How To Be A Gay Family In An Unfriendly State, According To The New York Times

via HRC - click to open pdf

Today’s NYT special section may sound distressingly familiar: a lesbian couple who worry about parenting their two children because their home state doesn’t allow second-parent adoption. Since Amanda Shelton is their biological mother but Kay Shelton is not, in the event of something like a divorce or Amanda’s death or incapacitation, Kay would have no legal basis for continuing to care for their children. The long-term solution to this is state and someday federal recognition of same-sex marriage and families, as well as the dissipation of archaic attitudes about the moral fiber of gay people, allowing them the same adoption rights as straight people. No one, including the Sheltons, see that happening in the foreseeable future. So instead, the New York Times has assembled a team of legal and financial experts to explain what options they do have, and they’re relevant to thousands of couples like them all over America – most of whom don’t have the resources to consult a team of legal or financial experts on their own. So what do they suggest?

+ Power of Attorney: A power of attorney for parental authority doesn’t expire once it’s established, and would allow Kay the legal right to do things like take her kids to the doctor, or meet with their teacher as their mom. Mary Kator of the Rainbow Law Center says this should work for most day-to-day things, and that it hasn’t been challenged before. That may not be quite as reassuring as it sounds – power of attorney documents haven’t always worked, as in the tragic case of Janice Langbehn, who wasn’t allowed to see her dying partner in a Florida hospital even after her lawyer faxed a copy of their power of attorney document to hospital administrators. But it’s a lot more protection than you would get without one, and worth the effort to have one created. A medical power of attorney provides visitation rights in the hospital, as well as the ability for healthcare providers to share medical information with a non-biological parent.

+ Will: Each parent needs to designate the other as legal guardian of their children in their wills in case of death, and also make sure that each is designated as a co-parent.

+ Domestic Partner Agreement: In states where domestic partnership is legal, Kator recommends getting one, and then outlining an agreement with a lawyer about how parenting and child support will be handled if the couple breaks up. It’s unclear what one is supposed to do in states where that’s not a possibility, or is complicated by other factors – for instance, what if you’re married in a state where you’re legally allowed to, but then move to a state that doesn’t recognize your relationship? It seems probably illegal to have a domestic partnership as well as a marriage. Unless, since the state you’re in doesn’t recognize one, they aren’t redundant. It seems safe to say this is a murky legal area for the layperson to navigate.

+ Moving: The Sheltons considered driving 600 miles to try to have their youngest child in New Jersey, which does allow second-parent adoption. If parents are serious about the need for legal security for their family, they may want to consider moving to a more hospitable state – although obviously this can cause job and financial issues. It can take as long as a year to establish residency, so even this doesn’t guarantee a life without worry, but it may be the most secure option in the long run.

As far as finances go, things don’t look great either. A lot of what gay couples need to be doing is trying their best to replicate on their own the systems that the government puts in place for straight married couples, and it’s doubly hard when you factor in the fact that gay people (especially those of color) tend to make less money and be more susceptible to unemployment. (Kay Shelton is currently unemployed.) Here are the actions you can take:

+ Saving: Since gay marriage isn’t recognized by most states and as of right, by the federal government, your partner cannot benefit from social security based on your income. If you want them to have retirement money to draw from, you need to set up a savings account and deposit a portion of your paycheck into it yourself. As it stands, your spouse cannot benefit from what the government deducts from your paycheck for Social Security or from your 401(k), and there’s basically no way to equitably divide up that money if you break up. However, there’s also a sneaky back door to this problem that the Sheltons, at least, might be able to take advantage of:

+“Hiring” your spouse: “…Amanda files her federal tax return as “head of household,” and claims the children and Kay as dependents. Amanda could hire Kay as a nanny and pay her $3,649 a year, which she could then put into a Roth I.R.A. (Kay needs to earn less than $3,650 for Amanda to continue to claim her as a dependent, Ms. Salandra said.) Kay and Amanda would both owe Social Security and Medicare taxes, and Amanda would need to pay state unemployment taxes. That’s roughly $644 in total, but Amanda could deduct her share of the payroll taxes as itemized deductions on her return.”

+Revocable Living Trust: The Sheltons have documented joint ownership of things like their house and savings account, so in the case of divorce or death those things would pass to the surviving partner without a legal issue. But for couples for whom that isn’t the case, there’s the option of a revocable living trust, which is “often recommended for couples with substantial assets that may be subject to probate, the process to settle a deceased person’s estate. Assets held in the trust bypass that process.”

In short, the level of time, effort, emotional energy, and money that we have to put into just trying to protect our family from those forces that want to see it dissolved is astounding and infuriating, but unfortunately necessary. The more freely available information there is on this topic, though, the more likely families and individuals will be able to keep themselves and their families safe and in one piece from chance and from institutional indifference.

Feature image on homepage via Fabrizio Costantini for The New York Times.

Rachel is Autostraddle's Managing Editor and the editor who presides over news & politics coverage. Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

Rachel has written 1097 articles for us.

13 Comments

  1. “Hiring” your spouse is a creative way to circumvent the system. I just hope anyone who takes that route doesn’t get audited and have to explain that one, even if it is legal.

  2. All of this doesn’t even address the whole complication of attempting to pay taxes as a gay couple. The TurboTax article a few days ago got into it, but it’s all just a fucking headache.

    I wonder if straight people even realize how much protection their family has automatically.

    • By and large, no they really don’t. I can’t tell you how many conversations I’ve had with extended family members as to why legal gay marriage is needed and it’s not just “a simple matter of getting a second parent adoption for any kids and writing a will to leave all your stuff to the other person.” I’ve also been called a liar to my face by a few people when I talk about the ~1400 rights that come along automatically with marriage. When I actually pulled up the list on the internet, they were shocked into silence. They just have no idea how much they take for granted.

  3. Would having a revocable living trust stop the government from charging a spouse an inheritance tax if the other spouse dies? Straight married couples dont have to worry about their property or savings going to their spouse but we have to..its such bullsh*t

  4. I’m sad that the couple featured is from Michigan. I feel like there is so much conservative political money in this state that marriage equality is never going to be a thing.

  5. In areas where those of us live that don’t provide shit for protection, then yeah, stuff like this needs to be known and I think all committed couples should do what they can to accomplish this.
    My reasoning (beyond the fact that you just need to protect yourself and your family) is also that if you get a plurality going, it’ll help legitimize the push for marriage that much further.
    Hey, look, we’re taking this shit seriously and doing it on our own, so come on, cut us some fucking slack.

  6. I’m glad that Australia recognizes same-sex relationships as “defacto”, which carries most of the rights of marriage (and also makes the fact that same-sex marriage is illegal here even more incomprehensible).

  7. rachel, mama, thank you so much for writing articles like this in a language that I can understand.
    legal and medical documents often come in their own encrypted jargon and i get frustrated with them cuz i cant understand what they’re saying.
    and i’m fucking smart!

    lol but STILL i’m like ummm i don’t get this so i’m just not going to do this.

    sometimes i’m just like “fuck it, i’m poor now and so is she and we’re just gonna be poor til we die. so why save? why give a fuck about a future that doesn’t exist?”

    like right now her company won’t give me health insurance even tho we’re registered DPs because they only cover non-gay spouses…so i’m fucked if anything happens to me which also adds to the “fuck it” attitude i’ve developed about these grown up matters.

    i’ve said fuck a lot in this reponse, who knew I could be so perturbed at 9:25am?

    anyway, hi five on this piece mama. i wish i could hand deliver this article and the NYTs piece to everyone rainbow family in this gayforsaken country.

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