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GLBT Representation in Pennsylvania - A Broad Overview
 

GLBT Representation in Pennsylvania - A Broad Overview

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Slides for a presentation I am giving in August, 2013 on legal issues impacting GLBT individuals in Pennsylvania. This is a very broad overview. It includes a look at the impact of DOMA

Slides for a presentation I am giving in August, 2013 on legal issues impacting GLBT individuals in Pennsylvania. This is a very broad overview. It includes a look at the impact of DOMA

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    GLBT Representation in Pennsylvania - A Broad Overview GLBT Representation in Pennsylvania - A Broad Overview Presentation Transcript

    • GLBT Legal Representation – A Broad Overview PBA Solo and Small Firm Practice Section Conference Pennsylvania Bar Institute August, 2013 Jennifer Ellis Lowenthal & Abrams, PC Jennifer Ellis, JD Consulting Jennifer@jlellis.net www.jlelis.net
    • Slides Available http://www.jlellis.net/blog/glbt-pbi
    • Today’s Discussion • Clients Coming Out • Reaching GLBT Clients • Windsor – Federal Benefits • Pennsylvania Law • Recent Pennsylvania Actions • Broad Legal Issues: Family, Estate, Employment, Criminal
    • Law is in Flux • Much may change over the next year or so • Application of some laws and cases unclear
    • Coming Out • Acknowledging Sexual Orientation to: • Self • Family • Friends • World • Constant process • Can impact the attorney/client relationship
    • Reaching GLBT Clients • GLBT clients want to: • Feel welcome • Understood • Make certain lawyer understands unique needs • In Marketing • Make clear you welcome GLBT clients • Pages using appropriate keywords on website • Make clear you are up on the law
    • Windsor • Tax case • Windsor married in Canada • Resided with partner in New York • Federal government refused to recognize marriage • Required payment of almost $400k in taxes • Court found • Portion of DOMA Unconstitutional • Used Equal Protection Grounds • Court did not find • Fundamental right to marriage throughout United States
    • Practical Result • Over 1100 federal marriage benefits available to legally married gay individuals • Already having impact • Deportation halted on non-citizen spouse for a legally married gay couple • Benefits available for federal employees • Army rapidly making changes to recognize same-sex spouses • Philadelphia Federal case- found for wife in relation to firm profit-sharing plan
    • Details of Profit Sharing Case • Married in Canada • Lived in Illinois • Pennsylvania Firm (Cozen) • Estranged Family • $49,000 in dispute • Judge found for spouse based on Windsor • Did not address state law • Only applicable when not preempted by federal law • ERISA preempts Pennsylvania law
    • Judge C. Darnell Jones’ Reasoning "Following the court's ruling…the term spouse is no longer unconstitutionally restricted to members of the opposite sex, but now rightfully includes those same- sex spouses in otherwise valid marriages…There can be no doubt that [Tobits] is Ms. Farley's 'surviving spouse' under the plan in light of the Supreme Court's decision.”
    • Application to Pennsylvania • Uncertain • Many federal benefits based on legality of marriage in the jurisdiction reside • President Obama has stated wishes to change • Example – Taxes • Married in Maryland (legal marriage) • Live in Pennsylvania • Cannot file as married • Note – Some Disagree
    • Pennsylvania Law • Mini-DOMA • Marriage is between a man and a woman • No Commonwealth wide protections based on orientation • Many municipalities have their own laws offering protections • Check appropriate municipality • See page 326 for a current list
    • Recent Actions • SB/HB300 introduced seeking to protect GLBT individuals • More support than previous efforts • Expectation of bill allowing for gay marriage • ACLU sued in Middle District Court to have PA’s DOMA declared unconstitutional • Montgomery Count Registrar of Wills began providing marriage licenses to same-sex-couples • Suit filed to halt • Question as to legality of licensed marriages
    • Broad Legal Issues
    • Family Law • Legally married in another jurisdiction? • How federal benefits determined? • Are the benefits applicable to your clients in Pennsylvania? • Obama can change application in some cases through executive order • Watch for sudden changes • Marriage is not legal in Pennsylvania • Divorce laws do not apply • Protect your clients
    • Protecting Cohabitating or Married Couples • Prepare all documents possible to provide protection • Health care powers of attorney • Financial powers of attorney • Will • Cohabitation agreement
    • Cohabitation Agreements • Treat as if preparing a premarital or postmarital agreement • Each person should have own lawyer • Full disclosure listing • Assets • Liabilities • Income • Follow Simeone • Make clear agreement is intended to legally bind both parties • “Intending to be legally bound”
    • Items to Include in Cohabitation Agreement • Property disposition • Sharing of income and expenses • Management of finances • Separate property stays separate • Future obligations if relationship ends • Plan for termination of relationship • Remedies for breach • Life insurance requirements • Estate planning issues
    • Remember • Different states without same-sex marriage have different levels of hostility • Virginia doesn’t always recognize contracts between same-sex partners • Some judges are unwilling to recognize documents • Make certain clients understand the issues unique to their inability to marry and issues that can arise if they move or even travel
    • Rights Can Change By Jurisdiction • Married in Maryland • Traveling in a state which does not recognize gay marriage • Could be refused access in a health crises • Provide health care power of attorney • Tell couple to travel with it
    • Real Property • Consider best financial approach • Join tenancy or tenancy in common • Prepare for taxes • Life insurance? • Other inheritance? • Proper estate planning to prepare is crucial
    • Personal Property • Will be considered gifts • Not mutually owned property • Difficult to claim unjust enrichment during dissolution of relationship
    • Children • Many same-sex couples have children • One spouse parent prior to relationship • Adoption • Surrogacy or other method • Pennsylvania allows for second parent adoption • Legal relationship? • Same as any other parent/child relationship
    • No Legal Relationship with Child? • Non-biological parent is a third party • No standing unless can prove in loco parentis • Must prove continued relationship is in the best interests of the child • Court will assume custody with biological parent • Does not preclude visitation or shared custody • If biological or legal parent unfit, does not preclude total custody • Best interests of the child in cases of drug use or abuse
    • Prepare for the Worst • Draw up a co-parenting agreement • Make it clear that the non-legally related parent stands in loco parentis • Show intention for future care
    • Child Support • Same as for any couple if there is a legal relationship to the child for both parents. • Frequently granted if proof of relationship between non-legal parent and child • Especially when seeking custody or visitation rights
    • Estate Planning • Location of real property and marital status can impact due to Windsor • Remember tax considerations • Regardless of marital status if reside in Pennsylvania • Common for surviving spouse to lose property due to poor estate planning • Consider • Retirement • Gift planning • Proper designation of beneficiaries • All usual planning tools
    • Estate Planning - Children • Non-legally related children need to be provided for • Stress importance of documents to protect children in such cases
    • Unique Problems • Client may not tell you he is gay • Sometimes GLBT individuals are estranged from their families • Makes contest or problems even more likely • Watch out for potential interference with assets and medical care decisions during illness, incapacity or death • Try to get client to make you aware of any potential for contest from hostile family members
    • Employment • In discrimination cases, check to see if a law exists to protect client in jurisdiction • If yes, handle case similarly to any other discrimination claim • In all jurisdictions seek to determine if state and federal laws can help • Gender stereotype issues especially common • Frequently impacts transgendered individuals • Check company policy on discrimination • Seek to enforce policy • Case law constantly evolving
    • Employment Benefits • Explore available benefits with client • Some employers provide same-sex benefits • Some clients will be unwilling to reveal orientation to obtain benefits • Remember, federal employees have marital benefits now • If in a state with same-sex marriage • Not in states with civil unions or no same-sex marriage at this time
    • Criminal Law • Safety • Gay bashing is still a common crime • Victim may not be willing to admit why attacked • Heterosexual individuals perceived to be gay also at risk • Understand the issues surrounding anti-gay attacks if approached by a client • Remember issues surrounding being closeted • Hate crimes at the federal level
    • Prison • Transgendered individuals at great risk for violence in prison • Seek to make sure housed in a safe manner
    • Testimony • Even if legally married in another state, can be forced to testify against spouse in Pennsylvania • Kentucky case currently analyzing whether one same-sex spouse can be forced to testify against another • Legally married in a different state
    • Remember
    • Unique Considerations • Rights can change while traveling • Different states respond differently • Can be issue obtaining divorce once married • Check residency requirements for divorce • Discuss impact hostile family members can have on estate plan, health care decisions and other related issues
    • Comfort • Make it clear to your potential client • She can be comfortable with you • You are up-to-date on issues impacting same-sex couples • Be readily available in case your clients encounter a problem while traveling
    • Stay Current • The law is changing moment by moment, law by law and case by case • Be prepared to discuss changes with your clients • Reach out when necessary to make sure appropriate documents are complete
    • Thank You http://www.jlellis.net/blog/glbt-pbi Jennifer Ellis Lowenthal & Abrams, PC Jennifer Ellis, JD Consulting Jennifer@jlellis.net www.jlelis.net