LGBT Parenting
Two*True
member
FAQs - #7 - Legal Protections
Two*True
member
What legal protections should my partner/spouse and I get to protect our family? Do we need to have documents created if we are legally married in our home state?
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Re: FAQs - #7 - Legal Protections
Because gay marriage isn't a federal legal right, it's imperative that you get as many legal safeguards in place as you can, whether you're married in your home state or not. As the previous poster said, find a gay-friendly law firm locally (and ask friends for recommendations--our first lawyer sucked and sucked us dry!). Think about the following things before you start TTC, if possible:
Legal Trusts: If each of you place all of your worldly goods in a legally-binding trust for which the other is the primary beneficiary, you ensure that, if one of you dies and the other is left to raise your children alone, she or he can do so with all of your combined assets available without the litigation of estate settlement. This is especially important if you plan for one of you to be a stay at home with limited or no income.
DP Health Insurance Benefits: If you're lucky enough to work for a company that offers domestic partner benefits, make sure those extend to the DP's birth children BEFORE the DP gets pregnant. If not, you could find your newborn infants without health care! (Yes, MedicAid is available for uninsured newborns, but you don't want to have to apply for it emergently because you didn't know they wouldn't be covered.)
Second-Parent Adoption: NOT LEGAL IN EVERY STATE! Make sure you know whether it is in your state. One of the biggest benefits to adopting your partner's child is that your name is now on the birth certificate (even if, as in Illinois, your state hasn't caught up to itself and your second mommy is listed as the child's father), which means you have complete rights to that child anywhere any time. Very important if there's even a slim possibility you'll be moving to a state where same-sex parent adoption is illegal.
Pre-birth Care Directives and Medical Powers of Attorney: Vital if, God forbid, your partner is medically compromised during labor and delivery. If she is incapacitated and medical decisions need to be made for the baby, make sure you have a binding medical power of attorney for you partner and any children she may have--otherwise you may be shut out of medical decisions for your partner and children at a very critical moment!
Wills and Living Wills: Oh so VERY important! And discuss all the decisions each of you want made in end-of-life situations. It's not ghoulish to sit down and say "Okay, Honey, let's say I get hit by a car and have severe brain damage and am brain dead. Here's what I'd want done..." That's just making sure that, God forbid it happens, you know you're doing what he or she would want. The wills should give guardianship of "any progeny, living or future" for each of you to the other. That way if your partner dies in childbirth, the child doesn't end up with a relative who may or may not approve of you as your partner's mate.
It sucks to think of all the death scenarios, but seriously, you need to know that your children aren't going to be taken from you, compounding the pain of losing a partner. The other thing it sucks to contemplate is gay divorce, which is just as real as straight divorce. Remember that the downside of the fact that, once adopted, the child is completely and equally the child of each parent is that, if those parents break up, you do actually have to have a legal discussion about child support and custody.
Great advice so far! I will add:
Here in Washington State, we have domestic partnership that is legally equal to marriage (on the state-level) which means that non-birth parent can be listed on the birth certificate. This does not however legally protect that relationship outside of the state and therefore second-parent adoption is highly recommended as it is required to be recognized. Second-parent adoption is very common in the urban areas (Seattle). Paperwork is completed (often by a lawyer) and filed, a meeting with a social worker to write a family report and a court hearing (usually a formality/celebratory event) to finalize the adoption. Cost is usually around $1500-2000. Wills and other documents are recommended to protect partners but the domestic partnership laws cover some of the basics.