The Masterpiece Cake Shop Decision – A Narrowly Decided Cautionary Tale

The Masterpiece Cake Shop Decision demonstrated the Supreme Court of the United States threading the religious needle.   

In Masterpiece Cake Shop, while making it a point to explain that no determinations were actually being made on whether people with religious convictions can openly discriminate against gay people, or, more alarmingly, whether gay people deserve protections against such discrimination at all, the Supreme Court went out of their way to emphasize the importance of respect for religion.

 

gay rightsDon’t get me wrong, I have great respect for most religious belief.  My family holds hands and says what we are thankful for before every meal. We acknowledge the need for divine intervention with friends and family who are dealing with health issues.  We have ingrained just such a respect in our son to be tolerant of others, even those who would mock and deride our family just because it has two dads.

 

However, most Americans do not take the time to parse Supreme Court decisions to get to what the Justices are actually saying and, with the Masterpiece Cake Shop Decision, the message most people will hear is that religious beliefs now trump the dignity and equality of the LGBTQ community.

 

I feel the need to explain what I interpreted as the main message of The Masterpiece Cake Shop decision. In the majority decision, Justice Kennedy, the author of almost every positive gay rights decision out of the high court, gave short shrift to a complete analysis of the freedom of speech and free exercise of religion claims which strike to the heart of this decision. He did, however, along with the majority of the court, focus on the treatment that the baker received from the Colorado Civil Rights Commission.

 

masterpiece cake shop decisionJustice Kennedy held that, “When the Colorado Civil Rights Commission considered the case, it did not do so with the religious neutrality that the Constitution requires.  In other words, because of the Commission’s original treatment of the baker’s claim, no matter whether the result of their analysis was correct, the process was tainted from the start and therefore the holdings of all subsequent courts agreeing that the baker violated the rights of the petitioning gay couple, who, as Justice Ginsburg stated in her dissent,  “simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips (the Respondent) would have sold.”  But because the process was tainted with anti-religious bias, the underlying discrimination was no longer relevant.  

 

Because the Colorado Civil Rights Commission “showed hostility” toward the baker and his beliefs, that in and of itself, “cast doubt on the fairness and impartiality of the Commission’s adjudication of the … claim.”  Even if the Commission was right in their determination that impermissible discrimination existed, they weren’t adequately respectful to religion.  Thus the message that religion is more important than discrimination may be misinterpreted.

 

I have been searching for a meaning behind this seemingly incorrect finding.  Many of the greatest LGBT legal minds have attempted to make the distinctions in this decision that would stave off its potential future anti-gay wake of behavior and court reaction to that behavior.  This quote is a bit long but captures the proverbial threaded needle. Mary Bonauto, the civil rights director of GLAD and who argued the Obergefell marriage case before the Supreme Court in 2015 said:

“… this limited ruling provides no basis for this Bakeshop or other entities covered by anti-discrimination laws to refuse goods and services in the name of free speech or religion.

The Court was mindful of how far adrift we could go if every individual could apply his or her religious beliefs to every commercial transaction.  The Court contrasted permission for a clergy person to refuse to marry a couple as an exercise of religious belief, on the one hand, with the unacceptable “community-wide stigma” that would befall gay people if there was a general constitutional right to refuse to provide goods and services.”

I fear that this distinction will not be made by those who are less invested in understanding how these cases actually affect the lives of LGBTQ individuals, couples and families. My concern is for the families out there who now are questioning the legal certainty of their families, or whether their families will receive equal treatment in courts of less gay friendly jurisdictions.  We are, after all, a portable nation and our families are everywhere. 

 

While this decision does not actually give license to shop owners to deny gay people services, it is important to note that employment discrimination based on sexual orientation is still legal in 28 states.

 

At the risk of sounding like a lawyer, full disclosure – I am a lawyer, this case should serve as a wake up call that nothing can be taken for granted.  If you have put off doing your estate planning, do it now.  If you are a religious person, please pray that Justices Kennedy, Breyer and Ginsburg live long and healthy lives because these decisions can turn on a dime once right wing conservatives attain an indisputable majority on the court.  If you have questioned about whether you should get a second or step parent adoption, do it now. If you have legal questions about your immigration status, or that of your partner or spouse, find out about it now.

 

While my sincere hope is that more cases like this, with better fact patterns, will ultimately force the court to answer the questions that we all thought would be addressed in the Masterpiece cake Shop decision, namely whether religious “free speech” trumps anti-discrimination protection for LGBTQ people, until that time, we cannot sit idly by while others find solace and fortitude in their own anti-gay beliefs, whether religiously held or not.  

