It is important for everyone to understand their legal rights and obligations when it comes to their relationships with others. This is even more important for members of the LGBT community. While the law establishes certain rights and rules for married couples, those same rights and rules do not apply to unmarried couples. Pennsylvania will not likely recognize gay marriage anytime soon. There are steps, however, that you can take to protect yourself, your partner and your loved ones.
The purpose of this page is to introduce you to some issues that should be considered when planning. While this discussion is far from complete, hopefully, it will encourage you to talk to your partner, pursue these matters and seek the advice of counsel with an understanding of the needs of LGBT clients.
Paul R. Cohen has worked with numerous LGBT clients in addressing their planning needs. He has spoken at several continuing education programs instructing attorneys on the needs of the LGBT community. He is a faculty member of the Delaware Valley Legacy Fund, a Philadelphia-based non-profit organization associated with the Philadelphia Foundation. In 2008, Paul received the Platinum Award from the DVLF for his commitment to the LGBT community.
Wills & Estate Planning
A Will is a document in which a person directs the disposition of his or her assets after death. A Will also identifies the people who will control those assets prior to distribution. Without a Will, a person’s assets will be distributed according to state law. In Pennsylvania, this distribution will exclude your partner, regardless of intentions expressed during your lifetime. While a Will can be challenged, it is very difficult for someone – even a close relative – to challenge a properly prepared Will.
In addition to providing for your Partner in a Will, Estate Planning may allow you to minimize the taxes that will need to be paid at your death. Although transfers to spouses are inheritance tax-free in Pennsylvania, the same is not true for transfers to partners, which are hit with a 15% tax. Special planning techniques, including the use of life insurance and lifetime giving, may be used to protect assets from taxation. There is even a tax strategy that is available to gay or lesbian couples and cannot be used by married couples.
Powers of Attorney
Unless your assets are titled jointly, you and your partner cannot exercise control over each other’s assets, including real estate, bank accounts, investments, etc. A General Durable Power of Attorney can authorize your partner to conduct transactions with your assets to your benefit, thus ensuring that your interests are cared for in the event of emergency. This can also provide a convenient means of sharing control.
If you were hospitalized and unable to consent, your partner would have no right to access information about your care or participate in decisions made by your providers. By executing a Healthcare Power of Attorney, you can appoint your partner as your agent to make decisions for your care and obtain information about your condition. A separate document (referred to as a Statement of Contrary Intent) can also provide your Partner with the authority to determine the disposition of your remains in the event of your death.
Cohabitation Agreements
When signed by partners in a committed relationship, a Cohabitation Agreement attempts to establish some of the rights and obligations that married couples obtain automatically. It can identify the owner of property and address issues such as who pays the bills and who is responsible for maintenance. The Agreement can also deal with the consequences of future separation. Cohabitation Agreements allow couples to clarify their expectations and protect their assets and rights. Although Courts will recognize verbal contracts in certain situations, a carefully drafted written Agreement may avoid litigation between partners who separate in the future.
Adoption
Pennsylvania currently allows single lesbians, gay men and same-sex couples, to adopt a child. Second-parent adoption allows one partner in a same-sex relationship to adopt the legal child (biological or adopted) of his or her partner. Among other things, second-parent adoption creates a right to custody if the biological parent dies, becomes incapacitated, or the couple separates.
Two other adoptions are also available: individual adoption where a single person adopts a child whose biological parents have had their parental rights terminated and joint adoptions where both partners adopt a child who had no prior biological or adoptive relationship with either person.
Custody
If a relationship ends, an ex-partner may obtain legal custody (including visitation) of his or her partner’s child, even if he or she did not legally adopt that child. Initially, the ex-partner has to prove a special “parent-like” relationship to the child. Pennsylvania courts have awarded physical custody to a non-biological partner, and have awarded partial physical custody and visitation in same-sex relationships that have ended.
Marriage
As stated above, Pennsylvania does not allow same-sex marriages or civil unions and does not recognize such relationships formed in other states. While other states do provide offer expanded rights to marriage, Pennsylvania residents should seek counsel before travelling out of state to be married. Complications may arise is such a relationship is formed in another state by Pennsylvania residents, especially in the event of a divorce.
