Tuesday, July 12, 2005

Legal Facsimile of Marriage

A comment on a recent post about my (same-sex) marriage inquired what sort of legal gymnastics we had to go through. When we married, we prepared wills, health care powers of attorney, and comprehensive durable financial powers of attorney, and we had a little signing ceremony on our wedding day. One of our wedding guests was a notary, and we pulled aside a few key people during the reception and did some witnessing and signing, with family members and close friends serving as witnesses to the documents (paying careful attention to the legal witness requirements, which disqualified certain people from witnessing certain documents). I prepared the documents myself, with the help of some Nolo Press "do-it-yourself" legal books, and some Internet research on California law. (California has a standard-form health care directive, for instance, which is fairly straightforward.) The documents have been distributed to the appropriate parties, including a copy of the wills to the executors, a copy of the health care directives to our doctors, and the financial power of attorney with the County Recorder.

We're fortunate to live in California, a fairly benevolent state as far as same-sex legalities are concerned. At the time we married (four years ago), there were domestic partnership registries maintained by the State of California, the County of Los Angeles, and I believe also the City of Los Angeles. And at that time, the County registry was the only one that had any benefits beyond the symbolic, as it provided for hospital visitation rights, so we opted for that one. However, since that time, the State registry has changed from being purely symbolic to replicating nearly every legal aspect of marriage that the state can convey. So on Valentine's Day a couple years ago, we signed in to the State registry as well. (The beefed-up benefits -- and obligations -- of a State domestic partnership had a delayed implementation, and everyone who had been registered on the initially symbolic registry was sent a notice explaining the significant changes to the meaning of being registered, and basically saying that you've got till the end of 2004 to "opt out" for the cost of a postage stamp, but starting in 2005 it will be like getting a divorce.)

The house, car, bank, and brokerage accounts are jointly titled (with right of survivorship), and other accounts (such as 401K's) have each other as named beneficiaries. The titling of assets and naming of beneficiaries is negligably different for us than for legally married couples. We probably ought to consider a living trust at some point, but we haven't done that yet. (Thanks for the reminder.) Again, that's nothing unique to "extra-legal" marriages.

The commenter also asked if we had any extra legal expenses to replicate a legal-status marriage. Since we took a mostly do-it-yourself approach, our only extra legal expenses were incidental -- a few books and a few filing fees. (On the other hand, there were significant expenses to "replicate" a wedding. But then anyone who's ever put on a wedding -- same-sex or opposite-sex -- can tell you all about that.)

So, on paper, we have reconstructed many of the attributes of legal marriage (e.g., ability to make medical and financial decisions in each other's stead) and for only a nominal expense and modest expenditure of effort. What concerns me more is the practical effectiveness of this paper facsimile should the rubber ever have to meet the road. I've never attempted to wield our financial power of attorney to accomplish anything, nor had any cause for our health care powers of attorney to come into play. But anecdotal evidence suggests that even with papers in legal order, these may be dishonored in practice. The recent testimonies of couples in Maryland whose medical powers of attorney were disregarded just when they were most needed are horrifying to me. While I expect that we would generally find better treatment at home in California, the random doctor who may treat one of us in an emergency may be arbitrarily willful in disregarding our legal partnership and power-of-attorney rights. And God forbid anything should happen to one of us while on vacation in another state, or on one of my business trips to Virginia (a virulently antagonistic jurisdiction). Having a legal facsimile of marriage, it seems, may or may not be enough when it counts.


KipEsquire said...

Great post; very informative.

Two things I noticed:

1. You mentioned beneficiary desginations for 401(k) accounts. I just got a notice from my employer stating that they are no longer soliciting or honoring such designations, and will only pay the funds directly to the decedent's estate -- which makes a will even more important.

2. "I've never attempted to wield our financial power of attorney to accomplish anything..."

I learned in law school that banks will very often try to dishonor financial powers of attorney, falsely asserting that only authorizations on their own forms are valid. At least in my state, that is not the case -- a duly executed POA must always be honored.

Blue Cross of California said...

Great blog I hope we can work to build a better health care system as we are in a major crisis and health insurance is a major aspect to many.