 

Anthony M. Brown, Time For Families – June 5, 2018

Over The Rainbow

“I’m over the rainbow.” When a friend said this, I didn’t understand at first.  My traditional understanding of this phrase is one of ecstatic happiness. 

You know, “I was over the rainbow about…”  However, my friend meant something else entirely. He was speaking from a feeling that I can only refer to as the gay malaise.

Gay Pride, with all its attendant celebrations and festivities, is here.  You can see the influx of out-of-towners and the feel the atmosphere changing like the seasons.  I live in the West Village, ground zero of pride, and each year my husband Gary and I negotiate through the throngs of partiers, going blocks out of our way to cross the street, in order to simply leave or return to our apartment.  Many of our neighbors leave town to avoid this traffic jam of love.divide chores

It is hard to believe, living in the City as we do, that many of those rainbow-clad people who clog the streets have only this one day to live truly in their skin.  We take for granted the luxury of living in a community that supports, or at least tolerates, our ability to “live out loud.” Don’t get me wrong, I know homophobia exists and, even in New York, there are those who refuse to accept that gay people are part of the human condition, much less same-sex marriage as part of its natural progression.  But on Gay Pride Sunday, those people only show their face behind protective police barriers, their numbers dwindling with each successive year.

Even from behind those barriers, those people can’t help but see something amazing: the eclectic diversity of our community.  Different sizes, shapes, colors, gender identifications, butch factors and levels of self-acceptance abound.  You see everything on Gay Pride Sunday and there is nothing more reassuring to me. But to those who are over the rainbow, Pride Sunday holds a different meaning.

The very thing that charges me, repulses many, and not just among our detractors.  Many gay people, for incredibly personal reasons I’m sure, have little tolerance for those on the outer fringes of our community.  Many believe that those who are fearlessly themselves, even in the face of open ridicule, are somehow making the LGBTI community’s journey to societal acceptance harder.

Society, gay and non-gay, is fickle.  When images of perfection become our personal roadmap, tolerance for those on the side of the road lessens, or disappears, and the gay malaise sets in.  I have heard many say that the fight for marriage equality, now family equality, isn’t their battle; it isn’t on their map.  That’s fine with me, there is room at the table for everyone. But what I believe hinders societal understanding and acceptance is our own lack of tolerance for our own.

Having an “all one world” view of life is threatening to many, even trite.  But “society” starts at home, as does acceptance, and once we come to terms with who we are as individuals in this world, regardless of sexual orientation, we move one step closer to embracing the diversity that is our community, showing the world by example how to accept us.

June is the perfect month for self-reflection.  The promise of the Summer gives us all a new opportunity to shed whatever kept us warm in the Winter and live on our own fringe.

So if you find yourself this Gay Pride experiencing gay malaise, if you catch yourself judging another person because of how they look, what they sound like or who they represent to you, take a deep breath, remember that you are as much a part of this world as they are and Get Over It Mary!  Happy Pride!

by Anthony M. Brown www.timeforfamilies.com, Originally Written June 2016

Three Parent Family in NY Affirmed by Family Court

A three parent family in NY recently appeared in New York County Family Court.  The outcome shows movement toward acknowledgment and acceptance of modern families.

A three parent family in NY was granted the rights of custody and visitation on April 10, 2018 by family court Judge Carol Goldstein.  The issue before the court was whether the husband of the biological father of the child had an equal right to sue for custody and visitation as did the biological father and mother.

Over brunch in 2016, Raymond T. and David S., a married couple, agreed to have a child and co-parent with Samantha G., a friend of the married couple.  They agreed that the child would be raised in a “tri-parent arrangement.”  While the parties never executed a written agreement, they did engage an attorney to assist them in drafting one.  They agreed that the mother would continue to live in New York City and the married couple would continue to live in Jersey City, NJ, but would consider themselves a “family” for the purposes of raising their child, named Matthew Z. S.-G.Three Parent Family in NY

The parties proceeded to act like a three parent family in NY.  They made joint announcements on social media of the pregnancy.  The male couple attended childbirth classes with the birth mother and they created a joint savings account for the child, to which the non-biologically related father contributed 50%.

It was only after Matthew was born and a DNA test was administered did they find David to be the biological father.  Both fathers had contributed sperm over a period of eight days, each man alternating every other day.  They referred to one another as “Momma,” “Daddy” and “Papai,” which is Portuguese for father.

This case began when David and Raymond filed a joint petition for “legal custody and shared parenting time.”  Samantha filed a cross petition seeking sole legal custody, but allowing the fathers “reasonable visitation.”  The issue in the case is whether Raymond, the non-genetically related father has standing to sue for custody and visitation.  New York law states that the husband of a woman who gives birth is presumed to be the father of a child born into that marriage.  The unanswered question is whether the husband of a man who donates sperm to conceive a child with a woman that he is not married to has the legal authority to seek custody and visitation.  The court answered yes.

