How to take care of your children after you die
Certainly no one enjoys acknowledging their mortality. But there is a lot more to estate planning than simply thinking about your own death. Young parents are particularly guilty of not making arrangements in the event of their passing, which can leave young children in a difficult place financially and emotionally. Gay and lesbian parents often have particularly tragic cases, especially when their families cannot be held together by the benefits of marriage.
Fortunately, there are three relatively quick and easy steps to take that can help ensure that your children will be taken care of:
- Pick and name guardians - Make a list of short- and long-term guardians you want taking care of your children if you pass away. This will enable you to ensure that your children will be raised by the persons of your choice rather than, for example, a parent with whom you ideologically disagree. You can select your partner to be your child's guardian, which is especially useful if your partner has not completed a second parent adoption (which he/she should). You can also name siblings, friends, or other members of your family to care for your children in the event that both you and your partner are not able.
- Get Life Insurance Policy - Your selected guardian will likely not be prepared for the sudden extra expense your children will bring. To ensure that your child's quality of care is still sufficient, a life insurance policy helps to smooth the financial transition. For just a small amount of money each month, you can receive peace of mind that your children's guardian will have the financial resources to care for him or her. This is especially necessary if you are the primary earner in the relationship and your partner would need to care for your children.
- Leave behind mementos - Surely we plan to be around for all of the major stages in our child's life, but in the event of our early passing, your child may be deprived of having his or her mother or father with them during those important times. Leaving behind voice or video recordings or letters is a wonderful gift for a child who may have been too young at the time of your death to remember you and your life lessons. Leaving behind such a legacy will mean your child can still benefit from your values even if you are not there to provide them.
A good estate planning attorney should be able to assist you in all of these areas, as well draft a will or trust to handle your property. All of these steps just require a bit of pre-planning to help avoid a great deal of burden later on. While planning for the worst is difficult, the comfort of knowing that things will be taken care of is a substantial reward.
Have a question, comment, or response? Share your thoughts.Oregon, New Mexico, and D.C. Laws Good for Two Mothers, Bad for Two Fathers
In many states, same-sex couples face difficulties when trying to obtain parental rights. Because birth certificates often demand the names of the biological mother and father, the female partner of the birth mother or male partner of the sperm donor are frequently left out. However, some states are beginning to pass laws aimed at correcting this inequity.
Washington D.C. recently enacted the Domestic Partnership Judicial Determination of Parentage Act of 2009, a law which states that the domestic partner of a woman who gives birth to a child through artificial insemination is automatically the legal parent of the child. New Mexico is poised to enact a similar law in 2010, and Oregon granted the same rights to lesbian parents in an appellate case, Shineovich v. Kemp. These new laws are tremendous victories for lesbian mothers who previously needed second parent adoption agreements and the consent of the biological father to obtain joint custody. Unfortunately, none of these laws address the needs of gay fathers.
In each of the three states, there is no provision of law designed to recognize the partner of a sperm donor. Complicating matters, many states, including Washington D.C., have made surrogacy illegal. Even in states that permit such agreements, many require that the surrogate not be financially compensated, and permit her to claim parental rights if she changes her mind following the birth of the child. Even once these factors are overcome, the male partner who did not donate his sperm is still required to go through a second parent adoption agreement, which can be costly and time-consuming. However, if a second parent adoption is not performed, the male partner will be left with no parental rights.
Even more concerning, given the infancy of laws recognizing the female partner of a birth mother, it is likely that those of Oregon, New Mexico, and D.C. will become the template for other states wishing to pass similar laws to the exclusion of gay fathers.
It is important that states pass laws recognizing the female partner of birth mothers, but it is also important that these laws contain provisions recognizing the male partner of birth fathers as well. Until then, male same-sex couples will continue to face expensive and lengthy legal gymnastics when trying to conceive a child.
Have a question, comment, or response? Share your thoughts.The American Bar Association and DOMA
The American Bar Association (ABA), a professional association of attorneys, passed earlier this month a resolution calling for the repeal of Section 3 of the Defense of Marriage Act (DOMA), the section preventing same-sex couples who are married under state law from receiving federal benefits. The measure takes no position supporting or opposing marriage rights for same-sex couples, but seeks to "ensure that state decisions on whether to recognize such marriages are given deference under federal laws and programs".
