LGBTQ+ Protections During a Challenge to Obergefell

I generally try to write my blog posts here as informative, but approachable. Fun even, sometimes. (Don’t judge me, I love family law, and I think this is fun.) The point of Couch Chats with Kait is that you feel like you’re just perched up on my sofa, sipping a beverage of your choice, talking to me about what’s going on in your life. I (try to) think of fun titles, and keep them short enough to read quickly, and you, the reader, can contact me if you have any questions.

Not today.

It was announced earlier this week that Obergefell v. Hodges, the landmark case from 2015 that allowed same sex couples the right to marry, with all the legal benefits that affords, is being challenged in the Supreme Court. This could mean that same sex couples could potentially lose the benefits of being married, and the protections that affords, as early as next year. Nine states currently have introduced legislation to strip same sex couples of these same protections, despite the current federal ruling that protects them.

I want to be extraordinarily clear: I specifically, and Newton Law PLLC, support the rights of same sex couples, their children, and LGBTQ+ individuals. If the law might be overturned, making sure that everyone has access to the same rights and protections is a priority at Newton Law PLLC. I have prepared a short list of documents that could help to protect rights in case of Obergefell being overturned. I will go over them briefly today, but feel free to contact us through the Contact Us link for more information on this. I am working on a checklist now that can be more widely disseminated (and quite frankly, looks better than a blog post). This is not meant to fear monger; information is power, and I want to make it available to as many people as possible.

1. Power of Attorney Documents

   Y’all, not all POA documents are created equal. There are numerous different kinds: financial, medical, limited, etc. The point of a POA gives a named guardian the ability to make decisions for someone if that person is incapacitated. If you no longer have contact with your biological or legal relatives, this is imperative to make sure that someone you trust is making decisions for you and taking care of what’s important. If your biological sister, who never approved of your spouse, is given control of your decisions, including financial ones, what would this do? Making sure that an agent that you trust to carry out your wishes and maintain your family as you want it should be a top priority. Something that is important to note is that POA documents are only valid during life, and cease to become effective following death.

2. Advance Directives/Living Wills

   I have seen advance directives combined with POA documents, but I do not recommend it for LGBTQ+ individuals and families. While the POAs designate who gets to make the decisions, advance directives/living wills give a roadmap of the things that person needs to do. Your wishes regarding your healthcare, your finances, your life in general, are spelled out with certainty, This includes your final wishes: how you want to be buried, or not; to have a funeral, or not. Again, think back to the biological sister, who could keep you away from your chosen family and prevent you from carrying out your wishes. Not if you have this.

3. Domestic Partnership or Civil Union Agreements

   Some people do not want to get married. I get it, it happens. But marriage affords a number of benefits and protections under the law, and that was something Obergefell afforded to LGBTQ+ people. In the event that Obergefell is overturned, an agreement like these could spell out in contract form your family’s plans, including things like finances, legal responsibilities, etc. These were largely unneeded after Obergefell, but it is something that could be brought back if those rights need to be ascertained now.

4. Name Change Documentation

   This step is especially important for the members of the trans community, who have moved on from their dead names to becoming who they want to be. If you have changed your name on documentation, you should have changed it legally. This is a form that you can file with the court, and as long as you aren’t changing it to avoid debt or prosecution, it should be fine. I do suggest you consult an attorney regarding this, just to make sure everything is in order. Make sure that all of your identifying documentation: passport, driver’s license, updated birth certificate, etc match your updated name. There have been some issues with gender regarding this current administration and passports: make sure you have a valid passport to protect yourself, full stop.

5. Adoption Documentation

   Many same sex couples have expanded their families through medical means, and one parent may be the only legal guardian of a couple’s children. I have advised several couples recently on steps to pursue a second parent adoption, which would give the parent without legal rights currently those legal rights. Making sure you both have rights to your children is one of the most, if not the most, important thing you can do. Please consult an attorney on this step; it is not something I would recommend attempting on your own. Additionally, when it comes to your will, make sure that you are selecting someone in the event of your and your spouse/partner/co-parent’s demise that is raising your children the way you want.

6. Wills

   A will spells out your wishes for your property following your death and appoints an executor to carry out those wishes. If you pass away intestate, or without a will, the state you lived in will go to your next of kin - we are back to that biological sister - to dispose of your estate, and often, that is not the way you want it done. Making the decision ahead of time ensures that you can continue to have agency over your choices even following your death. THIS INCLUDES PETS. In the state of Texas, pets are considered property (currently, my three dogs are sitting at my feet, and would be DEEPLY offended at being considered property). Take care of them too with specific instructions and designations.

7. Trusts

   Trusts are a great way to ensure that your assets do not enter probate, the long process of dispersement following your death. A trust can maintain those assets for your designated beneficiaries, and often can save your heirs on taxes and fees. You can even set up something called a pour over trust, that adds your assets to the trust at the event of your passing. This is something that attorneys specialize in, and this can be hard for biological or legal families to challenge (hint, hint).

8. Beneficiary and Real Estate Documents

   If you already own a property with your spouse, chances are good they have rights to it already. Make sure that everyone knows where the documentation for property, including vehicles, is, as well as any beneficiary paperwork for 401k and retirement accounts. Again, knowledge is power, and having access to these things can ensure that your assets get to where you wanted them to be.

I want to stress again: THIS IS NOT TO FEAR MONGER. Being prepared ahead of time is the best way to protect yourself. If you do think you need an attorney’s help, please ask them when you consult with them if they are familiar with these documents, and if they have experience with assisting members of the LGBTQ+ community. It goes without saying that Newton Law PLLC meets these criteria, and stands ready to assist any of our clients that wish to take these steps.

My sincerest hope is that these are not needed, and SCOTUS declines to hear this case, but we don’t know. So we prepare. Together.