Gay couples can take steps to ensure legal protections

CHARLES BUTLER'S minor surgery last year pushed him to finally get the documents that would give him and his partner, Stephen Tamburo, legal protections similar to those enjoyed by a married couple.

"We've been talking about doing it for a long time," said Butler, 35, who has been with Tamburo for nine years. "We just thought if anything happened with me, he would be in the best position to decide what I would want to do."


The Germantown couple executed wills, outlined the life-sustaining procedures they would want and gave each the power to make financial and medical decisions for the other.

"It makes me feel better, but it's not the equivalent of what married couples would get through marriage," said Butler, a lawyer in Washington.


Gay and lesbian couples have long complained that they are unfairly denied the legal and financial protections automatically awarded to straight couples with a marriage license. Vermont is the only state offering civil unions that give gay and lesbian couples many of the rights of married couples.

The issue of rights and gay marriage has heated up this summer since the U.S. Supreme Court struck down anti-sodomy laws and two Canadian provinces legalized gay marriages. Massachusetts' Supreme Judicial Court is expected to rule any day on same-sex marriages.

Some leading Democratic contenders for the White House have come out in support of extending legal and financial rights to gay couples, but not gay marriage. The pope and President Bush have weighed in with their opposition to same-sex marriages.

Butler and Tamburo say they want a civil union that gives them rights.

Married couples enjoy plenty of rights and tax benefits.

For example, if one spouse dies without a will, the other won't be disinherited. "The state writes a will for you in terms of married couples. Money goes to your spouse," said Peg Downey, a financial planner in Silver Spring.

A spouse, too, could be eligible for Social Security survivors benefits. And the spouse who dies first can leave the other an unlimited amount without triggering federal estate taxes.

Not so for unmarried couples. Dying without a will means the state dictates how assets are divvied up among relatives. Unmarried people don't get Social Security survivors benefits. And this year, an unmarried person would be able to leave up to $1 million to a partner before estate taxes kick in. In Maryland, money left to a nonrelative is hit with a 10 percent inheritance tax.


The debate over legal and financial rights for gay and lesbian couples is unlikely to be settled soon, so in the meantime they might need to take steps to protect themselves. The same goes for the growing number of straight couples who are choosing to live together without getting married. As of 2000, 5.5 million unmarried couples lived together, a 72 percent increase over a decade, according to the U.S. Census.

Here are some documents experts recommend for unmarrieds:

Estate planning documents: If one of you becomes incapacitated and can't make decisions, the other will need powers of attorney. A financial power of attorney gives a partner authority to manage your finances, such as paying bills. A health care power of attorney allows a partner to make medical decisions on your behalf.

The health care document can be much broader, including, say, who has the right to visit you in the hospital or what kind of care you desire, said Larry Jacobs, a Rockville lawyer and co-chair of Free State Justice, a Maryland gay rights advocacy group.

Usually when drawing up powers of attorney, people create a living will that states their wishes about life-sustaining measures if they're not likely to recover from an illness or accident.

You'll need a will, too, if you want a partner to inherit your assets.


Consider a burial directive if, say, you want your ashes sprinkled in the Chesapeake but you worry that relatives might just bury you in the family plot in Akron. With this document, you put your wishes on paper and name someone to make funeral arrangements for you.

Financial experts say that in addition to getting these documents, it's important that couples tell family members about their plans so that there are no disputes later.

"Have that conversation before something tragic happens," said Marshall Miller, co-author of Unmarried to Each Other: The Essential Guide to Living Together as an Unmarried Couple.

Beneficiary designations: Don't forget to update the beneficiaries for a 401(k), individual retirement account or life insurance policy if you want your partner to receive this money at your death. Whoever is named as beneficiary will receive the assets, no matter what the will states.

Some retirement plans won't allow you to name a partner as a beneficiary, so check the plan document, Downey advised.

Cohabitation agreement: Partners should have one of these once they begin to mingle assets, which usually occurs with the purchase of a house, said Sally Jo Button, a Denver financial planner.


Basically, this contract defines the rights and responsibilities of each. For example, how much will each contribute to the mortgage? If the couple breaks up, will the house be sold and proceeds split, or will one have the option to buy out the other's interest?

But it can do more than provide for divvying real estate. The agreement can address whether one partner will provide the other with financial support after a breakup, experts said. It also can contain the partners' agreement to seek a mediator before going to a lawyer to settle disputes, Miller said.

Last, review documents every three to four years in case your situation changes, Downey said.

To suggest a topic, contact Eileen Ambrose at 410-332-6984 or by e-mail at