Gay Parenting. Cynthia Phillips
Читать онлайн книгу.
a designated guardian if there are no other challengers. Again, be sure that you speak to any potential guardian ahead of time, obtain his or her consent, and if your children are old enough, discuss it with them.
Jing and his partner Mark adopted a baby boy, with Mark as the legal parent of record. Where they lived, domestic partner adoptions were not an option, so the two men created a guardianship agreement in which Mark specified that Jing should have legal guardianship of their son, should anything ever happen to him. Sadly, Mark was killed in a car accident; Jing had enough to worry about, without having to think about losing custody of their son.
Unfortunately, the story didn’t end there. Mark’s parents never approved of his relationship, and they didn’t want their grandson being raised by a “stranger.” They filed for adoption of the baby and won their petition in court. Jing’s lawyer appealed the decision, and the case was resolved by the judge’s decision that Jing should be allowed supervised visitation with his son. The solution here was far from optimal, to be sure, but without the guardianship agreement, Jing might not have won even that small victory.
In most cases of same-sex couples (with or without children), two contingencies need to be considered when drawing up wills. One is what happens if one partner dies before the other. The other is what will happen if both partners die at the same time (as in a car crash, etc.) In the first case, most partners would usually leave all or most shared asserts to the surviving partner. If you have any particular heirlooms from your family that you want to pass on to brothers, sisters or other immediate relatives, you should also indicate that.
In the second scenario, if you do have children or if you intend to have any in the near future, place the appropriate contingencies in your will. Example: say that John dies, leaving behind minor children. John wants them to inherit his possessions and assets. He may want to stipulate that his children’s living expenses will be paid for, and that the rest should be held in trust until the children reach legal adulthood or enter college. The situation of parents dying and leaving behind minor children is of course a very difficult one to contemplate; it is, however, important to take care of these things. Knowing that your children will be taken care of were anything to happen can provide a sense of security.
LIVING TRUST
Depending on your state and particular distribution of assets, instead of a will you can choose to use a revocable living trust to indicate who will get your property in the event of your death. A living trust functions much like a will. The main difference is that a will must be settled by the court system, while a living trust can transfer property directly upon your death. The court probate process can sometimes take up to a year, especially if you have debts that must be settled first or if the will is challenged. Also, depending on your particular circumstances, sometimes using a living trust can keep your heirs from having to pay certain taxes on received property, so there may be financial benefits to going with this method.
A trust differs fundamentally from a will in that once a trust is executed, you actually legally transfer the ownership of your assets to the trust. You still will have complete control of your assets during your lifetime, but the trust will technically own your property. Because of some state and federal tax laws, in some cases property left by one partner to another in a will may be subject to much higher tax rates than a comparable situation in which a wife leaves property to her husband. For this reason, especially if you have sizeable assets, it may make sense to use a living trust instead. If you think this situation applies to you, always speak with an attorney who’s familiar with the particular situation for same-sex couples in your state.
As of this writing, the states of California, Hawaii and Vermont allow same-sex partners to inherit without wills. Massachusetts also allows for this inheritance, but that is because same-sex couples can legally get married there.
To take advantage of these rights:
• In California, you need to be registered domestic partners.
• In Vermont, you need to have completed a civil union.
• In Hawaii, you need to be reciprocal beneficiaries.
There is a caveat, though. Even if you live in one of these states, your property may be distributed between your partner and any other legal living heirs if you didn’t prepare a will. The bottom line: no matter where you live, write a will or living trust.
DURABLE POWER OF ATTORNEY FOR FINANCES
A Durable Power of Attorney for finances can be used to ensure that your partner has full control over joint assets should you be incapacitated. This document lets you give a particular person full access to your finances without relinquishing any of your own control. In such a situation, this person would be able to pay your bills, cash your checks or receive various other benefits in your name. Obviously, this sort of document gives another person serious control over your money. Remember that you’re basically giving someone else the ability to empty out your bank accounts, sell off your assets and drain your 401k plan. Don’t take this decision lightly!
To whom should you give this sort of power? If you and your partner already have mingled finances, a durable POA for finances can allow your partner to continue paying bills and have access to money that may be listed only in your name, but has become de facto joint property.
Mark and Jing, the couple we discussed earlier, never filed a Durable Power of Attorney and, as a result, Mark’s parents claimed most of their joint assets upon their son’s death. Jing says, “In retrospect, I can’t believe we didn’t deal with this years ago, but it never seems like you need to, you know? But then, if you don’t deal with it, it may be too late.”
If you don’t want to give someone a complete Power of Attorney for finances, you can instead draw up a Limited Power of Attorney for finances. This version gives your designee the same powers, but only for a specific amount of time. For example, if you know that you’ll be going into the hospital for scheduled surgery and will be recuperating and unable to manage your finances, it may make sense to give your partner control over your assets (and debts) for the duration of your absence. You can also limit the designee to specific functions; for example, you could allow this person to pay your bills, but not empty your bank account. It’s something that would be taken for granted in a typical heterosexual marriage, but is an example of an extra precaution that gay and lesbian couples need to take in order to achieve the necessary protections.
The Power of Attorney for finances should be filed with your bank and any other financial institutions you might deal with (such as brokerage accounts or mortgage companies). Some banks will have their own versions of this form that you’ll be required to use, so be sure to check with your specific bank before preparing this document.
CHOICES IN MEDICAL CARE: JIM AND DONALD
One of the nightmares of being in a non-married relationship is what may happen in the event of sudden medical illness. Donald and Jim had been together for years when Donald was seriously injured in a car accident on the way home from work. They lived in a state without a domestic partner law, and had never thought that they needed any sort of permission to make decisions for each other.
When Jim arrived at the hospital, he discovered that Donald was on a ventilator. There were some major decisions to be made regarding Donald’s course of treatment, and Jim made a point of speaking to the surgeon in charge. He expected the doctor to discuss the alternatives and help him arrive at a decision for his partner’s care. He found out his input was not considered valid, though, when Dr. Carlson asked, “Who are you?” Jim responded, “I’m Donald’s partner.” The doctor looked confused, asking if he was Donald’s business partner or if they worked together in a law firm. Jim patiently explained that no, they were life partners, and had been for some time. The doctor shook his head and said, “I can only discuss Donald’s medical situation with family members. Does he have any in the area that you can call?”
Jim couldn’t believe what he was hearing, and tried to explain their living situation to the doctor. His pleas fell on deaf ears; the doctor would only talk about Donald’s care with a wife, parent or other relative. Jim finally asked to go in and see Donald; surely they could sign some sort of form or document to