Kathie J. Gummere 2013-03-06 00:45:27
5 Things You Should Consider if Gay or Lesbian Clients Come to You Kathie J. Gummere is in private practice focusing on estate planning, particularly for gays and lesbians and unmarried couples. She is a past political consultant for the organization now known as Equality Arizona. She sits on the National Family Law Advisory Council for the National Center for Lesbian Rights. She is chair of the Chancellor’s GLBT Community Advisory Committee for MCCD and chairs the Out and Up Scholarship Fund Committee for the MCCD Foundation. Kathie is a member of the ethics committee of Hospice of Arizona. She sits on the peer review committee of the State Bar of Arizona, and is a past chair of the sexual orientation and gender identity committee of the State Bar of Arizona. She is a frequent speaker on gay and lesbian legal and political issues, and diversity issues for such varied forums as colleges, municipalities, corporations, religious organizations, and continuing education programs. Kathie can be reached at (602) 952-0293 or via email at email@example.com. The next client who walks into your office may be a person who is gay or lesbian (GL). Will you know how their situation may be different than a heterosexual client? The fact that Arizona does not recognize samesex relationships (SSRs) is not the end of the discussion. Here are some things to consider. Is the person in an SSR? If so, the uneven recognition of SSRs among the states and federal government makes it important to understand what, if any, legal status the parties have entered into. Did they marry legally during residency in a state that recognizes marriage equality? All states which recognize the marriage (recognition states) will continue to treat them as married. Did they get a Domestic Partner Registration in CA or HI? Some states also recognize these as marriages. What is the issue involved? The applicable law will depend on the issue. For some purposes, such as qualification for certain social security benefits or tax deductions, the federal government will look to state law to determine the validity of the marriage or parental status. A marriage may be recognized for some purposes and not for others. Workers Comp. benefits and Medicare/Medicaid Qualification may be determined by state law. Do they have real property in another state? A recognition state may treat real property located in that state as marital property. Such property will need to be considered in doing estate planning, even when the couple is now living in a nonrecognition state. Do they have or need a property agreement? A will that devises the property to a non-party may leave open the door to a challenge by the surviving spouse, especially if the property is located in a community property state. Is any governmental body involved, or is this a matter of employment or contract law? Relationship status will differ depending on what entity is involved. Although the state may not recognize the relationship, the employer, for instance, might. Or the contract may be valid even if the relationship is not recognized. What is the current status of the Defense Of Marriage Act? The status of DOMA is currently before the US Supreme Court. While it is entirely possible that SCOTUS will completely invalidate the act, it is more probable that the decision will leave much of it intact, or invalidate the act, but leave individual state laws valid. If the SSR is not recognized for this issue, can it be recognized in another way, such as through contracts or estate documents? Most states have preference lists of beneficiaries and decision-makers for incapacitated persons and decedents without estate documents. Legal relatives are usually at the top of the list. Without documents, a long-term life partner may be a legal stranger even though the biological relatives are estranged. On April 15, 2010, President Obama issued a memorandum to the secretary of Health and Human Services, which then issued new regulations, Medicare and Medicaid Programs: Changes to the Hospital and Critical Access Hospital Conditions of Participation to Ensure Visitation Rights for All Patients. 42 C.F.R. pts. 482, 485, stating that health organizations that accept Medicare must inform a patient of his/her right to name preferred visitors and decision-makers. If the patient is incapable of stating those wishes at the time of admission, however, there must be documentation stating the patient’s wishes. Are children involved? Like spouses, parents may be recognized in one state, but not in another. In most states, when a child is born to people who are married under state law, the state recognizes that child as the child of both parties. However, without an adoption, a nonrecognition state may not recognize the non-birth parent as a parent. For some purposes, such as survivor’s benefits for children, SSA looks to state law to determine the parental relationship. While the couple resides in the recognition state they are both parents, if they move to a nonrecognition state, a parent may become a legal stranger. Estate documents need to consider whether the client will be considered a parent in all jurisdictions. If the will states that all “children” of the testator are to benefit, the children the testator considers hers may not be recognized as such by the state of residence at the time of death. After a separation, a birth parent may move to try to deny the parental status of a non-birth-parent. Which state law will be applied? The laws regarding gays and lesbians are rapidly changing, and it behooves all attorneys to recognize and understand the changing landscape.
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