Estate Planning Tips for Gays, Lesbians, Bisexuals and Transgender Individuals in PennsylvaniaNovember 13, 2012
The world around us is changing, as evidenced by last Tuesday’s election, whereby the states of Miami, Maryland and Washington, by popular vote endorsed gay marriage. While six other states (Vermont, New Hampshire, Massachusetts, Connecticut, New York and Iowa) and the District of Columbia already allow gay marriage, such rights were not achieved by way of popular vote, but rather by legislation or judicial decision. While this trend shows progress, it does nothing to afford legal protections to gay, lesbian, bisexual and transgender (“GLBT”) citizens who reside in Pennsylvania, a state which does not permit gay marriage or civil unions within its borders, and even fails to recognize those marriages or civil unions (despite the Full Fault and Credit Clause of the U.S. Constitution which requires states to recognize the legislative acts, public records and judicial decisions of other states) validly performed in other states.
Does that mean that Pennsylvania’s GLBT couples are without any ability to protect their partners and to grant legal rights to each other similar to those enjoyed by traditional heterosexual couples? The answer to that question is a resounding “No!” There are legal documents that can be prepared by attorneys that will empower the partners to act in fiduciary capacities for each other; to allow the partners access to each other’s medical information; to empower the partners to make medical decisions for the other should one of them become incapacitated; and to administer each other’s estates and to be the beneficiaries of their assets, in the event that one of them dies. These documents create, by way of contract, rights which would otherwise be denied to GLBT couples under Pennsylvania law because without recognition of either gay marriages or civil unions, no other legally enforceable rights exist. Indeed, other laws of the Commonwealth, such as its intestacy laws, may specifically ignore relationships between GLTB couples, because they are not legally recognized relationships in Pennsylvania. Hence, unless preventive actions are taken, people may lawfully inherit upon the death of a GLBT person that the decedent may not want to inherit his/her assets. The best way to avoid such unwanted consequences is to seek legal advice and to have appropriate documents drafted that override the laws as they are currently drafted. By creation of these legal documents, GLBT couples can avoid situations among others, whereby family members, who have recognized and established rights under the law, may inherit if the GLBT relative dies without leaving a will. While these legal documents do not equalize all of the rights granted under the law to traditional married couples, they do remedy a number of them. They also help to circumvent family disputes over who has certain rights and who does not, which can be of critical importance when it becomes necessary to make financial or medically related decisions, many of which are time sensitive. In addition, there are other measures that counsel can recommend to help GLBT couples to plan and protect each other, such as when real estate is purchased jointly. Delay and avoidance are not friends to GLBT couples.
Contact us at DZMM for help with proper planning for you and your partner.