Until LGBT marriages, domestic partnerships, and civil unions are recognized by the federal government, LGBT and alternative families will have to depend on a combination of a Secure Couple LLC ™ and supplementary legal documents in order to achieve even a tiny percentage of the 1,300+ legal and financial benefits accessible to married couples.
Some of the benefits lost to same-sex couples:
1. No joint tax returns at the federal level, even if they filed joint returns at the state or local level.
2. For a typical couple, SSM partners will lose in excess of $8,000 per year in Social Security survivor benefits after the death of the higher earning spouse.
3. Lacking marriage, a couple requires several legal agreements to create even a few of the protections granted traditional married couples in the event of death of one partner. Specific tax benefits are denied to unmarried couples.
4. No right to petition for a foreign same-sex spouse - and his or her children that qualify - for Lawful Permanent Residence ("green card") status.
5. Federal law exempts from federal estate taxes and federal gift taxes for all property - currently $3.5 million - left to a surviving spouse. LGBT surviving partners receive no combined exemptions.
6. No automatic right under most state laws and regulations to make healthcare decisions on behalf of a partner in a medical emergency. The legal "next of kin" assumes these duties and makes decisions with or without the partner's consent.
7. Marriage is not a requirement for owning property together, but for married couples in nearly all 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 provide joint ownership of property and other assets and how those assets will be divided upon splitting up.
8. Certain business entities such as family limited partnerships are not available to LGBT couples.
9. When a heterosexual employee and his or her family receives health benefits by means of a job, the value of those benefits is tax-exempt. If an employee is able to obtain health benefits for a same-sex spouse or domestic partner, the federal government requires that the employee "spouse" report those same benefits as taxable income.
10. The Family and Medical Leave Act of 1993 permits individuals up to 12 weeks of unpaid leave to care for ailing spouses, or the children and parents of a spouse. Denied to an LGBT companion.
11. Can be denied the privilege to visit a partner in critical care/ICU. Incidents in some hospitals such as Jackson Memorial Hospital in Miami, have led to more enlightened visitation policies.
12. Families in which two same-sex partners are raising children often encounter legal obstacles because many courts are reluctant to structure legal families reflecting this reality. Many couples in same-sex relationships petition for second-parent adoptions which refers to a legal action taken by one partner to adopt the children (biological or adoptive) of the other partner.
13. No automatic inheritance in the absence of a will.
14. No survival or spousal remuneration for pensions, Social Security, Medicare, or annuities. Protections designed for one spouse’s necessary economic resources such as the ability to reside in the family home when the other spouse requires Medicaid long term nursing home care are lost.
15. In cases of wrongful death or significant injury, partners and children of partners have no standing to sue for damages.
16. In court, SSM partners cannot claim marital immunity from testifying against their partner.
17. Next of kin will have control over funeral and burial arrangements, not the same-sex partners.
18. No SSM benefits available to military families such as medical, dental, housing, educational assistance, vocational guidance, home loan guarantees, relocation assistance, housing allowances, survivors' benefits, and VA benefits.
19. No survivor's benefits for spouses of federal employees, including lost wages, workers' compensation, health insurance, and retirement benefits.
20. Lack of other state civil lawsuits including loss of consortium, crime victim recovery reimbursement, and domestic violence orders of protection.
Same-sex couples would be wise to seek advice from their attorneys in order to draft legal documents to duplicate as many benefits as possible that conventional married couples receive automatically. The 20 denied rights above are just the tip of the melting iceberg.
Documents you may wish to discuss with your lawyer 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 correctly drafted cohabitation agreements. A vital purpose for same-sex cohabitation agreements is that the central rationale cannot be to enforce a sexual arrangement. Moreover, sex cannot be offered in trade for a financial arrangement. Such agreements are void as against public policy.
Every situation is unique, but several of these documents are beneficial for male-female married couples as well. Guard you LGBT relationship with an LLC until and even after SSM discrimination ends.
LGBT and alternative families will have to rely on a mixture of a Secure Couple LLC ™ and other legal contracts to obtain even a tiny portion of the 1,300+ legal and financial benefits available to married couples.
Claim your free Secure Couple LLC ™ ebook and learn how to form a Limited Liability Company to announce your commitment, set up your joint finances, and protect your future pending the federal government and the several states get rid of 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