Gay and Lesbian Rights
BY Susan M. Brazas for Lawyers.com
The news was shocking. A Dallas judge granted a divorce to two men who, under Texas law, couldn’t have been married. How times have changed! The Dallas judge ruled that the men could be divorced, and also that the Texas ban on gay marriage violated the constitutional right to Equal Protection.
US Supreme Court Has Not Yet Spoken
Massachusetts and California were the first states to begin discussion and political movements regarding gay marriage. Then, Iowa and other more politically middle-of-the-road states began to address it. Now, to the great surprise of many, a judge in Dallas ruled that the Texas law violates the constitutional guarantee to Equal Protection under the law. The law was affirmed by 75% of Texas voters in 2005, and defined marriage as an institution involving one man and one woman.
To date, the US Supreme Court hasn’t addressed the issue. Like state Supreme Courts, the nation's highest court is selective about which cases it hears and decides. The fact that a person has appealed their case to the US Supreme Court doesn’t mean that the Court will accept it. Numerous factors are considered, including:
- The importance of the public policy implications
- The size of the constitutional questions involved
- The degree states are divided on the issue
Rights of Domestic Partners Vary by State
Each state differs widely on the protections given or denied to domestic partners, same-sex or not. In one recent case, the Wisconsin Supreme Court refused to require pension benefits for domestic partners. If you die without a will, your state's probate laws will define who your "spouse" is when distributing your estate.
The specific terms of pension plans and other benefit plans, including health and life insurance, will usually contain provisions addressing the benefits of domestic partners. The person who is covered can make an election specifying the beneficiary. However, if no one is named, or if the named person is deceased, then the plan may "default" to the covered person's spouse or domestic partner.
Another estate planning tool is the adult adoption. This is when one person “adopts” another to have them as their beneficiary in case the partnership isn’t otherwise recognized.
Protections for Your Domestic Partnership
It’s impossible to predict your state's position on gay marriage in the future. It’ll be important to have an attorney review all pertinent documents to determine whether your spouse or domestic partner will automatically be entitled to your property or benefits upon your death. These documents include:
- Your insurance policies
- Pension plans
- Real estate deeds
- Bank account provisions
Don't assume that your state's laws provide adequate protection for you in the event of your death, or your partner or spouse's death. Many widows and widowers are surprised and disappointed to learn that their spouse's property doesn’t automatically go to them.
For example, if your spouse had real estate that was in a joint tenancy or was owned with someone else. Or if your spouse hadn’t named you as beneficiary on their annuity or life insurance policy.
Make sure your property is distributed to the people you want before you die so your heirs don’t have to fight it out or feel disappointed that you didn’t make special arrangements for them.
Questions For Your Attorney
- I had a civil union with my partner in one state, but moved and the new state doesn't recognize our marriage. Are we considered married?
- If I "adopt" my partner for Will or other reasons and then divorce how do I "unadopt" that person if we break up?