Estate Planning

Marriage is distant for same-sex couples in Florida, but certain legal rights and responsibilities are within reach

By W. Thomas Dyer, Attorney at Law

(Reprinted from a March 10, 2005 article appearing in The Watermark)

Symbolically, marriage is society's warm embrace of coupling. It also confers more than 1,000 rights, benefits and responsibilties to participants. In essense, marriage allows two people to carve out a legal niche, to define themselves as more than just citizens, but also as members of a mutually supportive team - a family. It is an alliance our culture encourages - unless you happen to be gay.

But if you're willing to be proactive, it is possible to draft documents that recreate many of the most important aspects of legal marriage. There are several attorneys throughout Florida who can assist you with this process. Depending on the work completed, the cost will range from less than $1000 (living will or deed), to $1,000 or more (complete estate-planning package for two including a revocable living trust).

LIVING WILL. Gives your partner - or anyone else you choose - the power to terminate life support in appropriate circumstances. Terry Schiavo didn't have one.

DECLARATION OF HEALTH CARE SURROGATE. Gives your partner the authority to make medical decisions when you are unable to do so yourself. Most often utilized during anesthesia, post-op, post-stroke, or in cases of debilitating brain diseases.

PRE-NEED DECLARATION OF GUARDIAN. In circumstances of substantial and permanent disability, dictates that your partner will be declared your legal guardian.

DURABLE POWER OF ATTORNEY. Gives your partner broad authority to conduct business affairs, including accessing banking and investment accounts, applying for insurance benefits, selling property, etc.

LAST WILL AND TESTAMENT. Basic document that determines who gets what upon your death, allowing you to leave assets to your partner.

REVOCABLE LIVING TRUST. This is a will on steroids, allowing the same transfer to your partner - or anyone else you choose - but with added benefits; avoidance of probate, ease of transfer, control of the nature and pace of transfer after your death.

OWNERSHIP AS JOINT TENANTS WITH RIGHTS OF SURVIVORSHIP. Assets owned by couples as Joint Tenants with Rights of Survivorship (JTWROS) - including real property - pass automatically and by operation of law to the surviving partner upon death.

PARTNERSHIP OR CO-OWNERSHIP OF PROPERTY AGREEMENT. Allows couples to describe how financial contributions and assets will be managed while they are together, and how they will be divided in the event of separation. Particularly important when both partners contribute to the value of real property, but it is held in one name alone.

CO-PARENTING AGREEMENT. Appropriate when one woman has a baby via artificial insemination, and the partner is excluded from a legal relationship with the child. Describes the intent of the parties to raise the child together, and ongoing monetary responsibilities and visiation rights in the event of separation. A Pre-Need Declaration of Guardian for Minor and Consent to Emergency Medical Treatment should also be completed.