Despite the recent Supreme Court ruling declaring the Defense of Marriage Act (DOMA) unconstitutional, gay marriage is still legally banned Florida. Therefore, same-sex couples wishing to make their relationships official in order to gain certain benefits and plan for their future must use legal tools to do so.
Estate Planning and Domestic Partnerships
The best way for lesbian and gay couples in Florida to achieve an arrangement similar to marriage is by creating both an estate plan — a set of documents that protects each spouse’s wishes in case of death or incapacity — and a domestic partnership agreement.
For you and your partner, the following documents should be considered for inclusion in a combined estate plan (of course, there may be additional documents to consider, depending on the specific circumstances of the partners):
- Last Will and Testament designating your partner to inherit all property and assets in the case of death
- Living Will designating your partner to make healthcare decisions in case of incapacity
- Designation of Health Care Surrogate allowing your partner to consent for medical procedures and treatment
- Durable power of attorney allowing your partner to make financial and medical decisions on your behalf
- Declaration of a Pre-need Guardian naming your partner as your guardian if the court determines guardianship necessary (It should be noted that such a designation would most likely be given weight by the Court in ultimately deciding who to appoint as a guardian in the future, but the fact that a guardian is designated in advance is not going to automatically mean that the guardianship Court must follow that designation.)
A domestic partnership agreement should also be considered, which would provide for your property and your family, especially if you have or plan to have children. Additionally, this legal contract can include directives for distributing property in the event that you and your partner end your relationship — in this way it serves a similar purpose to a prenuptial agreement. The following issues should be addressed:
- Identify jointly owned property, moneys and assets of value, and determine how these items will be divided if you break up
- State rights to custody of your children, and how timesharing and child support will be determined if you break up (although, again, ultimately a Court will decide what's in the best interest of children at the time the issue arises, and a domestic partnership agreement cannot decide in advance the issues of timesharing and child support — just like a prenuptial agreement cannot predetermine those issues)
- Determine support to be provided by one partner to the other, in the event that you break up (if applicable) (and to the extent allowed under Florida contract law)
This list is not exhaustive, but instead a good jumping-off point. Different couples may have different needs depending on their unique circumstances. Marriage equality in Florida could still take significant time to achieve, and until then, gay couples must protect themselves.
This post was composed by Florida family lawyer Deborah Greene, with contributions from attorney Shane Hebert. For more information on issues relating to gay marriage and divorce, consult an attorney.