Category: LGBTQIA+
Clear ResultsEstates and Trusts
Estate Planning Essentials for Maryland’s Unmarried Couples
A shared home, shared finances, and years of mutual commitment may look indistinguishable from a legal marriage. In the eyes of the law, however, the differences can become apparent at exactly the moment when legal protections matter most. For more than a decade, marriage equality has been the law nationwide. Many couples, including those in the LGBTQ+ community, have taken advantage of the legal and financial benefits that marriage provides. Still, a significant number of couples, both gay and straight, remain happily partnered but legally unmarried. Some feel their relationships are too new; others prefer to avoid the legal and financial entanglements of marriage. For some, family dynamics, prior marriages, or personal beliefs play a role. Whatever the reason, unmarried couples do not receive the automatic legal, financial, and estate-planning protections granted to married spouses. But thoughtful planning can close much of that gap. While a set of legal documents cannot fully replicate the benefits of marriage, it can provide essential safeguards, especially in times of crisis. This planning is especially important for blended families, where one or both partners may wish to provide for both a surviving partner and children from a prior relationship. Six Key Steps to Consider Register as Domestic Partners Maryland law now allows unmarried couples to register as domestic partners with the Register of Wills. Registration can provide important legal protections that were previously unavailable to couples who chose not to tie the knot. One of the most significant benefits arises at death. If a registered domestic partner dies without a will, the surviving partner is entitled to inherit a share of the decedent’s estate under Maryland’s intestacy laws, similar to the rights of a surviving spouse. A registered domestic partner also has priority to serve as personal representative (executor) of the deceased partner’s estate. Registration provides substantial tax savings. Property left to a surviving domestic partner is exempt from Maryland’s 10% inheritance tax. This is true whether the transfer occurs under a will or trust, or through a beneficiary designation on a retirement account or “transfer on death” provision on a bank account. For couples with significant assets, this exemption alone can save thousands of dollars in taxes. Registration is available to both same-sex and opposite-sex couples and is a relatively simple process. By registering, unmarried couples can obtain many of the protections traditionally associated with marriage, including inheritance rights, exemption from Maryland inheritance tax, and greater legal recognition of their family relationships. Registration is not, however, a substitute for estate planning. Couples who register should still have wills, powers of attorney, and advance medical directives in place. Prepare Wills for Both Partners Having wills is essential for unmarried couples. Without them, state intestacy laws will apply, and those laws do not recognize unmarried partners unless they have registered under Maryland law. This means your partner could receive nothing from your estate and would have no priority to serve as your personal representative. Beyond providing for a surviving partner, a will is especially important for couples with children. A will can nominate guardians for minor children, create trusts to protect a child's inheritance, and name trustees to manage assets until children are mature enough to handle them responsibly. Without these provisions, important decisions about the care of your children and management of their inheritance may be left to the courts. A properly drafted will ensures that your partner inherits according to your wishes, can serve as your personal representative if you choose, and can administer your estate efficiently. A professionally drafted and executed will is one of the most important protections you and your partner can put in place. Consider How Assets Are Titled For unmarried couples, the way assets are titled can be just as important as having a will. Certain forms of joint ownership allow property to pass automatically to the surviving partner without probate. For example, a home owned as joint tenants with right of survivorship will generally pass directly to the surviving owner upon the death of the first partner. Likewise, joint bank accounts may allow the surviving partner immediate access to funds needed to pay household expenses and other bills. Proper asset titling can simplify estate administration, reduce delays, and provide financial security for the surviving partner during a difficult time. However, adding a partner as a joint owner is not always the right solution. In some cases, joint ownership may expose assets to a partner's creditors, create unintended tax consequences, or conflict with other estate-planning goals. Before changing title to real estate, financial accounts, or other assets, couples should consult an estate-planning attorney to ensure that ownership arrangements are consistent with their overall estate plan and financial objectives. Review and Update Beneficiary Designations Certain assets, such as life insurance policies, retirement accounts, and pay-on-death bank accounts, pass outside of your will. Instead, they transfer directly to the beneficiary designated on the account or policy, regardless of what your will may say. It is critical to review these designations periodically to ensure that they reflect your current intentions. Outdated beneficiary forms are one of the most common estate-planning mistakes and can easily undermine even a well-drafted will. Execute Durable Powers of Attorney If one partner becomes incapacitated, the other has no automatic authority to manage financial affairs. A durable power of attorney allows you to grant your partner legal authority to access financial accounts, pay bills, manage investments, handle real estate transactions, and communicate with tax authorities or government agencies. Without this document, your partner may be forced to pursue guardianship, a costly and time-consuming court process. Prepare Advance Medical Directives An advance directive enables you to appoint your partner as your health care agent in case you are ever unable to make medical decisions for yourself. This document authorizes your partner to speak with your doctors, review your medical records, and make decisions on your behalf. It also enables you to name backup decision-makers and to express your wishes regarding end-of-life care. A properly executed advance directive may be recognized in other states, making it especially important for couples who travel or relocate. Protect the Life You’ve Built Together In most cases, unmarried couples should have six key protections in place: domestic partnership registration (when appropriate), wills, proper asset titling, updated beneficiary designations, durable powers of attorney, and advance medical directives. Even couples who plan to marry in the future should consider putting these protections in place now. Legal uncertainty can arise at any time, and having these documents prepared helps ensure that both partners are protected in the interim. After marriage, the documents can be reviewed and updated to reflect the couple's new legal status and expanded rights. Whether you choose marriage or a lifelong partnership, protecting the life you have built together requires intentional planning. Consult with an experienced estate-planning attorney to help protect your relationship and your assets for the future.
July 9, 2026
Estates and Trusts
LGBTQ+ Estate Planning —A Tale of Two Couples
Chris and Jason would never leave anything to chance. They ordered their movie tickets online in case the show sold out before they got to the theater. They always bought travel insurance, on the off chance their vacation plans didn’t pan out. They flossed daily, replaced smoke-detector batteries annually, and changed their furnace filters every six months. Their friends Bill and Trevor often teased them about being so conscientious. But then Bill and Trevor took a different approach to life. When Bill got a flat tire and needed to use the spare, he discovered that it was flat, too. They once ran out of heating oil because Trevor forgot to order more. And they still laugh about the time they missed their cruise ship departure after enjoying one too many rum swizzles at a pub in Bermuda. These differences extended to the way they approached estate planning, too. Chris and Jason went to an estates and trusts attorney who was a fellow member of the LGBTQ+ community. After getting to know them, the attorney prepared wills that left everything to the survivor in case Chris or Jason died. He also drafted a power of attorney and advance healthcare directive for each of them. These documents would be essential, the lawyer explained, if Chris or Jason became incompetent and needed the other spouse to manage his finances or health care. Chris and Jason knew this paperwork was important and were glad to have it prepared by a professional. What they didn’t know was that there was more to estate planning than that. The lawyer included language in their documents to cover their digital assets—things like frequent-flyer miles, social media accounts, and online shopping. The lawyer had them make an inventory of these assets, including their usernames and passwords, so the other spouse could access them if necessary. The inventory even included passwords for things like their laptops, smartphones, and iPads. They were also told to make sure the beneficiaries on their life insurance and retirement accounts were up to date to replicate the provisions in their wills. Once the documents had been signed, Chris and Jason slept better. They knew they were as ready as they could be for whatever lay ahead. Bill and Trevor, by contrast, did none of these things. They hadn’t gotten married or registered as domestic partners, thinking that having “a piece of paper” wouldn’t improve their relationship. They had been meaning to get wills but thought the process would be difficult and expensive. They also didn’t want to think about the worst-case scenarios an estate plan was meant to cover. Then the unexpected happened. On a rainy Sunday afternoon, Bill’s car skidded off a slippery road and into a tree. His death was instant, and Trevor was suddenly faced with the very scenario he had been so reluctant to confront. Because he had no will, Bill’s estate passed through “intestacy.” This meant that as an unmarried partner, Trevor inherited none of Bill’s assets, except the house they owned jointly. Surprisingly, his car and bank accounts went to Bill’s mother. Bill had failed to name a beneficiary on his IRA, and because he and Trevor had never married, the money went to Bill’s estate. This meant that Bill’s mother also received this substantial asset. Bill had life insurance through his job, but he had set it up before he and Trevor met. The beneficiary was Bill’s ex-boyfriend, so Trevor was entitled to none of the payout. To add insult to injury, Trevor had no way to access Bill’s laptop or iPad, which were both password-protected, or to listen to the messages that friends had left on Bill’s phone when they heard about the accident. It has been said that hindsight is always 20/20. If Bill and Trevor could start over, what would they do differently? They still might have stayed for that extra rum swizzle at the pub in Bermuda—that made for a good story. But they would definitely have called their friends’ lawyer and had him prepare an estate plan for the two of them, rather than leave anything to chance.
