Legal issues affect everyone regardless of orientation or identity. Yet there are unique issues for the LGBTQ+ families that should be addressed to secure the lives and lifestyles they have built. While groups like the ACLU and many others deal with rights and issues such as non-discrimination, and transgender rights on a societal level, taking care of things close to home is the responsibility of individuals and couples. From marriage to adoption to surrogacy to estate planning, all these issues require attention, planning and structuring.
Yes, there are those who avoid putting these agreements and structures in place, but they do so at their peril, at times. As to the argument that it’s “unromantic” or even “depressing” to create things like pre-nuptial agreements, wills, or cohabitation agreements, once these things are done and in place, they make issues clearer and easier to resolve if they’re needed. Trust us: we’ve heard horror stories of seemingly endless litigation where nobody really wins, or of wishes not being respected, or health directives not being established. And nobody wants that.
Over the next issues—and online at ctvoice.com—we’re going to attempt to answer your questions by calling on experts around the state to weigh in on issues. Of course, our responses can’t be considered legal advice; you can only get that from a lawyer who is versed in your situation and representing your interests. However, these issues are important, and we want to support you in building the best legal foundation you can.
Send your questions to: email@example.com, and put “Legal Question” in the subject line. We’ll answer questions of general interest in the magazine and online.
We look forward to tackling these sometimes-challenging, always important issues.
Legal questions abound. They can be complicated and upsetting. On the flip side of that, though, there is a certain amount of security and peace of mind that comes with setting things up so that there are clear understandings and, in the case of estate planning, you ensure that your wishes are met. Here are some of the questions our readers are asking:
Q. My girlfriend and I are planning on moving in together. We’re talking about getting married, but to be honest, we’re not there yet. I own the property we’re going to share, but we’re planning on splitting expenses and opening a joint checking account to handle those. A friend of ours suggested that we have a cohabitation agreement. Is that necessary?
–Susan B., Fairfield
A. In a situation like this, a cohabitation agreement can be very important. In your case you might think of it as a “pre-nup pre-nup.” Especially if you’re going to comingle your finances, you want to be clear about everything up front. While no one wants to think about it, a cohabitation agreement could save you a lot of unnecessary legal issues—and costs—if you find that your romance doesn’t end with a trip down the aisle. Moreover, while Connecticut doesn’t recognize common-law marriages, such a marriage entered into in a state where those are legal would be recognized by Connecticut.
A cohabitation agreement is a contract. You’ll need what’s called “consideration,” which simply means a benefit that is negotiated between the parties. For example, it may be a mutual promise to share work and living space, as well as any specific promises, such as how those joint expenses will be split. You’ll also want to consider things like financial support, debts incurred by one party, child support, and even such issues as financial support if the relationship ends. Rather than being a depressing challenge, developing this agreement can give a couple a chance to really talk about all these important aspects of a relationship and encourage clarity and agreement. And, though we hate to say it, if you hit something that’s non-negotiable, this is the time to find it out, right?
Most legal experts recommend that you write all this down. Yes, there are oral and implied contracts that can be binding, but if it ever came to litigation, those are really tough. You also should probably spring for a lawyer for each of you so that you can individually be well represented. A lawyer will advise you of your rights, in your situation and in Connecticut, and they will also look out for the fair and equitable reflection of your rights in the agreement.
For many couples, creating this agreement can be a daunting project. They don’t want to “ruin the romance” or seem to be saying they don’t trust their partners. We get that, but try to think of it as just taking care of the basics of the relationship. Many lawyers also advise that the best time to create a contract is at the beginning of a relationship when everyone is feeling good. Then, if things do take a turn, you can take comfort in the fact that you worked hard to create a fair and equitable agreement you can fall back on. That may not mitigate the emotional toll of a relationship breaking up, but you can spare yourself some legal upset at the same time.
And here’s the good news: Every contract can be renegotiated and updated. In fact, you might even make a family project out of reviewing your contract every year or so to make sure that your agreements reflect your current situation. It may not be a traditional romantic date, but it can be a great reminder of your relationship, too.
Q. My husband and I are ready to start a family. We’ve considered both surrogacy and adoption, and we’re learning toward surrogacy. What do we need to know in Connecticut?
–Peter G., Bristol
A. Surrogacy is a complicated issue, but fortunately here in Connecticut, we have some of the best surrogacy laws designed specifically to support this way to build a family. In Connecticut, same-sex parents are treated exactly the same under the law as opposite sex parents. However, according to American Surrogacy (americansurrogacy.com), it behooves anyone considering this path to be informed—and prepared.
In Connecticut, birth certificates are issued to the intended parents in a gestational surrogacy agreement, which allows and facilitates establishing parentage rights in the state. We covered the new parentage law in Connecticut (Page 22), which has spared Connecticut parents the expense and difficulty of having to adopt their own children. The only exception to this may be in the case where a couple cannot obtain a pre-birth order prior to delivery in a different state, they may have to complete an adoption in that state to further protect their parentage.
Nonetheless, you will still need a surrogacy agreement, which will protect the rights of all parties involved and allow for any liabilities. American Surrogacy recommends that any contract include the following items: Compensation for the gestational process, how the intended parents will communicate with the surrogate, what each party agrees to in terms of rights and responsibilities, any potential risks or liabilities, and issues such as selective reduction or termination of a pregnancy.
Q. I’m older than my partner, and we share a house that I own, but we are not married. I want them to be able to live in the house after I die, but when they pass on, I want the property to go to my children from my marriage. What do I need to do?
A. This question goes a bit beyond the cohabitation agreement mentioned above. If you remain unmarried, your partner would have no automatic rights to the property, so you want to set up everything to ensure they can stay there. The first thing to do is talk with everyone involved. Make sure your heirs understand the situation and that they know what you plan to do.
You’ll need to create a will, of course, but you may wish to create a trust for the property and create a life estate or stipulate other rights to the property as well. There are different kinds of trusts, such as living trusts or testamentary trusts, some of which can help avoid tying up the property in probate court on death. It’s important that you speak with a lawyer who specializes in these matters so that they can help you fashion the best solution for your situation. There is no requirement that these agreements be created by a lawyer, but off-the-shelf forms tend to be general and may not take into account all the unique elements of your individual situation.
DISCLAIMER: These answers were reviewed and researched by the CT Voice editorial team, and they are for general information purposes only. They do not constitute legal or professional advice, nor should you take any action based on these answers. You should consult your professional advisor for issues related to your specific situation.