With the future of marriage rights as yet undecided in Georgia, estate planning remains a necessity to protect one’s loved ones in the Lesbian, Gay, Bisexual or Transgender (LGBT) community – at least for this year.
Since the Supreme Court struck down the Defense of Marriage Act last year, same-sex marriage bans have been challenged in every state that has had them, including a lawsuit filed in Atlanta in April. Decisions in most of these cases are pending.
Georgia’s constitutional amendment has prohibited recognition of marriages between same-sex couples – even those performed in other states – since 2004. Lambda Legal Defense recently filed a federal lawsuit on behalf of three LGBT couples and a widow to challenge the amendment.
But until the case is decided, LGBT couples can benefit from legally recognized contractual agreements, which offer many of the same protections.
A will is a good place to start, but it does not guarantee a partner’s protection, especially if the deceased’s family did not approve of the union. A will is a public document, available to anyone to read. Family members can contest
the will of an LGBT couple and have it overturned leaving the partner with nothing.
An alternative is to set up a living trust and transfer all assets envisioned for the partner into that trust. The partner then becomes the trustee in the event of incapacity or death. A trust is private, requiring no court intervention and is harder to overturn than a will.
Georgia offers LGBT couples several other ways to document and legitimize their relationships. One is a domestic partnership agreement, which explains the contractual legal rights and responsibilities of each partner and clarifies ownership and division of property in the event of a breakup or the death of your partner.
If an LGBT couple wants to make sure the surviving partner inherits their home, they should make sure the warranty deed lists both partners as joint tenants with right of survivorship. Without this specific language Georgia courts will presume the partners were tenants in common meaning that the deceased’s share of the property would pass to a legal heir, such as a spouse, child or other biological relative.
In addition, LGBT couples should think about setting up a health care directive, durable powers of attorney and writing a final arrangements document to ease the burden on their same-sex partners of handling their final arrangements.
A health care directive designates which life-prolonging treatments you approve, if any, should you become incapacitated from a terminal illness or permanent vegetative state. Durable powers of attorney can give your partner the right to make health or financial decisions for you if you are unable to speak for yourself.
A final arrangements document, while not legally binding, can be helpful if your partner’s burial wishes differ from family tradition.
Finally, LGBT couples with children need to consider what might happen if the natural or legal parent dies. The non-natural parent may be named guardian in the will, but again, wills can be overturned. If, the non-natural parent is also named the trustee of the child’s trust, the trust can specify how often the trustee “meets” with the children, which at least ensures visitation.
Because of the complex and ever-changing nature of this area of the law, LGBT couples should seek legal advice in reference to their estate planning needs. If the state of Georgia does begin issuing marriage license,s that will open the door to a whole new set of estate planning options for LGBT couples.
Richard Barid and Michael Smith are co-founders of Savannah-based Smith Barid LLC, which specializes in elder law, estate planning and special needs planning. They can be reached at 912-352-3999 or richard@smithbarid.com or msmith@smithbarid.com.