subject: Recapture Benefits Customarily Denied to Same-Sex Couples [print this page] Recapture Benefits Customarily Denied to Same-Sex Couples
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 blend of a Secure Couple LLC and supplementary legal documents to reap even a tiny percentage of the 1,300+ legal and financial benefits presented to married couples.
A few of the benefits denied:
1. No joint tax returns at the federal level, even if they filed joint returns at the state level.
2. For an average couple, SSM partners will lose more than $8,000 each year in Social Security survivor benefits after the passing away of the higher earning spouse.
3. No lump sum death payments - civilian or military - to help with funeral costs.
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 spouses receive no joint exemptions.
6. No automatic right exists for same-sex couples to manage medical or emergency decisions on behalf of their partner. By means of a valid durable power of attorney for healthcare, the trusted partner you name will be legally permitted to take care of significant issues for you -- for instance, directing your medical care -- if you are incapable to do so yourself. Married couples receive this right automatically in all states.
7. Marriage is not a prerequisite for owning property jointly, 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 enjoy, an LLC can grant joint ownership of property and other assets and how those assets will be divided upon separation.
8. Certain business entities such as family limited partnerships are not open to LGBT couples.
9. Unless your employer has an enlightened same-sex domestic partnership policy, you are not able to be incorporated in your partner's health insurance coverage.
10. The Family and Medical Leave Act of 1993 provides individuals up to 12 weeks of unpaid time off to care for sick spouses, or the children and parents of a spouse. Leave denied to a same-sex partner.
11. Visiting a gravely ill partner in ICU can be denied in 28 states. The remaining 22 states have laws to prohibit discrimination based on an individual's sexual orientation in "public accommodations", and 14 of those also prohibit 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 from pensions, Social Security, Medicare, or annuities. Protections intended for one spouse's vital financial resources such as the capacity to stay in the family home when the other partner needs 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 civil action for damages.
16. In court, SSM couples cannot assert marital immunity from testifying against their partner.
17. No right to make decisions about final preparations for a deceased partner, such as burial versus cremation, or where the deceased will be laid to rest.
18. No SSM benefits available to military families such as healthcare, dental, housing, educational assistance, vocational preparation, home loan guarantees, relocation assistance, housing allowances, survivors' benefits, and veteran's 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 lawsuits such as loss of consortium, crime victim recovery benefits, and domestic violence protection orders.
Same-sex partners would be wise to consult their lawyers in order to prepare legal documents to duplicate as many benefits as possible that conventional married couples receive automatically. The 20 denied rights above are only the tip of the melting iceberg.
These documents may 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 accept properly constructed cohabitation agreements. A fundamental purpose for same-sex cohabitation contracts is that the central purpose cannot be to enforce a sexual arrangement. Moreover, sex cannot be offered in exchange for money or other financial consideration. These kinds of agreements are void as against public policy.
Each situation is unique, but several of these documents are beneficial for male-female married couples also. Guard you LGBT relationship with an LLC until and even after SSM discrimination ends.