What the court did not address, and what is potentially the more monumental question, is whether Raymond as the non-genetically related parent is a legal parent under NY law.  This issue touches the heart of this three parent family in NY.  The Judge did ask the parties to prepare memoranda of law asking the question of whether legal parentage exists between Matthew and Raymond.  While the mother consented to custody and visitation, she opposed Raymond’s legal status as a parent and asked the court to make that distinction.three parent custody

Legal parentage would bestow much more than the ability to eek custody and visitation.  It would create intestate, or estate, related rights between the father and child.  There would be no question as to whether the child would qualify for the parent’s health insurance or other employment related benefits that flow from a parent to a legal child.

While this decision regarding a three parent family in NY is significant, it does leave unanswered questions.  Perhaps after the issue has been briefed to the court, we will know more about how the law treats a three parent family in NY.

If you are thinking about creating your own three parent family in NY, or any other state, please contact Anthony at Anthony@timeforfamilies.com for more information.

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Known Donor Family Law New York – Protecting Lesbian Mothers

Known Donor Family Law New York is changing. 

Many lesbian couples look to known donor family law New York prior to choosing known donors to help them have their families.  In my legal practice, I have seen this number increase steadily over the last 10 years.  Reasons for choosing a known donor include giving children a link to their biological heritage, having access to specific medical histories and providing male influences in the lives of children born into these progressive families.

The law appears to be coalescing in favor of intended mothers and a recent Appellate Division case moves known donor family law in New York further in that direction.  Before discussing the new case, let me give you a brief history of existing known donor family law in New York.known donor family law New York

Existing Family Law Treatment

Brooklyn Family Court Judicial Hearing Officer (JHO) Harold Ross, in a decision titled The Matter of L., et. al, held that as long as uncertainty exists for LGBT couples who create their families with assisted reproductive technology (ART), with both anonymous and known donors, then second parent adoptions are the best way to secure those families from this uncertainty.

In the Matter of Brooke S.B. v. Elizabeth A.  C.C., a landmark decision released in August of 2016, the New York’s highest court overturned previous New York precedent that had torn families apart for decades and ruled that non-biological and non-adoptive parents did have standing to sue for custody and visitation in the New York family court system.  While this case did not specifically address the issue of a known donor’s rights to a child he helped come to be, it brought New York family law in line with many other states which recognize “de facto” parents for the purpose of custody and visitation and prioritizes the best interests of the child in making these critical decisions.

New Case Law 

This new known donor case, entitled In the Matter of Christopher YY v. Jessica ZZ and Nicole ZZ, New York’s Appellate Division, Third Department (whose jurisdiction covers matters derived in South Central New York State to North Eastern and Central Eastern Counties in New York) addressed the issue of a known donor who sought to have a paternity test ordered by a family court.  The family court agreed with the donor and ordered the testing.  The mothers filed an appeal and the result of that appeal was to overturn the lower family court’s decision to order paternity testing for two reasons, thus codifying new known donor family law in New York.

The first reason was the marital status of the mothers.  They were married when they planned on having the child and they had an informal agreement (one drafted and executed without the benefit of legal counsel) with their donor, something that all intended mothers should have with their known donor prior to insemination.  The court stated that there existed a “presumption of legitimacy of a child born to a married woman.”  Even if this presumption exists, the court must conduct a “best interests of the child” analysis before any paternity testing can be ordered.

known sperm donorsThe key question is whether the paternity testing is in the best interests of a child.  The court determined that the presumption existed regardless of the gender of the parents, a huge statement of support for lesbian couples across New York.  However, that presumption can be “rebutted” by a donor in certain circumstances.  The court looked at the facts of this case, the existence of an agreement in which the donor stated that he would not seek paternity, and the lack of a significant relationship between the donor and the child after the child’s birth. 

To determine whether the presumption of parentage that the court established for the non-birth mother could be rebutted, they applied the concept of “equitable estoppel,” which bars a legal claim by a party if that claim is inconsistent with a prior position taken by them and relied upon by the other party.  In this case, the prior position was outlined in the known donor agreement he signed with the mothers, that he would not attempt to establish paternity,  and his lack of a relationship with the child after her birth.  Equitable estoppel prevented the known donor from proving to the court that the paternity testing was in the best interest of the child.

What does this case mean for Known Donor Family Law New York? 

This case is certainly a step in the right direction.  But these cases are fact specific and unless there is a legal instrument, such as a step or second parent adoption order, the possibility of taking a party to court will always be a financially and emotionally time-consuming specter over a family.  Another benefit of a step or second parent adoption is that is clearly and indisputably terminates the rights of a known donor, making a claim such as the one made by the donor in this case, a nullity.

Known Donor Family Law New York is moving in the right direction.  If you are considering a known donor, you must also consider how best to secure your family from unwanted paternity or visitation suits.  For answers to your questions, please contact Anthony M. Brown at anthony@timeforfamilies.com or visit www.timeforfamilies.com.

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LGBT Family Planning – The ABCs of Family Creation and Protection

LGBT Family Planning involves conscious decision making and careful preparation to ensure that your family is protected under existing laws, which are evolving every day.

LGBT family planning is crucial to provide the security that your family deserves.  While many more options exist for us to consider when creating our families, each one carries with it particular considerations which will inform and facilitate your choice.  Here are a few options:

Adoption

There are over 130 adoption agencies in New York State, and each of the 58 social services unit districts has an adoption unit. There are no fees for adopting children who have special needs or are in custody of the local social services commissioner, although there may be fees for adopting those children in the legal guardianship of local voluntary agencies. The fees are based on the adoptive family’s income, however, and help may be available in the form of grants or fee waivers, so don’t let finances put you off from looking into this as an option to start your family.LGBT family planning

After deciding on an agency, the application forms must be completed. Information is taken about your current family, your background and the type of child you feel you would be able to give the best life to. Criminal history checks will also be made, with particular attention paid to whether someone in the prospective adoptive family’s home has previous mistreated or neglected a child. A criminal record does not necessarily mean that you will be refused for adoption, as it depends on several factors including the type of crime committed.

Within four months of submitting the application, a home study is started and carried out on the prospective adoptive family. This is a series of meetings, training sessions and interviews that enables the family and social services to ascertain the readiness of the family to adopt, and any issues that they may need help with. After the home study has been completed the caseworker writes a summary about the family, which the adoptive couple can also add comments to. Training is also required to cover some areas that are specific to adoptive parenting, such as the needs of foster children and what kind of child they would be most suited to as a parent.  At this point, the couple, or individual, is considered “Pre-Certified” to adopt.

Once the study and summary are complete, the work then begins to match the family with a child. There is no set process for this as it is individual according to the child’s situation and needs. The Family Adoption Registry provides information about waiting children, and adoptive parents can ask for more information about children they are interested in, in exchange for a copy of the home study. The process goes from there and hopefully ends with a child or children finding a loving home with their new parents!

Children from a Pre-Existing Relationship

If you are in a relationship where your partner or spouse has a child from a pre-existing relationship, the process by which you may secure legal rights to the child is called Second or Step Parent Adoption.  If the child has another living legal parent, this process will require that the other parent either surrenders their parental rights to the petitioning parent, or that their rights are terminated by the Court.

Lesbian Couples and Sperm Donation

One of the most cited reasons for choosing known sperm donors is to have a greater insight into the biology of your child. Having a known sperm donor’s medical history can be critical for mothers who have medical or genetic issues that they must consider before having a child.  An anonymous sperm donor file will provide some medical information, but a known donor can share his family medical history, which may be crucial for the health of your child. anonymous donor

The key for a successful selection of a known donor depends on several factors, all personal to the couple or individual.  One crucial consideration for individuals considering a known donor is that the donor CANNOT surrender his parental rights and will be able to sue for custody and visitation to any child born through such an arrangement.  Each state has different laws, but most favor a child having two legal parents.

Lesbian couples considering a known donor should always enter into a Known Donor Agreement prior to any attempts at insemination.  This agreement will spell out the details of understanding between the intended parents and the donor, including the donor’s intent to surrender his parental rights to the non-birth mother.lgbt family planning

While medical considerations are one of the top reasons for having a known donor, knowing the emotional and social character of the donor is also an often overlooked consideration in many people’s path to parenthood.  No anonymous donor profile can show the complete picture of the person who may be the biological father of your child.

Legal considerations are also important reasons to choose between anonymous donors and known sperm donors. Anonymous donors surrender their parental rights to any children born with their genetic material upon deposit to a sperm bank or fertility clinic.  When you choose an anonymous donor, they may offer the option of allowing the child to contact them at age 18, but there is no question as to their lack of parental rights to that child.

Surrogacy

Surrogacy is the process by which a woman carried the child, or children, of the intended parent/s.  Male couples often see this as the most viable method of LGBT family planning. 

Currently, only 5 states ban compensated surrogacy, New York being one of these states.  New York does allow for compassionate surrogacy, where the surrogate mother, or carrier, is not compensated for the risks, dedication and disruption to their lives when having a child for someone else.  Traditional surrogacy is where the surrogate mother, or carrier, is also the egg donor.  Gestational surrogacy is where a separate egg donor exists and the carrier has no biological relationship with the child born through surrogacy.surrogacy

It is imperative that if you choose surrogacy to help you have your family, that you do so in an ethical manner and make conscious choices about how to go about the process.  It is also a wise choice to research perspective agencies and fertility clinics thoroughly and ask a lot of questions.

