Gay couples advised to hire a lawyer to protect themselves
Even with the full recognition of same-sex marriage in Washington state, gay couples are being advised of the need to prepare to protect themselves against inconsistencies in the laws that exist from state to state.
Special to The Seattle Times
Here are resources with an online presence that provide information targeted at gay couples on life issues.
• The Internal Revenue Service FAQ: “Answers to Frequently Asked Questions for Same-Sex Married Couples.” http://1.usa.gov/18LBR2h
• Lambda Legal website: Lamda Legal is a national civil-rights organization committed to the lesbian, gay, bisexual, transgender community and those with HIV. The organization helps with litigation, education and public-policy work. www.lambdalegal.org/
• Equal Rights Washington: Statewide political-advocacy group for the LGBT community. www.equalrightswashington.org/
Bainbridge Island attorney Elizabeth Dronkert suggests maintaining these life- and estate- planning documents to cover the basics for lawfully married same-sex couples who carry the burden of extra precautions in other states:
• Will with contingent trust.
• Durable power of attorney for health care and appointment of guardian of the person.
• Durable power of attorney for finances and property with gifting provision and appointment of guardian of the estate.
• Health Insurance Portability and Accountability Act (HIPAA) authorization with designation of spouse as immediate family and hospital visitation priority authorization.
• Health-care directive (living will).
• Directive for disposition of remains.
• Property agreement.
Bob Huven and Howard Leonard, of Seattle, have been together since 2008. When their relationship became serious in their first year together, the two sought a lawyer to make sure wills, decision-making powers and financial matters were all squared away between the two partners and Howard’s adult daughters.
“We just wanted to make sure everybody was clear about who was in charge of what,” Leonard said.
As same-sex couples tie the knot in Washington state, they’re finding they still may need to take some actions to enjoy all the protections and benefits of marriage.
When it comes to estate planning, taxes, divorce and other issues, differences still remain between same and different-sex married couples, mostly a result of inconsistencies in laws from state to state and changing federal laws.
While states like Washington offer same-sex marriage and recognition, for instance, some bar both, while others will recognize a same-sex marriage from another state but don’t offer it in their own. Recent developments in Utah show the right to marry can come and go.
Inconsistencies from state to state can affect gay married couples. Doctors treating a same-sex spouse facing a health crisis in a state that does not recognize gay marriage may call a relative to make critical health-care decisions, instead of the spouse, and can bar the patient’s spouse from visitation.
A same-sex couple who gets married in Washington and moves to another state may not be able to divorce there, if that state does not recognize their marriage. Without protective documentation, the incapacity or death of a spouse can set off a string of unnecessary legal hurdles.
Elizabeth Dronkert, founding attorney of the Bainbridge Island firm Estate Planning for the Modern Family, has focused on estate planning for lesbian, gay, bisexual and transgender (LBGT) families since 2005.
She recommends that couples, married or not, have a basic set of documents drawn up to protect them from unintended situations where legal decisions might be made differently from state to state.
The documents she recommends include wills, health-care directives and the designation of the legal decision-maker in case one partner is incapacitated. (see accompanying list).
The papers are useful across a range of unfortunate situations, including health problems, divorce and death.
If a document clearly states that a partner or spouse has been legally appointed to make health care and other choices, those decisions won’t rest with local authorities or other family members.
Dronkert recommends the couple always carry the signed documents saved as PDFs on a flash drive or phone, as well as on paper, especially when they travel.
“It may sound like overkill, but my job as a lawyer is to recommend what I think will lead to the best outcomes for my clients,” she said.
At a minimum they should have an electronic copy of their marriage license, according to Wendy Goffe, a partner at the Seattle law firm Stoel Rives.
Goffe recommends that same-sex couples find a legal professional experienced in working with LGBT families. “They will know where challenges might arise and how to come up with strategies to anticipate and work around them,” she said.
While websites that promise easy online creation of legal papers may seem appealing, Goffe says some of the documents she has seen have contained significant errors and omissions and some were not even applicable to the couple’s situation.
Evolving tax law
Tax law also is evolving along with the right to be married and can be quite complicated, according to Bob Rothery, senior manager in the Washington national tax practice at KPMG.
Because the Internal Revenue Service now recognizes same-sex marriage, same-sex spouses must file their federal taxes as married, rather than as single. This is required even if the couple live in a state that doesn’t recognize the marriage. In most cases, married gay couples living in states that don’t recognize the union need to file their state tax forms as separate individuals.
Same-sex couples who were legally married while the Defense of Marriage Act (DOMA) was in place were required to file their federal taxes as if they were single.
Because the DOMA provision that barred the federal government from recognizing same-sex marriages was struck down by the Supreme Court as unconstitutional, those couples now can amend their tax returns from the years they were married, in most cases, up to the past three years.
Kevin Cooper, who works at KPMG in Seattle, retroactively filed jointly for himself and his husband and “got a large refund check.” Taxpayers should “consult with their tax advisers to determine whether this might be advantageous,” Rothery said.
In Washington, same-sex registered domestic partners (if they are both under 63) have been required to file federal taxes separately with their earned income split. As of June 30, 2014, they will be considered by the state to be married and will be required to file their federal taxes as married for 2014.
So even if they don’t walk down the aisle, they will be considered married by Washington state and by the federal government.
Consult IRS site
Cooper says that many people are unaware of the changing laws and rules. He recommends consulting the IRS website for updates and answers to frequently asked tax questions.
Couples are navigating the changing and complicated legal landscape so they can be with their loved one.
When Huven and Leonard were married in 2010 in Iowa, they already had the basic protections and rights established by their legal documents, “so our marriage wasn’t about that,” said Leonard.
“Our decision was made out of love, and even if we have to pay higher taxes as a married couple, that right, to be married, makes it worth it.”
Julie Weed is a freelance writer