What If Same-Sex Marriage Is Overturned? Here Are 7 Legal Steps To Protect Your Family

The devastating possibility of the Supreme Court overturning Obergefell v. Hodges is of mounting concern in our community, causing many of us to wonder how to keep our families safe. The legality of same-sex marriage confers over a thousand legal rights and privileges, such as the power to make medical decisions for your spouse, social
security benefits, and mortgage benefits. A wedding band is not only a symbol of love, but a form of legal protection.

In order to help us all make sense of the legal jargon, we asked Yetta Kurland, a renowned civil rights attorney and senior partner of The Kurland Group, to define some necessary steps you can take to protect your family. Because each family is different, it is important to confer with an attorney who specializes in serving the LGBTQ+
community to determine what is right for your family.

Health Care Proxy and Medical Directive

One of the first documents you can obtain is a health care proxy. A health care proxy is a legal document that allows you to give decision-making authority to another individual should you be unable to make those decisions for yourself. A health care proxy is authorized to step in and make future medical decisions on your behalf. You can also obtain a medical directive, also called an advance directive, which is acquired in advance and states what you want or don’t want in terms of medical care. These documents can be combined into one document and appoint one person to act on your behalf.

Adoption or Judgment of Parentage

Couples who wish to establish their parental rights through legal challenges can choose to go through a second-parent adoption or a judgment of parentage (in New York and some other states). Generally, a judgment of parentage is an easier, more streamlined process, but both adoption and judgment of parentage give parents the same legal recognition.

Affidavit of Burial/Cremation

As a married couple, in the event of your spouse’s death, you have the right to decide for your spouse how their remains will be handled. If you are not married, or in the event that your marriage is not recognized, you can execute an affidavit. This will allow your partner to put in writing their wishes, such as being cremated or buried, and empower you with the authority to execute those wishes.

Power of Attorney

When it comes to finances, you may wish to execute a power of attorney. A power of attorney (POA) is a legal document that appoints another person to act on your behalf concerning financial or legal matters. This includes the power to sell or buy a house, handle banking matters, and make legal decisions. There are various types of POAs, and you should consult with an attorney on which is best for your family. A durable POA remains in effect even in the event you become incapacitated. A springing POA is not in effect until some initiating event that causes it to “spring” into action, such as you becoming incapacitated. POAs can also be revoked at any time by you.

Last Will and Testament

A last will and testament designates what your wishes are regarding your estate upon your death. The will appoints an executor to effectuate these wishes. An attorney can work with you to address concerns related to your estate and ensure your family is protected. One downside to inheriting under a will is that, depending on the amount and situation, it can be taxable, although you could also set up a testamentary trust that comes into effect upon probate of your will. A will has no power or effect until you die and it is accepted into probate. Probate is a process where you file the will along with other documents for the court’s approval and acceptance after giving potential beneficiaries the chance to contest the will. A will can be revoked by the testator (the person whose will it is) at any time, which means it has no effect. It can also be modified through an amendment called a codicil at any time by the testator.

Revocable Living Trust

Setting up revocable living trusts is another option for your family. This is a trust created and in effect during your lifetime, where you can put both your and your partner’s assets. There are benefits to putting your assets into a revocable living trust, such as protecting your assets from inheritance taxes and avoiding the cost and challenges of the probate process. There are also issues to consider, such as the cost of setting the trust up and its maintenance. A revocable trust can also be revoked.

Life Insurance Trust

A life insurance trust allows you to put the proceeds of a life insurance policy in trust for your partner. This is normally an irrevocable trust created to own the life insurance policy. This also allows you to avoid probate and potentially estate taxes, and allows you to determine in the trust how the proceeds are used. Estate and family planning are generally good things to do. It is especially important to consider this during these turbulent and challenging times. If this feels daunting to you, you can think of it like ‘bringing an umbrella to work so it doesn’t rain.’ Or you might want to start with achieving one goal and working from there. Again, there is no right answer for how to plan, but I hope this is helpful to start a conversation with your family about what is best for you.

Longtime contributor to GO Magazine on legal matters, Yetta Kurland is a civil rights attorney based in New York City and senior partner of The Kurland Group, a boutique
civil rights firm that focuses on LGBTQ+ issues. Kurland has won landmark victories for the LGBTQ+ community, including recognition of second-parent rights for non-biological parents and sat on the Board of Marriage Equality New York, which fought to win the right for same sex couples to marry in New York in 2011. With further questions, contact Yetta Kurland via email at info@kurland.com or via phone at (212)253-6911.

The information provided in this column is for general informational purposes only and does not constitute legal advice. The content is not intended to be a substitute for the advice of a competent, licensed legal professional. Your use of the information contained in this column, or the submission of a question, does not create an attorney-client relationship between you and the author. Legal issues are fact-specific, and the applicable laws and regulations are constantly changing. Therefore, the content of this column may not be complete, accurate, or applicable to your particular situation. You should consult with a licensed attorney in your jurisdiction for advice regarding your specific circumstances. The author and publisher disclaim all liability for any actions taken or not taken based on the information provided in this column. Any reliance on the information presented is at your own risk