Planning For The Same Sex Couple – What about the kids?
Children in alternative families have the greatest need for planing than any other. This is an area where the laws have not caught up with lifestyles and family-styles. In most jurisdictions in which I practice (Northern Michigan) – the courts will not permit adoption of children by two men or two women. Even in the case where one woman has the child biologically, the courts will not permit adoption by the other partner.
This is a tragedy waiting to happen.
In the event of the death of the parent (biological or adopted), the surviving partner who the child considers to be his or her parent has no automatic legal right to raise that child. Your surviving partner could find him/herself in a prolonged legal battle with biological relatives of the deceased for guardianship and/or adoption of the child.
While there are a great many families who are supportive and would not institute such legal proceeding and in fact would support the subsequent adoption of the child by his or her other parent, we all know that there are many that would not.
While the courts are to be guided by what is in the best interest of the child, it is also true that many are biased against a same sex parent having rights over and to the child – and would therefore consider the best interest of the child being served by being adopted by his or her grandparents. This could be a tragic situation for the child.
How can you protect your child?
You may name a Guardian for your child in your Will. It is critically important that this be done by the legal parent in an alternative family. In this way, there is no question that in the event of your death, your partner is the legal guardian of the child – and not relatives that would assert that right.
It is also important that you name your partner as the child’s Conservator as well. That will provide continuity for all financial affairs concerning the child.
As with other estate planning options, this is one small, but vitally important step to assure the well-being of your child in the event of your death.