Same-Sex Parents Still Face Obstacles Under New York’s Standing Rules

Prior to the tragic events of Sunday, June 13, 2016 in Orlando, Florida, one might have felt optimistic about the evolving societal acceptance of and respect for same-sex parents and the corresponding progressive state of family and matrimonial law.

We shared in the sense of uplift from the recent United States Supreme Court decisions in United States v. Windsor and, especially, in Obergefell. v. Hodges, decided a little over one year ago on June 26, 2015. Obergefell dealt in sweeping fashion with discriminatory and unconstitutional objections to marriage for same-sex couples. As set forth in Justice Anthony Kennedy’s dramatic and moving language, the need for same-sex parents, and the children of those relationships, to be granted the social dignity and the many societal benefits that go along with stepping into the light of mainstream acceptance by virtue of a nationwide right to marry is required by the equal protection mandates of the 14th Amendment of the U.S. Constitution.gay parents adoption

In concluding that its “analysis compels the conclusion that same-sex couples may exercise the right to marry,” 576 U.S. 12 (2015), the Supreme Court in Obergefell detailed not just the importance of being able to enter the institution of marriage, but the need for same-sex couples to do so on fully equal footing as other couples, through the front door, and stressed in its exhaustive analysis that the focus should not be on how these couples love, but that they love and wish for that love to be reflected in their social standing.

Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition. Goodridge, 440 Mass., at 322, 798 N.E. 2d at 955″ cited at 576 U.S. 13 (2015).

As this court held in Lawrence, same sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made same-sex intimacy a criminal act. And it acknowledged that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. 539 U.S. at 567. But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.

576 U.S. at 14.

Further, Justice Kennedy singled out the importance of the right to marry to the children of these relationships.

Excluding same sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families to be somehow lesser. They also suffer the significant costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.

576 at U.S. 15.

In New York, the passage of the Marriage Equality Act in 2011 directed that all of the laws, benefits and obligations bestowed by the Domestic Relations Law with regard to marriage be read and implemented without regard to sexual orientation, and, if necessary to do that, in a gender neutral way.

Section 10-a. Parties to a marriage.

1. A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.

2. No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy, common law or any other source of law, shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender specific language or terms shall be construed in a gender-neutral manner in all such sources of law.

Yet, despite the passage of the Marriage Equality Act and the newfound nationwide ability to marry, the courts in New York are contending with circumstances in which same-sex families were formed and children brought into them by using strategies that pre-date the ability of same-sex couples to marry. This approach has potentially devastating consequences when those families and their respective rights are addressed in divorce and family court proceedings. These problems arise from, and the courts continue to wrestle with the vestiges of, a rule established by the New York Court of Appeals a generation ago in Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), which set the stage for categorical discrimination against same-sex parents based upon their lack of a biological or adoptive relationship to a child.

The impact of Alison D. was eroded somewhat by the Court of Appeals decision in Debra H. v. Janice R., 14 N.Y.3d 576 (2010), which, through application of comity, recognized parental standing of a non-biological non-adoptive parent in 2010 based upon Vermont’s judicially created rules granting standing based upon the couple’s civil union in Vermont. However, without the right to marry or enter into a civil union in New York at the time, children of unmarried same-sex couples in New York were not afforded the same benefits and protections.

This discrimination is not so easily remedied by the directives of the Marriage Equality Act because many of the parents involved in these situation were not or are not married at the time that their children are born and because the conceptual framework for the denial of standing is based upon a biologically based terminology that is found throughout the family and matrimonial law. This terminology reflects a fixation with the biomechanics of conception, a fixation which runs deeper than mere gender assumptions. Instead of a focus on the “best interest” of children, which is the bedrock determination of all other matters related to their custody and welfare in New York matrimonial and family law, the New York Supreme, Family and Surrogate’s Courts continue to trip over the threshold issues of “standing” when it comes to same-sex parents because of references to “birth” parents or the heterosexual and gender assumptions implied by the use of the word “paternity.” For example, a “paternity” test directed in Family Court proceeding continues to only apply to men and only to establish the biological relationship of men to children obviously born to women. Perforce, this excludes same-sex couples.

By Meg Canby and Caroline Krauss Browne

law.com

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in Legal / Parenting / Recently Added / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 2 comments

In win for gay couples, Maryland high court recognizes de facto parents rights

Maryland’s highest court has ruled that non-biological parents, de facto parents,  who live with and help raise children also have parental rights, overturning a 2008 decision that gay and lesbian advocates considered devastating to same-sex couples.

In a unanimous ruling issued Thursday, the Maryland Court of Appeals ruled that family-court judges can consider whether persons are de facto parents in custody and visitation cases. Advocates say Maryland was one of a few states that considered such parents strangers in the eyes of the law.

De facto parents can include the partner of a lesbian who undergoes artificial insemination, a gay man whose partner adopts a child from a country that does not allow same-sex couples to jointly adopt, or a straight man who raises a child with a woman for years without formal adoption.gay parents adoption

Until the 2008 court decision, such people generally had the ability to maintain some parental rights in Maryland even when their relationships with their partners crumbled.

Then the Court of Appeals ruled against a Baltimore County woman who sought custody or visitation rights with a girl who had been adopted by her ex-partner. The court said “third party” parents should not be treated differently from other third parties seeking custody. That meant they would need to show exceptional circumstances or that the legal parent was unfit in order to be awarded time with children they had helped raise.

This week’s ruling concerned a different case and reversed the precedent set by the court in 2008. Denying rights to third-party parents “is ‘clearly wrong’ and has been undermined by the passage of time,” Judge Sally Adkins wrote in the decision.

LGBT advocates hailed the ruling for correcting what they saw as a continuing injustice against the lesbian, gay, bisexual and transgender community, even after voters legalized same-sex marriage in 2012.

“Now Maryland joins the majority of other states in taking those parents and children out of limbo and putting them in solid legal footing,” said Jer Welter, a lawyer with FreeState Justice who represented plaintiff Michael Conover in the case ruled on this week.

Mr. Conover is a transgender man who had married a woman before undergoing his gender transition. Their wedding took place in the District, which legalized same-sex marriage before Maryland did. Courts treated him and his ex-wife as a same-sex couple for the purpose of the dispute.

Brittany Conover gave birth in 2010 to a child, Jaxon, who was fathered by a sperm donor selected with the input of Mr. Conover, then known as Michelle, according to court records. The couple separated the next year and divorced in 2013.

Ms. Conover stopped allowing her spouse to visit in 2012. She argued in a later custody battle that her former partner never adopted Jaxon and was not listed as a parent on the child’s birth certificate.

Lower courts agreed that Mr. Conover lacked parental rights. The Court of Appeals ruling returns the case to a Washington County judge with the concept of a de facto parent restored in law.

“I am elated that the state’s highest court has ruled that people like me should have our relationships with our children legally protected,” Mr. Conover said in a statement.

R. Martin Palmer Jr., an attorney for Ms. Conover, said the court usurped the role of lawmakers in defining a parent and may have created a situation in which stepfathers can take control of children from capable mothers.

By Fenit Nirappil / The Washington Post, July 9, 2016

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in In the News / Legal / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 1 comments

Family Estate Planning

Family estate planning addresses the greatest concern of most families with younger children: ensuring their stability and security if something happens to a parent.

No one wants to think about a worst case scenario; however, that scenario will become much worse if there isn’t  family estate planning in place. The good news is that once it is completed, parents do not have to worry live in worry anymore.

There are many types of family estate planning and I will review several that may be helpful to your family. They include: basic estate planning, trust planning, guardianship planning and securing all parental rights to a child through adoption, if applicable.

Basic Estate Planning – In most states, a valid Last Will and Testament is the only legal way to name a guardian, other than the other biological or adoptive parent of a child, when one parent dies.  It is critical to have a Will in order to make this designation.  Most couples are concerned about something called a “simultaneous death event,” which is defined as a single event, or series of related events, that takes the lives of both parents.  A competent attorney will be able to prepare for this possibility in a Last Will and Testament, the cornerstone of a basic estate plan.estate planning , estate planning trust, glbt estate planning, lgbt estate planning, gay family law, wills, trusts

Basic estate plans should also include health care documentation known as Living Wills and Medical Powers of Attorney, or Healthcare Proxies. A Living Will states exactly what measures a person wants or does not want if certain specifically outlined medical conditions arise. It does not, however, authorize another person to make those decisions for the Principal of the Living Will.  A Medical Power of Attorney allows a designated person to have access to medical records and make specified medical decisions for the Principal.  For more information on basic estate planning, read my article here.

Trust Planning – A family estate planning trust is useful for parents who may not want to pass significant amounts of money to their minor children upon the parent’s deaths.  Trusts allow a parent to spread payments out over a longer period of time, appoint a trustee to manage those payments, provide for investment suggestions or advisors and include provisions to protect a beneficiary child if they have a substance abuse issue.

