to you, your partner
and family stay protected and provided for in the exact manner you wish rather than facing a
financial and legal nightmare. What’s more, our specialized planning services can help ensure
that non-biological parents in LBGT partnerships have as many parental rights as possible
without resorting to second-parent adoption. Contact us, your estate planning lawyer today to
get started with a Family Wealth Planning Session.
This article is a service of Saeed & Little, LLP, estate planning lawyer. We do not just draft
documents; we ensure you make informed and empowered decisions about life and death, for
yourself and the people you love. That’s why we offer a Family Wealth Planning Session™,
during which 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 today to schedule a
Family Wealth Planning Session and mention this article to find out how to get this $750 session
at no charge.