Eight states vote this November on whether to ban same-sex marriage, including nearby Tennessee, Virginia and South Carolina. Nineteen states already have such prohibitions.
The battle for marriage equality–or “gay marriage,” if you like–is going to be long and drawn-out. The ultimate outcome is anybody’s guess, but in the meantime, same-sex couples have to do what they can to protect themselves.
“LGBT folks can do some ‘work-arounds’ by establishing a series of legal documents that would protect the major rights,” says Kathryn Wilderotter, who lives in Durham with her partner, Linda Cole. “Although, of course, this still wouldn’t give us the thousand rights that are automatically granted to straight married couples.”
Same-sex couples can protect themselves by setting up legal power of attorney and medical power of attorney, owning property in “joint tenancy with rights of survivorship,” and wills. In addition, many companies today offer domestic partner benefits. If one partner works for such a company, the couple should obviously take full advantage.
But where can couples find out about all these things?
Pam Spaulding, of Durham, author of the popular blog “Pam’s House Blend,” found good advice under a tree on Duke’s East Campus. “Kate and I saw Sharon Thompson’s table at N.C. Pride a couple of years ago and started to investigate what to do to protect ourselves. …
“I think there is a lot of good information out there now for those who are connected to the Internet. Or you can show up at your local Pride,” she said. “For those who aren’t connected to the Internet or don’t live in a community where those kinds of things are available, it’s a difficult prospect. And intimidating.”
Getting the information is crucial. There are some good books available, and some good Web sites to check out (see below). Education, however, is only part of it–you’re going to need an attorney.
“Some of these things are very simple, others are very complex,” says Ian Palmquist, executive director of Equality N.C. in Raleigh, “particularly when you start getting into issues around children. There is no way to get the kind of protections that married couples have for their children without spending a good deal of money on attorneys.”
Durham Attorney Sharon Thompson points out, “A heterosexual can spend $50 on a marriage license and all of the sudden hundreds and hundreds of laws apply.
“In order for a same-sex couple to create some of those same protections, it’s going to cost them. Wills for an average middle-class couple with some assets could run $1,000, $500 each for all those documents,” she says. “But then if you want a property agreement, that’s another $1,500. And then if you add on all the parent stuff, you add on several thousand dollars more. So you’re looking at $5,000-$10,000 just to create legal protections and a family.”
If you have an attorney you work with regularly, the cost may be less. Be sure to shop around for prices and referrals before you commit to working with someone.
“There are ways to cut that cost down,” Thompson adds. “Healthcare power of attorney, for one. You can go online to the secretary of state’s Web site (www.sosnc.com), or the medical society (www.ncmedsoc.org), and download healthcare power of attorney forms, and it’s free. And those are fine, because they’re North Carolina documents.”
John Boddie, a Raleigh native who currently practices law in Greensboro, has a few more suggestions.
“I like people to make sure that any significant property that they own is owned ‘in joint tenancy with right of survivorship.’ You can own any property that way–your house, your car, your bank account. It’s just a matter of using that magic language. And when I say ‘magic language,’ I mean that, because in North Carolina if you don’t use those precise words, then you don’t own your property jointly.
“If our ’96 Nissan Sentra is owned by John Boddie and Dan Kindsvater JTROS–which is how the DMV abbreviates it–the car immediately becomes Dan’s if something happens to me. He doesn’t have to go down to the courthouse and probate a will. He doesn’t have to do anything. It’s automatic.
“When you’re buying a house, just tell the closing attorney how you want the house titled. And again, that doesn’t cost any extra. Those two things right there are free, and make an enormous difference.”
Thompson adds, “On the cost factor, I would say yes, it’s expensive, but I think it’s worth every couple, every individual, to at least pay for a consultation with an attorney. At least know where you’re in jeopardy, where you’re at risk. A lot of my clients space out their needs: wills now, property agreement later, or vice versa.”
Pick a good attorney and stay informed
”Many times lawyers don’t represent LGBT clients well,” Thompson warns. “They don’t think to ask about right of survivorship. They don’t think about the tax consequences of what they’re doing, which are so different than husband and wife.
“One problem I’ve seen is when one person has a lot more money than the other when one person is paying all the down payment. By putting both names on it, then the one is giving a gift to the other and you may have gift tax consequences. And lawyers don’t tell clients that. There are ways to structure things that may avoid that gift tax if you know what you’re doing.
“There are other things that can be accomplished. A will simply saying that your executor can serve without bond, for example, saves you a couple hundred dollars a year right there.
“Often, people do try to protect themselves, only to find that their lawyer didn’t do an adequate job. You have to take on the burden of educating yourself so you can be sure that your lawyer or any other professional is representing you well,” Thompson says.
Once you’ve covered as many bases as you can to protect your relationship, you still need to stay informed and on guard. For one thing, laws vary from state to state.
