In today's mailbag, this query from a viewer:
"My Girlfriend and I have been a Lesbian couple for over a decade now. We share a house that we bought (Tenancy in Common) and every month, split the utility bills, insurance, and other costs. We maintain separate checking accounts and even own our cars separately.
The reason we do this, is that my Girlfriend has a compulsive gambling habit, and I am concerned that if had joint checking and savings accounts, she would spend all our money in short order.
The problem is this: In our State, they have legalized Gay marriage, and my Girlfriend wants us to get married. How can I do this without giving her access to my money?"
For better or worse, sickness and health, richer or poorer, from this day forward, until death do us part. That is the vows one usually takes in a marriage. But few people today take them seriously, of course.
But this question illustrates one problem with the whole concept of Gay marriage. People on the Left make the financial argument that Gay marriage is needed, to level the playing field, while people on the Right make the political argument that Gay marriage should not be legalized.
And as the questioners question illustrates, there are many who want to be "Gay married" to make a political statement, but don't really want all those pesky legal and financial issues of married life. In short, they are hardly ready for marriage, and the whole thing is just a piece of political theater.
A marriage is indeed a financial arrangement, and the arguments advanced by the Left are all financially-based - that Gays are being "discriminated against" financially by not being allowed to marry. But when pressed for details on this claim, they become remarkably vague.
So let's look at the details - and how you can protect your rights and the rights of your spouse, whether you are Gay or Straight, but are not legally married. As it turns out, you can have most of the legal rights of a married couple without being married. But it does require you to take some simple steps - and it requires you to want to take those simple steps.
Most Gays are not taking advantage of the existing laws to protect their rights. Why this is so is an interesting question. Most people are not aware of how to protect their rights, to be sure. Others subscribe to the "this is mine, that is yours" mentality of a relationship, and thus don't want to really "share" with their partner. For many folks, relationships are short-lived, and the idea of putting everything in a communal pot is scary, as if the relationship breaks up, it all has to be unwound.
But to some extend, such co-mingling of funds is a good way to cement a relationship. On more than one occasion, after having a silly pointless argument, we've realized that untangling our finances would be very difficult, and moreover that living apart would suck, financially, compared to living together. This is often the "glue" needed to keep a relationship together for that 12-24 hour period after a marital argument. Once you are over the hump, you realize that the argument was silly and it all goes away.
In contrast, if your "relationship" consists of a toothbrush in your lover's bathroom, it is all too easy to cut-and-run on a moment's notice, and not surprisingly, such relationships don't last long.
And please note, I am not picking on Gays here - this is very true for most "Straight" couples these days - even the legally married ones.
In the 1970's and 1980's, when the AIDS epidemic hit, there were many horror stories about Gay couples, where one partner died, and it turned out all their finances were separate. The estranged family of the deceased (who threw him out of the house when he was 16 for being Gay) would swoop in and take everything - tossing the partner out on the street. It would turn out that while their religious convictions prohibited them from loving their Gay son, it didn't prohibit them from loving his money. And since many Gays back then didn't think to structure their finances otherwise, a lot of small tragedies were acted out across the country. And it was totally unnecessary, too. But it illustrated the mindset of many Gays at the time - that relationships were short-lived and you didn't put "your" money in jointly with your "tricks".
Anyway, here is a short list of the things you can do to protect your legal rights, short of "marriage" - and things you should do before you think about getting married. But of course, if you do these things, you will be legally "married" in a very financial sense. For a more complete list, see this earlier posting of mine, on the Obama website (which for some reason is archived, but my account has been "disabled" - someone from the Hillary campaign is running it now, no doubt).
1. Joint Tenancy With Right of Survivorship (JTWROS): When you buy a house, car, investment, or whatever, have it titled in Joint Tenancy with Right of Survivorship. What this means, legally, is that if one of you dies, the other automatically owns the house, car, stock, fund, or whatever, without having to probate a Will. And it is a very robust form of legal protection. Even a homophobic judge would be hard-pressed to pierce this centuries-old form of law.
All you need to do, when someone dies, is present a copy of the death certificate to the authority involved, and the property can be re-titled in your name alone. So instead of being tossed out of your house, you own the house. Instead of having to sell your partner's car as his executor, you own it. And instead of having to probate his will to get at his stock funds, they automatically convey to you.
This is a simple legal step and one you can take when you acquire a property, a car, open a bank account, buy a stock, or whatever. All it takes is for your to fill out the forms properly.
And it is funny, too. Back in 1987, when we bought our first piece of Real Estate together (oh, that was 10 houses ago, wasn't it?) the Lawyers automatically wrote up the deed as Tenancy in Common. "That way, when you die, your half will go to your family!" they cheerfully noted. People were pretty clueless back then. Since those dark days, most closing companies and Real Estate Lawyers have wised up, and will write up the documents for JTWROS. But be sure to check, particularly if you see a Jesus Fish on the Lawyer's office sign. Some people just don't get it.
