This post was co-authored by attorney Edward Garrett
With the recent gains in marriage equality in numerous states around the U.S., many same-sex couples will return home from holiday travel with the confidence of knowing they now have the right to get married in their home state or to have their out-of-state marriages recognized at home. And, if you and your partner recently exchanged vows and exercised your right to get married, congratulations! But, while the planning for your wedding may be over, the planning for your new marriage should not be.
Although your state may have gained marriage equality, many states and territories in the U.S. continue to deny equal rights to same-sex couples by refusing to issue marriage licenses to them and by refusing to recognize their marriages when lawfully entered into in another state. The resulting patchwork of marriage equality across the country leaves same-sex spouses and their children at risk as they travel across the U.S., and, without simple planning, the implications of doing so can be dire.
Travel across the border into a non-marriage equality state, and you and your spouse will suddenly find yourselves to be single again -- two legal strangers in the eyes of the state government, stripped of the right to make medical decisions for your spouse in an emergency, to discuss his or her condition with a doctor, or to even visit him or her in the hospital. For example, married same-sex spouses vacationing in, or merely passing through, New Orleans or Puerto Rico can be refused the right to direct the medical care of their spouse, their spouse's child, or their own child, if one of them became ill. As poignantly noted by HuffPost blogger William Lucas Walker, the threat is not theoretical. In an instant, a spouse and parent with full legal spousal and parental rights in one state can become merely a concerned "friend" with no legal rights, or access, to his or her spouse or child in a non-marriage equality jurisdiction.
Given the recent flurry of judicial decisions, marriage equality nationwide may seem inevitable, but the future remains uncertain. Even in states that currently recognize marriages between same-sex couples, the marriage-equality litigation in many of those states continues on appeal. And, the United States Supreme Court has yet to indicate whether it will step in and resolve the matter or if it will leave it for the individual states to decide in their own time. Meanwhile, same-sex couples and their families remain vulnerable. Fortunately, some simple planning and the signing of a few legal documents can protect you and your family regardless of whether the state you find yourself in recognizes your marriage.
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 hospita l- -"This person has the right to direct my medical care; whether you think we are married is irrelevant." So, if a hospital in a non-marriage equality state refuses to recognize your spouse as your spouse, these documents can ensure he or she 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. 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 some states, if you are married and die without a Will, some portion of your estate may be required to go people to whom you would not want to receive it. For example, parents who may not have been accepting of your same-sex spouse may be entitled to receive a significant portion of your estate at the expense of your spouse. Having a Will allows you to control how your estate is distributed.
Decisions for Your Children. If you have children from a previous relationship, a non-marriage equality state may not recognize your same-sex spouse as the stepparent of your child and may not allow them to make critical medical decisions for their care in your absence. Even more alarming, if you and your same-sex spouse have had a child via surrogacy, it is possible that a biological parent of the child may be refused the right to direct the medical care of that child in a non-marriage equality state. 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 child 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 ensure your same-sex spouse 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 spouse act as their short-term guardian, regardless of whether the state recognizes your spouse as your spouse. 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.
In the near future, marriage equality may arrive in all 50 states and territories and the current patchwork of marriage equality jurisdictions will merely be a historical map in a Wikipedia entry. If that day comes, the documents listed above do not become irrelevant or even redundant. These documents, and others, remain valid and useful regardless of the status of marriage equality. Indeed, opposite-sex couples, both married and unmarried, have long utilized these documents to make prudent plans to protect their families.