An interview with Joan Burda at the American Bar Association Meeting 8/2012
The Defense of Marriage Act has been ruled unconstitutional by two federal courts, but LGBT marriages have yet to receive federal recognition and the rights and protections that come with it. One area in which this impacts same-sex couples is estate planning and inheritance.
An Ohio Common Pleas court judge issued a ruling that protects the parental rights of a non-biological parent. Rowell v. Smith, Case No. 08JU-10-13850, Franklin County, Ohio Common Pleas Court, Juvenile Branch (August 27, 2012).
Julie Rowell and Julie Smith were in a committed lesbian relationship during which Smith gave birth to Maddie. When the couple ended their relationship, Smith decided Rowell was not entitled to any further contact with the child.
Rowell filed a petition for joint custody and Smith fought it tooth and nail. On August 27, 2012, Judge Elizabeth Gill adopted the Magistrate's decision.
Contrary to the assurances given by Log Cabin Republicans, the GOP has tapped Tony Perkins, President of the Family Research Council, to write the language for the party's platform statement on marriage equality. Talk about the fox and the hen.
Perkins is known for being rabidly opposed to marriage equality. He is an avid supporter of a federal constitutional amendment banning marriage equality. He also wants the amendment to repeal all rights given to lesbian and gay couples who are now legally married.
I do not understand why these folks are so opposed to marriage equality. They tout the benefits of marriage yet believe that straight people will stop getting married if lesbians and gay men are allowed to marry. That makes absolutely no sense. Yet, they make the statement with a straight face.
On August 9, 2012, the Ohio 10th District Court of Appeals issued a decision in a custody case. The case involved a little girl, M.E.G., her biological mother (J.L.H.) and her mother's former partner (J.L.G.) The women were involved in a long-term relationship during which M.E.G. was born. The case is State of Ohio ex rel. M.L.G. v. Robert G. Montgomery, et. al., No. 12AP-13, in the 10th District Court of Appeals.
The couple never formalized their understanding concerning the child's custody. They did not sign a Joint Custody Agreement. While they formalized their personal relationship with a "holy union" in 1999, they neglected to formalize the relationship with the child.
Like In re Mullen, decided by the Ohio Supreme Court in 2011, this decision also denies the non-biological mother any rights to continue her relationship with the daughter she's helped raise since birth.
Earlier this week a probate judge in Hennepin County, Minnesota issued a ruling that Minnesota's ban on same-sex marriage does not apply to inheritance rights.
Thomas Proehl and James Morrison were married in San Francisco in 2008. Thomas died suddenly in 2011. He did not have a will. He did have a bank account, in his name only, that contained the proceeds from the sale of the couple's home in California. The men intended to put James' name on the account, but never got around to it.
Tom Proehl also planned to name his spouse, Jim, as the beneficiary of his life insurance. But, he didn't get it done before his death.
Without a will, Tom's estate became a probate asset. Under Minnesota law, Jim is not recognized as a legal descendant. He has no rights to inherit under Minnesota law.
On Friday, August 3, I spoke at the American Bar Association Annual meeting in Chicago on LGBT issues. This was in conjunction with the release of the second edition of my estate planning book, Estate Planning for Same-Sex Couples, that the ABA publishes.
My law practice is concentrated in estate planning and business consulting. Most of my estate planning clients are lesbians and gay men. Most are in a committed relationship. An increasing number are raising children.
First, let's get some things, ahem, straight. You don't need children to be a family. Most lesbian and gay couples are not raising children. Most gay and lesbian couples live in non-recognition states. Those are the ones that do not recognize lesbian and gay relationships. And, most lesbian and gay couples have not done any estate planning. That is a mistake.
I thought a primer on estate planning might be helpful: