I was sitting in a room with my fiancée and half a dozen other gay couples, listening to a financial advisor and trusts lawyer take turns scaring us about what would happen to us if we didn't take the proper steps to protect ourselves. Foreign phrases like "to die intestate" and "right of sepulcher" were being interspersed with equally incomprehensible acronyms like "POD" and "JTWROS", all being thrown out with alarming regularity.
The confusion and complexity for gay couples is largely driven by the discordance between Federal and state marriage recognition. Recognition of a marriage automatically accords privileges and protections. The problem is that the Federal Defense of Marriage Act (DOMA) throws a wrench into the process in two ways:
- Section 2 -- Your rights are not portable. States don't have to recognize marriages recognized by other states (The medical visitation rights granted by your California Domestic Partnership do not have to be recognized when you go to Disneyworld in Florida with your family).
- Section 3 -- The Federal government does not recognize your relationship. This codifies the non-recognition of same sex marriage for Federal purposes (e.g. Social Security benefits, government employee benefits, the filing of joint tax returns).
I didn't catch all the details in that 90-minute seminar, but the conclusion was pretty clear -- we were screwed if we didn't figure out how to privately contract for some of the rights that heterosexual couples automatically receive upon marriage.
I went home and started doing some research. I called up my lawyer friends. I talked to financial planning professionals. The whole time, I was thinking, why isn't there anything that explains this in plain English and gives me a clear action plan? I wanted a tool where I could input where I lived and the level of relationship recognition available to me, and then a checklist of documents/issues would be spit out. I mean, how hard could that be? Unfortunately, it is astoundingly complicated. Every state has its own statutes that govern each right that you need to contract for. The written law is one thing, but what really impacts how that law is interpreted is case law, or precedent for how it has been interpreted in the past, by your specific state. So even if you read all the state statutes, as a non-lawyer, it is very hard to tell how the law is currently being interpreted. Furthermore, LGBT law is a very new and dynamic field, so the constant changes make it hard for someone who has a day job to keep track of everything.
The complexity means a lot of people are unaware of which rights they do or don't have. We naively assume that just because we have built lives around each other, the law will recognize our relationships. This is dangerous and untrue, as I read case after case where families and couples are denied rights because states and courts don't recognize their relationships. Sharon Kowalski's estranged parents attempted to seize guardianship after she was incapacitated in a car accident -- her partner was forced into a protracted legal battle to bring her home. After her death, Sarah Ellyn Farley's estranged parents attempt to be named administrator of her estate, denying her wife Jennifer Tobits access to Farley's pension plan benefits. The list goes on and on.
I called up my gay married friends. They all said, "Oh right, we know that's important, we just haven't gotten around to figuring it out." These are highly educated and generally prepared people, and THEY haven't taken the steps to protect themselves? I get it -- we're young, we're in love -- who wants to think about estate planning and advance healthcare directives? But Sharon Kowalski was 27 when she was incapacitated by her car accident -- you never know.
I figured other people could benefit from all the research I had done. And I wanted to bring awareness to an issue that I think many are unaware of. Fortunately this dovetailed nicely with my professional responsibilities at NerdWallet, a consumer finance startup that brings transparency to products. We like to shine a light on complicated data that impact consumer decision-making. This was clearly one such situation. The Same Sex Planning Tool aggregates the key financial and legal issues facing LGBT couples, and clearly explains which documents matter, and why.
We hope that people will use the tool, educate themselves, and get their financial and legal affairs in order. Bad things do happen to people who don't plan. Don't let that happen to you.