With so much celebration (and consternation by some) regarding the arrival of same-sex marriage in the Carolinas and many other states in 2014, you may be feeling that many of your friends and family members are expecting that you and your same-sex partner will be racing to the altar. Given the attention focused on the struggle for equal rights for gay and lesbian couples, it is easy to forget that not everyone in a committed relationship is eager to get married. It is a right, after all, not an obligation.
Certainly, marriage provides a couple and their family a certain social status as well as legal protections that are difficult, if not impossible, to secure in any other manner. But, marriage is certainly not for everyone. Aside from emotional aspects of marriage and the legal protections it affords, there are many legal responsibilities one assumes by saying, “I do”—especially if either spouse has children. Fortunately, for those same-sex couples who choose not to get married, there are certain actions you can take to protect yourselves and your children in the event of an accident, a financial hardship, or even the end of your relationship.
Medical Decisions. A Healthcare Power of Attorney (“Healthcare POA”) is a document which allows you to appoint someone you trust to make medical decisions for you when you are unable to do so for yourself. When you execute a Healthcare POA, you select one or more individuals who may discuss your medical condition with your doctor and make any decisions necessary for your medical care. Additional documents can ensure that the person you choose has hospital visitation rights and, if appropriate, the right to make end-of-life decisions (a “Living Will”). The person you select does not have to be related to you—or married to you. The Healthcare POA effectively tells the hospital—“This person has the right to direct my medical care, regardless of our marital or familial status.” These documents can ensure that the person of your choosing has the right to make medical decisions for you when you can’t do it yourself.
Financial Decisions. A Durable Power of Attorney (“Durable POA”) is a document in which you appoint someone you trust with the legal right to make financial decisions on your behalf. If, for example, you are incapacitated and need access to your funds to pay bills or to talk with your health insurance provider, a Durable POA would allow the person you appointed to act on your behalf, regardless of your marital status, allowing important actions to be taken in a timely manner. A Last Will and Testament (“Will”) allows you to direct the final disposition of your assets upon your death to those individuals you choose, regardless of your marital status.
In North Carolina, if you are not married and you die without a Will, your same-sex partner will not be entitled to receive any portion of your estate, save for retirement accounts or insurance benefits for which you have made a beneficiary designation. Instead, your estate would pass to your family members, such as your children, parents, and / or siblings. Sometimes this is the desired outcome. But, if not, you must have a Will to direct the disposition of your estate. And, even if you want your assets to be passed on to your family members, not having a Will can create significant headache for those left to distribute your estate.
Decisions for Your Children. If you have children from a previous relationship, without proper planning, the state will not recognize your same-sex partner as having any right to make critical medical decisions for their care in your absence. Even more alarming, if you and your same-sex partner have had a child via surrogacy, but you are not married, it is possible that your partner, although a biological parent of the child, may be refused to direct the medical care of that child. To help ensure that this does not happen, you can execute a document authorizing an adult of your choosing to direct the medical care of your children in the event you are unable to do so. Beyond medical care, you can also indicate who you would want to care for your children on a short-term basis with a guardianship document. For example, to help ensure your same-sex partner is allowed to take custody of your children in the event you are admitted to a hospital, you can specify that it is your wish that your partner act as their guardian. Without such a document indicating your wishes, the state may hand your children over to your closest blood relative or to the state’s child-protective services.
While no one wants to anticipate the end of their relationship, unmarried same-sex couples should consider the ramifications for their children if the relationship ended. A Parenting Plan allows an unmarried couple to specify how they intend to share parental responsibilities and, if desired, may secure financial support for the children by the non-legal partner if he or she leaves the family.
For more information on you and your partner can achieve some of the protections gained by getting married, while staying single, speak with one of our family law attorneys.