United States: Non-Traditional Families, Assistive Reproductive Technologies, And Common Concerns Facing Same-Sex Estate Planning Clients Post-Obergefell

Many issues that faced same-sex couples prior to the Supreme Court's 2015 decision in Obergefell v. Hodges, which recognized the rights of same-sex couples to marry nationally, have been alleviated but some still remain. Moreover, laws regarding parental rights, adoption, heirship and property rights have not necessarily caught up with advances in science where one partner, or perhaps both, are not biological parents. Married, or not, unique issues remain for estate planning attorneys to explore when advising non-traditional clients. Just a few of these issues are summarized below.

I. Children, Issue and Heirs

Artificial Reproductive Technology (ART) has made it possible for infertile people and same-sex couples to have children. The use of donor sperm, eggs, embryos, and formal surrogacy are becoming more common. With each situation, establishing parental rights as well as heirship and property rights for the child may require additional thought or procedures.

a. Holding Out Presumption

As same-sex couples and others increasingly use ART and other methods, there is greater reliance on the "holding out presumption" which applies equally to all people. See, In re Guardianship of Madelyn B., 166 N.H. 453, 501 (2014). The Court found both mothers were presumed parents based on the holding out presumption under the surrogacy law. See, Id., See also RSA 168-B:3. However, the presumption is rebuttable, and may not stop the family of a pre-deceased partner from challenging the surviving partner's parental and guardianship rights.

Madelyn B highlighted the underlying issue that the presumption is rebuttable, but the Court has discretion based on the case facts to deny rebuttal. The presumption is established through conduct such as listing both partners on a birth certificate, holding the child out as their own in the community, being involved in school and medical decisions (which may involve obstacles), and otherwise maintaining contact with the child as a parent would.

b. Adoption

When at least one partner is not the biological parent, there are concerns over parental rights. Traditional adoptions terminate the parental rights of biological parents. In New Hampshire, step-partner adoption through RSA 170-B:4, IV(a) allows a non-biological parent to adopt a child without terminating the biological parents' rights. This important step eliminates many concerns surrounding the holding out presumption. In surrogacy situations, adoption can be started prior to birth and completed shortly thereafter. Adoption protects the parental rights of one or both parents and protects and defines heirship and property rights for the child.

II. Healthcare Decisions

Estate planners know the importance of an Advance Directive document but may not appreciate the increased importance for an LGBT individual.

LGBT couples, married and unmarried, may face difficulties not common with traditional heterosexual couples. Many LGBT individuals' limited/strained relationships with family often leads to disputes between natural parents and siblings, and the partner of the incapacitated individual. Establishing valid Advance Directives for LGBT clients, including HIPAA Release Authorizations, protects the people they choose as their agents, and respects desires to exclude hostile individuals.

III. Burial and Remains

An oft-overlooked statute, RSA 290:17, governs custody and control of remains. This statute allows a decedent to make a designation by a "written and signed document" describing who gets custody and control. Absent this document, the decision and custody falls to next-of-kin. Because many LGBT individuals associate more closely with chosen family, this document helps prevent disputes during an already difficult time.

IV. Last Wills and Testaments and Revocable Trusts

  1. When it comes to Wills, guardianship provisions are especially important if adoption has not occurred.
  2. With the increase of non-traditional families, definitions of "issue," "child," etc. within Wills or Trusts or other testamentary documents should be reviewed.
  3. Stored genetic material like eggs or sperm are considered property of the decedent's estate and should be dealt with in the dispositive provisions. Disputes over stored genetic material could result in donation to someone the decedent would not have intended donation, use by a surviving spouse against the wishes of the decedent, or inability to use the donated genetic material against the wishes of the decedent.

V. Post-Mortem Conception and After-born Issue Heirship and Property Rights in Wills, Trusts, and Intestate Succession

After-born children (and presumably posthumously conceived children) not named or referred to in the Will of a deceased parent are entitled to inherit as pretermitted heirs "after the decease of the testator". NH RSA 551:10. See also, NH RSA 168-B:14. The New Hampshire Supreme Court recently determined RSA 551:10 does not apply to trusts. See, In re Theresa E. Craig Living Trust, 194 A.3d 967 (2018).

The New Hampshire Supreme Court also grappled with the issue in the context of Social Security Survivor's Benefits because the ability to collect is dependent on intestate inheritance rights. The Court held a posthumously conceived child or after-born child would not inherit under intestate succession laws. See Eng Khabbaz v. Comm'r, Social Sec. Admin., 155 N.H. 798, 802 (2007). The Court found looking at the statutory scheme as a whole "evinces a clear legislative intent . . . under which those who 'survive' a decedent—that is, those who remain alive at the time of the decedent's death—may inherit . . ." Id. These results make it difficult to navigate heirship and property rights of an after-born child and require expressions of clear intent, especially in Trust documents.

VI. Conclusion

ART, LGBT and non-traditional legal issues can add complexity and uncertainty for estate planners. Questions about parental rights, spousal or partner rights, guardianship, property rights, reproductive issues, succession planning should be considered by practitioners, and discussed with their clients in the context of evolving statutes and common law.

Originally published by the New Hampshire Bar Association

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions