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Estate Planning For Same-Sex Couples – An Ever-Changing Area of ​​the Law

A hot legal topic these days is whether same-sex couples should have the right to marry. It seems each new day brings another court case, legislative action or people's vote on the issue. Rights that "straight" couples take for granted – the right to inherit property of a spouse, the right to make medical decisions when loved ones cannot, the ability to handle financial matters when a partner is incapacitated – are in flux for gay couples . Some states have wholeheartedly endorsed gay marriage, either through legislation or court decision; others have prohibited gay marriage, through legislation or referendum vote. In the states that do not permit same-sex couples to marry, there is a hodge-podge of laws that may allow recognition of same-sex "significant others" in some areas, but not others; and even in the most negative locales, there are laws that same-sex couples can utilize to protect themselves and their loved ones.

In my humble legal opinion, if we are interpreting the US Constitution honestly, the government ("state action") cannot deny fundamental civil liberties (eg, the right to marry) to a "suspect class" (Constitutional law lingo for a class of people who have historically been discriminated against, which also includes women, minorities, the disabled and a host of other groups). On the other hand, religious institutions, to which the Constitution does not apply, may do as they wish and refuse to marry same-sex couples. But government simply cannot discriminate.

I have high hopes that this legal quagmire will be resolved in gay couples' favor in the near future, and that gay couples will receive the same rights – and responsibilities – that heterosexual couples have always had. (And the world won't come to an end as a result, as some histrionics claim.) However, until this is resolved definitively and uniformly, it is imperative that same-sex couples take precautions to ensure that they and their loved ones are protected in the event of calamity. In my law practice I have seen instances where the survivor of a gay couple was pushed aside as family came in and took the decedent's assets – because the one who died did not have a will. I have seen episodes where one partner could not assist in the ill partner's medical decision-making because there was no health care proxy or medical power of attorney. And I have seen guardianship proceedings that resulted in vicious in-fighting between the incapacitated person's family and the long-term lover over who is best-suited to make decisions.

Not only is it important to protect against those unseemly scenarios, protecting oneself and one's partner is even more important now while the laws pertaining to same-sex couples are in flux. What is the effect of a gay couple's marriage if they move to or live in another state? What is the effect of being on a domestic partnership registry? Which states have which rights and protections? What if you divorce? And what if there are children involved?

Quite simply, same-sex couples can avoid these problems by advance planning with the right professional. A properly prepared and executed will designating heirs speaks loudly to the court system, including how children should be handled. Duly executed advance directives – powers of attorney, health care proxies, living wills and medical powers of attorney – avoid the messy scenarios described above. These legal documents – which should be part of every individual's estate plan – must be prepared by an attorney who practices in this field of law, someone who can ensure your wishes are carried out, especially as this area of ​​the law remains in flux .

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