Same-Sex Couple's Rights

By Marta J Papa

Headlines across the country have been reading, "Same-Sex Marriage Now Legal in California!" What does that mean for the gay and lesbian community in Missouri? The answer, unfortunately, is not much. Since California and Massachusetts are the only states that have legalized same-sex marriages, the rights extended by statute to married couples are only available to residents of California and Massachusetts. Simply stated, you could plan a romantic vacation to California and tie the knot while you're there, however, all of the rights and responsibilities inherent to marriage will not cross over the border with you as you return to Missouri.

Since Missouri does not recognize same-sex marriage, you won't be able to:

File joint tax returns
Visit your partner in the ICU of a hospital
Make any medical decisions about your partner
Presume that property purchased together is "jointly" owned
Automatically inherit property from your partner
Be covered on your partner's health plan
Sue for wrongful death or loss of consortium should something happen to your partner
Transfer property to your partner without invoking Gift or Estate Taxes
Collect survivor benefits from your partner

So, what's all the excitement about? Since the California State Supreme Court held that it is illegal to discriminate on the basis of sexual orientation, many other state Supreme Courts are expected to follow the same logic. The California State Supreme Court is one of the most powerful and respected state Supreme Courts in the country. So, if California decides that members of the gay and lesbian community have the right to marry, other state Supreme Courts now have precedence to support a similar decision.

If the California decision does not effect Missouri, what can my partner and I do to protect ourselves? The answer is: Plenty. Even if a statute fails to grant you a specific right, such as rights of survivorship, you can enter into a written agreement with your partner granting many of these rights using contract law.

By calling it a "Partnership Agreement", you can each set out what rights and responsibilities you would like to grant each other. In this way you can protect yourself from family members or the state swooping in and taking property that you intended your partner to have in the event that something happens to you. Most people are unaware of just how unprotected they are in these situations. It is true that some rights are not subject to contract, however, you and your partner can create a fairly comprehensive plan about how you are going to live together and your expectations of one another.

Does everyone need such an "Agreement"? Yes. If you think about it, EVERY relationship eventually ends…either by death or by the choice of one (or both) of the parties. The question is not whether you will one day be apart….you will. The real question is: When we no longer live together, what is going to happen to our home, property investments, pets, vehicles, etc? Accordingly, some type of an agreement or Will is essential for every couple, regardless of sexual orientation, in order to protect themselves, their loved ones and their property. If a statute doesn't provide for this, then it makes good sense to draft an agreement that addresses these issues should the need arise. Such agreements are generally easy to prepare and, in the end, will give the couple the peace of mind of knowing that their affairs are in order and their future is protected.

Marta J Papa is an attorney and mediator, you may visit her web site at www.consideringdivorce.com or call (314) 862-0202.

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