In Goodridge v. Department of Public Health, 440 Mass. 309 (2003) the Massachusetts Supreme Judicial Court declared that barring same-sex partners from the protections, benefits, and obligations of marriage violated the Massachusetts Constitution. Since this decision, same-sex marriage has been legal in Massachusetts.
Even so, failure of the federal government and the majority of individual states to recognize same-sex marriage denies same-sex spouses the protections and benefits that fall outside the jurisdiction of the Massachusetts courts. Same-sex spouses should reinforce their rights by executing independent legal documents granting each other the rights conferred by marriage.
Documents essential for the protection of same-sex spouses’ rights:
- Prenuptial or Postnuptial Agreement. These contracts are a great tool to prevent uncertainty for any couple. They are critical for same-sex couples, where many states treat divorcing spouses as legal strangers. The agreement describes the rights and obligations of the spouses, addresses property rights, and states intentions regarding parentage of children. Although custody determinations are based on the best interest of the children, stating intended parental roles provides guidance for the court should custody become an issue in the future.
- Last Will and Testament, expressing the testator’s intentions for distribution of property owned in his or her sole name. Wills provide the opportunity to name the surviving spouse as guardian of any children, which is essential where a court might not otherwise recognize the spouse’s status in the children’s lives.
- Durable Power of Attorney, appointing your spouse as your agent to handle your financial affairs. The power can be effective immediately or it can be “springing”, meaning that it will not go into effect unless you become incapacitated.
- Health Care Proxy, appointing your spouse to make medical decisions for you should you become incapacitated.
- Living Will, stating your wishes regarding your medical care in case you are unable to do so in the future. Although Massachusetts does not recognize Living Wills as a formal legal document, it can provide the court with evidence of your wishes. This is a proactive method to support your spouse in carrying out your wishes.
- HIPAA Release, permitting healthcare providers to release your medical information to your spouse. This will be necessary in order for your spouse to determine whether the Durable Power of Attorney or Healthcare Proxy powers apply in a given situation.
To discuss how I can help you can reinforce your spousal, parental, and property rights, call (978) 704-9223 or email Lance Law LLC to schedule a free consultation.