April 15, 2026
Estates and Trusts
Marriage in the Balance: Safeguarding Rights for Same-Sex Couples
The U.S. Supreme Court has been asked to overturn Obergefell v. Hodges, the landmark 2015 decision that legalized same-sex marriage nationwide. Whether the Court revisits the case now or in the future, the right to same-sex marriage appears less secure than it has in years. For same-sex couples, especially those in states where legal protections are weaker, this development is a call to action. Although several legal safeguards would remain in place, a reversal of Obergefell could create serious legal and personal complications for many families. What If Obergefell Is Overturned? If the Supreme Court strikes down Obergefell, the constitutional right to same-sex marriage would no longer apply. Same-sex marriage would not immediately become illegal, but the right to marry someone of the same sex would hinge on individual state laws — much as it did before 2015. This about-face would likely lead to a patchwork of marriage laws, under which same-sex couples could marry in some states but not in others. States that had bans against same-sex marriage before Obergefell could begin enforcing them once again or could reimplement bans that were repealed in the decade after the Court had declared same-sex marriage a constitutional right. Some Protections Would Remain Even without Obergefell, several important legal protections would continue to offer support for same-sex couples, though none is as comprehensive or stable as a constitutional right. Respect for Marriage Act Passed by Congress in 2022, the Respect for Marriage Act is a federal law that requires all states to recognize same-sex marriages lawfully performed in other states. In other words, if a couple gets married in a state where same-sex marriage remains legal, their home state would still have to recognize that marriage, even if the state stopped issuing licenses itself. But the Respect for Marriage Act does not require any state to allow same-sex couples to marry within its borders. It provides important recognition but not universal access. State Laws That Support Marriage Equality Some states took independent action to legalize same-sex marriage through legislation, constitutional amendments, or ballot referendums. In these states, marriage equality would remain intact even if Obergefell were overturned. Many other states still have pre-2015 bans on same-sex marriage written into law. Those bans are currently unenforceable under Obergefell, but they could be revived if the precedent is reversed. Existing Marriages Likely to Be Upheld Most legal experts agree that existing same-sex marriages would remain valid, under the legal principle that the government generally cannot invalidate a lawful marriage. Still, uncertainty could arise in areas like adoption, parental rights, inheritance, and medical decision-making, especially in states that chose to restrict marriage rights in a post-Obergefell era. What Same-Sex Couples Can Do Now Regardless of what the Court ultimately decides, couples can take proactive steps to protect their rights and relationships. Consider Getting Married If you’re in a committed same-sex relationship, consider marrying before the law changes. Tying the knot now could help preserve important legal protections, especially if the right to get married is eventually rescinded. Marriage provides many important benefits, including joint-ownership and survivorship rights, tax advantages, healthcare decision-making authority, inheritance protections, and parental presumptions. These rights could be lost in states that move to restrict marriage equality. Put Legal Safeguards in Place Whether they are married or not, all couples should have the following legal documents in place to protect themselves and their families: Wills ensure that your partner inherits your assets and that your final wishes are clearly stated. Durable Powers of Attorney allow your partner to manage your finances if you become incapacitated. Advance Medical Directives authorize your partner to make healthcare decisions on your behalf and outline your medical preferences. These documents can provide peace of mind and legal clarity in the event of illness, incapacity, or death, especially if your marital status is ever questioned or unrecognized. Looking Ahead Even if marriage equality remains intact for now, the issue could return to the Supreme Court in the future. Under Court procedures, only four justices are needed to accept a case for review, and challenges to Obergefell are likely to persist. Whatever the future holds, same-sex couples can take commonsense steps today to protect themselves and their families. Being prepared helps to ensure that your rights and relationships are as secure as possible in uncertain times.
September 11, 2025
Estates and Trusts
Obergefell in Question: Estate Planning Risks for Same-Sex Spouses
On August 11, 2025, the United States Supreme Court was asked to reconsider Obergefell v. Hodges, the 2015 decision that federally guaranteed marriage equality for all couples. This new case involves the four-times married former Kentucky county clerk who famously denied marriage licenses to same-sex couples in 2015. She argues that her religious freedom should have allowed her to refuse to recognize same-sex marriage and asked the Supreme Court to take up her cause. While many remain cautiously optimistic that marriage equality will not be undone, the fact that the Court may even consider this petition is deeply unsettling for the LGBTQ+ population and their allies. (Axios, Forbes, The New Republic) Why This Matters for Estate Planning A Return to Patchwork State Laws If Obergefell were overturned, the U.S. would revert to a pre-2015 tapestry of laws in which individual states would have the opportunity to determine marriage rights for their own domiciliaries. For those residing in more conservative states, it could mean disaster for same sex spouses. Legal and Emotional Chaos for Families Suddenly, all the rights, protections, and privileges that come automatically with marriage, such as hospital visitation, medical decision-making authority, inheritance, and tax breaks, would once again require lawyers to draft elaborate, and admittedly brittle workarounds. In some states, lawmakers are bound to make those workarounds incredibly difficult to accomplish. Estate Planning Problems MagnifiedTax implications: Without a legally recognized spouse, couples will lose spousal estate tax exemptions at the federal and possibly state levels. Probate exposure: Without the automatic transfer rules of marriage, such as tenancy by the entirety designations on deeds, estates could be forced to go through a full probate proceeding or worse, pass to next-of-kin heirs, and not the spouse. Healthcare proxies and decision-making: Health care directives, such as Health Care Proxies, would need constant updates as cross-state enforcement could become uncertain when an individual’s status is demoted from “spouse” to simply “agent” under a health care directive. It should be noted that the rights of an agent are certainly less secure than spousal rights. Children and parentage issues: The parental presumptions, adoptions, and guardianships may also be under fire and could become contested in ways they have not been observed for a decade. As with documented workarounds for estate planning, it is concerning that parentage could hinge on an estate planning document that is enforceable in one state and not another. In summary, this possibility bears a real human cost if the federal government no longer sees a marriage as valid, and all the financial ease, parental securities, medical protections, and end-of-life comfort assumed to be guaranteed are no longer. Same-sex couples do not just lose a symbolic right to marry — they face disruptions to fundamental life, health, and legacy decisions. This is not just another court case: the ramifications will fundamentally reshape how families, especially those with trans and LGBTQ+ members, plan their lives, protect each other, and preserve their legacies. It is vital we pay attention, share the facts, and act with allyship.
August 14, 2025
LGBTQIA+
Marriage Equality and the Supreme Court: Preparing for the Unexpected
Big news dropped this week, and it’s one of those stories that makes my phone start buzzing with texts from clients, friends, and family asking: “Could the Supreme Court actually take away marriage equality?” Kim Davis, the Kentucky clerk who famously refused to issue marriage licenses to same-sex couples, has asked the Court to overturn Obergefell v. Hodges, the 2015 decision legalizing marriage equality nationwide. For Davis, the appeal is about religious beliefs, but for LGBTQ+ families, it’s about the security of marriages and rights. Can the Supreme Court Overturn Obergefell? For Davis, the case is based on her personal beliefs and most experts think it’s a long shot to undo marriage equality entirely. Still, this Court has surprised us before. Justice Thomas has already suggested revisiting Obergefell, and the fact that the question is back before the Court is a reminder that the fight isn’t over. What Would Happen if Obergefell Were Overturned? If Obergefell were overturned, some states could stop issuing marriage licenses to same-sex couples almost overnight. Old bans and “trigger laws” are still sitting on the books in many states. However, due to the 2022 Respect for Marriage Act, current same-sex marriages would almost certainly still be recognized nationwide. Under this law, if a same-sex couple is legally married in one state, every other state and the federal government must honor that marriage, even if the couple later moves to a state that bans it. Why Does This Matter if You’re Already Married? Some may assume, “Well, we’re already married, so we’re fine.” Not necessarily. Without Obergefell, certain rights could become more difficult to enforce at the state level, such as hospital visitation, inheritance without a will, or the ability to make medical decisions for your spouse. For families with children, especially when only one parent is biologically related, the stakes are even higher. Steps to Take Now Make your family “court-proof.” Ensure you have legal documents in place, including wills, healthcare proxies, powers of attorney, and guardianship documents for kids. Lock in parental rights. A court order, such as a second-parent adoption, is recommended to make parental rights secure, even when both parents’ names appear on the birth certificate. Know your safe states. In areas with an uncertain record on LGBTQ+ rights, it’s important to know where your family would be protected in the event of upheaval. Stay engaged. Local and state protections matter. Back ballot measures and candidates who will uphold marriage equality in your state constitution. Final Thoughts Though it seems unlikely that Obergefell will be reversed in the immediate future, it would be unwise to become complacent or to assume it is beyond challenge. Now is the time to double-check your legal safety net, because the best time to protect your family is before the storm starts.
August 13, 2025
Family Law
Navigating the Unique Challenges of LGBTQ Divorces in a Changing Legal Landscape
The legalization of same-sex marriage in the United States in 2015 with the landmark Obergefell v. Hodges decision marked a monumental step toward equality. However, the journey does not end with marriage; LGBTQ couples face unique challenges when it comes to divorce. While the process may seem similar to that of heterosexual couples on the surface, the reality reveals nuanced differences rooted in evolving laws, social norms, and disparities in legal protections. Understanding these distinctions is crucial for navigating the complexities of LGBTQ divorces and protecting one’s rights in a constantly shifting legal world. Key Differences Between LGBTQ and Heterosexual Divorces Legal Recognition and the Length of Marriage: Problem For many LGBTQ couples, legal recognition of their relationships began far later than their commitment to one another. States only began recognizing same-sex marriages at different times, leaving couples who were together for decades without a legal timeline for their unions. When it comes to divorce, courts often calculate marital property division, spousal support, and other factors based on the duration of the legally recognized marriage, not the entirety of the relationship. This discrepancy can lead to inequitable outcomes. For example, an LGBTQ couple that was together for 20 years but legally married for only five years may see their financial obligations and property rights evaluated based on the shorter timeline. Custody and Parental Rights Child custody is one of the most contentious areas in divorce, and LGBTQ couples face unique hurdles. Many LGBTQ families rely on alternative reproductive methods, including Artificial Reproductive Technology (ART), surrogacy, adoption, or donor insemination. If only one partner is the biological or legal parent, the non-biological parent’s parental rights may not be automatically recognized, even if they were actively involved in raising the child. This can lead to complex custody battles where courts may prioritize biological connections over emotional bonds. Discrimination in Court While legal protections for LGBTQ individuals have improved, implicit biases still exist within the court system. Some LGBTQ individuals may encounter judges or attorneys who lack experience with or understanding of same-sex family dynamics. This can result in decisions that do not fully account for the nuances of LGBTQ divorces. Division of Assets and Property In LGBTQ divorces, asset division may be complicated by how property and financial arrangements were managed before same-sex marriage became legal. Property acquired before legal recognition of the relationship may be deemed separate property rather than marital property, creating challenges when dividing assets equitably. How to Protect Yourself in an LGBTQ Divorce Preparing and understanding your rights are essential to safeguarding your interests in this evolving legal world. Here are key steps LGBTQ individuals can take to protect themselves: Legal Protections Before Marriage For those entering a marriage, creating a prenuptial agreement is one of the most effective ways to protect assets and clarify financial arrangements. A prenuptial agreement can specify how property will be divided and how spousal support will be managed in the event of a divorce. For those already married, a postnuptial agreement can serve a similar purpose. Address Parental Rights Proactively LGBTQ couples with children should ensure both parents’ legal rights are established, even before a divorce becomes a possibility. For non-biological parents, this may involve formal adoption or obtaining a court order recognizing their parental status. By securing legal parentage, non-biological parents can strengthen their custody and visitation claims in the event of a divorce. Keep Comprehensive Records In cases where the length of the relationship predates legal marriage, maintaining records of financial contributions, shared property and joint decision-making can be invaluable. These records can help demonstrate the extent of the partnership and support equitable asset division during a divorce. Consult an Experienced LGBTQ Divorce Attorney Given the unique legal and social dynamics of LGBTQ divorces, working with an attorney who has specific experience in LGBTQ family law is crucial. Such attorneys understand the complexities of same-sex relationships and can advocate effectively for your rights. Stay Informed About Changing Laws The legal landscape for LGBTQ individuals continues to evolve. Court rulings, legislation, and shifting political climates can impact rights related to marriage, divorce, custody, and more. Staying informed about changes in the law can help you anticipate challenges and adjust your approach as needed. The Ever-Changing Legal Landscape for LGBTQ Divorces While the right to marry was a monumental victory, LGBTQ couples still face challenges that heterosexual couples typically do not. For example, the potential for the Supreme Court to revisit Obergefell v. Hodges or other related rulings creates uncertainty about the durability of marriage rights. Additionally, state laws governing issues such as parental rights, property division, and spousal support vary widely, leading to disparities in how LGBTQ divorces are handled across the country. Recent challenges to protections for LGBTQ individuals, including attempts to narrow the interpretation of anti-discrimination laws and redefine parental rights, underscore the need for vigilance. Advocating for continued progress and awareness ensures equality in the family law system. Conclusion LGBTQ divorces, while sharing similarities with heterosexual divorces, present unique challenges rooted in legal history and societal biases. By understanding these differences and taking proactive steps to protect their rights, LGBTQ individuals can navigate the complexities of divorce with confidence. In an ever-changing legal world, preparation, advocacy, and informed decision-making are the keys to achieving equitable outcomes and safeguarding hard-won rights.
April 17, 2025
Estates and Trusts
Protecting Your Family and Future: Essential Estate Planning for the LGBTQ+ Family
Estate planning is a critical part of securing the future for any family, and for LGBTQ+ individuals, it is particularly important given the legal complexities and challenges that may arise in the current political climate. There have been several legal shifts that affect LGBTQ+ families’ rights and protections, which makes it even more essential for LGBTQ+ families to ensure their estates are properly considered, planned, and protected. Below is a simple checklist of estate planning documents that LGBTQ+ families must consider to safeguard their interests, particularly during a time of legal uncertainty and inequitable policies: Last Will and Testament When one thinks of an estate plan, a will is what likely comes to mind: it is considered a fundamental estate planning document. A will directs how a person's property, whether real or personal, should be distributed after death. For LGBTQ+ individuals, a will is especially important because, without one, state laws dictate who inherits your estate and in what proportion. With only limited exceptions, state laws do not recognize non-biological family members, such as a partner or even a registered domestic partner: close friends who are more like family are not recognized in any state. A will provides clarity to ensure that your relationships and wishes are honored, regardless of your family makeup. Why a will matters for LGBTQ+ individuals: If you have a partner but are not legally married, or if you want to leave property or assets to a close friend or chosen family member, a will ensures that these individuals are recognized as your beneficiaries. It also allows you to name the person you choose to oversee the distribution of your assets. While many states require that your biological family is informed of your death and provided a copy of your will, most courts are fiercely protective of directives in a will. As a result, documenting those wishes is imperative to ensure your wishes are carried out in the way that you desire. Without a properly executed will, most states simply distribute assets to your biological family members. Healthcare Directives Advanced healthcare directives such as a healthcare proxy and living will specify both the person you wish to speak for you in a healthcare setting and the type of care you would want (or refuse) in the event you cannot articulate those wishes. The health care proxy appoints an agent who knows you, understands your wishes, will communicate those wishes, and advocate for your rights in a health care setting. The living will outlines the type of care you want including memorializing your preferences for medical treatment or discontinuance of treatment. A living will sets forth whether you want life-sustaining treatment and how you would like to be treated in end-of-life scenarios. Why healthcare directives matter for LGBTQ+ families and individuals: In the event of incapacitation, biological family members may not always know or respect your wishes, particularly if your biological family does not support your identity, lifestyle, or relationships. Naming a healthcare proxy and having a living will in place ensures that your healthcare decisions are in line with your desires, even if your family disagrees or is uninvolved in your life. Without a healthcare proxy, a family member (who may not understand or accept your relationships) may gain control over your medical decisions. Without documentation, most states allow your next of kin to make these decisions, potentially preventing your partner from being involved in your care. Nominating your partner or chosen friend provides them with the legal authority to make decisions consistent with your wishes. Durable Power of Attorney A durable power of attorney (POA) allows you to designate someone, referred to as an agent, to manage your financial matters upon your incapacity. A POA can be tailored to the specific powers you wish to bestow upon your agent. For example, your agent can access your bank accounts, pay your bills, apply for public benefits, and manage investments on your behalf. Why a durable power of attorney matters for LGBTQ+ individuals: LGBTQ+ couples are not recognized as legal next of kin unless they are legally married and, therefore, will face complications if their relationship is not legally formalized, as most financial institutions are unable to speak with others without authority. This is especially essential if partners financially depend on one another but have separate financial accounts; without a POA in place, your partner cannot access your finances in the event of your incapacity. Having a POA ensures that your partner, rather than a biological family member who may not be involved in your life or support your relationship, has the authority to handle your finances, if necessary. Trust A trust is a key estate planning tool that allows you to manage your assets efficiently during your life and distribute your assets after your death without the necessity of probate (which is required with a Last Will and Testament). A trust also allows you to appoint a successor trustee, a person in charge of your trust assets if you can no longer manage your own trust assets. There are different types of trusts that can accomplish many goals within an estate plan, but the common theme is that assets funded in a trust avoid probate, a lengthy and expensive court process. In addition to avoiding probate, trusts do not have to be authenticated by a court or shared with your biological family members, as is the case with a Last Will and Testament. Why a trust matters for LGBTQ+ individuals: A trust can ensure that assets are passed on according to your wishes, even in cases where state inheritance laws might not recognize your partner or chosen family. Trusts can also be structured to provide for specific needs, such as the care of a dependent partner or a loved one, long after you die. Importantly, trusts are much more difficult to contest than wills, thus ensuring that estranged biological family members will not be able to easily upend your carefully constructed estate plan if they do not agree with your choices or your relationships. A trust is also a private document that others cannot access in the same way as a Last Will and Testament, which is a public document that is published in court. Beneficiary Designations Beneficiary designations ensure that your assets pass directly to your loved ones without going through probate. A beneficiary designation can be made on bank accounts, brokerage accounts, insurance policies, and retirement accounts. Relationships can change over time, and therefore, beneficiary designations should be reviewed and updated regularly to reflect your current wishes. Why beneficiary designations matter for LGBTQ+ individuals: If you have a domestic partner or chosen family members, it is crucial to ensure that your beneficiary designations align with your intentions. In most cases, financial institutions will not recognize a domestic partner or non-biological family members unless you have explicitly named them as beneficiaries on your financial accounts and policies. Beneficiary designations are also private and financial institutions are not at liberty to disclose those named as beneficiaries on your accounts after your death. Letter of Intent While not legally binding, a letter of intent can provide your loved ones with important details and intentions regarding why you constructed your estate plan the way that you did. For example, if you decide to disinherit a biological family member from an estate distribution, the reason for the exclusion can be articulated in the letter in a way that cannot be explained in the estate planning document itself. Why a letter of intent matters for LGBTQ+ individuals: If your estate plan is one that leaves out next of kin or biological family members, a letter of intent can provide further proof of your wishes related to your estate distribution. Letters of intent can also ensure that your funeral or memorial service reflects the way you wish to be remembered, celebrating your identity and your values. Letters of intent can also be entered into a court proceeding as evidence in an estate contest to further outline your rationale for the disinheritance of estranged family members. Guardianship Documents for Children It is vital for any parent to document guardianship of their minor child in the event of the parent’s death. Documenting a guardianship designation ensures that upon your passing, your children will be cared for by the person or the people you designate, not the person that a court may choose. Why guardianship documents for children matter for LGBTQ+ individuals: If you are an LGBTQ+ parent, establishing guardianship is incredibly important, especially if you are not biologically related to your child. In some cases, your biological family members may challenge your partner's ability to care for your children upon your death, particularly if you are in a non-married partnership. Establishing guardianship and memorializing your choice of guardian for your minor children provides clarity, protects your partner’s rights to care for your children, and safeguards the sanctity of your family structure. Estate planning is a crucial step for every individual, but it takes on an added level of importance for LGBTQ+ individuals, especially during times of legal uncertainty and political turmoil. With the right documents in place, you can be confident that your wishes will be respected and that your loved ones are protected, regardless of legal challenges or changes in administration. Estate planning empowers you to take control and secure the rights of your partner, your children, and your chosen family.
February 11, 2025
Estates and Trusts
Defensive Estate Planning For the LGBTQ+ Community
The political landscape has shifted, and those of us in the LGBTQ+ community are worried about what the future may hold. There is a lot to lose, and the new administration promises to be decidedly anti-gay. The rights of same-sex couples, adoptive parents, transgender individuals, and queer youth could well be in jeopardy. Among these is the simple right to get married. In Dobbs v. Jackson, the Supreme Court decision that overturned Roe v. Wade, one justice suggested revisiting Obergefell v. Hodges, the landmark ruling that legalized same-sex marriage nationwide. The right to marry was a milestone victory for the LGBTQ+ community. With the arrival of a new administration and conservative majorities in both houses of Congress, an emboldened Supreme Court could strike down marriage equality. With so much at stake, it is more important than ever to harness the protections the law currently provides. The Benefits of Marriage For couples in committed relationships, the best protection may well be marriage itself. Marriage not only provides a wide range of federal and state legal benefits; it also ensures that in a crisis, your spouse has essential rights regarding inheritance, health care decisions, and other critical matters. Taking advantage of the right to marry now—while it is still secure—could be a prudent move. Before tying the knot, talk to a lawyer to ensure that you understand the state and federal benefits, as well as the tax obligations. For example, being married means having to file your annual tax returns as a married couple, and some couples will pay more in income taxes under the “marriage penalty.” But most couples pay less in taxes, and they enjoy a sense of security that simply being partners may not provide. If the Supreme Court decided to overturn Obergefell, it would mean that marriage equality would no longer be federally protected, leaving it up to individual states to determine whether to allow same-sex marriages. This could lead to a patchwork of state laws, some continuing to permit same-sex marriage and others outlawing it. Already having a marriage license will help guard against such uncertainty. The Importance of Estate Planning Marriage confers significant legal benefits, but a marriage license alone isn’t enough. No matter what the future holds for same-sex unions, an estate plan will help protect your relationship from some of life’s most significant uncertainties. 1. Will The backbone of most estate plans, a will specifies how your assets should be distributed upon your death, who will care for any minor children, and who will be responsible for settling your estate. For same-sex couples, wills are particularly important to ensure that each partner is legally recognized as an heir. Without a valid will, your partner may not inherit your property automatically, and your assets could go to family members who do not have your best interests at heart. 2. Powers of Attorney If you should ever become incapacitated, someone would need to pay your bills, file your taxes, and possibly even sell your home if the incapacity appears to be permanent. A power of attorney will authorize a partner, spouse, or other trusted individual to take on this role. If you have no power of attorney, it could be necessary for someone to become your legal guardian. This is an expensive and time-consuming process, and it involves a court hearing. At just a few pages, a power of attorney can prevent the need for a guardianship and save your loved ones a lot of stress. In Maryland, it’s helpful to have the state’s statutory power of attorney, which banks and other entities are obligated to accept. You can even include special instructions in the document, such as authorizing your attorney in fact to make gifts on your behalf. 3. Advance Medical Directives An advance directive enables you to name a “health care agent”—someone you trust who will manage your health care if you ever become incapacitated. It also says what kind of care you want to receive in an end-of-life situation, like a terminal illness. If you have a partner, naming them as your agent helps ensure that they have the legal right to make critical medical decisions on your behalf. Without such a document, hospitals or medical staff may default to family members who may not recognize or support your relationship. Being married means your spouse automatically has the legal right to make medical decisions for you. But an advance directive is an important backup. It ensures that your spouse is in charge even if your marriage is not recognized, and it names a backup agent in case your spouse is not available. For trans individuals, an advance medical directive can also help make their care as dignified as possible. For example, the document can instruct your healthcare providers to address you by your preferred name and pronouns, regardless of your legal name or the gender marker on your driver’s license. This simple provision can prevent the distress of being called by the wrong name at an especially vulnerable time. To help prevent being misgendered, you can also request that your appearance be maintained to align as much as possible with your stated gender. Including this instruction in an advance directive will alert your healthcare providers as to your wishes and also help your healthcare agent ensure that they are followed. 4. Trusts In addition to a will, many people choose to set up a trust to manage their assets during their lifetime and distribute them efficiently upon their death. A trust allows you to specify how your assets will be used for the benefit of your loved ones, and it can enable them to bypass the lengthy probate process. A trust is also more private than a will. In a hostile political environment, having a trust can protect your privacy as a member of the LGBTQ+ community. Second-Parent Adoptions Less certain than the right to marry is the future of adoptions by same-sex couples. If one parent has a legal connection to a child, such as through birth, it’s smart to have the other parent file for a “second-parent adoption” to create a clear legal relationship. (This will require the consent of the child’s other biological parent.) A court order giving the second parent full legal rights will prevent problems when enrolling the child in school or accessing their medical records. Trans Individuals The incoming administration has directed some of its harshest rhetoric at the transgender community. Because the laws may shift in ways that limit protections for trans individuals, it’s a good idea to take steps now to safeguard your rights. For someone who is transgender or in transition, these might involve legally changing their name to reflect their gender identity or choosing a gender-neutral name that aligns with their preferences. It’s also important to update the gender marker on their birth certificate. In many states, a new birth certificate will be issued—rather than an amended version—showing the updated name and gender marker. A legal name change can occur at any time, regardless of the stage of the person’s transition. Once the change is final, they should notify Social Security and the Motor Vehicles Administration of the new name. Having a driver’s license and Social Security card bearing the new name will make it easier for other agencies and businesses to update their records as well. And, of course, your will, power of attorney, and advance directive should be updated to reflect your new name as well. Conclusion These are challenging times. The good news is that the legal rights of the LGBTQ+ community are still largely intact, even with the future uncertain. By acting now, you can enjoy some peace of mind, knowing that you have taken important steps to protect yourself and those you care about. This article appeared in the May 2025 edition of Maryland OUTLoud.
November 8, 2024
Family Law
Essential Legal Protections for LGBTQ+ Families in a Shifting Political Climate
In recent years, LGBTQ+ rights have made significant progress, providing many LGBTQ+ families with stronger legal protections, including marriage equality and anti-discrimination laws. However, shifts in the political landscape can bring uncertainty, making it critical for LGBTQ+ families to proactively protect their rights and ensure the stability of their family structure within the legal system. As legal challenges to established rights increase and state-level protections fluctuate, LGBTQ+ families face a pressing need to safeguard their rights with extra care, vigilance, and planning. Below are some legal strategies to help LGBTQ+ families secure protection and stability, regardless of changes in the political climate. Wills and Estate Planning Documents Wills and estate plans are essential for all families, but they hold particular importance for LGBTQ+ families, who may face unique legal challenges influenced by the political climate. A well-drafted will ensures that your wishes are clear and your assets are distributed according to your intentions. Without a will, intestacy laws in your state could determine the division of your assets, which may not align with your wishes or reflect your family structure. Advanced Directives Advanced directives, including documents such as a living will and durable power of attorney for healthcare, are vital for LGBTQ+ families. These documents empower you to designate a partner or spouse as your decision-maker in medical situations where you’re unable to make decisions yourself. Without these documents, other family members—who may not support your relationship—could potentially gain legal standing to make decisions on your behalf. Second-Parent Adoptions For LGBTQ+ couples raising children, second-parent adoption offers an added layer of legal security, especially when one parent is the biological or adoptive parent. This process allows the non-biological parent to legally adopt their partner’s child without the biological parent losing any parental rights. It ensures that both parents have full legal rights to the child, regardless of marital status or potential changes in the law, providing stability and protection for the family structure. Family Planning For LGBTQ families, family planning needs may include adoption, surrogacy, fertility treatments, and other reproductive services. Access to these services can be impacted by laws that regulate reproductive healthcare or place restrictions based on sexual orientation or gender identity. Legal professionals can help safeguard parental rights by drafting clear agreements, ensuring all legal parental statuses are properly documented, and staying informed on shifting policies. Estate Planning for Non-Biological Parents Estate planning is especially crucial for non-biological parents in LGBTQ+ families. Without proper legal protections, these parents may encounter challenges in securing custody or inheritance rights for the children they have raised. Comprehensive estate planning can help protect these relationships and ensure the family’s intentions are honored. Given the potential for changes in state and federal policies, LGBTQ+ families can benefit immensely from working with a knowledgeable attorney to address their unique legal needs. A skilled attorney will not only ensure that all documents are legally sound but will also help anticipate potential changes in laws that could impact your family. By working with an attorney experienced in these areas, you can proactively address any legal gaps and feel confident that your rights will be protected, regardless of the political landscape.
November 8, 2024
Family Law
Navigating LGBTQ+ Divorce: Unique Legal Considerations
With the 2015 decision in Obergefell v. Hodges, same-sex marriage has been recognized nationwide for nearly ten years. But what about same-sex couples who partnered through civil unions or other means 10, 20, or even 30 years prior to Obergefell? This is an important consideration when navigating LGBTQ+ divorce. Some couples married “on paper” for only nine years may be entitled to benefits from the relationship spanning beyond those years. In some jurisdictions, an argument can be made to divide what would otherwise be considered non-marital property in favor of the non-owning spouse if they were a contributor to the asset prior to marriage. For example, say a same-sex couple had been living together since 1995 and promptly got married in the District of Columbia once same-sex marriage was legalized in 2010. From 1995 until 2010, the house they lived in was the separate property of one spouse, but for 15 years, the other spouse put his own money into renovations, decorated, furnished, and helped make the house into a home. In this scenario, it would be equitable for the court to treat the house as a marital asset, given the circumstances of the parties’ relationship and the contributions made by the non-owner spouse. In other words, it would be unfair to erase 15 years of dedication to a home and family solely because the couple was not legally allowed to marry until 2010. When divorcing as a same-sex couple, it is important to have an attorney who recognizes the unique issues LGBTQ+ couples face in the legal realm. Though we are making great strides for our community, the laws protecting us are still behind. Having an experienced LGBTQ attorney to identify and address these unique concerns is paramount to achieving a fair and equitable outcome.
