Some of our recent articles have dealt with the right of same-sex couples to marry in California, a result of the California Supreme Court decision in May that our state constitution provides equal rights to marriage for all people, not just heterosexuals.  We have discussed how marriage and California’s Domestic Partnership Rights and Responsibilities Act compare, and have noted that marriage and Registered Domestic Partnerships (RDPs) provide similar or the same rights and responsibilities in most situations. However, partners must register with the California Secretary of State for RDP rights to be effective.

For a variety of reasons, most of us in relationships have chosen not to register, and haven’t yet absorbed what marriage may mean to us.  What can we do to create structure and protections for our relationships and families if we choose not to marry or become RDPs? 

It’s vital to keep in mind that unless you marry, register as domestic partners, or enter into some form of agreement with your partner, the law says that you are legal strangers.  In fact, even if you are married or RDPs in California, when you travel outside the state, you become legal strangers (with very limited exceptions).  Why?  Because the protections given to you stop at California’s borders.  Why is that important?  Consider the following scenarios:  1) You and your partner are traveling and your partner is injured and unable to make his or her own medical decisions.  Without a valid Advance Healthcare Directive, HIPAA Release (Health Insurance Portability and Accountability Act),  and Hospital Visitation Authorization, you are legally prohibited from making medical decisions for your partner, or even visiting your partner in the hospital.  The responsibility for making medical decisions, and the right of visitation belongs to his or her closest blood relative.  2)  You and your partner live together, but only your partner is on the deed to the property.  Your partner passes away without leaving the property to you in a valid will or trust.  You have no legal right to remain on the property and can be forced to move out.

We all have also heard the horror stories of a relationship that has ended badly and one partner is left with nothing, even though that partner has contributed to the relationship.  Unless there is some form of legal agreement that clearly spells out the distribution of property at the end of the relationship, there is little that can be done without considerable expense and emotional turmoil. 

The end of a relationship, or the incapacity or death of a partner is always a traumatic event filled with confusion.  While it may be unpleasant to plan for or even think about these types of situations, it is even more unpleasant to have to face these situations unprepared.  At a minimum, every couple, even those who are registered as domestic partners or married, should have the following basic legal documents in place:

  • Advance Healthcare Directive
    • States your specific wishes about the type of care you will receive from medical professionals and identifies who will make health care decisions for you in the event you are unable to do so
  • HIPAA Release
    • Allows your partner to receive and share your protected healthcare information
  • Hospital Visitation Authorization
    • Identifies your partner as an authorized person to visit and be with you in a hospital or other medical care facility
  • General Durable Power of Attorney
    • Spells out who will act as your agent for various financial or property matters if you are incapacitated or choose not to handle your own affairs
  • Last Will & Testament
    • Identifies who will receive your property and assets when you die
  • Living Together and/or Property Agreements
    • Lists the property and assets owned by each partner separately and together and identifies how other aspects and issues in the relationship will be handled.
  • Parenting Agreements (when children are involved)

These documents cover nearly all of the issues that are likely to arise in a relationship. A Revocable Living Trust is also recommended if you own a home and/or have an estate worth more than $100,000.  The Trust may avoid probate of the estate, and can often offer savings in payment of taxes and fees on the assets.

BYTAG
This article is part of an ongoing series of articles pertaining to legal issues in the LGBT community. Previous articles can be viewed at www.heritagelegal.com.  This information is intended for general information purposes only, and is not intended to provide legal advice.  Heritage Legal, PC has offices in Palm Springs and San Diego, CA.  The firm focuses on LGBT estate planning, domestic partnerships, same-sex marriage, probate, trust administration, and bankruptcy.  Chris welcomes questions and comments, and can be contacted at 888.974.3748, or by email: chris@heritagelegal.com