Hi, Lorie Burch here, your go to Wills & Trusts attorney. The law regarding the legal rights of LGBTQ Texans is continually evolving and it’s important to get the right legal advice to know how to protect yourself and your family. Here are 3 (of the many) legal mistakes that LGBTQ Couples and Families should never make!
First, one of the biggest mistakes LGBTQ couples make is that they assume you don’t need a Will, powers of attorney or other legal planning now that we have marriage equality. WRONG! Before marriage equality, your same-sex spouse would not have had any legal standing to challenge family from stepping in. NOW your spouse DOES have that recognition; however, nothing is made automatic by this decision when it comes to your estate or medical decisions, especially when it comes to children. Your family can still fight your legal spouse! In fact, I would argue that it is even MORE important now to have your legal documents put into place as we will deal with confusion and possible hostility from financial institutions, medical facilities or even courts as a backlash to the Supreme Court decision.
Another HUGE legal mistake the LGBTQ community makes is trying to do this vital planning online or with attorneys not familiar with our specific needs. I see many online services and even other attorneys only recommending very basic planning. But when it comes to couples and families who have limited legal recognition, you shouldn’t take any short cuts.
Remember, a spouse has no AUTOMATIC rights. Here are a few examples: One, a Declaration of Guardian, in case of dementia or Alzheimer’s, allows you to designate who you want to make living and financial decisions so that your family cannot come in and challenge your partner or spouse even if they have a medical or financial power of attorney.
Another example is my favorite titled document, the Appointment of Agent to Control Disposition of Remains. In case you don’t understand from that title, this ensures that the person YOU choose will oversee any funeral, burial, or cremation.
Also, without consulting an experienced attorney, you won’t know of additional precautions you may want to take such as a revocable living trust instead of just a Will. This allows you to avoid probate court, provides privacy because unlike a Will it’s not a public record, AND they’re a lot harder to challenge.
Finally, one of the biggest mistake LGBTQ families make is believing just because you are named on a birth certificate, you are considered a legal parent. As crazy as it sounds, that is not how it works in Texas. Putting a partner or spouse on a birth certificate does NOT establish a parental relationship or provide guardianship for the child in the event the birth parent passes away. Legal planning such as adoptions and Wills with guardianship must be put into place. Lack of planning can leave a surviving non-birth parent powerless in the face of legal barriers and family court battles.
Look, I know it doesn’t seem fair that we should have to jump through extra hoops just to have basic legal rights that others take for granted, but until we achieve full equality, we must take any and all legal precautions to protect ourselves and our family!
For even more information, click the link provided for a free article on the Top 5 Legal Mistakes LGBTQ Texans Should Never Make and reach out to us for a complimentary consultation.
Because if you don’t have a Will, the state of Texas has one for you!