June 21, 2024
Elder Law and Advocacy
Embracing Diversity in Senior Living
The Rise of LGBTQ Senior Housing As our society progresses towards greater inclusivity, the needs of the aging LGBTQ community have gained significant and deserved attention. One crucial aspect is the development of LGBTQ-specific senior housing, which offers a supportive and understanding environment for older adults who identify as LGBTQ. The importance of focusing on housing for the aging LGBTQ population cannot be overstated, as the challenges faced by this senior community often go unnoticed. Therefore, during this Pride Month, I am glad to shed light on why such communities are vital for fostering dignity and well-being among LGBTQ seniors. Understanding the Need for LGBTQ-Specific Senior Housing Historical Discrimination and Isolation: Over 800,000 elders reside in senior housing in the United States, with almost 8% identifying as LGBTQ. The number is likely higher, as many older LGBTQ seniors do not identify openly for a myriad of reasons. Most LGBTQ seniors have faced lifelong discrimination; one study indicated that 33% of seniors felt that they had to hide their sexual identity if they moved to senior housing. SAGE reports that a staggering 48% of same-sex older couples applying for senior housing faced discrimination. In addition to discrimination, SAGE also reports that LGBTQ seniors are twice as likely to live and age alone compared to their cis-gender peers. According to AARP, this isolation is often because LGBTQ seniors are twice as likely to live and age alone and four times less likely to have children, an essential support network for seniors. Dedicated LGBTQ housing helps mitigate these concerns by providing a space where residents can live openly and authentically, preventing the isolation that forces many back into the proverbial closet as they age. Health Disparities: The American Psychology Association has found that LGBTQ seniors are disproportionately affected by physical and mental health conditions due to a lifetime of unique stressors associated with being a minority. The cost of healthcare for LGBTQ seniors is also more costly as they do not enjoy the same health insurance opportunities as their cis-gender married peers. As a result, health insurance is more expensive. Additionally, the lack of cultural competency in the healthcare system means that LGBTQ elders are more likely to delay getting the necessary care, treatment, and prescriptions, often resorting to emergency rooms more frequently than the general population. These factors, combined with a lack of familial support, can significantly impact the health of LGBTQ seniors. LGBTQ-specific housing with built-in care, which is the model for all senior housing, helps to even the playing field and mitigate these disparities. It provides LGBTQ seniors with access to healthcare providers who are properly trained and familiar with the unique issues that impact LGBTQ seniors at a greater rate. Safety and Comfort: Members of the LGBTQ population often create families of “choice” rather than blood relation due to historical discrimination and rejection by their families of origin. As a result, LGBTQ seniors heavily rely on aging friends and non-biologically related caregivers. Additionally, LGBTQ seniors are more likely than their cis counterparts to be HIV positive and have complicated medical histories, particularly as they age. According to a recent study published in the Journal of the American Geriatrics Society, the combination of non-biologically related caregivers and complex medical needs places LGBTQ seniors at a significantly increased risk for mistreatment in later life. As their health and capacity decline, their partners and chosen family pass away, and the complications of HIV status (including HIV-related dementia) or neglected health issues increase. This study pointed out that even with limited information available, 22.1% of LGBTQ adults over age 60 reported being harmed, hurt, or neglected by a caregiver, 25.7% reported knowing someone who had been mistreated, and over 60% had experienced psychological abuse. The figures are startling and understandably cause concern among LGBTQ seniors about encountering prejudice from both staff and fellow residents. Having an LGBTQ-focused senior facility will ensure that residents feel and are safe, even if they lack the capacity to advocate for themselves. Properly trained staff will create a safe and welcoming atmosphere where all residents can feel respected and valued. The Good News in LGBTQ Senior Housing Thankfully, LGBTQ senior housing developments are incorporating inclusive design principles and services tailored to the needs of LGBTQ seniors. These facilities feature gender-neutral bathrooms, staff trained in LGBTQ competency, and events celebrating LGBTQ culture and history. SAGE has spearheaded this movement with its National LGBTQ Housing Initiative, which helps identify safe housing options for the LGBTQ population. Prominent Examples of LGBTQ Senior Housing: New York City: Stonewall House in Brooklyn, named after the historic Stonewall riots in Manhattan’s West Village, is known as a “beacon of inclusivity.” This development provides affordable senior housing in NYC, with a mission to offer a strong sense of community for LGBTQ seniors. Los Angeles: The Triangle Square Apartments, the first affordable housing project for LGBTQ seniors in the U.S., is a unique and pioneering initiative. It offers a variety of amenities and support services tailored to the LGBTQ community, exemplifying societal progress and inclusivity. Recently taken over by the Los Angeles LGBTQ Center, its commitment to the community has been further enhanced. Philadelphia: The John C. Anderson Apartments in Center City is an affordable housing development that provides not only housing but also integrates social services and community activities designed to meet the unique needs of LGBTQ seniors. Senior housing is more than just a place to live; it is a haven of acceptance, dignity, and support. As awareness of the specific needs of LGBTQ seniors grows, so too will the number and quality of housing options available to them. By continuing to advocate for and invest in these communities, we can ensure that LGBTQ seniors enjoy their golden years with the respect and care they deserve. Embracing diversity in senior living not only enriches the lives of LGBTQ individuals but also strengthens our society as a whole.
June 21, 2024
Family Law
In Landmark Ruling Pope Francis Approves Priestly Blessings for Same-sex Couples (Under Certain Circumstances)
On December 18, Pope Francis approved a landmark ruling allowing Roman Catholic priests to administer blessings to same-sex couples as long as they are not part of regular Church rituals or liturgies nor given in contexts related to civil unions or weddings. The declaration from the Vatican’s doctrinal office, approved by Pope Francis, said such blessings would not legitimize irregular situations but be a sign that God welcomes all and does not discriminate. Francis’ comments are the first uttered by a pope about such laws. But they are also consistent with his overall approach to LGBTQ people and belief that the Catholic Church should welcome everyone. Earlier this year, in January 2023, Pope Francis criticized laws that criminalized homosexuality as “unjust,” saying “being homosexual isn’t a crime,” and “God loves all his children just as they are” and called on Catholic bishops to welcome LGBTQ people into the Church.1 The formal declaration entitled “Fiducia Supplicans” (“Supplicating Trust”) was subtitled, “On the pastoral meaning of blessings” (“Fiducia Supplicans”), is a resistance to a rigid church, one that excludes people from blessings because they fail doctrinal or moral litmus tests, but also one that turns blessings — including to same-sex couples — into the supports of a new Canon legal structure. The Fiducia Supplicans evolved from a letter Francis sent to two conservative cardinals in October. It reaffirms that marriage is an “exclusive, stable and indissoluble union between a man and a woman, naturally open to conceiving children.” The declaration insists that Mass is not the proper setting for the less formal forms of blessing that could include the blessing of a gay couple, and it repeats that “it is not appropriate for a diocese, a bishops’ conference” or other church structure to issue a formal blessing prayer or ritual for unwed couples. Further, the blessing should not be given “in concurrence” with a civil marriage ceremony to avoid appearing as a sort of church blessing of the union. And it stresses that blessings in question must be non-liturgical in nature, must avoid using set rituals, and avoid the clothing and gestures that are traditional in a wedding. But it says requests for such blessings for same-sex couples should not be denied outright. Priests are to decide on a case-by-case basis and “should not prevent or prohibit the Church’s closeness to people in every situation in which they might seek God’s help through a simple blessing.” “Ultimately, a blessing offers people a means to increase their trust in God,” the document said. “The request for a blessing, thus, expresses and nurtures openness to the transcendence, mercy, and closeness to God in a thousand concrete circumstances of life, which is no small thing in the world in which we live.” Conclusion There has been a small burst of liberal activity in the Catholic Church on several fronts in 2023 from the Vatican’s Office of the Doctrine of the Faith, not just on the LGBTQ issue. On Oct. 31, Francis approved another document, making clear that transgender people can be baptized, serve as godparents, and be witnesses at church weddings, furthering his vision of a more inclusive church. And, for the first time, women and laypeople can vote on specific proposals alongside bishops, a radical change that is evidence of Francis’ belief that the Church is more about its flock than its shepherds. Pope Francis has worked steadily to open the Church to the LGBTQ+ community. For some, his efforts are too much. For others, they are not enough. 1 “Being homosexual isn’t a crime,” Francis said during an exclusive interview on January 24, 2023, with Tuesday with The Associated Press.
December 19, 2023
Family Law
LGBT Common Law Marriage
Originally posted on 2/28/2018, no content changes Pennsylvania was one of the few states that continued to recognize common-law marriage. Although common law marriage in Pennsylvania was abolished in 2005, it continues to be recognized retroactively, meaning that a common law marriage entered into prior to 2005 is still recognized in Pennsylvania. Thus, in the event of a termination of the relationship, parties to a common law marriage may go through the divorce process and are entitled to the same rights and benefits as parties who were formally wed. In 2017, a Pennsylvania Superior Court case confirmed that same-sex couples who entered into a common law marriage prior to 2005 are also entitled to the same rights and benefits accruing as a result of the marriage. This allows same-sex couples to gain rights they would otherwise not have due to the fact that same-sex marriage was not recognized in Pennsylvania until May 20, 2014, when marriage equality was achieved. These rights and benefits include but are not limited to equitable distribution of assets, interim support during the divorce process, alimony, and social security survivor benefits. All of these rights and benefits are fact-sensitive and vary in each case, which is why it is important to seek a family law attorney to discuss whether the facts of a specific case would qualify as common law marriage and/or what rights and benefits are applicable. For more information on this topic, please contact Megan Smith atmsmith@offitkurman.com.
