This is an area of law that is in constant flux. Although we try to keep this website reasonably current, we cannot guarantee it is always up to date.
Since the June 26, 2015 ruling of the U.S. Supreme Court in Obergefell v. Hodges, estate planning for our married LGBTQ clients is now almost identical to our planning for married heterosexual clients. Therefore, we encourage you to read the general topics on this website which pertain to your areas of interest. However, domestic partners and others who elect not to marry do not benefit from the marriage ruling. And there are a few other matters of special interest to LGBTQ individuals which we will address here.
Are You Sure You Are Single?
If you have ever been party to a civil union or domestic partnership that ended but was never formally dissolved, you could be married and not even know it! Some states that initially allowed only civil unions or domestic partnerships later enacted laws to permit same sex-marriage. And when doing so, they included a provision that converted to a marriage all then valid civil unions and domestic partnerships entered into in that state. This is true in Delaware, Rhode Island, Vermont, New Hampshire and Connecticut (among perhaps other states). This means that if you were party to a civil union or domestic partnership in such a state, but you didn’t dissolve it when the relationship ended, you need to get a divorce or annulment. If you are deemed to be married, that marriage could:
- Expose you to joint spousal liability for your former life partner’s debts
- Require you to pay spousal or child support obligations
- Expose your estate to claims of inheritance by your former life partner
- Affect your (and his/her) eligibility for Medicaid or VA pension benefits; and
- Subject you to penalties for bigamy.
The good news is, now that Arkansas recognizes your same-sex marriage, an Arkansas court should have jurisdiction to grant that much needed divorce or annulment.
Of course, some people are not partnered, and others will choose to continue to live as life partners rather than getting married. If that describes you, we can create an estate plan that meets your needs – just as we’ve been doing before you had the choice of whether to marry.
If you are not partnered but are as close to certain friends as to your biological family, or if you elect not to marry but want to be sure your life partner can visit you in the hospital, a simple Visitation Directive can address that. In fact, you can choose who should be considered to be your “family” for health care purposes, whether that’s a life partner, your legal family or close friends. It is quite easy to be sure that your loved ones are always recognized as family when it comes to preferential entitlement to visit you in the emergency room, ICU, nursing home or other restricted area.
Long Term Care Planning: Medicaid and VA Pension Benefit
Both Medicaid and VA Pension benefits are needs-based benefits, and the assets and income of both spouses are counted when determining eligibility; a pre-nuptial agreement will be ignored. Also, subject to a very narrow exception, your remarriage after the death of your veteran spouse will end your right to surviving spouse benefits. So, this is one area where marriage can negatively impact your eligibility for benefits. On the other hand, marriage to a veteran can entitle you to surviving spouse benefits. The VA has ruled that a surviving same-sex spouse is entitled to benefits if the couple lived in a state where their marriage was legal either at the time they wed or at the time they file for VA benefits. Therefore, now that same-sex marriage is legal in all 50 states, all surviving spouses should qualify. If you are the surviving spouse of a veteran who died before your marriage was recognized in Arkansas (June 26, 2015) your rights are not as clear; but we believe the VA will recognize marriages from September 4, 2013, forward if valid where celebrated or where you reside.
Children Born to Lesbian Women
Under Arkansas law, a woman who gives birth to a child is deemed to be the mother, unless otherwise provided by state law or determined by a court prior to filing the birth certificate with the Division of Vital Records of the Department of Health. If the mother was married to a man at the time of either the conception or the birth, or between conception and birth, her husband’s name is to be entered on the birth certificate as the father, absent contradictory affidavits or court determination. In addition, when a married woman gives birth to a child conceived by means of artificial insemination, that child is to be deemed to be the legitimate child of the woman and her husband if the husband consents in writing to the insemination. Interpreted fairly, these statutes should mean that the lesbian spouse of a woman who gives birth to a child, if she consented to the insemination, should be deemed to be the second parent and named on the birth certificate. The U.S. Supreme Court ruled accordingly in 2017. Therefore, while the Arkansas statutes have not yet been revised, a lesbian spouse should be named on the birth certificate of a child born to her wife. Still, we recommend that even if both spouses are named on the birth certificate, the non-biological parent pursue legal adoption proceedings and adopt her wife’s child. A legal adoption is the most certain way to protect the rights of the non-biological parent.