Trusts can also be useful tools to either bypass the probate process, which in many states can be long and complicated (a revocable trust), or to avoid estate taxation in the form of an irrevocable trust. For more information about how a family estate planning trust can help your family, read my article here.

Guardianship Planning – There are two general types of Guardianship Designations that are important parts of any estate plan.  The first is an adult Guardianship Designation, the second, a Guardianship designation for your children.  A child’s Guardianship Designation allows the parents of a minor to legally give another person the right to be designated by a court as the guardian of the child’s property and person.

Unless you are naming your child’s other biological or legal parent as their guardian, you must name a guardian in your Last Will and Testament. Once named, the designated guardians will still have to go to court to be legally designated the child’s guardian.  Without your nomination in a Will, that person would not be able to seek guardianship.

Securing Parental Rights Through Adoption – While most parents are secure in their parentage to the children living in their homes, many situations do not fit into that norm and basic protections become a vital part of family estate planning.  Same-sex couples must secure rights to the children born into their relationships through parentage order or second or step parent adoption.  Homes where children are living with step parents must pay particular attention to naming a guardian should both biological parents die.  The second or step parent adoption process in New York  is described in detail in this article.

When family estate planning becomes a priority for you, please consider me a resource. For more information on family estate planning, contact Anthony M. Brown at Time for Families and speak to a specialist family lawyer to secure your and your family’s future.

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Study Says Women in Lesbian Relationships Feel More Parental Stress

A Williams Institute study from the University of California Los Angeles has found women in lesbian relationships feel more parental stress than straight couples.

Ninety-five lesbian parent households were compared with 95 straight parent households to “compare same-sex and different-sex parent households with stable, continuously coupled parents and their biological offspring.”
The study found that in terms of the children’s emotional difficulties, coping behaviors and learning behaviors, there was no difference between those raised in the different households.
However, lesbian parents did experience higher stress levels.parental stress
“Some of our earlier studies have shown that lesbian mothers feel pressured to justify the quality of their parenting because of their sexual orientation,” psychiatrist and co-author of the research, Dr. Nanette Gartrell said.
In the study, parents from both households were matched for characteristics such as age, urban or rural residence, their children’s age, race and gender and whether the parents or children were born in the United States or elsewhere.
Gartrell focused on lesbian couples because there were smaller numbers of male same-sex couples that fit the criteria. The families studied showed no history of family instability or transitions such as divorce or separation and all parents had been raising their own biological children from 6 to 17 from birth.
“This study is consistent with the literature over the last 30 years, with the overwhelming consensus that kids do better with two parents than one parents, and that there’s very little difference in long-term mental health for kids when their raised by either same-sex or different-sex parents,” psychiatrist, psychoanalyst and editor of Journal of Gay and Lesbian Mental Health, Dr. Jack Drescher said.
It’s estimated that 690,000 same-sex couples live in the United States and 19 percent of them are raising children under 18.

Click here to read the entire article.

by Kelly Morris, TheNextFamily.com – May 24, 2016

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Same-sex unions are not enough, say exiled Italian gay parents

When the Italian parliament this week gave the green light to same-sex couples – becoming the last western European country to do so – the Trevi fountain in Rome was lit up in rainbow colours to celebrate, hailing the move as a major step forward for LGBT rights.

But for Italian families living abroad, the spectre of discrimination against gay couples lives on in restrictive adoption laws which can lead to gay parents having no legal rights over their children by a largely conservative, Catholic and sometimes hostile court system.

Current legislation gives same-sex couples the right to share a surname, draw on their partner’s pension when they die and inherit each other’s assets in the same way as married people.

But it has been fiercely criticised for not providing full equality for gay couples, particularly in terms of adoption rights. While adoption has not been ruled out, family judges will decide on a case-by-case basis.international surrogacy

It means that families who have already adopted abroad will have to go through lengthy court procedures to have their adoption recognised in Italy.

Among them are Giovanni and Marco, two Italian dads living abroad who say they can never return home for fear of the state viewing them as strangers to their adopted children.

“The adoption [of our children] is not recognised by the Italian state, so we could be legally treated as strangers to each other,” they told the Telegraph.

“Whenever we cross the Italian border the parental responsibility over our children falls in a legal grey area. We travel with the contact details of the British Foreign Office and the Adoption Order in case anyone starts questioning ‘why the mother is not travelling with the children?'”