Once your child is born through surrogacy, it is critical to secure the legal rights of the non-genetically related parent through both a pre or post birth order in the state where the child is born and a confirmatory second or step parent adoption back in the home state of the intended parents.  A pre or post birth order is a court order that terminates the parental rights of the surrogate mother and, in some states, establishes the rights of the intended parents.  There is evolving, and in some cases, conflicting, case law about whether the confirmatory adoption is required when a pre or post birth order exists; however, there is nothing more important than ensuring that your family is completely and securely protected.

Co-Parenting

Many single LGBT  and non-LGBT individuals are choosing to co-parent.  Co-parenting may be the latest frontier in the world of LGBT family planning This is defined as two individuals who are not in an emotional relationship, choose to raise a child together and share parenting responsibilities.  This process also requires a carefully considered Co-Parenting Agreement to spell out the intentions of the co-parents and their responsibilities to the child and to one another.  Many websites exist today to connect those interested in co-parenting but it is critical that anyone considering this option visit a family law attorney who is versed in the intricacies of co-parenting.

Once you have your family plan in place, remember to protect that family with careful and considered estate planning.  If unmarried, you may also consider the benefits of a pre-marital agreement to define separate and joint property.

LGBT family planning can take many forms.  With so many LGBT family planning options available to couples and individuals, take your time and figure out which one is right for you.  If you have any questions at all about these processes, please visit www.timeforfamilies.com or email me at Anthony@timeforfamilies.com.

 

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Is there a Marital Presumption for Male Couples in New York?

Is there marital presumption for male couples in New York?  Recent case law suggests that we are heading in that direction.

Is there marital presumption for male couples in New York?  Up until now, there has been no clear guidance on this.  While certain NY jurisdictions have held that the marital presumption of parentage exists for lesbian couples, male couples who have their children with the assistance of a surrogate mother, or gestational carrier, have not had specific judicial input… until now.marital presumption for male couples in New York

Before I discuss the details of the case, entitled In re Maria Irene D., it is important to understand the judicial reach it has and the implications of that for couples throughout New York State.  This case originates from an appeal made from a New York County Family Court decision granting a second parent adoption.  That appeal was heard in the Appellate Division, First Department, which hears appeals from cases in New York County and the Bronx only.  Therefore, until appealed to the New York Court of Appeals (our highest court), it only creates precedent for the Bronx and New York Counties.  Other NY counties may cite the case as a reference, but are not bound by its findings.

In re Maria Irene D. involves a child born in September 2014 to a gay couple, Marco and Ming.  Marco and Ming entered into a civil union in the UK in 2008 and converted that to a marriage in 2015.  Their daughter was born with the help of a surrogate mother who gave birth in Missouri.  Because both fathers were British citizens, and due to the law in the UK surrounding the legality of surrogacy, the couple obtained a parentage order in Missouri that terminated the rights of both the surrogate mother and egg donor and awarded Marco, the genetic father, “sole and exclusive” custody of the child.  In many cases, a pre or post birth order will list both intended parents as legal parents, but because the couple planned to secure UK citizenship for the child at some point after her birth, the parentage order could only list the genetic father.

Marco and Ming, along with their daughter, moved back to Florida, where they had been living, and stayed there as a family until October of 2015.  At some point after the birth of the child, Marco began a relationship with a man named Carlos and his relationship with Ming failed.  Ming had moved back to the UK in October of 2015 to find employment.  Carlos filed a petition of adoption with the New York County Family Court in January of 2016 and the petition was granted in May of 2016.

marital presumption for male couples in New YorkAdoption petitions ask one very important question, whether the child is subject to any proceeding affecting his or her custody or status.  In this matter, Carlos and Marco failed to disclose that, at the time of the child’s birth, both Marco and Ming had signed the surrogacy agreement together as a married couple.  Also, Ming had started a divorce proceeding seeking joint custody of the child prior to the finalization of the adoption.  Carlos and Marco failed to disclose that to the court as well.

The court held that there were two important reasons for overturning the adoption granted by the New York County family Court to Carlos: that Ming and Marco were considered legally married by the court at the time the time they began their surrogacy journey and at the time of the birth of the child.  Their daughter was, essentially, born in wedlock; therefore, Ming was entitled to notice of the adoption proceedings.  The court also faulted Carlos and Marco for failing to disclose the relevant information that there was a court proceeding filed by Ming in Florida that affected the custody of the child.