Children Born to Gay Men
Arkansas statutes provide that a child born to a surrogate mother by means of artificial insemination will be deemed to be the child of the biological father and “the woman intended to be the mother” if the biological father is married to a woman, or the child of the biological father alone if he is unmarried. Interpreted fairly, this statute should mean that the husband of a man who donated sperm to a surrogate mother, if that husband is intended to be the second parent, should be deemed to be the second parent of the child. However, for birth registration purposes, the name of the surrogate mother will always be listed on the birth certificate. A substitute certificate may be issued upon order of a court, and the original birth certificate will be sealed. Therefore, a court proceeding will likely be necessary in all instances of surrogacy for a gay couple. And, Arkansas has no ruling addressing this issue.
Adoption and/or Guardianship of Children
For the last several years Arkansas courts have permitted individuals in same-sex relationships to adopt a child so long as the court concluded that it was in the best interest of the child. Arkansas courts should now permit one to legally adopt the children of his or her same-sex spouse (the “primary parent”). But this will require the consent of the second parent (the “second parent”), if any (which consent should be included in any surrogacy agreement). The adoption will completely sever all legal ties between the child and the second parent. This means that when the second parent dies, the child will have no rights of inheritance from that parent. If a new spouse does not adopt the children of the primary parent, the primary parent, if she or he becomes chronically ill or near death, can appoint someone as a standby guardian for a minor child. That standby guardianship will take effect immediately upon the primary parent’s death or mental incapacity – without earlier surrendering his or her parental rights and without foregoing the inheritance rights of the child from the second parent. This standby guardian could be your same-sex partner or a family member or close friend; the sexual orientation of the person nominated should not be a controlling factor. Rather, the key issue is what is in the best interest of the child.
Neither Arkansas nor federal statutes offer broad-based protection against discrimination on the basis of sexual orientation or gender identity. However, on June 15, 2020, the U.S. Supreme Court held in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation or transgender status. In other words, as a general rule, employers are not allowed to discipline, fire, fail or refuse to hire, or otherwise discriminate against an employee, or a prospective employee, because of their sexual orientation or gender identity. The Court did not address the extent to which these protections will apply to an employer who asserts religious freedom as a defense.
The Bostock decision is consistent with interpretations of the Civil Rights Act of 1964 by the U.S. Equal Employment Opportunity Commission (the EEOC) during the Obama administration (which interpretations changed during the Trump administration). Generally speaking, a private company with 15 or more employees is covered by the EEOC.
As of June 26, 2015, if you work for a private employer with 15 or more employees you should be able to add your spouse to your employer-sponsored health insurance. Also, if your employer offers a retirement plan subject to federal law (such as a 401k, 403b or IRA), a same-sex spouse must be treated the same as an opposite-sex spouse.
An employer with 50 or more employees within a 75-mile radius must abide by the Family Medical Leave Act (“FMLA”); it requires that same-sex spouses be treated the same as opposite sex spouses. Courts have specifically ruled that the same-sex spouse of an employee of the Arkansas Teacher Retirement System must enjoy the same benefits as would an opposite-sex spouse, including retirement benefits, family health insurance benefits and family leave. This ruling should extend to the majority of employers, subject to some exceptions for religious organizations and religiously affiliated institutions.
Social Security Benefits
Since the June 26, 2015, same-sex marriage decision (and likely going back to June 26, 2013), same-sex spouses should be treated equally by the Social Security Administration and be awarded spousal social security benefits. However, spousal survivor’s benefits and a lump sum death benefit will not be awarded unless you have been legally married for at least nine months before your wage earner spouse’s death in most instances. You must have been married at least twelve months prior to applying for benefits in order to be eligible for spousal retirement and disability benefits. If you are divorced, you must have been married for at least 10 years in order to be entitled to spousal social security benefits. These are the same rules that apply to heterosexual married couples except that it is not clear whether you will be given credit for the months you were married before June 26, 2015, when your marriage became valid in Arkansas. We believe you would be treated as married at least since June 26, 2013, if you were married then under the laws of the state where you married.