Carolina Girardelli, an Italian lawyer specialising in international adoption, said: “Children [adopted abroad] have no rights as Italian citizens [if their parents are gay].

“You can ask a family judge to recognise your adoption papers but in Italy we have the Church, and a lot of Catholic judges. If one of them is against gay unions, you could lose the case.”

by Mauro Galluzo, May 15, 2016 – telegraph.co.uk

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in Adoption / In the News / International / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 0 comments

Gay Parents Adoption – New Possibilities

Gay parents adoption used to be unheard of.

While certain countries still struggle with the concept of our families being equal to all others, in America, the foundation for gay parents adopting has been set and the legal protections for these families are available and critical to creating security in these family structures.  There are several means by which gay parents adoption can occur. I will review the most common: private adoption, public adoption and second or step parent adoption.

Private Adoption – There are several reasons that parents looking to adopt a child may look into private adoption, sometimes referred to as domestic adoption. The availability of children is higher than most people expect.  In the most recent year for which accurate data exists, there were over 18,000 domestic non-relative adoptions of newborns within the United States. Although the number of people placing their children for adoption has fallen dramatically since the 1970s due to the stigma of single-parenthood thankfully decreasing, there are still many birth parents making the painful but loving choice to look for a family for their biological child.

The adoption of the child can be done in one of two ways. The first is to engage an agency to walk you through the process and to help you with paperwork and the emotional upheaval that such a big life decision will inevitably bring. The benefits to involving an agency are numerous; for example, having your own ‘Adoption Specialist’ who will help you communicate with the various other professionals who need to be involved in the process such as social workers, physicians and lawyers. Financial assistance may be available to help cover legal fees, and agencies often do not charge to process the adoption.

lesbian family law

drawing of a happy couple of lesbians and adopted child

The second is a private arrangement whereby a birth mother and prospective parents arrange the adoption between themselves. They will have to hire lawyers and meet the legal requirements of adoption such as age, ability to care for the child and other important aspects. Parents who want to adopt are able to ‘advertise’ for a birth mother, and mothers who have chosen adoption for their child are able to do the same for an adoptive family.

Public Adoption – Foster children are in the legal custody of a commissioner of a social services district. That district may give responsibility for the care of the child to a voluntary authorized agency. When a child is in foster care, decisions must be made regarding the long-range permanency plan for the child. If the social services district decides that it would not be in the child’s best interests to return home and that the child should be adopted, steps must be taken to legally free the child for adoption.

There are three ways a child can become legally free for gay parents adoption: 1) the birth parents can sign a voluntary surrender agreement; 2) the social services district responsible for the child can bring a case in court asking the judge to terminate the parental rights of the birth parents; or 3) if both birth parents are deceased, or one parent is deceased and there is no other parent whose consent to the adoption is required, the child is automatically free for adoption.  Read more at the NY State Office of Children and Family Services, the source of this information.

Second or Step Parent Adoption – One increasingly popular methods for gay parents adoption is when one parent has a biologically related child of their own and their partner or spouse adopts that child.  If the couple is not married it is referred to as a “second parent adoption” and if they are married, it is referred to as a “step parent adoption.”   For both gay and lesbian couples, securing the legal rights of a non-biological parent is crucial to create the kind of emotional, and legal, security that most other families take for granted. The legality of both parents relationship to their child is often assumed. Parents are parents, regardless of the biological connection to your child.

While recent case law is catching up to our families, it is still lagging in the ability to create complete security without adoption, or a birth order from a competent jurisdiction.  Whichever path you choose to having your family, It is critical to speak with an attorney with experience in the field.  When you consider gay parent adoption, please consider me a resource. For more information on family estate planning, contact Anthony M. Brown at Time for Families and speak to a specialist family lawyer to secure your and your family’s future.

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Italian couple win international second parent adoption case

 

Two gay Italian women have won the right to international second parent adoption, a legal first for the country. All previous verdicts in Italy in favour of lesbian women being legally recognized as the parents of their partner’s children are at the appeal stages.

In its judgment on Friday, Rome’s juvenile court said Marilena Grassadonia, president of the Rainbow Families association, could adopt her wife’s twin boys via international second parent adoption. In turn, her partner adopted Grassadonia’s son. All three were conceived by artificial insemination.

In March, a man won his request to adopt his partner’s child, but rights watchers believed the ruling may have slipped through the net due to an administrative error, with the office of the prosecutor in charge of the case failing to file an appeal in time.adoption

Grassadonia was a vocal campaigner in Italy during the heated debate earlier this year over a contested civil unions bill.

