Estate Planning for Gay and Lesbian Couples: Children

In 2013, Maryland became the first state south of the Mason-Dixon line to legalize same-sex marriage, according to USA Today. Because Maryland recognizes same-sex marriage, most estate planning issues apply for same-sex and different-sex couples. However, there are some areas where same-sex couples need extra legal protection, such as when they have a child together. Below is a general list of benefits that an estate plan can provide, as well as what you need to consider if you are in a same-sex marriage and have children.

What Does an Estate Plan Accomplish?

The most essential part of an estate plan is a will. A will lets your loved ones know what your last wishes are, gifts your property to whom you desire, and more. Estate plans also usually include or strive to accomplish some or all of the following:

  • Trust;
  • Advanced healthcare directive;
  • Manage inheritances for young children;
  • Life insurance;
  • Tax avoidance and court expenses; and
  • Name guardians.

When the Marriage has Children

When a woman gives birth to a child with her husband, the marital presumption is that they are automatically the parents in the eyes of the law, as reported by the National Public Radio (NPR). However, this is not necessarily the case for same-sex couples. For example, if two married women have a child by utilizing a sperm donor, only the child’s biological mother has full parental rights, even if the other non-biological mother is put on the child’s birth certificate. By creating an estate plan, you further guarantee that the surviving non-biological parent has full legal rights over the child.

Same-Sex Marriage and Adoption

Sometimes, when a same-sex couple adopts a child, only one parent becomes the legal guardian. If something happens to that parent, and they have no estate plan in place, there is a great risk that the surviving spouse will see the child taken away into foster care. Creating an estate plan is much easier than adoption so there is no excuse to wait any longer, and an estate plan will let the court know that you wish for legal guardianship to pass to your significant other if you die.

Same-Sex Marriage and a Child from a Previous Marriage

Another scenario that is identical for same-sex second marriages and different-sex second marriages that could potentially unfold is as follows:

  • A mother in a same-sex marriage who has sole legal custody of her child from a previous marriage brings her child into the household, possibly at a young age;
  • The biological father is not around and has little to no contact or visitation with his child;
  • The other, non-biological spouse takes the role as a parent and develops a strong emotional bond with the child; and
  • The biological mother dies.

In this case, the surviving spouse would not automatically receive custody, the biological father would. In order to gain custody, the surviving spouse would need to work closely with an attorney if the father wanted custody, and would likely have to prove that the father was a danger to the child.

Call Maryland Estate Planning Attorney Tara K. Frame Today

Whether you are in a same-sex or different-sex marriage, we encourage you to consider creating an estate plan to protect your assets and your loved ones when you are gone. Please call the Pasadena attorneys of Frame & Frame today at 410-255-0373.