2. Beneficiary Designation: In life insurance policies as well as your 401(k) and IRA accounts, you can designed a beneficiary who will receive the proceeds when you die. This seems like a pretty simple no-brainer, but you'd be surprised how many Gays have their nieces and nephews listed as beneficiaries on their accounts, rather than their partners.
3. Write a Will: This seems pretty self-explanatory. As I noted above, if most, if not all, of your properties are JTWROS, then a Will may be redundant. However, you may have one or two accounts, such as business accounts, that may be in your name alone. And of course, your personal possessions are another matter. One of the heartbreaks of the 1980's was stories of lovers not only being tossed out of the house, but precious personal possessions and mementos being taken by greedy hateful relatives (are there any other kind?) and tossed in the trash, burned, or otherwise disposed of.
A Will protects you another way - by helping prevent some sort of challenge by those same hateful relatives. And yes, when there is money on the table, they will show their true colors, in short order. You need to make it clear that your partner is your executor, and that he/she gets all the goodies. But you also need to mention those hateful relatives, by name, in the will, and give them some token amount ($100). In some jurisdictions, failing to mention those relatives will give them grounds to challenge the Will on the grounds that you "forgot" to mention them.
Talk to an Estate Attorney for more details. But a Will is a good idea, to prevent Aunt Hattie from coming and taking your partner's Hummel Collection after he dies. Because, under the law, she has more legal rights than you do, to personal property like that.
4. Write a Power of Attorney: A written general Power of Attorney grants your partner the right to take any legal action on your behalf or manage any of your finances on your behalf. You can write a more narrow Power of Attorney, of course, for example, one that kicks in only when you are incapacitated.
Such a document comes in handy, for example, if you or your partner end up in a coma. In that situation, you may not be deemed "next of kin" and as a result, his/her financial matters may be in the hands of the aforesaid hateful relatives. The POA protects both of you in this situation, as does a...
5. Medical Power of Attorney: A written medical Power of Attorney allows you to make life decisions (e.g., pull the plug, operate, whatever) for your partner if something bad should happen. In years gone by, these were hard to come by. Today, in many States, your doctor or local hospital may ask you to designate someone in this regard, and they will keep this information on file. In both New York and Georgia, my doctor had such forms, and at our local hospital here in Georgia, they requested that I complete such a form and they keep it on file in their computer (and every time I go there for a blood test, they confirm my election during the admittance process).
Again, this is an important step to take, as otherwise, the hateful relatives ("next of kin" which always has a Hillbilly air to it) are in the driver's seat with regard to making medical decisions regarding your unconscious spouse. Again, during the height of the AIDS epidemic in the 1980's, there were many tragic stories of partners not being even allowed to visit their spouses in the hospital, as they had no legal right to do so.
Today, you have this legal right - but you have to take positive steps to enforce it.
6. Medical Instructions: and in this regard, it is a good idea to put down on paper what you want done if you are hit by a bus and end up brain dead, lest you end up the poster child for some "right to life" campaign, like Karen Ann Quinlan. This will make it a lot easier for your partner should something bad happen.
Of course, these sort of actions do require careful contemplation, and thinking about these sort of possible outcomes is a bit scary - but does put into perspective your life and how finite it is. If you are legally married, in general, most of these protections are bundled into your marriage rights (except perhaps item #6). So while there is an "injustice" in that you don't have these rights as an unmarried couple (Gay or Straight) there are legal steps you can take - that are not hard to take - to end up with the same or similar rights.
So does that make everything even-Steven? No, not exactly. There are, from a financial point of view, a couple of things that are not equivalent and might not be fixable by contract or other means.
1. Pensions and Social Security: If you have a defined-benefit pension plan, generally a spouse has survivor's benefits. And the same is true for Social Security, generally. If you are not legally married, you might not have rights to such benefits, under the law.
However, there are two things that cut against the "unfairness" of this situation. To begin with, most of us have 401(k) or IRA type retirement accounts which CAN be designated to go to anyone we want, by designating a beneficiary. Very few people today have defined-benefit pensions.
The other thing, of course, is that most Gays have incomes far and above straight people, and thus are in no danger of being poor, provided they choose to save money (alas, few do, but prefer to live for the moment).
So is this a great injustice? An injustice, perhaps, but maybe a minor one, and one than can be planned for. This the United States of America, not the United States of Even-Steven. Expecting everything to be "fair" strikes me as the posture of a petulant child.
