Estate Planning Options for LGBTQ Families | Fulton v. Philadelphia

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The Law Office of Jordan W. Jacob

Your Lawyer for Life...and After™

Estate Planning Offers Alternate Options for LGBTQ Families

Written by Jordan W. Jacob, Esq.

October 22, 2020
Estate Planning Option for LGBTQ Families Ari shakes the hand of his friend

A case on the Supreme Court’s docket for November 2020 could have a major impact on the parental rights of same-gender couples seeking to adopt or foster children. Earlier this year, the high court agreed to hear Fulton v. City of Philadelphia, a case that confronts whether taxpayer-funded, faith-based foster care and adoption agencies have a Constitutional right to refuse child placement with LGBTQ families.

No matter the outcome of this case, those in a same-gender relationship looking to preserve their parenting rights and familial structure should learn about the available estate planning options for LGBTQ families.

Some background

In March 2018, the City of Philadelphia learned that Catholic Social Services (CSS), an agency it contracted with to provide foster care services was refusing to license same-gender couples as foster parents. This was in spite of the fact the agency consented to abide by a city law prohibiting anti-LGBTQ discrimination.

The city told CSS it would not renew their contract unless they abided by its nondiscrimination requirements, but CSS refused to comply, and the city cancelled its contract. CSS then sued the city, claiming it had a First Amendment right to refuse licensing same-gender couples, since those couples were in violation of their religious beliefs.

Judges at the local and federal levels sided with the city, noting the city’s decision was based on a sincere commitment to nondiscrimination, not a targeted attack on religion. From there, CSS took the case to the Supreme Court.

Rampant discrimination at the state level

LGTBQ adoptions are particularly contentious right now at the state level. The Supreme Court has yet to rule on the issue of the parental rights of non-biological spouses in a same-gender marriage. Married, same-gender couples looking to obtain full parental rights must therefore turn to second-parent adoption, as the Supreme Court has previously ruled that the adoptive parental rights granted in one state must be respected in all states.

That said, eleven (11) states currently permit state-licensed adoption agencies to refuse to grant an adoption, if doing so violates the agency’s religious beliefs. In other states, such as here in Florida, the law specifically forbids such discrimination. But, as we have seen in the Fulton case, those laws are being challenged.

Legal experts predict the case could have a significant impact on parental rights for same-gender couples and nondiscrimination policies related to religious institutions at a broader level. In the meantime, same-gender couples should consider another potential option for gaining parental rights – one that doesn’t require adoption.

Estate planning offers another option

No matter how the Supreme Court rules, same-gender couples seeking parental rights have another option—estate planning. It may be surprising to hear, but it is critically important to know that when used wisely, estate planning can provide a non-biological, same-gender parent with necessary and desired rights, even without formal adoption.

Starting with a Kids Protection Plan®, couples can name the non-biological parent as the child’s legal guardian, both for the short-term and the long-term, while confidentially excluding anyone the biological parent thinks may challenge their wishes. In this way, if the biological parent becomes incapacitated or dies, his or her wishes are clearly stated, so the court can do what the parent would have wanted and keep the child in the non-biological parent’s care.

Beyond that, there are several other planning tools—living trusts, power of attorney, and health care directives—that can be used to grant the non-biological parent additional rights. You can also create “co-parenting agreements,” legally binding arrangements that stipulate exactly how the child will be raised, what responsibility each partner has toward the child, and what kind of rights would exist if the couple splits or gets divorced.

Secure parental rights—and your family’s future

If you are in a same-gender marriage – or even a committed partnership with someone of the same gender – and you want to ensure that your significant other has as many parental rights as possible, work with me as your Personal Family Lawyer® to discover what planning tools are available to you.

Whether you are married, or in a domestic partnership, even with no children involved, it is critically important that you understand what will happen in the event one (or both) of you becomes incapacitated or when one (or both) of you dies. Proper planning can ensure your beloved is left with ease and grace, not a financial and legal nightmare that could have been avoided.

With my guidance and support, you can ensure your partner or spouse will be protected and provided for in the event of your incapacity or when you die, while preventing your plan from being challenged in court by family members who might disagree with your relationship.

Schedule a no-cost initial consultation with me today to get started.

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