Mary Ann L., age 60 and Jennifer J., age 65, have been living together for 25 years. They are contemplating whether or not to marry this late in their lives.
George and Ginger V.’s grandson, Tim, age 25, is engaged to Jack, a man he has known for only 6 months. George and Ginger disapprove of their grandson’s lifestyle, but, because they do not want to alienate Tim, they are adjusting. Nonetheless, they have concerns about Jack’s financial stability and his loyalty to Tim.
Tom and Jane T.’s 40-year-old daughter, Vivian, is a lesbian. She is a successful management consultant. Vivian’s life style choice presents no difficulty in the parent/daughter relationship. Tom and Jane are worried that, despite changing attitudes, Vivian’s employment could be in jeopardy due to her sexual orientation. They wonder what they can do to help her economically if she loses her job.
Jonathan H., who is gay, was experiencing suicidal thoughts due to anxiety and stress over his employment situation. His elderly parents, Victor and Edna H., encouraged him to seek counseling. The therapist from whom he sought help refused to see him based on the therapist’s religious belief that homosexuality is immoral. Jonathan lives in rural area in which another therapist is 75 miles away. His irate parents demand the counselor treat Jonathan.
Increasingly seniors are confronted with gender related issues, whether due to their own sexual identities or those of their children or grandchildren. The issues are thorny and require knowledge of the legal limits available to address them.
The decision of same- sex couples to marry
Marriage is important to same-sex couples like Mary L. and Jennifer J., not only for emotional reasons, but also impacts economic, medical and other life care planning. For instance, Social Security and other federal and state benefits that are available to spouses are generally not available to unmarried partners. Unmarried partners are often denied access limited to their hospitalized partners when contact is limited to spouses and family members. If a same- sex partner has not executed a medical power of attorney giving his or her companion partner authority to make medical decisions, the law does not allow the unmarried partner to make those decisions. Mary and Jennifer should consult a knowledgeable attorney to discuss all ramification of marriage versus remaining single.
Family concerns of suitability of same-sex partners
George and Ginger V. represent seniors whose negative attitudes regarding homosexuality are being challenged by family members they deeply love. The concerns they express about Jack’s suitability as a fiancé for their grandson, Tim, are not different from those many grandparents face over heterosexual unions their grandchildren are entering. The protections - to the extent grandparents can protect - are no different either. George and Ginger should consider making any bequests they contemplate, whether inter vivos (during their lifetimes) or testamentary (by will), through a trust established with Tim as (exclusive of Jack) a beneficiary. The trust should name a trustee who is privy to their concerns and who is in a position to assess whether the concerns remain valid. The trust should give the trustee discretion regarding whether and when and to make distributions to Tim, as well as the exclusive right to determine the amounts of any distributions.
Rather than giving money or stocks to Tim, George and Ginger might consider providing him with the right to live, rent free, in a dwelling they own. Or, instead of cash gifts, they might pay off certain of Tim’s debts directly to his creditors. George and Ginger should discuss with their lawyer whether they can take other precautions in benefiting Tim while limiting Jack’s access to the gifted resources.
Openness regarding sexual orientation in the workplace
Tom and Jane T.’s concerns for their granddaughter’s job security are not misplaced. A recent study by the Human Rights Campaign Foundation shows that 53% of lesbian, gay, bisexual, and transgender (LGBT) employees face discrimination because no consistent legal protections are afforded them state to state. Even federal laws protecting government workers have not been interpreted uniformly.
Tom and Jane can, of course, can give Vivian a total of $28,000 ($14,000 from Tom and $14,000 from Jane) a year without having to file a gift tax return. If they can give Vivian more than $28,000 during a given year, they must file a gift tax return, although they will not have to pay gift tax unless the cumulative amount of all gifts each has given her totals more than $5.43 million.
Tom and Jane might also consider setting up a trust which would benefit Vivian (and any other beneficiaries they choose). The trust could give the trustee discretion to make distributions to the beneficiaries subject to a standard - e.g., limited to needs for health, maintenance, support and education. The same rules regarding gift tax which apply to them as individuals apply to the trust.
Refusal to provide services based on religious grounds
Mississippi recently passed laws that allow certain businesses to deny services based upon the business owners’ religious beliefs. In March 2016, the Georgia legislature passed a similar bill, which was vetoed by the state’s governor.
Tennessee, where Jonathan H. lives, has passed a bill that gives therapists and counselors the right to refuse to treat clients based upon the provider’s religious beliefs. Therefore, Victor and Edna are powerless to force the therapist to treat their son. Furthermore, although their act of desperation in attempting to convince the therapist to do so is understandable, it is questionable whether Jonathan would benefit from a counselor so negatively inclined toward him, even if his issues are not directly related to Jonathan’s sexual orientation.
- Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm, whose principal office is in Fort Worth, Texas. She lives and practices in Somervell County. If you have questions or concerns, please contact her by email at firstname.lastname@example.org or by phone at 254.797.0211.