Nine Critical Documents For Every Gay And Lesbian Couple
Mark J. Bereyso and Natalie M. Perry
Imagine that you and your partner have lived a long, fulfilling life together, as a family. Your relationship has survived good times, difficult times, buying a house, perhaps raising children, building a business, pursuing one or more careers, and last but not least, the disapproval of a great many people. Now another dose of reality: despite all the anniversaries you have celebrated, the commitments you have made to one another, and the contributions you have made to your community, the law in Illinois treats the person with whom you have shared your life as a stranger, of no greater legal significance than the person you just passed on the street.
The unfortunate fact is that over 1,000 state and federal laws which serve to foster, protect and enhance the relationships between legally married couples have been withheld or denied to your family. The repercussions of this can be devastating. Absent a will, for example, a long-time partner receives nothing under current intestacy laws. Consider the case of Frank Vasquez, a Washington man who shared a home and built a business with Robert Schwerzler over a period of 27 years. In 1995, Schwerzler died without a will and Schwerzler's relatives took over the business and the couple's residence in Puyallup, Washington. The Washington Court of Appeals last February ruled that Vasquez has no right to the property because the two men were of the same sex and under current Washington law, could not marry. The case is currently pending before the Washington Supreme Court, and the outcome is uncertain. Vasquez v. Hawthorne, 99 Wash. App. 363, 994 P.2d 240, review granted, 11 P.3d 825 (2000).
Absent legal marriage (or law comparable to Vermont's civil union law), GLBT families in Illinois are deprived of many basic legal rights and responsibilities. These include laws that:
a. determine ownership of property acquired during a relationship;
b. recognize that partners contribute more to a relationship than just their paychecks;
c. provide for support between partners during (and sometimes after) a relationship;
d. recognize a couple as a single unit for tax purposes and providing numerous tax benefits, such as an unlimited marital deduction for federal estate tax purposes;
e. provide the right to visit a partner in the hospital and to make medical and property decisions on her or his behalf if s/he is not able;
f. provide that one partner inherits from another without a will;
g. identify one of you as the appropriate guardian for the other or the other's children in the event of incapacity;
h. allow a partner to defer income tax on a deceased partner's IRA;
i. allow a partner to sue for wrongful death or for loss of support of a deceased partner;
j. provide privileges against testifying against one another in court;
k. dictate when a committed relationship is dissolved, how joint property is divided, specifying rights and responsibilities with respect to children and directing continuing support obligations, if any.
There are some things GLBT families must do to provide for some of the legal protection automatically conferred on married couples. Yet due to lack of information, procrastination, or fear of non-understanding lawyers, only a minority of GLBT couples and families take the relatively simple steps to avoid the discriminatory effects of current law. There are some basic documents that you must have drafted. These include:
Will - Specifies how you wish your property to be distributed upon your death. In a will, you designate the person you wish to handle your estate -- your partner or another individual. Without one, your partner receives absolutely nothing.
Trust - Avoids publicly probating assets owned by the trust at the time of your death, is more difficult to challenge in court, and provides creditor protection in certain circumstances. One type of trust can provide support for your partner for the remainder of his or her life, with the remainder to pass to other relatives, bypassing potential taxes associated with your partner's estate.
Health Care Power of Attorney - Allows your partner to make medical decisions on your behalf in the event you are not able.
Property Power of Attorney - Similar to a health care power of attorney, allows your partner to handle your financial affairs in the event you are disabled.
Family Agreement - Also known as a cohabitation agreement or partnership agreement, this document can clarify property ownership issues, detail your arrangements regarding household income and liabilities, create a fair and respectful procedure for dissolving the agreement, provide rules on how joint assets will be divided, as well as provide for private mediation and arbitration of any future dispute.
Parenting Agreement - If together you plan to raise a child(ren) where one of you is the legal parent, you should consider a simple agreement stating your intentions. If you do not have children and are thinking of having a child, it is critical to see a lawyer now, not later.
Title on Deeds and Accounts - How your property is titled affects both ownership and taxation. Joint tenancy with rights of survivorship, for example, can create certain negative estate tax treatment.
Beneficiary Designations - Specify the disposition of your accounts upon your death. You likely have signed designations for your securities and retirement accounts, and these should be reviewed periodically to ensure your goals are realized.
Life Insurance - provides funding for payment of estate taxes, outstanding mortgages, charitable trusts or education of minors.
The benefits of these documents are numerous. First, obviously, they provide legal protection which would otherwise be denied to your family. Second, they decrease the likelihood of future disputes by clearly expressing your intentions and agreements. On a more personal level, these documents serve to strengthen relationships by encouraging partners to confront and discuss the serious issues they face in life. Delaying discussion of these issues will not make them go away; it will only complicate matters further when they arise.
Finally, and on a much broader level, these documents benefit the GLBT community as a whole. We have been telling the world for over 20 years that blood and chromosomes do not make a family -- intention and commitment do. By taking the steps to formalize our relationships, we demonstrate the level of respect for our families which we demand from the rest of society. You will not be married nor will you be duplicating a marriage (at least under current Illinois law) - but you will have done the most you can do for yourselves, each other, and your community.