2. Health Insurance: Many companies, particularly progressive ones, are allowing "domestic partners" of either gender to be listed on health insurance accounts. So this unfairness is vanishing, to some extent. But it does mean that you have to plan your health insurance, if you are unmarried, and one of you does not have health insurance through your employer.
Of course, again, most Gay couples are dual-income households (and most Straight couples, these days) so often this means you both have health coverage.
As a self-employed person who has to pay for his own coverage, I understand all-too-well how the health insurance issue works. However, a high-deductible plan ($10,000) does work well and is not too costly.
3. Children: Having children out-of-wedlock creates all sorts of issues, regardless of whether you are Gay or Straight. For Gay couples, however, it usually means that one of you is not considered a "parent" in legal terms. And this can cause a number of problems, from who is allowed to attend the PTA meetings, to who is allowed to make medical decisions, to who has custody of the kids should one of you die, etc.
You should see a family law specialist, if you plan on taking this very very serious step in your life.
While many folks think the idea of Gay adoption is great, I am not so sure, personally, that it a swell idea, at least for me. Maybe in 20 years or 100 years, the idea of two Gay parents will seem usual. But to me, it seems like a grand societal experiment on a large scale, with the outcome affecting the lives of real people.
Perhaps kids these days in High School are all very accepting and wouldn't traumatize a child with Gay parents. Oh, wait, what am I thinking, we're talking High School here, where kids are jerks - its in their hormones. It would be hard, even today, to grow up with Gay parents.
I am sure there are Gay parents out there who are doing a great job, and children raised in such homes who are well-adjusted and "normal" - whatever that means. And let's face it - heterosexual married couples aren't always the best parents in this world (I can cite my own childhood as evidence of that!).
But I think, at the present time, the number of Gays who really would make good parents is very limited, and a lot of others are adopting children (or having them through medical/legal means) as a political statement or in the same manner as acquiring a pet. And it is a very serious thing to be doing and should be approached with careful thought.
But I am sure others will point out, that most heterosexual couples have children all the time, without giving any thought to it, other than five minutes in the back seat of a car, on Prom night. And the results of such marriages and child-rearing are well-known. And they do have a point there.
As noted above, many Gays are not comfortable sharing a checking account much less sharing child-rearing duties. I am not sure that legalizing Gay Marriage will cure that.
But yes, there is an "unfairness" in this category as well.
But getting back to our Lesbian couple, what should they do to protect their finances in their sham political show marriage? Well, if she wants to keep her checking account separate, she can do that, of course. But I think a better course is to take this "for better or worse" thing dead seriously, and instead of ignoring your spouse's compulsive gambling habit, attack the problem head on - with gambler's anonymous, for example.
Tell your spouse that you are not comfortable getting married if it doesn't mean that you will be really married. Because, let's face it, there is no law against having a Gay wedding if you want to play dress-up and march down the aisle together (and make all your straight friends very uncomfortable). But legal marriage is a whole other deal.
Tell her that you want to address this gambling issue before you march down the aisle. Because if you don't trust your spouse financially, what sort of marriage is that? (Answer: The one most straight people have).
Marriage is a big step, I think, and one that should not be entered into to make a political show or some sort of statement. And of course, a legal document and a tacky, awkward ceremony do not a relationship make. You don't need these sort of trappings to have a good relationship - a real "marriage" that has a bedrock stronger than a legal one.
So why are organizations pushing for Gay Marriage? I think on the Left, many of these Gay Rights organizations need a raison d'etre and thus have taken up this banner as "the next thing" to do. And on the Right, politicians love to raise the specter of Gay Marriage as a means of getting out the fundamentalist vote. And right there illustrates why pushing for Gay Marriage might backfire in a big way. There are more important political issues in the world today that demand more careful consideration. If candidates are going to be voted out of office or not elected because of this issue, then we may lose out on more important, fundamental issues - financial issues - because of this Gay Marriage sideshow. I, for one, am not convinced that the entire "issue" is not in fact being kept alive by the far Right for this very purpose.
We've been together now for 24 years, and frankly, I don't see the need to put on some sort of awkward ceremony that would really creep out most of our friends. And aping the characteristics of Straight people doesn't seem like the "answer" to some "unfairness" in life. I don't want to be like them, frankly, and the idea of creating some parallel universe, some bizarro world version of straight life, doesn't seem like the answer to me.
Because, frankly, one of the best aspects of being different is being different - seeing society from the outside not from the inside, and thus being able to avoid the pitfalls of the great mass of humanity, and live your own unique life and not follow the herd.
To normalize this, seems somewhat akin to taking a gourmet restaurant and turning it into a Denny's. Yes, that might make us all "equal" and be "egalitarian" - but it also would be boring as all hell.
Sorry, but I don't want to be just like you.