Until same-sex marriages, domestic partnerships, and civil unions are recognized by the federal government, same-sex and alternative families will have to rely on a combination of a Secure Couple LLC ™ and supplementary legal documents in order to obtain even a tiny portion of the 1,300+ legal and financial benefits presented to married couples.
A few of the benefits denied:
1. No joint filing of tax returns at the federal level, though they filed joint returns at the state level.
2. Loss of more than $8,000 each year on average in Social Security benefits if the higher income spouse dies first.
3. No lump sum death benefits - civilian or military - to help with funeral costs.
4. Cannot file an immigration petition for a foreign-born spouse even if the SSM was lawful in your spouse's native country, for instance, Canada or Denmark.
5. Not able to take advantage of joint husband-wife gift and estate tax exemptions.
6. No automatic right exists for same-sex couples to make medical or emergency decisions on behalf of their partner. By means of a legally binding durable power of attorney for healthcare, the trusted partner you name will be lawfully allowed to take care of important issues for you -- for instance, directing your medical care -- if you are unable to do so yourself. Married couples are given this right automatically in all states.
7. Marriage is not a requirement for owning property together, but for married couples in most situations, property will be jointly owned regardless of who paid for it. The exact reverse of this presumption applies to unmarried couples. In the absence of equitable ownership presumptions that married couples have the benefit of, an LLC can grant joint ownership of property and other resources and how those assets will be divided upon separation.
8. Several business entities such as family limited partnerships are not open to LGBT couples.
9. When a heterosexual employee and his or her family receives health benefits through a job, the cost of those benefits is tax-exempt. If an employee is allowed to obtain health benefits for a same-sex spouse or domestic partner, the federal government demands that the employee "spouse" report those same benefits as taxable income.
10. The Family and Medical Leave Act of 1993 provides individuals up to 12 weeks of unpaid time off to look after ill spouses, or the children and parents of a spouse. Denied to an LGBT companion.
11. Visiting a gravely ill partner in ICU can be denied in 28 states. The remaining 22 states have passed laws that prohibit discrimination based on an individual's sexual orientation in "public accommodations", and 14 of those also ban discrimination founded on gender identity. Public accommodations include health care services by physicians, hospitals, and other health care providers.
12. For most same-sex couples, joint or second parent adoption is not permitted. Some states such as Florida completely bar same-sex partners from adopting.
13. Same-sex partners do not inherit in the absense of will, as do surviving spouses when their partners die intestate.
14. No death or spousal settlements for pensions, Social Security, Medicare, or annuities. Protections intended for one spouse’s essential financial resources such as the ability to stay in the family residence when the other partner requires Medicaid long term nursing home care are denied.
15. In cases of wrongful death or significant injury, partners and children of partners have no standing to file a lawsuit in state court for damages.
16. Cannot claim certain court immunities such as the right not to bear witness against a spouse.
17. No right to make decisions about final arrangements for a deceased partner, such as burial versus cremation, or where the deceased will be laid to rest.
18. No SSM benefits offered to military families such as medical, dental, housing, educational aid, vocational training, home mortgage guarantees, relocation assistance, housing allowances, survivors' benefits, and VA benefits.
19. Because of DOMA, the federal government denies rights, protections, benefits, and responsibilities to same-sex married couples in all federal programs that take account of marital status.
20. Lack of other state civil causes of action including loss of consortium, crime victim recovery reimbursement, and domestic violence protection orders.
Same-sex couples would be wise to seek advice from their attorneys to prepare legal documents to recover as many benefits as possible that traditional married couples receive automatically. The 20 denied rights above are simply the tip of the melting iceberg.
Documents you may wish to discuss with your attorney and financial advisor include:
- Limited Liability Company for asset protection and distribution
- Durable Power of Attorney for Healthcare
- Co-Habitation Agreement
- Co-Parenting Agreement
- Simple Will
- any number of trusts for additional asset protection
Many states, including Florida, will acknowledge properly written cohabitation agreements. A vital point for same-sex cohabitation agreements is that the central rationale cannot be to enforce a sexual arrangement. In addition, sex cannot be offered in trade for a financial arrangement. These kinds of contracts are void as against public policy.
Each situation is unique, but many of these documents are important for male-female married couples as well. Guard you LGBT relationship with an LLC until and even after SSM discrimination ends.
LGBT and unconventional families will have to rely on a mixture of a Secure Couple LLC ™ and other legal agreements to gain even a small portion of the 1,300+ legal and economic benefits available to married couples.
Retrieve your free Secure Couple LLC ™ ebook and learn how to form a Limited Liability Company to publicize your commitment, set up your joint finances, and guard your future pending the federal government and the several states eliminate marriage discrimination against LGBT couples and others who choose not to marry - http://securecouplellc.com/formscllc.pdf
Charles F. Lamm is a retired attorney now working with Secure Couple LLC - http://securecouplellc.com