A year ago, the State of New York joined a growing number of states by legalizing same-sex marriage. The LGBT community rejoiced in their victory, claiming equal status in their marriages and all the legal benefits that go along with it.
The legally-minded members of the LGBT community had long argued that sexual orientation discrimination was a considerable problem in medical emergencies and end-of-life scenarios. After all, in a marriage each spouse holds the power to make decisions on behalf of the other when the other is experiencing a medical emergency or is close to death. Absent a living will or alternative health care proxy, the heterosexual spouse is presumed to know what medical directives are appropriate, including whether to terminate life support measures.
It is not surprising that, before the same-sex marriage bill, disputes arose as to whether a same-sex partner could be entrusted with these decisions when no documentation existed. It was not uncommon for life-long partners to be left out of the decision-making process altogether, or even denied hospital visitation privileges because they were not the "spouse." It is not difficult to imagine a hypothetical scenario in which young heterosexual newlyweds could be entrusted with these decisions for one another, while the 30-year monogamous homosexual partner of another patient could be denied access altogether.
The same-sex marriage bill has alleviated some of this concern. Once the bill was signed, LGBT couples gained the power to decide emergency and end-of-life scenarios for their partner if their partner did not have documentation drafted for that purpose. That being said, New York estate planning attorneys strongly caution against LGBT couples being lulled into a sense of security since the passage of the state marriage law. Living wills and a health care proxy are still essential documents, even if the LGBT couple is married.
Here's why. Each state has its own stance on same-sex marriage. While New York has been part of the growing minority of same-sex marriage states for a year now, many states have not followed suit. As a result, if a same-sex married couple were to travel to another state in which same-sex marriage is not recognized, the emergency and end-of-life privileges that normally would attach at home may go unrecognized. That means that if there was an emergency situation, the same-sex spouse may be denied the spousal privilege to make the important medical and end-of-life decisions.
For this reason, New York City estate planners strongly encourage same-sex married couples to craft living wills and a health care proxy in spite of any spousal privilege they may enjoy within their own state. The living will can take the uncertainty out of the ailing person's wishes in the event of a life-threatening medical emergency. The health care proxy can explicitly assign the healthy spouse as the decision-making authority if unforeseen circumstances occur.
Both documents are essential tools for the LGBT couple, even in spite of the civil rights advancements of the last several years. Take the fear and uncertainty out of an emergency or end-of-life scenario, and make sure power to decide remains in the rightful hands.
In addition to these issues, married New York same-sex couples are still denied a myriad of federal benefits. The Defense of Marriage Act defines marriage as between a man and a woman for federal purposes, creating a cascade of estate planning issues for married same-sex couples in our state. A full set of estate planning documents including a Last Will, Durable Power of Attorney and Living Trust should be considered and implemented so that all uncertainty regarding personal and property decisions are eliminated.
A qualified New York Trusts and Estate Lawyer can assist with reviewing and creating these documents as well as examining any additional issues regarding possible estate tax planning and Article 81 Guardianship for incapacity.