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

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GLBT Representation in Pennsylvania - A Broad Overview

  1. 1. 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
  2. 2. Slides Available http://www.jlellis.net/blog/glbt-pbi
  3. 3. Today’s Discussion • Clients Coming Out • Reaching GLBT Clients • Windsor – Federal Benefits • Pennsylvania Law • Recent Pennsylvania Actions • Broad Legal Issues: Family, Estate, Employment, Criminal
  4. 4. Law is in Flux • Much may change over the next year or so • Application of some laws and cases unclear
  5. 5. Coming Out • Acknowledging Sexual Orientation to: • Self • Family • Friends • World • Constant process • Can impact the attorney/client relationship
  6. 6. 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
  7. 7. 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
  8. 8. 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
  9. 9. 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
  10. 10. 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.”
  11. 11. 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
  12. 12. 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
  13. 13. 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
  14. 14. Broad Legal Issues
  15. 15. 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
  16. 16. Protecting Cohabitating or Married Couples • Prepare all documents possible to provide protection • Health care powers of attorney • Financial powers of attorney • Will • Cohabitation agreement
  17. 17. 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”
  18. 18. 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
  19. 19. 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
  20. 20. 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
  21. 21. 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
  22. 22. Personal Property • Will be considered gifts • Not mutually owned property • Difficult to claim unjust enrichment during dissolution of relationship
  23. 23. 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
  24. 24. 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
  25. 25. 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
  26. 26. 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
  27. 27. 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
  28. 28. Estate Planning - Children • Non-legally related children need to be provided for • Stress importance of documents to protect children in such cases
  29. 29. 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
  30. 30. 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
  31. 31. 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
  32. 32. 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
  33. 33. Prison • Transgendered individuals at great risk for violence in prison • Seek to make sure housed in a safe manner
  34. 34. 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
  35. 35. Remember
  36. 36. 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
  37. 37. 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
  38. 38. 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
  39. 39. Thank You http://www.jlellis.net/blog/glbt-pbi Jennifer Ellis Lowenthal & Abrams, PC Jennifer Ellis, JD Consulting Jennifer@jlellis.net www.jlelis.net

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