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For some purposes, such as with the IRS and federal income estate and gift tax rules, a same sex couple will be considered as married, as long as their marriage is recognized in the jurisdiction where the ceremony and licensing took place, notwithstanding that the couple may live in a state that does not recognize their marriage, such as Florida.
For many purposes, however, a same sex married couple will not be considered as eligible to receive married couple rights if they reside in a state that does not recognize their marriage. An example of this is Medicaid eligibility. Presently the Medicaid statutes do not require the states that administer the Medicaid program to recognize a same sex marriage. The same applies for social security and the Family and Medical Leave Act.
Same sex couples in Florida can use Domestic Partner Agreements to fix their wishes as to property dispositions. Florida does recognize these agreements under the holding in Posik v. Layton, 695 So.2d 759 (Fla. 5th DCA 1997.
Many Florida counties and cities have adopted domestic partnership registration ordinances, which permit same-sex couples to register as a Domestic Partnership:
Broward, Leon, Miami-Dade, Monroe, Orange, Palm Beach, Pinellas, Sarasota, Volusia, Clearwater, Gainesville, Key West, Kissimmee, Miami Beach, Pensacola, Punta Gorda, St. Cloud, St. Petersburg, Tampa, Tavares, and West Palm Beach
1. The ability to visit one another and receive confidential healthcare information from facilities and providers.
2. The ability to make healthcare decisions for one another.
3. The ability to receive information from schools and other educational entities with respect to the education of each other’s children.
4. The ability to have priority to serve as one another’s guardian if ever need be.
5. The ability to make funeral and burial decisions.
In order to register as a Domestic Partnership, each partner must normally be at least eighteen (18) years old, and not be married or in another Domestic Partnership relationship and not related by blood. The parties must normally reside together in a mutual residence. Typically each party must agree to be jointly responsible for each other’s basic food and shelter and for the maintenance and support of the Domestic Partnership. Each partner typically agrees to immediately notify the clerk of court for the county where they reside if the terms of the Domestic Partnership arrangement are no longer applicable. The registration papers are typically required to be signed by both partners in front of two (2) witnesses and a notary. The counties that offer this designation will typically issue a Certificate of Domestic Partnership to confirm the registration of the arrangement. The county ordinances will typically provide for reciprocity so that domestic partners from other counties with similar statutes will bestow the same rights on visiting domestic partners.
Planning for same same-sex partners and domestic partners (Gay and Lesbian couples) in Sarasota and Manatee County Florida can be difficult. It is vitally important that same-sex couples protect themselves and their future by creating a comprehensive estate plan that legally allows them to make decisions for each other when the unexpected occurs. It is important that a same-sex couple living in Sarasota or Manatee County set forth their legal rights in these estate planning documents. These Florida planning documents will help alleviate the strain than can be placed upon same sex families during a time of illness or death. The following is a basic list of each estate planning that every Sarasota or Manatee County Florida same-sex couple and domestic partners should have:
Florida Will and/or Revocable Trust: Without a Florida Will or Florida Revocable Trust, you risk having your assets pass to family members instead of your same sex partner. A Florida Revocable Trust will also keep your affairs private because it avoids probate, unlike a Will, which becomes part of the public record.
Florida Advanced Health-Care Directive: This document appoints an agent, your same sex partner, to make medical decisions on your behalf should you become incapacitated. The Florida documents also provide for visitation, which can be denied unless you're a spouse or family member, in a hospital. In addition, your Florida same sex partner will be empowered under the Health Insurance Portability and Accountability Act to obtain medical information about you.
Florida Durable Power of Attorney for Finances: This document designates your Florida same sex partner as your attorney-in-fact to make financial decisions on your behalf if you are unable.
Florida Domestic Partner Agreement: This document is a living-together or property-sharing agreement. It will spell out each partners responsibilities and which partner gets what in the event of a split or death.
Beneficiaries: Be sure to review your beneficiary designations on retirement accounts, stock options, life insurance and any other assets. You can designate your partner as the beneficiary upon death. Because Florida law does not recognize same sex marriages and relationships it is important to put everything in writing in order to protect your legal rights.
Marc J. Soss, Esquire
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