The text, adopted by parliament’s upper house after a clause allowing gay couples second parent adoption was removed, will be examined by the lower house from 9 May.

Italy’s prime minister Matteo Renzi has said he will resort to a confidence vote on the government, if necessary, to make the bill law.

While they wait for a change in the law, courts have been finding in favour of gay couples since 2014 on the basis of current legislation that favours “emotional continuity” for children.

The Guardian – April 30, 2016

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in In the News / International / Legal / Legislation / Second Parent Adoption  by Anthony Brown 0 comments

Top Concerns for Gay Men Considering International Surrogacy

International surrogacy poses many questions, and potential obstacles for gay couples.

A gay couple made global headlines last year when their plans for having a baby together went horribly wrong. Manuel Santos and Gordon Alan “Bud” Lake III chose to move forward with a surrogate in Thailand, but after their baby was born, the surrogate refused to sign the final papers, chose to back out of the contract, and eventually decided to fight for custody. International surrogacy was back in the news.

Their case eventually went to court, but was complicated by the fact that the law in Thailand does not recognize same-sex marriages. On top of that, a new law that bans commercial surrogacy went into effect after their baby was born. The odds were stacked against them and the couple had to turn to crowd-funding to help pay for the legal fees and the costs of staying in the country during the battle. Thai surrogate mother

“Our lives have been turned upside down,” the couple explained on Fundly. “Our jobs are in danger, our family is now divided, false allegations and criminal charges have been brought against us. What was supposed to be the happiest time of our lives, bonding with our new baby girl — our daughter and our son’s new little sister – has turned into an absolute nightmare.”

I’ve heard similar stories like this before. I recently published a book titled, Journey to Same-Sex Parenthood: Firsthand Advice, Tips and Stories from Lesbian and Gay Couples, to help LGBT people understand the pros and cons to the various paths to parenthood. The book compares adoption, surrogacy, foster care, assisted reproduction, and co-parenting. One section in the book tells the story of David and Josh, a gay couple who decided to have a baby through international surrogacy but wound up stranded in India for a month after the government refused to grant exit visas for their newborn twins.

David and Josh were eventually allowed to bring their children home to the U.S. I’m also happy to announce that on April 26, Santos and Lake won their court battle in Thailand too, although the couple is still not able to take their child out of the country right away because of the possibility of an appeal by the surrogate mother.

I don’t want to make it sound like surrogacy is bad, or that all people who choose international surrogacy are destined to have horrible experiences, but I do want to raise awareness about the challenges that LGBT people may encounter when choosing to move forward on this path. Here are the top three things you should be aware of when considering international surrogacy.

Possible legal complications – If you are thinking about going to another country for surrogacy, consider the potential emotional and financial cost if you run into complications. Depending on your situation, you may not be able to bring your baby back to the United States or you may have lengthy delays before you can return. International surrogacy is complex and doesn’t have clear protections. Do your research to understand what legal rights the surrogate will have if any, and how the county protects LGBT couples. Consult with a lawyer that specializes in international surrogacy prior to moving forward so that you can be knowledgeable about the situation ahead of time.

Possible breach of contract – Even though all parties sign a contract in the beginning, it is still possible for a surrogate to violate her end of the agreement. There is a risk the birthmother could voluntarily have an abortion without the consent of the intended parents or refuse to have an agreed-upon abortion when recommended by the physician. It is also possible that the surrogate could use drugs, consume alcohol or fail to follow other behavioral restrictions laid out in the contract. In the case of Santos and Lake, the surrogate decided to back out of the contract all together after the baby was born.

by Eric Rosewood, HuffingtonPost.com, April 28, 2016

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in Ethics / International / Recently Added / Surrogacy  by Anthony Brown 0 comments

Two Moms Talk About Second Parent Adoption

Not all LGBT parents in the U.S. can put both parents’ names on their children’s birth certificate.  Second Parent adoption can help.

And even if they can, many lawyers still advise that gay couples go through a second parent adoption as a means to protect their parental rights to their children.

Brandy and Susan from The Next Family discuss their second parent adoption experience so other LGBT parents can gain some insight.

The moms explain the importance of second parent adoption by providing the example of traveling internationally to countries that don’t recognize same-sex marriage or families. By going through the process, step parent adoptions give both parents the same rights to their children thus protecting them in the U.S., overseas, and even in custody cases.second parent adoption

“And at the end of the day, I think it’s wise to do it,” Brandy said.

