Chapter 7
Planning for NonTraditional Families
Learning Objectives
Understand what same-sex marriage, civil union and
domestic partnerships are and their differences
Understand what the Defense of Marriage Act is
Survey a variety of state and federal laws on gay marriage
and civil unions
Learn whether a grandchild being raised by a grandparent
is the grandparent’s heir
Learn who is the health care proxy or surrogate when a
partner is in medical crisis
Learn about post-mortem conception and how it affects
wills and intestacy
Learn how step families are affected by current wills and
intestacy laws
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Alternate Lifestyle
Long-term, or otherwise committed
relationships that do not involve married
couples, or married couples with children
Unmarried, heterosexual couples living together
Homosexual couples living together
Step families
Grandparents raising their grandchildren
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The Defense of Marriage Act
Signed by President Clinton in 1996
Permits each state to deny legal recognition of same-sex
marriages from other states where same-sex marriage is
legal
Following it, 49 states have passed “defense of marriage”
laws
Many states now have laws restricting marriage to one man
and woman, either as constitutional amendments or
statutory laws.
As of June 2009 only Massachusetts, Connecticut and Iowa
recognized same-sex marriages although laws will go into
effect in Vermont, Maine and New Hampshire by 2010.
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Virginia and Vermont: Contrasts in
Policy on Domestic Partners
Virginia
Prohibits civil unions, by act
of the legislature
The law, an amendment to a
prior defense of marriage
statute, applies to same sex
unions
It also prohibits partnership
contracts that would create
marriage-like privileges
It voids in VA any unions
entered into in other states
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Vermont
Grants marriage-like rights
and obligations to unmarried
but committed persons,
including:
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Intestacy rights
Post-death burial decisions
Health care decisions
Hospital visitations
Wrongful death capacity
FMLA opportunity
Alimony
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Upper Saddle River, NJ 07458. • All Rights Reserved.
The Changing Face of The American Family
Is marriage an endangered species?
According to the U.S. Census, the number of
unmarried heterosexual couples cohabitating increased
dramatically in a 20-year period
1978
1998
2008
That is an increase of over 1300% from 1978 to 2008.
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523,000
4,236,000
6,800,000
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What Is A Domestic Partner?
According to the American Law Institute, a
domestic partnership includes:
Two persons of the same or opposite sex;
Who are not married to each other;
Who share a primary residence; and
Who live together as a couple
Which is the better view: that domestic
partnerships aren’t legally equivalent to marriages
between men and women, or that they are?
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Civil Union
The legal recognition of the marriage-like partnership
of two individuals
Problem with understanding how this is different from
simply cohabiting
Findings are not uniformly positive
Some states permit couples to make end-of-life
decisions, to receive workers comp and insurance
benefits
Vermont permits a host of rights including inheritance
and alimony
Unlike marriage, is not portable
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Upper Saddle River, NJ 07458. • All Rights Reserved.
Grandparents Raising Grandchildren
23% of children live with a grandparent in
lieu of a parent
Parents often are absent because of
Incarceration
Drugs or alcohol
Mental illness
Can a grandparent make medical decisions?
Or enroll the grandchild in school?
Can the grandchild inherit from Grandma?
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Inheritance from Grandma
If a grandparent dies without a will, intestacy
laws typically give the property to the parent –
not the grandchild
What could help?
Equitable adoption
Having a will naming the grandchild
Inter Vivos Trust
Transfer under UTMA
Change definition of “child” in statutes
Beneficiary designation on bank accounts
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Upper Saddle River, NJ 07458. • All Rights Reserved.
Step Families
Stepchildren have no intestacy rights, since they are
not heirs at law
Some legal scholars argue that stepchildren should be
given intestacy rights, since they depend on
stepparents for financial support
This putative inheritance right is thought to be fair if
the stepparent was in loco parentis, or the de facto
parent, or the subject of an “equitable adoption”
Use of wills and beneficiary designations, transfers
under UTMA and changing definition of “child”
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Upper Saddle River, NJ 07458. • All Rights Reserved.
Post-Mortem Conception
Sperm banks were created for the use of
astronauts!
Cases determining that children conceived after
their fathers died could inherit
Other cases say the exact opposite
How does this affect the Rule Against
Perpetuities?
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