So does the marital presumption for male couples in New York protect a separated parent from losing custody of their child?  In this case, yes.  What we do not know is whether the fact that Carlos and Marco’s failure to disclose vital information in their adoption petition was the driving factor in the court’s decision, or whether it was the marriage of Marco and Ming.

With this information, male couples in NY may be struggling with whether to secure their parental relationships through second or step parent adoption.  Because the players in this drama were foreign nationals, different rules applied to how parentage was established immediately following the birth of their child.  Most US couples who have children through surrogacy can obtain parentage orders that create parentage for both fathers depending on the State where their child is born.  This decision is certainly a step in the right direction but married NY couples should also consider step parent adoption as a means to create unassailable parental rights that are portable across the country and around the world.  While the second/step parent adoption process is comprehensive and time consuming, it is worth it when you think about how much may be spent defending your right to your child born through surrogacy.

Anthony M. Brown, head of Family and Estates division of Chianese & Reilly Law, PC and has extensive experience in helping same-sex couples through the adoption process, having gone through the process himself. If you have yet to create a legal relationship with your child or children, call 212-953-6447 or email Anthony at Anthony@timeforfamilies.com.

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Estate Planning for Dummies – The Important Steps You May Have Already Taken

Estate Planning for Dummies explains the most basic estate planning tools, many of which you may have already implemented without even knowing it.

Estate planning for dummies is a misnomer.  Because the premise of this article is that you may have sufficient estate planning in place, you are clearly not dummies.  But understanding how to make the most of your estate plan, will ensure that you and your family are protected in case the unforeseen occurs.

Do I need a Will?”  This is usually the first question asked by clients.  The short answer is yes and, to better understand why, it is important to know the protections that a Will provides.  A Last Will and Testament is the cornerstone to a comprehensive estate plan.  Whether you have children or not you do have assets.  Depending on their size, more complex planning may be required.  But the key to knowing whether you have unwittingly begun work on your estate plan, you must know what property passes under a Will.estate planning basics

Probate Asset v. Non-Probate Assets

Wills cover probate assets, or assets held solely in your name. Examples include real property, bank accounts and personal belongings. Personal belongings are key because many people do not like the idea of a distant relative rooting through their most cherished items after death. Wills do not pass non-probate assets, or assets held jointly with someone else (like a bank account or real property held as a married couple or as joint tenants), assets held in trust for someone else or any asset that has a designated beneficiary, like an insurance policy, a 401(k) or an IRA retirement plan.

The goal of a good estate plan for a married couple is to maximize you non-probate asset designations.  If done correctly, there will be no need for a probate process upon the death of the first spouse.  Probate is the process by which the state of a decedent ensures that their Last Will and Testament was drafted and executed correctly, that the assets and debts of the decedent, the person who died, are identified, that the debts are paid and the assets are distributed according the decedent’s Will. The New York probate process governs the transfer of legal title of property from the estate of the person who has died to those named in that person’s Last Will and Testament.

If you are married and your home is listed in both spouses’ names, then the house will pass automatically to the surviving spouse with no need for probate.  Likewise, if you have joint bank accounts, the assets in those accounts pass outside of probate.

right of survivorship, JTWROS, joint tenantsMany city couples rent their apartments, making their most valuable assets their investment or retirement accounts.  For these investment vehicles, you may name your spouse, or partner if you are unmarried, as a designated beneficiary.  You may also name multiple designated beneficiaries as long as the percentage allocations are clear to the administrator of the investment/retirement account.

Estate planning for dummies = the maximization of non-probate asset designations.  It is the best tool you have to avoid probate.  And while this type of specific planning may allay the need for a Will, it is always a good idea to have a Will in place, even if you do not need to put that Will through probate.  If you are unmarried, it is of particular importance that you have a Will because the protections of marriage, which include naming the surviving spouse as the default beneficiary of a decedent’s assets, will not apply to you and your partner.

For more information, visit www.timeforfamilies.com or email Anthony@timeforfamilies.com.

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Reaching Across the Uterus

Politics pops up in the oddest places. And like a song that gets stuck in your head, it refuses to be ignored.

“She’s having my baby…” That’s the one I’ve been humming lately because my husband Gary and I are taking the plunge into full-on parenthood and, at age 46, some would say we’re crazy. Piper, our three year old, is in every meaningful sense of the word, our daughter. But legally she only has two parents, and they are her mothers. With many options before us, Gary and I choose surrogacy.

