LGBT Issues in the Death of
a Partner or Spouse

The 2013 documentary "Bridegroom" tells the story of California same-sex couple Tom and Shane. Committed for six years, they shared not only a life together, but assets, a mortgage, and a fledgling business as well. While Shane's family had fully embraced the relationship, Tom's family refused to do so. When Tom suddenly died, Shane found himself at the mercy of Tom's family, and the law. Because Shane and Tom lacked the proper planning documents, Tom's family had the legal right to take his body back home to Indiana for burial. They arranged his funeral without Shane, removing any mention of him from Tom's memorial remembrances. They also claimed assets from Tom's bank accounts, took his possessions from the couple's home, and even asked Shane to pay for the funeral and transport of Tom's remains.

This heartbreaking and alarming story has added another dimension to the LGBT (lesbian, gay, bisexual and transgender) same-sex marriage discussion: when one partner dies, what legal rights does the remaining partner have, if any?

In determining your rights, location is everything.

Recent rulings by the United States Supreme Court in cases regarding same-sex marriage have been seen as landmark victories in the marriage equality movement. As of this writing, however, individual states continue to have their own laws on the books regarding same-sex marriage, including constitutional bans in 30 states. This complex issue will continue to evolve for some time to come.

The result is that same-sex couples have (or lack) rights depending on the state of residence, and even the state in which a death may occur.

Heartache compounded by potential legal headaches.

The grief over the loss of a partner is profound, regardless of sexual orientation. But the legal ramifications of death are significant as well, from the complexity of navigating property survivorship rights to the simple act of saying farewell. In states where same-sex couples have equal marriage rights, legal issues are typically mitigated. But in states where same-sex marriages or unions are not recognized, the law may give blood relatives of the deceased rights that supersede those of the surviving partner. The simple fact is that stories like Shane and Tom's, while tragic, are not at all unusual.

Planning is the key for LGBT couples.

In spite of different state laws, there are steps that LGBT couples can take to attempt to protect themselves.

Work with an attorney who is well-versed in the same-sex marriage laws of your state of residence. This attorney can help you prepare documents to help ensure your wishes are carried out in the event of a serious illness or death. These preparations may include:

  • A Final Will. Prepared properly, a will is the foundation of intelligent final planning, providing a legal way to outline how you want your assets passed along to others. Yet according to Joshua Slocum, Executive Director of the Funeral Consumer's Alliance, funeral instructions should not be included in your will. "A will is not the place for your funeral wishes. It's often not read or accessible until after the burial. Never rely on a will for anything to do with body disposition." For funeral wishes, he suggests having multiple copies of your funeral plans accessible and distributed to loved ones ahead of time.
  • Medical Power of Attorney. This document allows you to designate a person to make medical decisions on your behalf if you cannot do so for yourself.
  • Durable Power of Attorney. A similar document that allows you to name someone to make financial decisions for you if are unable to do so
  • Declaration of Guardian. If you are badly injured or become so ill that you permanently can no longer make decisions for yourself, this document allows you to name a person to assume guardianship of you, becoming responsible for all medical, financial and legal issues pertaining to your assets and care.
  • Appointment of Agent to Control Disposition of Remains. In the event of your death, this document allows you to name exactly who is included, and excluded, from claiming your body, dealing with your remains, and planning your funeral.

Be cautious of information from the internet. In today's digital climate it's important to know the people or organizations behind the information you find online. This is especially true when it comes to legal documents or advice. The complexity of different state laws, many of which are constantly changing, means online information may be inaccurate and outdated.

Also be cautious in trying to do this on your own. While the expense of attorney fees may deter you from seeking legal advice, know the source of any free advice you are taking and make sure the information they are providing is reliable. One reputable source is NOLO, but most pre-packaged kits do not include the Appointment of Agent to Control Disposition of Remains.

Communicate with your loved ones. "The majority of people haven't planned their funerals or shared funeral plans with their families," adds Josh Slocum. "For LGBT individuals who may be estranged from their families, that's even more likely." So in addition to protecting your wishes with the help of a qualified attorney, talking to your partner and your family can help others understand your wishes for what happens at your death.

For additional information:

The Funeral Consumers Alliance
National Center for Lesbian Rights

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Heart2Soul on Twitter
Final Rights
By Joshua Slocum and Lisa Carlson
Joshua Slocum