Protecting LGBTQ Families in a Post-Roe World

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The recent Supreme Court opinion in Dobbs v. Jackson Women's Health Organization dismantles 50 years of legal precedent concerning reproductive rights. In overturning Roe v. Wade, the majority in Dobbs writes, “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” But Justice Clarence Thomas, in his concurring opinion, suggested that the court reconsider all of its “substantive due process precedents,” including earlier cases legalizing same-sex marriage and same-sex intimacy. The Court’s willingness to overturn well-settled precedent could signal that other federally protected civil rights—including the hard-fought gains of America’s LGBTQ community—may be in jeopardy.

Planning for legal protections is especially important for LGBTQ individuals during this time of uncertainty. There are many ways LGBTQ people can protect themselves and their families regardless of what decisions judges or lawmakers may ultimately make.

Confirmatory Adoptions

For LGBTQ parents, marriage equality does not necessarily guarantee parentage equality. A confirmatory adoption, also referred to as a second-parent adoption, is a legal process that a non-biological and/or non-gestational parent can use to confirm and protect their parental rights.

In Iowa, the procedure for a confirmatory adoption is fairly straightforward. The non-biological/non-gestational parent files a petition for adoption, and the other parent files a consent. After a 20-day notice period, the court holds a hearing where evidence is presented about why the adoption should take place, and the judge enters a final decree that finalizes the adoption.

A final decree of adoption carries more legal weight than a birth certificate alone. A birth certificate is not a legal determination of parentage, but an adoption decree is a legal confirmation of the parent-child relationship that is recognized in all 50 states. This court confirmation of the parent-child relationship can help prevent problems if one of the parents dies or a divorce occurs, or if the family travels to an area with fewer protections for LGBTQ families, among other things.

Powers of Attorney

A power of attorney is a legal document in which one person (the “principal”) gives another person (the “agent”) the power to make decisions on the principal’s behalf. There are two main types of powers of attorney: a durable power of attorney for health care and a general power of attorney.

In a durable power of attorney for health care, the principal gives the agent the power to make decisions about the principal’s medical care in the event the principal is too ill to do so. In a general power of attorney, the principal gives the agent the power to make decisions about the principal’s income, property, and financial affairs.

Powers of attorney are important for everyone—especially LGBTQ individuals. Without a durable power of attorney for health care, a hospital will follow state law to determine who makes the decisions, and that person may be an estranged family member who prevents a spouse or partner from visiting or being informed of the prognosis. By signing powers of attorney, the principal can ensure their decision-maker will be someone they know and trust.

Declaration of Designee for Final Disposition

In a declaration of designee for final disposition, a person (the “declarant”) chooses another person to make decisions about the declarant’s funeral, burial or cremation, and other final arrangements. This can be especially important for transgender and nonbinary individuals whose families of origin cannot be trusted to use their correct name and respect their gender identity when making decisions about final arrangements. A declaration of designee for final disposition is a simple way to choose a decision-maker who will respect the declarant’s personhood.

Wills, Trusts, and Beneficiary Designations

Naming beneficiaries on life insurance policies, retirement accounts, and other assets will help ensure those assets will pass to loved ones after death. And having a valid will or a trust will help ensure the other assets will pass to loved ones, as well.

If a person dies without a will, state law generally determines who the assets will pass to, and that may lead to an undesired result. For example, if an unmarried person dies without a will, their bank accounts and other assets could pass to their estranged parents or siblings, rather than to their longtime partner as they would have intended. By signing a will or trust and ensuring proper beneficiary designations, LGBTQ individuals can protect their families and ensure their assets will pass to the people they care about.

Bottom Line

Contact your local LGBTQ-affirming attorney to check what laws apply to confirmatory adoptions, powers of attorney, declarations of designee for final disposition, and wills and trusts in your state, and to find out which documents are right for you. With proper legal planning, you can empower yourself and help protect your family to the fullest extent possible, providing peace of mind during this uncertain time.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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