New ABA Book Offers Estate Planning Tips for Same-Sex Couples

CHICAGO, Nov. 8, 2004 – Gay and lesbian couples often find their legal rights challenged in the shifting legal landscape of same-sex relationships. More and more, lawyers are called on to provide same-sex couples with creative estate planning to protect both parties in the relationship, their children and their future.

Estate Planning for Same-Sex Couples, a new book from the American Bar Association General Practice, Solo and Small Firm Section, provides lawyers with an introduction to the special legal issues that gay and lesbian couples face. Armed with this knowledge, lawyers can use the law to benefit their clients when the law itself provides no specific protection.

“Life-planning for gay men and lesbians involves more than financial issues,” said author Joan Burda. “Unlike heterosexual individuals or couples, lesbian and gay couples need to document the very existence of their relationships. Nothing can be taken for granted. The current state of the law provides little protection for persons involved in nontraditional relationships.”

Same-sex couples have the most difficulty with health care issues, according to the book. For example, although a growing number of health care providers offer domestic partner benefits to employees, the employee is often taxed on these benefits since the IRS considers them part of the partner’s income. This does not happen to married couples. Other conflicts can arise when a patient’s relatives do not recognize a same-sex partner as a decision-maker in medical situations, despite the patient’s wishes.

Burda offers the following tips to gay and lesbian couples and their lawyers to protect their legal rights:

* Prepare a will to provide for the distribution of assets after death.
* Execute advanced directives such as health care power of attorney and living wills. Be sure to include HIPAA language.
* Execute a designation of agent form to establish each partner as the person authorized to make important health care decisions such as making autopsy determination and burial arrangements.
* Execute a power of attorney for finances, including provisions nominating the partner as the preferred guardian. Be sure to include HIPAA language.
* If children are involved or planned, draft a parenting agreement reflecting the parties’ agreement concerning each person’s child care responsibilities.
* Finalize second-parent adoptions whenever possible, assuming state law permits.
* Prepare deeds and bank accounts in survivorship form to help avoid probate and contests.
* Name partner beneficiary of insurance policies, pension plans, IRAs and 401k accounts.
* Use “partner” or “domestic partner” instead of “friend” to identify each partner.
* Address the possibility of family members disputing or contesting the will or other legal documents. Leave a paper trail that provides evidence of the parties’ relationship.

“Lesbians and gay men pay taxes, buy homes, raise children, care for elderly parents, cut the grass and walk the dog,” said Burda. “Our lifestyle reflects that of our heterosexual neighbors. Our agenda is no different from anyone else’s: life, liberty and the pursuit of happiness.”

To order Estate Planning for Same-Sex Couples, visit www.ababooks.org.

The ABA Publishing Division is responsible for providing professional publishing guidance to the American Bar Association and its members and for publishing and distributing works that support professional excellence and greater understanding of the law. ABA Publishing publishes approximately 75 new or updated book products per year, as well as approximately 60 magazines, newsletters and journals in numerous specialized areas of the law.

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.