Where Do We Stand Now?

A Look at Recent Changes in the Law Affecting the LGBT Community

by Christine J. Klein, Esq.

In 2011, we saw a lot of change in the laws affecting the LGBT community including the legalization of same sex marriage in New York and the repeal "Don't Ask. Don't Tell." So now we ask, "What has changed? What steps must LGBT men and women take, in order to protect themselves and their families? And where do we stand now?"

Although much has changed, so much has remained the same. Without the repeal of DOMA (the Defense of Marriage Act), federal law does not allow our community many of the benefits heterosexual couples still enjoy. Until that law is repealed, the LGBT community will need to take extra steps to ensure that their families are protected and cared for.

It is clear under New York law, that if an LGBT individual dies without a will, his/her husband or wife is entitled to inherit under the estate. They would have the same rights as any other spouse. But those rights do not necessarily go beyond New York. For instance, New York would not assess any estate tax on the inheritance, but the federal government might, depending on the size of the estate. Moreover, property held outside the state of New York, in a less gay-friendly jurisdiction (such as a summer home or condo Florida or Pennsylvania), may not fall under the same rule.

Similarly, New York hospitals recognize a same sex-spouse as the next of kin, with rights to make health care decisions and visit the spouse in a New York hospital. But when you leave the state of New York those same rights may not exist. Other states do not have to recognize gay marriages and it is possible that the spouse could be completely excluded. For these reasons, we continue to draft wills, health care proxies and other legal documents to protect same-sex couples.

Another example of disparity can be found in the continued need for stepparent adoptions. In New York a child born to a married woman, through artificial insemination with the knowledge and consent of her husband, is deemed a child of the husband. Legal adoption is not necessary. While we expect New York to apply this same law to lesbian couples, other states do not have to follow suit. Other states may not honor birth certificates as proof of parentage for the non-biological mother. They do, however, have to honor an Order of Adoption.

These laws affect not only couples who relocate, but also those who choose to travel outside of the state. You may want to take the kids to Disney or travel with your partner to Key West or simply take a ride out to the Poconos for a weekend. In any of these places, your rights and those of your family members simply are not the same. And if you leave the country, the complications can be even greater. As such, it is critical to complete a step stepparent adoption, even if you are legally married. Make sure your health care proxies, wills, and other legal documents are up to date.

That the fight for equality is far from over can further be seen in the military applications of "Don't Ask. Don't Tell." I was recently invited to address the legal implications of the repeal of "Don't Ask. Don't Tell," as part of a panel at Rockland Community College. I was joined on the panel by an Army recruiter and a former member of the military.

We cannot diminish for one second the value of being able to openly serve, and being honest with oneself and others about one's own identity and the identity of those we love. For those in the military to be able to serve their country, without fear of being "found out," is an incredible step forward.

Nevertheless, the glaring limitations of rights for same-sex couples in the military cannot be ignored. Even if married in a state where it is legal, such as New York or Connecticut, the military will not and cannot recognize the service member's spouse in the same way they would a heterosexual spouse. An LGBT soldier's spouse is not eligible for medical benefits, death benefits or any other military benefit. They might be allowed to shop at the PX, but they would not be eligible for family housing. A gay soldier's stepchild is not eligible for medical benefits and military scholarships. While strides have been made, equality still eludes our grasp.

What we take away from all of this is that while we made tremendous progress in 2011, there is still so far to go. We've moved toward equality, but the fight is far from complete. Protect yourself and your loved ones in the interim. Make sure you have an up-to-date will and health care proxy. Make sure you complete that step or second-parent adoption. Continue to support the groups that fight for equality for the LGBT community.

Christine J. Klein has been practicing law in the New York area for 15 years. She has a general family law practice, focusing on issues which affect the LGBT community, including adoption, reproductive law, child custody, dissolution of marriage and civil unions, prenuptial agreements, estate planning, and personal injury.