Marriage Equality: Why You Might Have to Leave Home Without It

With the recent gains in marriage equality in numerous states around the U.S., same-sex couples now have the confidence of knowing they have the right to get married in their home state or to have their out-of-state marriages recognized at home. And, if you and your partner recently exchanged vows and exercised your right to get married, congratulations! But, while the planning for your wedding may be over, the planning for your marriage should not be.

The fight for marriage equality, state-by-state across the U.S. has created a new legal landscape of marital rights across our country. Although your state may recognize marriage equality, many states and territories in the U.S. continue to deny equal rights to same-sex couples by refusing to issue marriage licenses to them and by refusing to recognize their marriages when lawfully entered into in another state. The resulting patchwork of marriage equality across the country leaves same-sex spouses and their children at risk as they travel across the U.S. And the implications of doing so can be dire.

Travel across the border into a non-marriage equality state, and you and your spouse will suddenly find yourselves to be single again—two legal strangers in the eyes of the state government, stripped of the right to make medical decisions for your spouse in an emergency, to discuss his or her condition with a doctor, or to even visit him or her in the hospital.

Take for example Tom Bridegroom and Shane Bitney Crone whose tragic story was poignantly documented in the full-length film Bridegroom and its shorter predecessor, "It Could Happen to You." As explained in these films, Shane and Tom were a vibrant twenty-something couple living in California who fell in love and made a life together, bought a home together, started a business together, and traveled the world together. While Shane’s family was very accepting of Tom, Tom’s family rejected the couple and threatened violence if they came to visit. After years of being in a committed relationship, Tom and Shane promised to marry when it became legal in California. Before that was possible, however, Tom was severely injured in an accident. Without a legally recognized relationship, the hospital refused to give Shane any information about Tom’s condition, referring him instead to Tom’s family, who would not acknowledge him. Shane quickly realized that since he and Tom were not married—and had not executed any documents to obtain similar legal protections—he was powerless to intervene. Tragically, Tom died from his injuries. Shane was left with no legal right to any information about Tom’s death or any control over Tom’s estate or his funeral—and Shane was not included in Tom’s obituary. Shane was effectively erased from Tom’s life.

As Shane acknowledges, had he and Tom had the protections of marriage—or had executed wills and other documents to obtain the legal protections afforded by marriage—Shane could have been in control of Tom’s medical care, his funeral, and his estate. Shane’s experience prompted him to begin advocating for marriage equality. And, although marriage equality has become a reality in California since Tom Bridegroom’s death in 2011, the injustice that Shane and Tom experienced could happen today to married same-sex couples who find themselves in one of the many non-marriage equality states when the unexpected happens.

For example, if your same-sex spouse was in an accident while traveling for business in Ohio, you could be denied the right to direct the medical care of your spouse in that state as the hospital could refuse to recognize your marriage. Or, if you and your family are vacationing in, or merely passing through, such places as New Orleans or Puerto Rico, you can be refused the right to direct the medical care of your spouse, your spouse’s child, or your own child, if one of them became ill. As recently noted by HuffPost columnist William Lucas Walker, the threat is not theoretical. In an instant, a spouse and parent with full legal spousal and parental rights in one state can become merely a concerned “friend” with no legal rights, or access, to his or her spouse or child in a non-marriage equality jurisdiction.

Given the recent flurry of judicial decisions, marriage equality nationwide may seem inevitable, but the future remains uncertain. Even in states that currently recognize marriages between same-sex couples, the marriage-equality litigation in many of those states continues on appeal. At last, the United States Supreme Court has agreed to step in and resolve the matter. A decision by the high court is expected by this summer. Meanwhile, life goes on and same-sex couples and their families remain vulnerable. Children get sick, accidents happen, and people die, unexpectedly. Fortunately, some simple planning and the signing of a few legal documents can protect you and your family regardless of whether the state you find yourself in recognizes your marriage.

Medical Decisions. A Healthcare Power of Attorney (“Healthcare POA”) is a document which allows you to appoint someone you trust to make medical decisions for you when you are unable to do so for yourself. When you execute a Healthcare POA, you select one or more individuals who may discuss your medical condition with your doctor and make any decisions necessary for your medical care. Additional documents can ensure that the person you choose has hospital visitation rights and, if appropriate, the right to make end-of-life decisions (a “Living Will”). The person you select does not have to be related to you—or married to you. The Healthcare POA effectively tells the hospital—“This person has the right to direct my medical care; whether you think we are married is irrelevant.” So, if a hospital in a non-marriage equality state refuses to recognize your spouse as your spouse, these documents can ensure he or she has the right to make medical decisions for you when you can’t do it yourself.

Financial Decisions. A Durable Power of Attorney (“Durable POA”) is a document in which you appoint someone you trust with the legal right to make financial decisions on your behalf. If, for example, you are incapacitated and need access to your funds to pay bills or to talk with your health insurance provider, a Durable POA would allow the person you appointed to act on your behalf, regardless of your marital status. A Last Will and Testament (“Will”) allows you to direct the final disposition of your assets upon your death to those individuals you choose, regardless of your marital status. In some states, if you are married and die without a Will, some portion of your estate may be required to go people to whom you would not want to receive it. For example, parents who may not have been accepting of your same-sex spouse may be entitled to receive a significant portion of your estate at the expense of your spouse. Having a Will allows you to control how your estate is distributed.

Decisions for Your Children. If you have children from a previous relationship, a non-marriage equality state may not recognize your same-sex spouse as the stepparent of your child and may not allow them to make critical medical decisions for their care in your absence. Even more alarming, if you and your same-sex spouse have had a child via surrogacy, it is possible that a biological parent of the child may be refused the right to direct the medical care of that child in a non-marriage equality state. To help ensure that this does not happen, you can execute a document authorizing an adult of your choosing to direct the medical care of your child in the event you are unable to do so. Beyond medical care, you can also indicate who you would want to care for your children on a short-term basis with a guardianship document. For example, to ensure your same-sex spouse is allowed to take custody of your children in the event you are admitted to a hospital, you can specify that it is your wish that your spouse act as their short-term guardian, regardless of whether the state recognizes your spouse as your spouse. Without such a document indicating your wishes, the state may hand your children over to your closest blood relative or to the state’s child-protective services.

In the near future, marriage equality may arrive in all 50 states and territories and the current patchwork of marriage equality jurisdictions will merely be a historical map in a Wikipedia entry. If that day comes, the documents listed above do not become irrelevant or even redundant. These documents remain valid and useful regardless of the status of marriage equality. Indeed, opposite-sex couples, both married and unmarried, have long utilized these documents to make prudent plans to protect their families.

Edward S. Garrett is a lawyer practicing family law at Sodoma Law in Charlotte, N.C. Read more about his background and practice here.