Given the current political climate, these are uncertain times for LGBTQ+ couples, families, and their allies. While Massachusetts has strong laws that protect LGBTQ+ family rights, the situation may be very different in other states. Some states might offer extra protections, but others might pass laws that could limit or challenge LGBTQ+ rights. Recent decisions by the U.S. Supreme Court have raised concerns about the possibility of rolling back LGBTQ+ rights, including marriage equality, adoption rights, healthcare access, and workplace protections. This has left many in the LGBTQ+ community and their allies feeling uneasy about what lies ahead. The security of LGBTQ+ rights is no longer guaranteed, and there is real fear that the progress made in recent years could be undone. As the political landscape continues to change and new legal challenges emerge, it’s unclear whether LGBTQ+ rights will remain protected or if we’ll see setbacks in the ongoing fight for equality.

In the interim, we at Nussbaum Family Law LLC, located in Sharon, Massachusetts, believe it is vitally important for LGBTQ+ couples to take affirmative steps to safeguard their marital and parental rights by using all of the available legal tools at hand. While Massachusetts offers strong protections for LGBTQ+ families, such as recognizing your marriage and listing both parents on a birth certificate, these rights are not guaranteed to be upheld in every state. Outside of Massachusetts, and a few other states with similar protections, your rights as a couple or as a parent may not be recognized or upheld. 

For example, a state that does not recognize same-sex marriage may refuse to acknowledge your marriage or parental rights, potentially causing significant legal challenges in matters such as inheritance, child custody, or decision-making authority for your children. Furthermore, if the Supreme Court were to reverse its stance on marriage equality and remove the right to marry for LGBTQ+ couples, there is a very real risk that your marital status might no longer be recognized in many states. This could lead to complications in legal matters such as health care decisions, property ownership, or even the right to be with your spouse or child if they are hospitalized. For these reasons, it is essential that LGBTQ+ couples take steps now, such as drafting wills, powers of attorney, healthcare proxies, and legally binding prenuptial agreements, to protect your rights, regardless of future changes in the law.

How might such scenarios play out and indeed does it currently play out? Here are a few nightmare examples:

• Imagine that you are visiting a famous theme park in another state with your spouse and non-biological child and your child has a medical emergency. If your marriage or parenthood is not recognized, you might not have the right to be present in the ICU, to make medical decisions on behalf of your child, or even to get medical information on their condition. 
• A second scenario could occur if you and your spouse married in Massachusetts but moved to another state. After many years of marriage, you and your spouse feel you are no longer compatible and decide to get divorced. You have been a stay-at-home parent to your non-biological child for several years and have not built up your own retirement fund. You go to get divorced only to find out that your marriage has been invalidated in the state in which you are living ,and your parental rights are not recognized. You are given no parenting rights upon divorce and also find out that you are only entitled to take away from the marriage what funds and property you brought in or what you earned during the marriage. 

These are scary examples, for sure. How do you protect your parental and property rights in situations like those? There are legal safeguards that you can and absolutely should take to protect your family and parental rights. Following are some crucial steps that all LGBTQ+ partners should take, especially in the current political environment.

• Marriage: Even if your marriage at some point is not recognized outside the Commonwealth, chances are it will still be recognized here since LGBTQ+ rights are enshrined in the Massachusetts Bill of Rights and our laws. Getting married is the best way to guarantee all of your family status rights within the Commonwealth, such as recognition of parenthood, ability to obtain medical information regarding your spouse or child, ability to make medical, educational, religious, and financial decisions on your child’s behalf, federal and state tax benefits, property rights, etc.
• Prenuptial Agreement: A Prenuptial agreement is a contract entered before marriage that, if properly drafted, can safeguard property rights in case of separation or divorce, regardless of the law of the state in which you are living. You can thereby decide how you will divide real estate, retirement funds, inheritances, and personal property, before you get married, in case you ever decide to end your marriage. Even if your marriage is invalidated, the terms of your prenuptial agreement may state that the contract is to be enforced even if the marriage is later found to be invalid. In this way, you can be sure that you and your spouse have clear expectations and financial security in case of separation or divorce.
• Birth Certificate: Make sure you sign your non-biological child’s birth certificate to ensure your parental rights within the Commonwealth. In order to speed the process of a second parent adoption, you should be on the birth certificate.
• Second Parent Adoption: In Massachusetts, as long as you are married and on the birth certificate you are considered to be the legal parent of a child. Unfortunately, this is not the case in many other states. Laws regarding parental rights for non-biological parents vary widely across the United States, creating potential risks when LGBTQ families relocate or travel. By pursuing a second parent adoption, a non-biological parent can secure their legal parental rights across all states, regardless of differing laws about parentage. This legal process ensures that your relationship with your child is recognized universally, offering stability and peace of mind for your family. By obtaining a second parent adoption, a non-biological parent may ensure that their parental rights are recognized anywhere they take their child in the United States, regardless of those states’ laws on non-biological parentage.
• Estate Plans: Both of you must have estate plans drafted, whether they consist of simple wills or trusts, in order to guarantee that your estates will pass according to your wishes upon your death. If you move to a state where your marriage is not recognized, your spouse/nonbiological child may not be able to inherit from your estate based on “intestacy laws,” which are the laws which govern inheritance in the absence of a will or trust.
• HIPAA Release: You should each sign a HIPAA (Health Insurance Portability and Accountability Act – which governs release of medical and other personal records) release, provide it to all of your respective health care providers, and take copies with you when you travel. This will enable you to get medical information regarding your spouse in the event of an emergency. We have all heard horror stories about how LGBTQ+ partners have been denied access to a loved one in the hospital on the basis that they are not considered “next of kin.” A HIPAA release may convince medical authorities to allow you access to your spouse in such a situation.  
• Power of Attorney: Similarly, you should give each other general power of attorney. This power of attorney is a legal document that can give your spouse (called an “agent” or “attorney-in-fact”) the authority to make a wide range of decisions on your behalf, such as managing finances, signing documents, handling legal matters, and making financial decisions, depending on the terms set in the document. Your agent’s powers can be broad and are typically in effect until you, the principal, are able to make decisions for yourself, or until you revoke the power of attorney. There is no automatic power of attorney in marriages.
• Health Care Proxy: A healthcare proxy allows you to choose another person to make medical decisions for you if you are incapacitated due to illness or injury. The person chosen, called the “proxy” or “agent,” is responsible for making decisions about medical treatments and care based on what you would want or what is in your best interests. It is usually part of your estate plan, like a living will, that helps ensure that your healthcare wishes are followed when you cannot communicate. Just as with Power of Attorney and HIPAA release, there is no automatic health care proxy in marriage. But whereas healthcare practitioners are likely to listen to a legally recognized spouse in making health care decisions, you may be shut out of that process outside of Massachusetts. Thus, getting a health care proxy is also critical in ensuring LGBTQ+ marital rights.

Nussbaum Family Law LLC is a proud relative to and ally of LGBTQ+ families. Please feel free to reach out to us for additional information and help with your situation.