Inviting a “team” to help you have a baby is not as nontraditional as some may think. As Hillary said, “it takes a village.” But our lack of girl-parts makes the process an e-ticket ride to say the least. Every person I have spoken with about their experience with surrogacy has said that the relationship you form with the surrogate mother, clinically referred to as the carrier, is unique, emotionally overpowering and absolutely specific to the individuals involved. Amen to that.Anthony Brown

What I didn’t count on was falling for a carrier of the republican persuasion. I am about as political as a gay-lawyer-activist can be. It is funny that when Gary and I were looking at the profiles of egg donors and gestational carriers, political affiliation wasn’t even a consideration. We were looking for all the elements of a person that demonstrate trust, love and happiness. For us, politics didn’t enter into it, until recently.

Suzanna, our carrier, lives in rural North Carolina with her husband Jonathan. She is everything and more that we could have hoped for in a surrogate. She is direct and at peace with surrendering her parental rights when the child is born. She has an absolutely beautiful smile and laugh that are the signs of a person who is loved and supported. She has two wonderful, healthy children who Gary and I fell in love with instantaneously and, best of all, she has a sense of humor about the process.

When we first met, Jonathan kidded about looking forward to someone touching Suzanna’s pregnant belly and asking, “when is she due?” Jonathan relished at the prospect of answering, “I dunno, it’s not mine.” Then Suzanna said, “Yea, then I can say, don’t look at me, it’s not mine either.”

But recently, Suzanna forwarded to us one of those anti-Obama emails that have made the rounds misrepresenting his positions on several issues and taking out-of-context shots at his voting record. I know that some people forward emails without reading them completely. I also know that we never talked politics up until that moment, but one of the misrepresentations in the letter was that Obama supported gay marriage and John McCain did not. Well… Deep breath…

KNEE JERK – I sat down at the computer and typed for over an hour. After I pressed send, I thought to myself, “Oh shit, I just lost our carrier.” I don’t think Suzanna expected a two-page response debunking the email she sent, with citations to accurate information and a personal note asking why she would think Gary and I would support anyone who would not support our marriage, which was a key factor in her choosing to work with us in the first place.

To Suzanna’s credit, she sent one of the most thoughtful and detailed responses, acknowledging that she had not completely read through what she had sent, and apologizing for any distress that it may have caused us. She then laid out her positions on a number of issues, she disagrees with the conservatives about marriage equality – thank God, and demonstrated the intelligence and the spirit that Gary and I were drawn to when we first read her profile and went to North Carolina to meet. All of the sudden, we were talking politics. And I loved it.

I have always believed in communication, about equality and about politics. But when it comes to family, even nontraditional family, it’s tough. Now, Suzanna and Jonathan know how we feel, and more importantly, we know how they feel. Agreement is not always possible, and when people are on opposite sides of the political fence, it is often rare. But agreement isn’t a prerequisite for communication. And as Suzanna and Jonathan are now a part of “the village,” there is no reason to stay silent.

I originally published this article in 2008 after working on the Obama campaign but I am revisiting it now because there are so many paralells to the misinformation that has been spread in the current political climate.  I hope that you find something meaningful here.

May 30, 2017 -To share your personal story, please visit timeforfamilies.com.

Marital Trust Planning – Making the Most of Your Money

Marital Trust planning is essential for those couples who are concerned about protecting surviving family members, especially children, and avoiding estate taxation.

Marital Trust planning is the use of trusts to achieve the goals of asset preservation and family protection.  The term, “Marital Trust” is used in this article to discuss both marital trusts and non-marital trusts

What is a Marital Trust?  There are essentially three types of marital trusts.  QTIP (Qualified Terminal Interest Property) Trusts, Estate Trusts and General Power of Appointment Trusts.  Each has a specific targeted goal, but the reason why someone would consider a Marital Trust is to provide for their surviving spouse and children.marital trust

A QTIP Trust, in most cases, is funded upon the death of one spouse and directs payments of interest income, on at least an annual basis, to the surviving spouse.  The remainder in the trust then passes upon the death of the surviving spouse to the children of the original Grantor.  The benefit of this trust is that it allows someone with children from a previous marriage to ensure that those children are provided for, while also providing for a surviving spouse.  An Estate Trust essentially does the same thing, but requires the remainder to be passed through the surviving spouse’s estate, giving the surviving spouse greater discretion in the allocation of the original asset.  A General Power of Appointment Trust is appropriate if there are no children and gives the surviving spouse access to the full amount in the trust during their lifetime.

The most important element of a Marital Trust to remember is that it does not shield assets from estate taxation.  They simply postpone the taxation event until the death of the surviving spouse, as there is a unlimited marital exemption upon the death of the first spouse.   Assets in a marital trust pass subject to any applicable estate tax guidelines.  This is particularly important for QTIP Trusts as they may contain assets earmarked for the children of the Grantor, but are potentially diminished by estate taxation.  To shield assets from estate taxation, you must have a Non-Martial Trust.