Though she does share her displeasure with the entire process that LGBT parents have to go through that straight parents do not:

“We fight so hard for our LGBT rights and we’ve gotten to this point and this place in our country…and [step parent adoptions] sort of takes you back. Like, really?”

Brandy and Susan explain the process that their family went through when it came to their step parent adoption. It involved finding a good lawyer, filling out an adoption application, and speaking with a social worker.

When speaking about the social worker experience, Brandy said, “They were asking us sort of ridiculous, in my opinion, parenting questions.” She also adds that you should prepare yourself for this experience which may be uncomfortable: “I think it was really insulting to me that they were asking her these questions and me these questions and I had had this child and we had together made this decision together to have this child.”

Following the social worker meeting, families will have to go to court to complete the adoption process.

For Susan’s court date, the judge asked her, “Why should I grant you this right to adopt this child?” Susan said she responded quite awkwardly with, “Well, I’m kind of doing a lot of mother things.” She was happy though with how the judge responded, “You’re the mother and that’s why I’m doing it.” Susan said she could tell that the judge thought that the entire process was also a “silly precursor” to establish her parental rights.

Click here to read the entire article.

By Alex Temblador – TheNextFamily.com – April 15, 2016

in Anonymous/Known Donation / Family Stories / Legal / Personal Stories / Recently Added / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 0 comments

Estate Planning Basics for Gay Couples

What are the estate planning basics that all gay couples need to know? This article will give you the information you need to take those first steps toward protecting your family.

Some of the most common errors that gay couples make regarding estate planning basics can be corrected fairly easily. Before we discuss these, it is important to know that over half the American public, regardless of orientation, do not have a Will. The number one reason I hear is, “I don’t have anything so why do I need a Will?” The truth is that most people, when they know what the state requires when someone dies without a Will, realize that they have more than they think and that they want to decide what happens when they die.

tips for estate planning
Maximizing non-probate assets – The rule of estate planning basics is to know what assets a Will passes to your desired beneficiary. 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, 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.

Property ownership – The most valuable asset for many people is a home, condominium or cooperative apartment. If you own that property jointly as a married couple (Tenants by the Entirety) or with someone you are not married to (joint tenants with right of survivorship), then that property will pass directly to the surviving co-owner. If, however, you are not married and own the property with another person and the title to the property simply states both names, without the words, “joint tenants with right of survivorship,” then your half interest in the property must pass through your Will. This form of ownership is called “tenants in common.” One of the most estate planning basics is to verify on your title document exactly how you own that property with another person.

Documents everyone should have – While marriage provides some very important protections for gay couples, it is always advisable to have a comprehensive estate plan to make sure that you have control over you body and your assets. The top 6 document list of estate planning basics include the following:
• Last Will and Testament – A Last Will and Testament allows the drafter of the document to control the distribution of their assets upon death.
• Durable Power of Attorney – This document allows the drafter to authorize another person to make financial decisions for them. It authorizes, among other things, payment of debts, collection of payments, redistribution of assets, withdrawal of assets from a bank account and the sale of property.
• Designation of Guardian for Property Management and/or Personal Needs – If a person were to be judicially declared incompetent or incapable of managing their property or themselves, the court would appoint a guardian for that purpose. The guardian is usually a family member. This document allows the Principal to designate who that guardian would be.
• Living Will – A Living Will states exactly what measures a person wants or does not want if certain critical and specifically outlined medical conditions arise.
• Medical Power of Attorney / Health Care Proxy – This document allows a designated person to have access to medical records and make specified medical decisions for the Principal.
• Priority Visitation Directive – A Priority Visitation Directive specifies who the Principal prefers to have priority visitation privileges, usually over family members. This is particularly important if you are no married.
• Affidavit of Burial or Cremation – This document ensures that a funeral director or funeral home administrator follows the instructions given them by the person designated in the affidavit.

Without estate planning basics – If you are married, now that marriage equality is the law of the land, certain protections are guaranteed. Your assets will pass to a surviving spouse, and you children, in defined percentages according to the state in which you live. Your spouse will be allowed to make medical decisions for you, however, financial decision making requires an executed Durable Power of Attorney. If, however, you want to make sure that specific items go to anyone other than your spouse and/or children, you must have a validly executed Last will and testament.
When you are considering the estate planning basics that all gay couples, and individuals, should have, please consider me a resource. For more information the basics for estate planning for gay couples, contact Anthony M. Brown at Time for Families and speak to a specialist family lawyer to secure your and your family’s future.

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