October 18, 2023
Labor and Employment
Gender Identity and Expression Are Now Protected Characteristics Under New York State Law
Originally posted on 03/12/2019, content updated on 10/11/2023 On Sunday, February 24, 2019, the Gender Expression Non-Discrimination Act (GENDA) went into effect in the state of New York. The law safeguarded transgender and gender nonconforming people from discrimination by designating gender identity and gender expression as protected characteristics under New York’s human rights and hate crimes laws. Other protected characteristics in New York include sex, sexual orientation, race, religion, and disability status. In January 2019, former Governor Andrew Cuomo signed GENDA into law, following years of advocacy from transgender activists and other LGBTQ community leaders. GENDA prohibits gender identity and expression-based discrimination in the areas of employment, housing, and public accommodations. It is not the first state law to provide such protections. Eighteen other states, as well as the District of Columbia, have similar statutes in place. As of this writing, no analogous federal law exists. Multiple studies have shown that transgender and gender-nonconforming individuals face disproportionate rates of discrimination and harassment in the workplace. According to the United States Transgender Survey, for instance, 30% of transgender and gender nonconforming workers said they had been terminated, denied a promotion, or harassed at work due to their gender identity. Employers in New York should review and, if necessary, revise their policies and employee handbooks to conform to the new law. Best practices include the following: Ask employees about their preferred pronouns and use those pronouns in every form of communication. Allow employees to use their chosen names (even if a legal name change has not been completed) in email addresses, identification cards, and other organizational documents. Ensure every employee has access to a restroom that conforms to their gender identity—and consider creating gender-neutral, single-occupancy facilities or stalls. Adopt gender-neutral language in any dress code policy, and remove any language that identifies an item of clothing with a specific gender. To ensure GENDA compliance, employers should speak to their legal advisors as soon as possible. If you have any questions about this law or any other Labor and Employment Law matter, please contact me at rromeo@offitkurman.com or 347.589.8547.
October 11, 2023
Family Law
It Took Seven Days To Create The World, And Nearly Fifty Years To Afford Antidiscrimination Protection For All
…the arc of the moral universe is long, but it bends toward justice! [i] Originally posted on 02/25/2021, content updated on 10/06/2023 On May 14, 1974, Bella Abzug, Representative for New York's 20th Congressional District, introduced into Congress the “Equality Act of 1974,” the first piece of federal legislation to address discrimination based on sexual orientation. The act would amend Title VII of the Civil Rights Act of 1964 to prohibit discrimination against gays and lesbians in employment, housing, and public accommodations. Ms. Abzug’s Equality Act, as then presented, failed to pass and was thus relegated to the black hole of unsuccessful legislation and consigned to the annals of LGBTQIA history. Nearly fifty years later, on February 18, 2021, Representative David Cicilline and Senator Jeff Merkley reintroduced the Equality Act,[i] which afforded sweeping, clear, concise, and explicit anti-discrimination protections for all LGBTQIA people across key areas of life, including employment, housing, credit, education, public spaces and services, federally funded programs, and jury service.[ii] The Equality Act[iii] will update existing federal nondiscrimination laws, including the Civil Rights Act of 1964, the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, and several laws regarding employment with the federal government—to unambiguously incorporate sexual orientation and gender identity as protected characteristics. The legislation also explicitly amends the Civil Rights Act of 1964 to extend sex discrimination protections to public spaces and services, including retail stores, banks, legal services, and transportation services. These changes strengthen existing protections for everyone.[iv] Questioning the need for passage of the Act, some have pointed to the June 2020, groundbreaking Supreme Court ruling in Bostock v. Clayton County[v], which made clear that employment discrimination on the basis of sexual orientation or gender identity violates Title VII, and have argued that the Supreme Court’s decision can be stretched in its interpretation to protect LGBTQIA people from discrimination wherever federal law prohibits sex discrimination. The ruling in Bostock is too narrow though, for such a broad interpretation. The Bostock decision is based solely on the very particular facts and legal issues then present before the Court, and does little but scratch the surface in addressing discrimination against LGBTQIA people. The Equality Act however, in its present state, covers it all. The Legislative Process Care must be given however, before the celebration begins. The excitement of the re-introduction of the Equality Act has distracted many from the fact that its passage is not guaranteed. Our legislative process, embodied in our Congress, provides ample opportunity for consideration and debate on every bill presented for passage into law. The open and full discussion provided under the Constitution can result in the notable improvement of a bill by amendment or the demise of a bill by assault and abatement.[vi] Conclusion The patchwork nature of current sex discrimination laws leaves millions of people subject to uncertainty and potential discrimination that impacts their safety, their families, and their day-to-day lives.[viii] Absent the passage of the Equality Act as it is currently constructed, lesbian, gay, bisexual, transgender, queer, intersex and asexual, Americans will still lack basic legal protections in states across the country. [i] H.R.5 - Equality Act 116th Congress (2019-2020). [ii] House Expected To Vote On Sweeping LGBTQ Rights Bill Next Week, NBC News, 2/18/21. [iii] Originally introduced in 2019, the Equality Act passed the Democrat-controlled House in May 2019, but it stalled in the Republican-controlled Senate. [iv] HRC, Take Action, Pass the Equality Act Now, 2/17/21. [v] 590 U.S. ___ ; 140 S. Ct. 1731; 2020 WL 3146686; 2020 U.S. LEXIS 3252. [vi] Much like what happened to the Equality Act of 1974. See also, Congress.gov, How Our Laws Are Made. [vii] Time Magazine Why Federal Laws Don’t Explicitly Ban Discrimination Against LGBT Americans, 3/19. [viii] Lambda Legal, Lambda Legal Hails Introduction of the Equality Act, 2/18/21.
October 6, 2023
Family Law
In A Newly Released Documentary Pope Francis Endorses Same-Sex Unions
Originally posted on 11/03/2020, content updated on 09/15/2023 In the 2018 full-length documentary about the life of Pope Francis entitled Francesco, Pope Francis, for the first time, openly shares his belief that the LGBT community should not only be freely welcomed into the Church, but that the Church needs to embrace, accept and recognize civil unions for same-sex couples. The Pope is clear and unambiguous in his discourse: Homosexuals have a right to be a part of the family… They’re children of God and have a right to a family. Nobody should be thrown out, or be made miserable because of it. This was not the first time Pope Francis has addressed the issue of the gay community and its relationship with the Catholic Church. Francis is believed to be the first pope to use the word “gay” publicly. Soon after becoming Pontiff in 2013, he made headlines when questioned about reports of gay clergy in the Church. Francis answered: “If someone is gay and he searches for the Lord and has good will, who am I to judge?” Whether the Church’s hierarchical authorities will change the teachings of the Church to reflect the Pope’s views is yet to be seen. However, Pope Francis’s forthright support for the religious recognition of formal unions for same-sex couples may be the beginning of a cultural shift in the Church’s views regarding the gay community.
September 15, 2023
Estates and Trusts
Trusts and Estate Planning Tips for the LGBTQ+ Community
Pride Month is an important time for celebrating the LGBTQIA+ community and promoting equality, acceptance, and visibility. Estate planning is a crucial aspect of personal financial planning for individuals and families, regardless of their sexual orientation or gender identity. Here are six trusts and estate planning tips for the LGBTQ+ community that may be particularly relevant during Pride Month: Wills and Trusts: Creating a will or a trust is essential for ensuring that your assets are distributed according to your wishes after your passing. Without a valid will or trust, your estate will be subject to intestacy laws, meaning New York State will determine who will inherit from you and in what proportion. The rules of intestacy may not align with your intentions or benefit your chosen beneficiaries. By creating an estate plan, you have the opportunity to specify how you want your assets to be distributed, including to your chosen family, friends, or organizations. Beneficiary Designations: Review and update your beneficiary designations on all of your financial accounts, including retirement accounts, life insurance policies, and other financial accounts. Ensure that the named beneficiaries reflect your current wishes. If you are in a relationship that is not legally recognized, it’s imperative that your loved one is designated as a beneficiary. Healthcare Directives: Consider creating advance healthcare directives such as a healthcare proxy and a living will. These documents allow you to appoint someone to make medical decisions on your behalf and outline your preferences regarding medical treatments and end-of-life care. Selecting a trusted person who will respect your wishes, including your chosen family or partner, is crucial to ensure your healthcare wishes are honored. If you do not have these documents in place, many states, like New York, allow your next of kin to make end-of-life decisions for you. Guardianship for Your Children: If you have children or dependents, it is vital to establish guardianship arrangements in case something happens to you. Ensure that your estate plan specifies who you want to care for your children and provide for their well-being. This is especially important for couples who are not legally married or who may face additional legal complexities in some jurisdictions due to the lack of protection or recognition of LGBTQ relationships. Your Local LGBTQ+ Laws: Understanding the laws and regulations regarding LGBTQ+ estate planning in your jurisdiction is so important. Laws can vary by country, state, or even local jurisdiction, and they may impact your ability to protect your chosen family, distribute assets, or claim inheritance rights. Consulting with an estate planning attorney who has experience in LGBT estate planning is imperative. Nondiscrimination Language: When drafting estate planning documents, you should consider including non-discriminatory language to ensure that your wishes are carried out without prejudice or discrimination based on sexual orientation or gender identity. This will help protect your loved ones from potential challenges to your estate plan based on discriminatory interpretations or actions. Please feel free to contact me to navigate the legal complexities of LGBTQ+ estate planning and to ensure that your estate plan aligns with your goals and values.
