End-of-Life Planning Complex For Same-Sex Parents

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As a follow-up to a recent Tell Me More conversation focused on ways parents can plan ahead for their children in the event of a tragedy, the program explores the unique sensitivities faced by same-sex couples. Money coach Alvin Hall and attorney Shauntese Curry Trye, a specialist in family law, spell out the complexities and offer tips for getting around them.

MICHEL MARTIN, host:

And now a follow-up to a conversation we began last week: how to ensure your children's well-being after you die. In the wake of all the attention being focused on Michael Jackson's children, we decided to talk about what every parent of young children needs to think about, but we realized there was one topic we needed to address more thoroughly: the financial and legal complexities faced by gay parents.

We decided to ask Alvin Hall, TELL ME MORE's regular contributor on matters of the economy and personal finance, to weigh in on the subject, and we also welcome back attorney Shauntese Curry Trye. She practices family law in Baltimore. Welcome to you both. Thank you for joining us again.

Ms. SHAUNTESE CURRY TRYE (Attorney): Thank you. Thank you for having me.

ALVIN HALL: Good to be here.

MARTIN: Now let's review. Shauntese, you told us that there's a basic document every parent needs, and that is a will. Why?

Ms. TRYE: Well, a will, which is a document that you identify to whom you're going to leave your property to when you do die. You can leave your property to anyone in whatever proportion, and you can also identify who's going to be the guardian of your children.

It's a very important document because if you don't have one, then the state in which you live in is going to provide one for you, and the bad news is that it usually does not carry out your wishes when you die.

MARTIN: Is a will particularly important for a gay parent?

Ms. TRYE: Absolutely important because if there is no will, the law of intestacy, which is the will that's put in place by the state if you don't have one, will take effect. And that law of intestacy that is in every state discriminates against same-sex couples. They are not addressed, and they have no rights to the estate of the person who passes.

MARTIN: Alvin, are there specific financial issues that you think gay parents should address?

HALL: Yes, I do, especially when you have a biological parent and a non-biological parent who are part of the couple. Very clearly, the non-biological parent should adopt the child. That will give them a legal standing as a parent that they would not otherwise have. And when they are putting money away for the child or making their will, if the biological parent, for example, dies and leaves the estate or the money to the non-biological parent, the fact that they have adopted that child will make that much easier and less subject to challenge.

MARTIN: And Shauntese, there are six states which currently recognize same-sex marriage. What about states that don't recognize same-sex marriage?

Ms. TRYE: Well, in those states, which - Maryland is one of them - the law says that there is no de facto parentage in Maryland - which basically means that if you're not the biological parent, and you've not adopted the child, you have no rights to custody or visitation of that child unless the biological parent consents to it in writing, and it's signed by a judge and becomes a court order.

MARTIN: What if the parent has been functioning as a parent all along? I mean, if you are in a state that does not recognize same-sex marriage, but you have lived as a family, the non-biological parent - or let's say that they're both adoptive parents - have functioned in a parental role. Does the court recognize that?

Ms. TRYE: The court will only recognize the adoptive parent. If the parent has not adopted the child, and that parent is not a biological parent, there are no rights that that parent can assert to that child. So all the love in the world, and nurturing in the world, does not equal a legal right to the non-biological parent.

MARTIN: But Shauntese, even if there is a will, you cannot will children. A court can still supersede a will when it comes to children. So what are the most important things that one needs to do to try to see that your wishes are carried out?

Ms. TRYE: Well, if we're talking about children, I think what's very important is to establish the parental relationship before there's a death, by way of a judgment from a court, which means a legal proceeding has to happen to establish that relationship.

It can be as simple as having both parents consent to a custody and visitation arrangement, and having that ordered or signed off by a court so that that can be recognized, so that it can be legally recognized that that relationship exists. And then also having it spelled out in a will as to who will be the guardian of the children should a death occur.

HALL: Shauntese, what happens when there's money involved? If one member of a same-sex couple dies and leaves a will giving money to that partner, but they have not adopted that child - the one who has left the money has not adopted that child - can the parents of the spouse who died come in and grab the money?

Ms. TRYE: Oh, absolutely. If it's not spelled out as to who is going to not only get the asset but manage the affairs of the estate, you're going to leave a loophole open for family members, or their heirs to the estate, to come in and take those assets.

MARTIN: How often should these arrangements be revisited? And it sounds to me like it's particularly important to stay on top of the legal paperwork if you're part of a same-sex family - same-sex couple or same-sex couple parenting children, or gay individual parenting a child by yourself.

Ms. TRYE: I would suggest that every life-changing event - so that would be either adoption of a child, the birth of a child, a divorce, a separation, moving from one place to another - are always good times to look over the documents that you have in place and see if they're still effective.

MARTIN: And that makes sense because you're saying that the laws may vary from jurisdiction to jurisdiction. So if you move to another state, it may make sense to revisit all of the paperwork pertaining to your family arrangements. So that's something that I don't think, Alvin, I don't think I would have thought of that. And Alvin - final thought from you. Is there a final word of wisdom that you have for people in - same-sex couples who are parenting children or a gay individual parenting a child by himself, the most important thing you would urge folks to do to make sure that their wishes are carried out?

HALL: Get a will, and make sure you have a great lawyer put that will together. And if you move from one state to another, have that will reviewed by a lawyer in the new state so that you're not left in a situation where all of your wishes can be cast aside.

MARTIN: Alvin Hall is our regular contributor on matters of personal finance and the economy. He joined us from our New York bureau. Attorney Shauntese Curry Trye practices family law in Baltimore. She joined us from her office in Baltimore. Thank you both so much.

HALL: You're welcome.

Ms. TRYE: Thank you.

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