With the recent news that the Democratic National Committee has elected to endorse same-sex marriage on its platform, and with the issue of the constitutionality of DOMA moving toward the United States Supreme Court, we can relatively and comfortably predict, at long last, that it’s really just a matter of time now before the definition of marriage includes members of the same and/or opposite sex.
In the meantime, couples who have legally married or are about to be legally married, ought to consider the following precautions:
1. For those about to marry, the State of Delaware is a good state within which to do so, because its law permits out-of-state residents who marry in Delaware, to divorce in Delaware even though not residents of the State. Please see my previous article on Gay Marriage & Gay Divorce to learn mroe about the pitfalls of marrying outside your state of residence.
2. Married couples in every state are automatically permitted, in an emergency, to make medical decisions on behalf of a spouse. This is not true, however, for same sex married couples. If you are traveling outside of the state in which you were married and want to ensure your right to make medical decisions – even to be permitted into the hospital room of your spouse – you must have prepared and carry (or maintain a fully executed PDF copy on your mobile device) with you at all times a Durable Power of Attorney and a Medical Power of Attorney specifically naming each other as the decision makers.
Case in point: I recently faced a situation in which my client’s partner suffered a massive heart-attack and remained in the morgue for almost five days. My client’s partner’s family had effectively disowned her for the past 25 years, but because there was insufficient paperwork, we were forced to locate her family members to obtain their consent to the release of the body to my client. It was a devastating situation, so please be mindful of this reality and prepared to respond in a worse case scenario.
3. Married couples who have children are both deemed to be the parents of the child if the child is born in the state where same sex marriage is legal, because under the law of that state, you are treated similarly as straight couples. But once you leave that state, the adoption may not be recognized, causing untold legal problems, including the right to make medical decisions, the right to make any major legal decisions and the right to inherit should you actually relocate to another state. So, take that extra step and have the non-birthing parent formally and legally adopt the child.
Ellen S. Fischer of the Law Office of Ellen S. Fischer has been working closely with individuals and families throughout the greater Philadelphia region for more than 20 years. Ellen received her Bachelor of Arts degree from Temple University and returned to earn a Juris Doctor degree from the Temple University School of Law. Ellen serves on a number of leadership committees and is a member of Gay and Lesbian Lawyers of Philadelphia (GALLOP). In addition to LGBTQ services, Ellen's practice areas are family law and personal injury.