“A lot of gay couples who move between states don’t realize the implications of that move,” says Brad Batch. He and his partner, Paul Smyre, live in Raleigh. “They assume whatever protections they had in their prior state continue in their new state, and it’s not true. They need to consult with an attorney again.”
You also have to be aware that laws in your state may change, he adds.
“We had our wills redone in the last year. I made Paul my sole beneficiary 12 years ago, but there have been changes in the law since then. Today, the earlier will might not be considered properly witnessed. So don’t sit back complacently thinking you don’t have to think about it anymore, that you don’t have to read articles in the paper, that you don’t have to talk to an attorney anymore.”
The proper paperwork not only protects same-sex couples from the discriminatory presumptions of current laws, it can also protect them from themselves–when and if the time comes to separate.
“I am now starting to see the wave of parents splitting up and fighting over custody,” Thompson says. “If it’s a case where they did not protect the second parent’s rights, then the parent with rights tries to screw the other. ‘Oh, she was just a roommate in my house.’ I think cutting off your ex from custody of your child, just because you can, just because the law allows you to, is not the best thing for the child who has bonded with that parent. It’s really unfortunate that people are doing that.”
Need for full equality remains
Even taking full advantage of what limited measures are available to same-sex couples doesn’t cover every situation.
“Immigration and naturalization are issues,” Terry Milner points out. He and his partner, Gabe Lamazares, live just outside Carrboro.
“One of the more tragic ways this plays out is in the context of a gay or lesbian couple, one of whom is not a U.S. citizen and cannot attain citizenship by virtue of their relationship. We have two very dear friends who relocated to the UK because of that.
“HIV issues were bound up with their situation as well, on the part of the non-U.S. part of that couple. You can’t emigrate to the U.S. if you are HIV-positive. He’s a software engineer, he pulls down six figures, but he’s not good enough to be an American citizen because he has a treatable disease that he’ll never have any trouble affording to treat–and because his relationship is with another man rather than with a woman.
“So, they had a commitment ceremony in Seattle and a lawful marriage in British Columbia the next day. And they settled in Canada. It’s my understanding that by virtue of that relationship they have strong civil rights protections throughout the UK and EU.”
For reasons like these, the struggle for full marriage equality will continue. Unfortunately, even the most progressive politicians are afraid to touch the issue. Some have expressed a willingness to argue for “domestic partnership,” a kind of “separate but equal” status. Would couples here take it if it were offered?
“I would take domestic partnership on the assumption that marriage would come eventually, but maybe not for a long time,” says Jim Duley. He and his partner, Brian Doerfler, live in Durham.
“In North Carolina, we had to wait until there was a Supreme Court action before sodomy was decriminalized. It took 20 to 30 years after the movement began. I’d see marriage as being at the point sodomy decriminalization was in about 1975 or 1980. I don’t want to have to wait 25 more years for marriage to have more protections than we have now.”
Margie Sved lives in Raleigh with her partner, Grace. “We would accept any step available to us along the road to true equality,” she says.
“We have collected everything we could along the way. A ‘non-legal’ church wedding, a Vermont civil union, and even a ridiculous suing of each other for co-guardianship of our kids. We haven’t yet gone back and done a second parent adoption though, but would if we thought we could do it in Wake County instead of going to Durham.”
Sheryl Griffin lives in Durham with her partner, Wanda Floyd. “On one level, I want whatever I can get. But on the other level, I think we’re settling because we wouldn’t have full rights.
“I’d still have to worry about inheritance taxes, still have to worry about so many things that heterosexual couples get just because. So, when I think about it those terms, I say ‘all or nothing.’ When I think about it from the perspective of sometimes you have to take baby steps, then something is better than nothing. It’s just a real hard question.”
“I don’t see that it’s incompatible to take advantage of legal benefits of signing up for domestic partnership,” Spaulding says. “It does not preclude doing work toward marriage equality.
“I think that is a longer-term goal. Living in a red state as we do, there’s not any chance in the short-term future that it’s going to happen here. I think domestic partnerships would be great, but I think the next step here is to see that a marriage bill never comes to a vote. We’ve managed to kill it three times in the legislature. But we all know if it ever does go to the ballot box, it’s likely to pass.”
“Politically, domestic partnership would be just a step toward marriage equality,” Palmquist says. “If it offered real concrete benefits that protect our families, it would be worth it. But I think we still have to be insistent on working for marriage. If we get some limited rights along the way, that’s an important thing. But we can’t ever let that be the end objective.”
In the meantime, Thompson says, “It’s absolutely crucial to have documents. Without them, your property is going to go to your family. Your family will be the ones making your medical decisions. If you have a partner and you want that partner involved in your major life events, you have got to have documents to establish that the partner has rights.”
Jim Baxter, former editor of the pioneering North Carolina gay newspaper The Front Page, describes himself as “an NGLTF guy in an HRC world.” He is currently working on his master’s degree at Syracuse University.
Where to start
Here are some ways couples can learn more about how to protect themselves.
On the Web: