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Despite changing times, no financial relief seen for gays who wed
Gay and lesbian couples urged to take legal precautions
Published Thursday, 19-Feb-2004 in issue 843
NEW YORK (Dow Jones/AP) – Recent moves by several states to legalize same-sex unions are expected to benefit gay and lesbian citizens in many ways.
Financial planning isn’t necessarily one of them.
Gay and lesbian couples traditionally have far more complicated financial plans – often with layers of legal protections – because they can’t benefit from common marital safeguards.
Naming a partner as beneficiary to a life-insurance policy, for example, can be a lot harder because some states challenge policyholders that name an unrelated beneficiary. Gay and lesbian couples, therefore, often have to establish complex trusts to ensure their life-insurance payout will go to their partner when they die.
One might expect this to change given the number of states that are making allowances for same-sex unions. Vermont legalized same-sex civil unions in 2000, a tie that carries many of the same benefits as marriage. California is on track to permit same-sex domestic partnerships next year while a Massachusetts court recently decided that, unless the state legislature alters its constitution, gay and lesbian couples can be legally married starting in May.
Despite all the changes, gay and lesbian couples are still being advised to keep all the old financial safeguards in place.
“If you’re a resident of the state, I say go ahead and get married – while you’re there at least you’ll have the benefits,” said Bruce Hoffmeister, a Washington, D.C., attorney. But maintain your old financial and estate documents because “we don’t know what’s going to happen,” he added.
For one thing, gay and lesbian couples still have to deal with federal prohibitions against marriage for gays and lesbians, implemented under the Defense of Marriage Act of 1996. So even if you’re legally joined in Vermont, you and your partner remain strangers in the eyes of the federal government. This means that you still won’t receive any federal benefits for married people, like unlimited tax-free spousal gifts and Social Security transfers.
Another reason couples want to keep their old protections in place is that state rules can be scattered and unstable.
Even in Massachusetts, there’s still time for the state to implement constitutional changes barring marriage for gays and lesbians – something Hawaii did several years ago in defiance of its courts.
These potential snafus have Washington couple Matt Braman and Bill Doggett thinking twice about rushing to Massachusetts for a marriage license this spring. Legal recognition of their 12-year union would give the men personal satisfaction, said Braman. But after talking with a lawyer friend, they became aware that “there still appears to be a lot of legal quicksand,” he said.
Of course, anyone who does tie the knot will want to make a few changes here and there. Here’s a list of the basic documents gay and lesbian couples should have and the changes they may need to make in case of marriage.
1) Domestic partnership agreement: This document is essentially a prenuptial agreement without the nuptials. Without this document in place, there’s no claim to assets that aren’t in your name if you live in a state that doesn’t recognize same-sex unions. So even if both partners contributed financially to a house, only the legal owner would have claim to it in a separation.
If you live in a state that allows same-sex unions, you will want to replace the domestic partnership agreement with a prenuptial agreement. But hold onto the original agreement in case you ever move out of the state or that state’s rules on same-sex unions change.
2) Medical power of attorney: This document allows a partner to make health-care decisions for the other partner, including medical treatment and life-ending decisions. One big bonus is that it can also allow a partner to visit a loved one in the hospital when visitation is limited to family only.
If you’re married in a state that recognizes same-sex unions, you will be afforded these rights. But it’s still wise to hammer out this document in case you or your partner are ever hospitalized in another state while on vacation, for example.
3) Durable power of attorney: This document names someone to make your financial decisions for you in case you can’t. Ideally, you want someone who can manage money, which may not be your partner. If so, you still want to choose someone who will take care of the needs of your partner.
4) Will: It’s imperative that gay and lesbian couples have a will. If you die without a will, the bulk of your estate automatically goes to your closest blood relatives, like parents and siblings.
If you’re married in a state that recognizes marriage for gays and lesbians, you should still hammer out a will. Without it, a vacation home in Florida, for example, will go directly to your blood relatives because Florida doesn’t recognize marriage for gays and lesbians.
5) Beneficiary designations: These documents determine who gets assets like life insurance, IRAs, 401(k)s and savings accounts in case of your death. If you don’t fill these out, the assets generally go directly to blood relatives.
6) Insurance: Gay and lesbian couples generally need a lot more insurance to protect against their partner’s death, said Harold L. Lustig, author of 4 Steps to Financial Security for Lesbian and Gay Couples. One reason is because they can’t count on receiving their partner’s federal benefits, like Social Security, after death. But also, gay and lesbian couples face a harsher estate-tax burden because the government allows only spouses the benefit of unlimited financial gifts free of tax.
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