Wendy Wortham on 5 Legal Documents Every LBGT Couples Should Have and Why!
Recent news relating to a North Texas man, Lon Watts brought attention to the fact that same sex couples struggle with Rights of Survivorship and medical decisions regarding a partner.
Many of my readers are aware that I am an advocate for those who are denied the same benefits of traditional married couples, and for those reasons, I am writing this blog to alert them to the need of documentation necessary to protect them from losing their ability to make decisions and protect assets of a partnership.
1. Medical and Financial Powers of Attorney: these two documents allow a partner to make medical and financial decisions for an incapacitated partner (Alzheimer’s or other matters affecting the ability to make decisions). The idea of having powers of attorney is that you can avoid guardianship.
2. The Declaration of Guardian in the Event of Later Incabability: This is a one page document that determines explicit guardians in the event of incapacity. A guardian makes personal decisions like residency and medical treatment, as well as financial decisions and asset management.
3. Disposition of Remains: This document allows a person to appoint someone specific to make decisions about his or her remains after death. In the event of death, only a spouse, an adult child, parent or adult sibling can make funeral arrangements and decisions about a persons remains. Since Texas does not recognize (yet, we continue to fight for equality) same-sex partnerships in these cases.
4. Will: Without a will (and depending on who owns the home), the partners home and assets will be left to family members rather than the partner, which could mean a contentious situation in which the partner is forced to move out of a shared home.
5. Right of Survivorship at ANY/ALL banking institutions so the partner can receive monies, and have access to safety deposit box contents.
The IRS announced that it would implement a “state of celebration” standard when it comes to federal return filing.
State of Celebration refers to the jurisdiction in which the couple was married, meaning the same sex pair can file their taxes as married EVEN THOUGH they live in a state that does not recognize their marriage!
Most tax experts expect states that do not recognize same sex marriages to continue to file as head of household should they have no children. Or, use a tax status of married filing jointly or separately.
Of the states that collect taxes after death, most recognize same sex marriages. Others grant equal estate and inheritance tax treatment to their residents who are registered civil unions or domestic partnerships. Four states do not recognize same sex relationships, meaning gay and lesbian widows and widowers will not be afforded any of the state benefits that their heterosexual counterparts are granted.
In many states that do not recognize same sex marriages, and in fact, ban same sex marriage, it will likely be some time before gay and lesbian couples receive equal tax treatment. It will likely be some time before gay and lesbian couples receive equal tax treatment. However, the IRS ruling will put pressure on domestic partnership and civil unions to recognize same sex marriages.
Judge Callahan reiterates that the judicial ethics cannons prevent her from discussing the case receiving media coverage “Dallas judge paves way for gay couple to get divorced” published October 1, 2009. See also, Roy Appleton’s article “Dallas same-sex divorce case a first for Texas.”
The Texas Attorney General had intervened in the two men’s divorce who had been married in Cambridge, MA in 2006 and later moved to Dallas. Judge Callahan denied the AG intervention, which of course, the AG plans to appeal.
The Dallas attorney representing the two men said he will argue that the men have the right under Article IV, Section 1 of the US Constitution. The so called Full Faith and Credit Clause provides, in part, that states recognize contracts from other states- the marriage bond, he said, is universal. He also argued that the ruling violates the guarantee for equal protection under law.
The Dallas Court of Appeals is considered to be one of the most conservative courts in the State.
“My dad always told me that a billion people can believe in a bad idea, and its still a bad idea. And that man taught me the courage and conviction to do what’s right- it’s always the right time to do the right thing. I do my duty, I was elected to do so.” As Callahan concluded her brief remarks, fellow members of the Stonewall Democrats of Dallas gave her a standing ovation, just as they had when she took the microphone.
“And when I got to reading the Constitution of the United States of America, which Texas is still a part of, I was never more sure of just how much you and I are the same and how important it is that the Constitution protect you, because if it doesn’t protect you, it doesn’t protect me, and I want it to protect me,” she said.
Amen to that!
Everyone needs to be advised of legal rights prior to a life changing event occurring. As I travel to courthouses pulling lawsuits of unserved Defendants and pray these same people will file an answer to avoid a default judgment being rendered against them, it has come to my attention that most consumers are unaware of laws offering protection.
My own father lived with but, failed to marry his longtime partner Gretta Ozee. And, although he had medical power of attorney, a holographic will and was covered by informal ie: common law marriage in the state of Texas, he was denied for nearly ONE MONTH the ability to bury Gretta. Furthermore, after Grettas sister Kathryn Ogden filed in Texas Probate court documents denying the existence of a will, now has to fight thru probate for a home and assets that should have been his to begin with. Reference Thomas vs Ogden JP Court 5 Tarrant County and The Estate of Gretta Fern Ozee for facts related to these two cases. Poor lovely lady Gretta waited nearly 6 weeks for me to perform her ceremony, apply her make up and dress her for a proper burial. Truly a tragedy that could have been avoided had my father filed or even knew of remedies available to him by having a Body Disposition Authorization and Appointment of Agent to make burial decisions for Gretta.
Section 711.002(g) also provides that consumers may make their dispositions known in a will or in a prepaid funeral contract. However, a will might not be located until after funeral arrangements have been made. For this reason, The Funeral Consumers Alliance strongly recommends against buying prepaid funeral contracts!
My own mother, Sharon Hill (Santa Barbara Superior Court) who incapacitated and legally not able to render her own decisions, had a sister Nancy Tabor Tinney attempt to change the trust left to benefit myself, my sister Cindy Ann Daniel and my brother Jerry L Thomas Jr. to herself Nancy Tabor Tinney and in the event of Nancy’s death, to her daughter Chrysta Ryder Tinney. Meanwhile, my half sister Tamara Kelso Tinney (legally adopted by Anna Mae Tinney and therefore NOT A LEGAL HEIR to the Sharon Hill Trust) was paid for her 1/3 share of the Anna Mae Tinney trust that left 1/3 to Tammy Kelso Tinney, 1/3 to Nancy Tabor Tinney and 1/3 to my mother Sharon Hill Tinney which should have gone into the Sharon Hill Trust. My aunt Pat chose to buy out Tammy’s 1/3 with a check written against the trust! Fiduciary responsibility mandates that the other beneficiaries, myself my sister and my brother either be equally compensated (which we were not) or a portion of the trust that still has my sister (although she cannot legally be adopted and a daughter to her grandmother, Anna Mae Tinney AND a daughter of Sharon Hill for obvious reasons) the preposterous Santa Barbara Superior Court 27 years later continues to name her as a child and therefore, a beneficiary of the trust! Her adoption record is sealed and I continue to challenge the court to unseal this document for obvious reasons since myself, my sister not my brother have ever received even $1.00 from this trust.
For those of you who do not understand why I feel so strongly to educate and enlighten members of my community whom I’m view as my family- hopefully this will give you a better idea of where I’m coming from.
You see, there are no gray areas in my world. It’s black or white, it’s right or wrong. And, I will continue to fight for those who have no voice of their own or no direction to use their voice from Fort Worth, TX with my last breath.
Unity unites us, community enlightens us, and together- we are one.