What is a Non-Marital Trust?  Non-Marital Trusts are often referred to as “Credit Shelter Trusts” or “Bypass Trusts.” These trusts allow the Grantor to provide income to their surviving spouse, while ultimately passing assets to the Grantor’s children   

Bypass Trusts are irrevocable trusts that can be created during the lifetime of the Grantor or in the Grantor’s Last Will and Testament.  If they are created in a Grantor’s Will, they become irrevocable upon the death of the grantor.  The trust is funded with an amount equal to the annual exclusion applicable in the year of the Grantor’s death.  In 2017, the annual exclusion amount is $5.49 million dollars.  A surviving spouse will have access to interest income from the trust and also the trust principal, but only for the surviving spouse’s health, education, maintenance or support.  Upon the death of the surviving spouse, the trust remainder passes to the original Grantor’s children tax free.

One important note with Bypass Trusts is that the IRS has a three year look back period for tax free transfers.  That means that if the surviving spouse dies within three years of the original Grantor’s death, the assets will be subject to estate taxation.  Also, if a family residence is transferred into a Bypass Trust, it will receive the stepped-up value as of the date of the Grantor’s death.  However, if the value of the residence continues to increase, any gain attributed from the date of the Grantor’s death to the distribution to beneficiaries will be subject to capital gains tax.  A Bypass Trust cannot claim the $250,000.00 personal capital gains exemption.

Surviving spouses are often named as trustees, which makes compliance with tax requirement critical in both the drafting of Bypass Trusts and in their execution after the original Grantor’s death.  That’s why it is crucial to consult with an experienced estate planning attorney when considering Marital and Non-Marital Trusts.  Remember that a strong basic estate plan is also a must for any family.

For more information, email me at Anthony@timeforfamilies.com or visit www.timeforfamilies.com.

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Second Parent Adoption Necessity: Securing Parentage in Uncertain Times

Second parent adoption necessity has become the primary topic of discussion for me both at work and in my private life. 

Is there a second parent adoption necessity?  Everyone wants to know whether their family is safe.  Since January 2017, I have received more calls from parents who have not gone through the second parent adoption process for whatever reason and are now concerned that their children may be the ones who suffer from the lack of clear and incontrovertible parentage; a parentage that second parent adoption provides.

Why do I have to adopt my own child?  Many gay and lesbian parents are asking this question when attempting to understand the second parent adoption necessity.  In New York, married lesbian couples who have used anonymous sperm donors are allowed to be listed as a parent on their child’s birth certificate.  Gay couples who have children with the help of a surrogate mother may have petitioned for and received a pre or post-birth order declaring them the legal parents of their children.  They may also be on their children’s birth certificate.  So why is second parent adoption a necessity?second parent adoption necessity

The answer to this question is perhaps the most confounding that I have had to provide clients and friends.  If you can guarantee that your relationship will never end in divorce or dissolution and that, if it does, both individuals will prioritize the best interests of the child first and foremost, then perhaps you can get by without a second parent adoption.  But the reality of a relationship ending is never certain and, unfortunately, the non-genetically related parent is vulnerable to what may be costly and emotionally terrifying consequences.  While the few cases we have seen that have addressed the issue of the validity of a pre or post-birth order have ultimately upheld those orders, those cases cost the litigants tens or hundreds of thousands of dollars.  This is because every jurisdiction has different laws around parentage, some more friendly than others.

With a second parent adoption, there is no question about the parentage rights of a non-genetically related parent.  Even with recent New York case law protecting non-adoptive lesbian parents, there remains questions about what rights other than the standing to sue for custody and visitation exist without adoption.  Federal social security benefits attach to “natural or adopted” children.  Inheritance rights attach to “natural or adopted” children.  Without adoption, future clarification will be needed to accurately assess when parentage exists.

Assisted Reproductive Technology and Gay Families – Sometimes it feels  like we are all just waiting for the law to catch up to how gay and lesbian couples have their families.  One recent decision from Brooklyn, Kings County Family Court to be precise, describes this issue masterfully and concludes that second parent adoption is the one way to ensure that couples are protected as state courts and legislatures grapple with assisted reproductive technology (ART) issues.

While the court in this decision confirms that a parental relationship exists in most cases with or without the adoption, it also holds that married gay and lesbian couples are entitled to second parent adoptions to expel any doubt about parentage and to protect families, particularly when they travel throughout the country and around the world.  The good news is that in many states, New York included, a marriage is not a prerequisite for a second parent adoption.

Whether you are a lesbian couple with a known donor or an anonymous donor, or whether you are a gay couple with a surrogate mother and a pre or post-birth order, the second parent adoption necessity is very real.  Second parent adoption is the right choice to make to protect your family from any future uncertainties.

For more information, email me at Anthony@timeforfamilies.com or visit www.timeforfamilies.com for more information.

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