June 27, 2023
Estates and Trusts
LGBTQ+ Home Care Law Set to Go Into Effect in New York Next Month
It is no surprise to LGBTQ+ individuals and their allies that nine out of ten of those who identify as LGBTQ+ fear discrimination in medical settings. According to Services and Advocacy for Gay, Lesbian, Bisexual, and Transgender Elders (SAGE), LGBTQ+ people are two times as likely to age alone and four times less likely to have children who might otherwise serve as caregivers and advocates. This means the LGBTQ+ population is even more vulnerable as they age. As a result, and at long last, Governor Hochul signed a law that is intended to address this discrimination related to the medical care received by the LGBTQ+ community in the home care and nursing home setting. Beginning next month, New York State will require that all home health aides, certified nurses’ aides, and personal care aides – essentially the backbone of a senior’s long-term care team– will receive training focused on providing care to patients of diverse sexual orientations, expressions, and gender identities. This ambitious and much-needed law includes several components that will be incorporated into the training program. Much of the training relates to the education of the caregivers to provide comprehensive explanations of various terms related to the LGBTQ+ community. It provides an understanding of why patients with diverse sexual orientations and gender identities or expressions may conceal their identities. The goal of the training is, of course, to incorporate the concerns of these patients and ensure that they receive “person” directed care and to address the unique healthcare needs of LGBTQ+ patients. In light of the nearly 400 anti-LGBTQ+ legislative actions pending in the states across the country, it’s heartening that New York is taking the lead to combat this discrimination, especially for the most vulnerable in the LGBTQ+ population.
May 15, 2023
Family Law
The State of Artificial Reproductive Technology Today
The best way to predict the future is to create it. – Abraham Lincoln. April 23-29, 2023, is National Infertility Awareness Week® (NIAW). NIAW is a movement founded in 1989 by The National Infertility Association. Its mission is to empower us all, change the conversation around infertility, raise awareness about fertility issues and promote better access to fertility care for people who need it. For most individuals and/or couples trying to have a baby, when the conversation of conceiving through natural means ends, a new dialogue begins that which focuses on having a baby with the help of artificial reproductive technology. Introduction The field of artificial reproductive technology, "ART," has made significant advancements since its inception in the mid-20th century. With the ability to manipulate and control the human reproductive system, ART has revolutionized the way we approach infertility and has also presented new ethical and legal challenges. This article will provide an overview of ART, its past, present, and future, and the myriad of legal and ethical issues it faces. Clinical Definitions, Historical Discrimination, Familial Reality and Legal Concerns Clinically/historically/ discriminatorily, infertility is a reproductive disorder defined as the failure to achieve a clinical pregnancy following at least 12 months of unprotected heterosexual intercourse1. It can be related to female factors, male factors, both, or remain unexplained. In women, it is commonly caused by ovulatory dysfunction, tubal obstructions, and/or endometriosis. In men, it is often a result of abnormalities in sperm production and function or sperm duct blockages. In helping people to have the children they desire, ART challenged and altered forever conventional clinical and societal definitions of "family." It threw open the doors for those wanting to be single parents (with no need for a partner) and has broken down the barriers for members of the LGBTQIA+ community to create their own families. The nuclear family is still often considered as an entity defined only by biological ties, even though living arrangements with children (families) have become increasingly diverse in recent decades, with unmarried families, adoptive and stepfamilies, and families with same-sex parents becoming increasingly common. ART adds to this growing complexity by providing treatments to single people and gay and lesbian couples, as well as to heterosexual couples to whom the conventional definition of infertility applies.2 These former groups have also been described as facing "social infertility." 3 The use of ART worldwide has led to the conception and birth of over nine (9) million babies since being implemented in the United Kingdom in 19784. ART, as it is commonly known, refers to any technique used to assist in the conception of a child without sexual intercourse. The most common methods of artificial reproduction include in vitro fertilization (IVF), intracytoplasmic sperm injection (ICSI), and gamete intrafallopian transfer (GIFT). There are various legal considerations when it comes to artificial reproduction. There are various laws and regulations governing these practices, including requirements for informed consent, screening and testing of donors and surrogates, and restrictions on the use of certain types of genetic material. One of the key issues is related to parental rights and responsibilities. In many cases, the child conceived through artificial reproduction will have genetic material from one or both parents who are not legally recognized as the child's parents. This can create complex legal situations, particularly if the parents separate or divorce. Another legal issue that arises in the context of artificial reproduction is the question of who has control over the genetic material used in the process. This includes issues such as sperm and egg donation, surrogacy, and embryo adoption. There are various laws and regulations governing these practices, including requirements for informed consent, screening and testing of donors and surrogates, and restrictions on the use of certain types of genetic material. Additionally, there are ethical considerations to be taken into account. Some people may have moral objections to certain methods of artificial reproduction, such as using donor eggs or sperm or creating embryos for the purpose of research. Overall, the legal landscape around artificial reproduction can be complex and is constantly evolving. It is important for individuals considering these techniques to consult with legal and medical professionals to ensure they fully understand their rights and responsibilities. ________________________________________________ 1 https://www.cdc.gov/reproductivehealth/infertility/index.htm 2 Zegers-Hochschild F., Adamson G.D., Dyer S., Racowsky C., de Mouzon J., Sokol R., Rienzi L., Sunde A., Schmidt L., Cooke I.D., Simpson J.L., van der Poel S. The International Glossary on Infertility and Fertility Care, 2017. Hum. Reprod. (Oxford, England) 2017. 3 Daar J. Yale University Press; 2017. The New Eugenics: Selective Breeding in an Era of Reproductive Technologies. [Google Scholar] [Ref list] 4 https://www.ncbi.nlm.nih.gov/pmc/articles The Past The first successful in vitro fertilization (IVF) was achieved in 1978 by Dr. Robert Edwards and Dr. Patrick Steptoe in the United Kingdom. This groundbreaking event paved the way for numerous developments in ART, including intracytoplasmic sperm injection (ICSI), pre-implantation genetic diagnosis (PGD), and cryopreservation of eggs, sperm, and embryos. Legal regulation of ART began in the 1980s, with the United Kingdom being the first country to pass laws governing ART procedures. The U.S. followed suit with the passage of the Fertility Clinic Success Rate and Certification Act of 1992 and the creation of the American Society for Reproductive Medicine (ASRM) in 1944. This author's home state of New York did not "get with the program" until the Child-Parent Security Act of 2021. Present ART has become more widely available and accessible over the years, with clinics offering a variety of treatments and services to individuals struggling with infertility. In addition to IVF and ICSI, ART now includes egg and sperm donation, surrogacy, and gestational carrier arrangements. The legal landscape of ART is complex and varies from state to state and country to country. In the U.S., there is no federal regulation of ART, with each state having its own laws and regulations. This has led to a patchwork of laws that can be confusing for patients and providers alike. One of the most significant legal challenges facing ART today is the issue of parental rights. With surrogacy and gestational carrier arrangements, the question of who has legal rights to the child can be complicated. Additionally, the use of donor gametes raises questions about the rights of the donor and any resulting offspring. Future Advancements in ART technology are rapidly evolving, with researchers exploring new techniques to improve success rates and decrease risks. One area of focus is the use of artificial intelligence (AI) to analyze large datasets of patient information to identify factors that contribute to successful outcomes. Another promising development is the use of gene editing technology to address genetic diseases and disorders. While still in the early stages of research, this technology has the potential to revolutionize the field of ART by allowing parents to screen for and eliminate genetic diseases before implantation. Back to the Future: Legal Concerns With all the good news about ART, there are some serious issues, namely, the regulation of fertility clinics and other providers of fertility services. In many countries, including the United States, fertility clinics are subject to strict regulations that govern everything from the storage and use of genetic material to the types of services they can offer. These regulations are designed to protect patients and ensure that fertility treatments are safe and effective. Another legal consideration is the use of donor material in assisted reproduction. When donor eggs or sperm are used to fertilize an egg, there may be legal issues related to parental rights and responsibilities. Additionally, there may be questions around the ethical implications of using donor material, particularly when it comes to issues related to identity and family relationships. Another recent development that has significant legal and ethical implications is the use of donor eggs and sperm, which can allow people who are unable to conceive naturally to have children. However, this technology also raises questions about the rights of donors and the potential for unintended consequences, such as the possibility of unwitting incest between donor-conceived siblings. Another important aspect of infertility and the law is the legal rights and responsibilities of parents who conceive through these technologies. For example, in cases of surrogacy, legal agreements must be put in place to establish custody and visitation rights for the intended parents as well as the surrogate mother. Similarly, in cases of egg or sperm donation, legal agreements must be put in place to establish parental rights and responsibilities. Other legal concerns related to infertility may include issues around adoption, paternity and genetic testing, and the use of reproductive materials after death. It is important for anyone dealing with infertility to consult with an experienced attorney who can help navigate the legal landscape and protect their legal rights and interests through the process. It is also important to consider the role of insurance and other financial considerations in fertility care. In many cases, infertility treatments can be expensive, and insurance coverage may be limited or nonexistent. This can create significant barriers to access for individuals and families who need fertility care. Overall, there are many legal and ethical considerations to think about when it comes to assisted reproductive technologies. As we continue to explore the potential benefits and drawbacks of these technologies, it is important to strike a careful balance between innovation and regulation and to prioritize the needs and interests of patients above all else. Back to the Future: Ethical Concerns There have been several recent technological advancements in fertility treatments that have significant implications for the legal and ethical considerations surrounding assisted reproductive technologies. Some people argue that these technologies blur the line between natural conception and artificial intervention and that they represent a potential threat to human dignity and autonomy. Others argue that these technologies have the potential to improve the lives of millions of people around the world who struggle with infertility and other reproductive issues. One of the most important developments in this area is the use of in vitro fertilization (IVF) with pre-implantation genetic testing (PGT). This technology allows doctors to screen embryos for genetic abnormalities before they are implanted in the uterus, potentially reducing the risk of certain genetic disorders and increasing the chances of a successful pregnancy. However, PGT also raises serious ethical concerns, as it allows parents to select embryos based on their genetic characteristics, such as gender and physical characteristics, potentially leading to a future in which only certain traits are valued, and others are deemed undesirable or even unacceptable; which could lead to discrimination or perpetuate harmful societal norms. To balance these competing concerns, it is important for society to engage in open and transparent discussion about the use of PGT and to ensure that regulations are in place to prevent abuse of this technology. This could include limiting the types of conditions that can be screened for, as well as creating oversight committees to review and approve PGT applications. Additionally, it is important for individuals and families to have access to accurate and unbiased information about PGT, so they can make informed decisions about whether or not to use this technology in their own fertility treatment. By considering both the potential benefits and ethical concerns of PGT, we can work towards a more equitable and responsible approach to healthcare. Finally, there has been growing interest in the use of artificial intelligence (Al) and machine learning to improve the accuracy of fertility diagnosis and prediction. While these technologies have the potential to revolutionize fertility care, they also raise concerns about data privacy and the potential for biased algorithms to perpetuate existing inequalities in healthcare. Overall, the recent technological advancements in fertility treatments have significant legal and ethical implications, and it is crucial that we carefully consider these issues as we continue to develop and implement new and innovative technologies in this field. Conclusion Infertility and the law is a complex, multi-faceted issue that encompasses a range of legal and ethical considerations. Laws governing these practices vary state by state and country by county and may include regulations around consent, screening, and financial compensation. ART has come a long way since its inception in the late 1970s, and its future is promising. However, as technology advances, legal and ethical challenges will continue to arise. It is crucial for lawmakers and healthcare providers to work together to create clear and comprehensive regulations that protect the rights of patients and any resulting offspring.