Same-sex spouses have been required to file as “married” on their federal income tax return since the Windsor decision in 2013 – irrespective of where they live. But you must be married in order to claim the filing status of “married filing jointly”; civil unions and domestic partnerships do not suffice for this purpose. Generally speaking, your filing status is determined as of December 31 of each year; so, if you married on December 31, 2017, you will be deemed to have been married for the entire year of 2017. Likewise, if you divorced at any time during 2017 you will be considered divorced for the entire year. Beginning for the tax year 2015 (the tax return due on April 15, 2016), all married persons (including same-sex spouses) were required to file both their federal and state income tax returns as “married” – whether as “married filing jointly” or “married filing separately.” The Arkansas Department of Finance and Administration was specifically ordered to accept joint tax returns filed by same sex married couples.
Almost all retirement plans offered by an employer include provisions regarding the employee’s spouse. If you work for a private employer who offers a retirement plan that is subject to federal law (such as a 401k, 403b or IRA), your same-sex spouse must be treated just like an opposite-sex spouse. This is true no matter where you live or where your employer is located. This has been the law since June 26, 2013, when the U.S. Supreme Court decided United States v. Windsor. If you or your spouse work for the federal government, your same-sex spouse must be treated just as would an opposite-sex spouse. If your retirement plan is through a state or local government not covered by the spousal protections of federal law, you may not have had any spousal rights before June 26, 2015, but, now that your marriage must be recognized in Arkansas, you have equal rights. If you or your spouse works for a church or other religious organization, that employer could still be required to provide benefits to your same-sex spouse if its retirement plan is governed by federal law or it is subject to a federal law which prohibits discrimination on the basis of sex (including the Civil Rights Act of 1964 and is an employer with 15 or more employees). Other issues will involve how long you must be married before your spouse retires or dies, or if your spouse retired or died before your marriage was recognized in Arkansas.
Although the right to marry your same-sex partner is now guaranteed, neither Arkansas law nor federal law offers broad-based protection against discrimination on the basis of sexual orientation or gender identity. This means that in many states, including Arkansas, you can be evicted from your home or refused service in places of public accommodation (restaurants, hotels, retail stores, movie theaters, etc.). Simply stated, neither sexual orientation nor gender identity is a protected class outside the arena of employment. Therefore, any claim based on such discriminatory practices will be an uphill battle.
For several years, a bill referred to as “The Equality Act” has been pending in both the U.S. House and Senate. If passed, it would add “sexual orientation” and “gender identity” to the Civil Rights Act of 1964 and thereby explicitly create protections against discrimination on those grounds with respect to employment, housing, public accommodation, credit, education, federal funding and jury service. Currently, the Civil Rights Act considers race, color, religion, sex and national origin to be protected classes. Although the bill had 197 co-sponsors, it is yet to make it out of committee. We will monitor the progress of The Equality Act and update our website when we learn of material progress or setbacks. As noted earlier, the U.S. Supreme Court ruled in June of 2020 that the reference to “sex” in Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation and gender identity.
Many same-sex couples who went out of state to marry before their marriage was recognized in Arkansas elected not to change either partner’s last name since they thought it would prove difficult here. Also, most transgender men and women would prefer to change their first name to match their gender identity so that the issue is not so obvious each time they must hand over identification when applying for a job or any government benefit, using air transportation, or being carded to buy an alcoholic beverage. If you are an adult and you want to change your first or last name, it is a simple matter of filing a petition in the county in which you live and getting the court to enter an order. This order can typically be obtained without a hearing. We would be pleased to help you, but you may obtain a form petition and order for free at the Arkansas Access to Justice web site (www.arkansasjustice.org). You may then take that court order and your current driver’s license to your local revenue office, and you should be issued a new driver’s license that bears your new name.
As if it weren’t difficult enough to deal with the routine discrimination faced by a transgender person, the issue is constantly brought to the forefront when being required to show any official form of identification. While it is a much more involved process than changing your name, it is possible to change your gender on your birth certificate, passport and other official forms of identification. This will require both a court procedure and the cooperation of a treating physician or surgeon who can attest to your gender identity change, either through surgery or the use of hormones. We would be pleased to help you. Alternatively, you may be able to obtain free assistance from the National Center for Transgender Equality (www.transequality.org) or the Arkansas Access to Justice Commission (www.arkansasjustice.org). Even without a court order to change your gender, you may go to your local revenue office and ask the clerk to change your gender on your driver’s license. Under current policy this should be done without question; no documentation should be required. As noted above, we ask that you visit the Practice Area in which you’re interested irrespective of your sexual orientation. That will give you more helpful information and explain our procedures in the various areas in which we focus our law practice.