Though the ABA is made of legal professionals, it has no ability to make, interpret, or enforce laws. In other words, its position is not binding on any state or federal courts, and does not necessarily reflect the modern flow of law. Professional organizations take stands on a number of social and political issues, but they do very little to actually change the minds of our opponents. For instance, though the Diagnostic and Statistical Manual of Mental Disorders (DSM) stopped classifying homosexuality as a mental disorder in 1973, many anti-gay organizations still cling to the belief that gay and lesbian individuals suffer from mental illness. Similarly, though the American Psychological Association has supported adoption by same-sex parents since 2004, these same organizations remain convinced that gay parents are somehow harmful to children. Commentary from experts in anthropology, psychology, law, and other disciplines does little to sway the opinions of those in anti-gay groups who would rather believe outdated propaganda than review the latest research.
However, the ABA, in deciding to take no position on marriage itself and instead focus on the issue of federalism (whether DOMA is an unacceptable usurpation of states' rights), has shaped the argument in such a way that even the anti-gay groups could not possibly disagree. Their reasoning is as follows:
Throughout our history, the federal government has looked to state and tribal law to determine who is married for purposes of these provisions. But in 1996, Congress abandoned this tradition of deference to the states by enacting the Defense of Marriage Act, Section 3 of which denies same-sex couples married in accordance with state law the legal protections, rights, and responsibilities accorded to other married persons under federal law.
The enactment of this provision was an unprecedented encroachment on state prerogatives in the field of marital and family law, overriding state determinations and profoundly altering the traditional distribution of authority between the federal government and the states in the field of family law. It has deprived thousands of lawfully married same-sex spouses of the range of federal protections they would otherwise receive, making it difficult for them to provide for one another and subjecting them to financial hardship and uncertainty.
Stated more simply, since the founding of the country, it has been up to each of the state governments to determine the rules of marriage, which the federal government would then respect. DOMA Section 3 was the first and only departure from this principle, and allowed the federal government to ignore the states' rules and enforce its own. This, according to the ABA, is impermissible.
It remains to be seen what the implications of ABA's stance on DOMA will be, and what, if any, effect it will have on GLAD's lawsuit challenging DOMA. However, the ABA at the very least has shown that gay rights matter not just to same-sex couples, but also to anyone who supports the state's right to sovereignty and freedom from unwarranted federal intrusion.
Have a question, comment, or response? Share your thoughts.The Census Bureau Finally Reports Same-Sex Married Couples - Could This Mean More Marriage?
Every 10 years, the US Census Bureau conducts a massive survey of US citizens designed to gather information about "population, housing, and matters relating to population and housing" (13 U.S.C. §141(g) (2002)). Despite the US Constitution Article 1 Section 2 calling for an "actual Enumeration" of the population, the Census Bureau has intentionally altered and misreported statistics about same-sex couples. In the 1990 census, the Bureau actually changed the sex of one of the two partners in a same-sex relationship in order to make the union appear like an opposite-sex one. Then, in 2000, improving in their technique somewhat, researchers merely reclassified unionized same-sex couples as "unmarried partners".
The Bureau has decided to cease this inaccurate reporting of data in 2010, however. With 6 states currently performing same-sex marriages (7 if you count California), the Census decided that it would have to begin tabulating data on gay and lesbian households. In a legal memo [pdf], the General Counsel of the Census Bureau conceded that the Defense of Marriage Act (DOMA) did not actually prevent the census from gathering and reporting data on same-sex marriages as they had previously believed, and that the census should report facts and facts, rather than as politically colored alterations of facts.
Unfortunately, the census software is already programmed to reclassify married same-sex couples as "unmarried partners" as occurred in 2000. But the Bureau has promised to release unedited data in late 2011, along with a special report geared toward same-sex marriages in 2012.
This change is not only a big step in recognizing the legitimacy of our relationships, but may also encourage legislators in states without marriage inclusive laws to reexamine their motivations. Previously, there was no way for a Representative in, for example, Minnesota to see how many same-sex couples resided in his or her district. Now with the census data available, he or she could see how many gay and lesbian partners had crossed the border north into Canada or south into Iowa to marry, despite their own state's refusal to recognize it. The report will likely be an eye-opener to many legislators who do not believe same-sex marriage to be an issue important to their constituents. As a result, we may see even more states reconsider marriage inclusive laws when the census data is available in 2011.
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