April 13, 2023
Elder Law and Advocacy
LGBTQ+: NY’s Goal of Aging Without Discrimination
It is no surprise to LGBTQ+ individuals and their allies that nine out of ten of those who identify as LGBTQ+ fear discrimination in medical settings. According to SAGE, LGBTQ+ people are two times as likely to age alone and four times less likely to have children who might otherwise serve as caregivers and advocates. This means the LGBTQ+ population is even more vulnerable as they age. As a result, and at long last, Governor Hochul signed a law that is intended to address this discrimination related to the medical care received by the LGBTQ+ community in the home care and nursing home setting. Beginning in June 2023, New York State will require that all home health aides, certified nurses’ aides and personal care aides – essentially the backbone of a senior’s long-term care team– will receive training focused on providing care to patients of diverse sexual orientations, expressions and gender identities. This ambitious and much-needed law includes several components that will be included in the training program. Much of the training relates to the education of the caregivers to provide comprehensive explanations of various terms related to the LGBTQ+ community and provides an understanding of why patients with diverse sexual orientations and gender identities or expressions may conceal their identities. The goal of the training is, of course, to incorporate the concerns of these patients and ensure that they receive “person” directed care and to address the unique healthcare needs of LGBTQ+ patients. In light of the nearly 400 anti-LGBTQ+ legislative actions pending in the states across the country, it’s heartening that New York is taking the lead to combat this discrimination, especially for the most vulnerable in the LGBTQ+ population.
March 29, 2023
Family Law
Why should I get a Second Parent Adoption?
While many states have followed suit in adding protections for same-sex marriages and families after the Supreme Court decision in Obergefell v. Hodges, there are still many uncertainties when it comes to family formation in the LGBTQ+ community. For example, in a recent case out of Oklahoma, a judge ruled that a married, non-biological mother has no parental rights to the child she and her wife created and were raising together, but the couple’s sperm donor does. In this case, the judge relied on Oklahoma’s parentage laws under the Uniform Parentage Act, which predate same-sex marriage laws, meaning there was no presumption of parentage for the non-biological mom by virtue of the couple’s married status. A Second Parent Adoption provides an added layer of protection for all families where there is an intended parent without a biological tie. In many states, we are backed by the marital presumption, but, as demonstrated in Oklahoma just this year, a presumption can be easily rebutted if given any weight at all. This is why many same-sex families pursue a Second Parent Adoption, which is a court judgment that is recognized and protected in all jurisdictions. Having a skilled attorney who is versed in the Second Parent Adoption process will ensure that your family is protected regardless of the political climate of yesterday, today, or tomorrow.
March 13, 2023
Estates and Trusts
Three Reasons a Lawyer Should Settle Your Estate
When a loved one has died, the shock and sorrow of their loss may quickly lead to another emotional jolt—the prospect of having to settle their estate. Being named personal representative (executor) under someone’s will is both an honor and a burden. The process usually takes several months. There will likely be financial accounts to marshal, real estate to deal with, bills and taxes to pay, and probate filings to prepare—all at an emotionally difficult time. For many personal representatives, their first question is “How can I get out of this?” The good news is that a probate attorney can provide the necessary support and expertise to ensure that the estate is managed efficiently. In fact, an experienced lawyer can handle most of the tasks the personal representative would otherwise be responsible for. After passing these administrative duties over a member of the bar, the personal representative may well feel that a great burden has been lifted from their shoulders. When it comes time to have your own will prepared, you can name a probate attorney as your personal representative and spare your loved ones the burden of settling your estate. Especially for those of us in the LGBTQ community, this can be an attractive option for three important reasons. A lawyer can help ensure that your wishes are respected. First, in addition to providing legal expertise, a lawyer can help ensure that your wishes are respected. Settling an estate often triggers disputes among family members. This can be especially true in families with strained relations. Animosity might stem from a parent or other relative’s homophobia, or from simple family dysfunction. Either way, a lawyer can help prevent disputes by acting as a buffer between members of your family and other beneficiaries. And as a point of contact for the estate, the attorney can explain the administration process and how the assets will be distributed—all without the emotional baggage that frequently exists between blood relations. The result is often a smoother and less contentious administration process than when a family member serves as personal representative. Second, naming a probate lawyer as your personal representative can also save time and reduce stress for your loved ones. Estate administration can be a long and burdensome process, and a non-lawyer will likely find it physically and emotionally draining. A lawyer can help streamline the process and handle the difficult legal aspects of the job, allowing your loved ones to focus on grieving and self-care. Most people who settle an estate do so only once in their life. While learning on the job, they may naturally make mistakes and missteps along the way. By contrast, a probate lawyer will be intimately familiar with every aspect of serving as personal representative. With the help of a team of legal assistants and paralegals, they can streamline the process and handle any challenges that may arise. Third, a lawyer can help avoid costly mistakes. Estate administration involves many important decisions, such as deciding what assets to liquidate, whether to improve a house before selling it, and choosing a fiscal tax year. At each step along the way, making the wrong choice can have significant financial consequences. By drawing on years of experience, a lawyer can help prevent expensive misjudgments and ensure that your estate is settled in the most economical manner possible. Settling an estate can be a complicated and emotionally challenging process. Fortunately, there is a way out. Put an experienced probate lawyer in charge and make life easier for the people you care about most. Contact an Estates & Trusts attorney today to get started.
March 2, 2023
Estates and Trusts
Is Same-Sex Marriage in Jeopardy?
This article has been updated. The Supreme Court’s decision overturning Roe v. Wade has sent abortion-rights advocates reeling. In a 6–3 opinion, the Court ended a constitutional right that was the law of the land for nearly half a century. The ruling could put other constitutional rights in jeopardy as well. Many in the LGBTQ community are asking, “Is same-sex marriage next?” Like the right to abortion, the right to same-sex marriage hinges on the Due Process clause of the Constitution’s 14th Amendment. This amendment was adopted after the Civil War as part of Reconstruction. Over the years, the Supreme Court has interpreted the amendment to guarantee the right to use birth control (Griswold v. Connecticut, 1965), to be intimate with someone of the same sex (Lawrence v. Texas, 2003), and to marry a person of one’s choosing (Obergefell v. Hodges, 2015). Writing for the majority in Dobbs v. Jackson, Justice Samuel Alito doesn’t mince words. He argues that Roe v. Wade was wrongly decided because the Constitution doesn’t explicitly mention abortion, and because a woman’s right to end a pregnancy isn’t “deeply rooted in this nation’s history.” This argument is misguided, if only because it runs afoul of stare decisis, the legal doctrine that obliges a court of law to follow prior court decisions when making a ruling on a similar case. The reasoning behind Justice Alito’s opinion may nevertheless form a road map for overturning same-sex marriage and other 14th Amendment rights. For those of us in the LGBTQ community, the question is what we can do to protect ourselves and our hard-won right to marriage. Those of us in same-sex relationships should prepare for the unexpected by drawing up estate plans. It is important to remember that a Supreme Court decision overturning Obergefell would not make same-sex marriage illegal. It would simply leave it to states legislatures to determine whether to allow gay marriages in their state. The Maryland Legislature has already done this. In 2012, it passed a bill legalizing same-sex marriage in the Free State. The law took effect on January 1, 2013, after winning approval from a majority of Marylanders in a statewide ballot referendum. Maryland’s same-sex couples who are already married can therefore take comfort. In the wake of a Supreme Court decision overturning Obergefell, our unions should survive, at least at the state level. But continued federal recognition of gay marriage would be less certain, and a national patchwork of laws and policies might necessarily develop. A marriage recognized in Maryland could suddenly be considered invalid in other states, and by the federal government. That could mean the end of important federal benefits, such increased Social Security payments to a surviving spouse. With that in mind, many same-sex couples are rushing to tie the knot. This is especially true of couples whose marriage plans were delayed by the Covid-19 pandemic. Whether we are disposed toward marriage or not, those of us in same-sex relationships should prepare for the unexpected by drawing up estate plans. Most plans include a will, financial power of attorney, and advance medical directive for each partner. These essential documents will authorize your partner or someone else you trust to manage your finances and health care if you ever become incapacitated. They will also help to ensure the efficient transfer of your assets upon your death. Marriage confers significant legal benefits, but a marriage license alone isn’t enough. No matter what the future holds for same-sex unions, an estate plan will help protect your relationship from some of life’s most significant uncertainties.
June 21, 2022
